Navigating a high conflict divorce

1 July 2020

Most divorces involve tensions and a certain amount of conflict. Divorces which are considered ‘high conflict’ are different. In these cases, the experiences and relationship dynamics that existed before the separation - such as controlling or narcissistic behaviour - can result in a divorce which is more destructive, costly and complex. This blog explains some of the common features of high conflict separations and how these difficult circumstances can be approached effectively.

I have helped many clients whose cases I would describe as ‘high conflict’. Each client’s circumstances are unique but there are some common features of high conflict cases. Some of these are illustrated by the following fictional case of John and Judy.

John and Judy have been married for 12 years and they have two children. John is charismatic and charming, particularly to new acquaintances, and Judy is smart and likeable.

Over the years, John’s criticism of Judy - from how she dresses for work to how she cares for the children - has become more frequent and more hurtful. Judy’s confidence has been slowly eroded. If she gets upset, John’s responses are unpredictable: sometimes he says he was just joking; sometimes he denies he said what Judy claims; and on other occasions he might ignore her entirely or shout at her. Over time, Judy has stopped saying anything because she does not know if she really has cause to complain and is worried about how John will respond.

John and Judy both work but he controls the family finances. He makes all the financial decisions with little or no consultation with Judy.  

Judy has spent more time caring for the children than John. She has become increasingly convinced that the children are experiencing the same negative consequences of John’s behaviour that she is. Judy begins to believe that it may be better for the children not to see John. He feels that Judy is trying to drive a wedge between him and the children.

How does a high conflict case arise? 

The relationship dynamics in John and Judy’s case may not seem extreme: they are experiencing  issues which might appear in many marriages and relationships. However, family lawyers used to dealing with high conflict personalities on divorce will quickly recognise the potential for this to be a high conflict case.

Judy may feel that it has taken her a long time to understand the subtle reality of John’s behaviour and the impact it has on her. She may be determined to make sure the children don’t have to deal with the same thing. Judy could come to believe that it is in the children’s best interests for their contact with John to be very limited.

John on the other hand may see himself as a good father who has always been around. He could feel strongly that he should have 50:50 care of his children after separation.  John may not be able to accept what he sees as Judy’s baseless allegations about his behaviour. He is likely to be shocked, hurt and extremely angry if he fears that Judy could be alienating the children from him.

The relationship dynamics that exist between John and Judy, and their inability to empathise with each other, give this the potential to be a high conflict case.

What does a high conflict case look like?

Identifying the potential for a case to be high conflict at an early stage is important. It can have a big impact on how a case might unfold. 

Continuing with the case of John and Judy, common issues in high conflict cases which could arise here include:

  • An erratic approach to engaging with the separation and issues relating to the finances, the children or both. John may refuse to engage at all for a while and then follow this with a period of intense activity, a pattern which can increase legal costs unnecessarily;
  • John may attempt to restrict Judy’s access to funds to meet living costs and legal fees;
  • Judy may feel unable to reach agreement even on minor points without it feeling like a continuation of what she sees as John’s control, increasing tension between them;
  • Lack of willingness to hear or accept the other party’s point of view on the history of the relationship and how this might impact the future, e.g:
    • Judy may refuse to accept John’s contributions to raising the children;
    • John may refuse to consider how Judy feels his behaviour has impacted her mental health.
  • Breaches of agreements or orders, e.g. John may fight hard for time with the children but then fail to spend that time with them if it is agreed.

The importance of strategy and support in high conflict divorces

Clients worried that their divorce might be high conflict should seek to find a family lawyer who specialises in these types of cases. Divorce is emotionally difficult for most people. The additional turmoil and stresses involved in a high conflict divorce mean that it helps to have a lawyer who can recognise what you are facing and come up with a strategy which takes that into account. For example:

  • High conflict cases, like that of John and Judy, may not initially appear to be particularly extreme. Abusive behaviour can be subtle. A lawyer might need to analyse communications and events over the course of years in order to build up a real picture of the issues involved in a case like John and Judy’s. Sometimes it takes this kind of analysis to see that seemingly isolated incidents are actually part of a destructive pattern.
  • One way of combatting erratic engagement by the other party, in this case John, is to issue court proceedings as a kind of backstop. Attempts can still be made to reach agreement more informally but having a court timetable will mean that John is obliged to take certain steps by a particular time. 
  • If engaging in a particular way is aggravating things or encouraging particularly problematic behaviour, other ways of communicating need to be considered. These cases require a dynamic approach.

High conflict divorce cases are often hard fought and it is important that clients are supported by someone who knows what they are facing and how to handle it so that progress can be made. As well as the right legal advice, those who experience a high conflict divorce can often also benefit from the support of therapists and divorce consultants who specialise in these types of issues.

Further information

If you have any questions about the issues raised in this blog, please contact a member of our family and divorce team.

We understand and have developed approaches to support clients wishing to separate from a spouse after a relationship with heightened conflict, controlling and coercive behaviour and/or involving personality disorders (e.g. someone on the narcissistic spectrum). We can also draw on the support of experts in our criminal litigation team, who have experience in dealing with issues which often need to be considered in tandem with family law issues, ranging from the criminal offence of controlling and coercive behaviour to domestic abuse and harassment.

About the author

Cady Pearce is a Senior Associate in the family and divorce team. She works on complex financial cases and difficult cases involving children. Cady specialises in high conflict matters and cases involving personality disorders. Cady is empathetic, robust and works hard to develop strategies that focus on what is most important to her clients.

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