You may not have known it was called a scorched earth divorce, but you’ve probably seen it in action — in movies, TV shows, and in the tabloids — that nasty, long-drawn-out, and expensive divorce where one spouse is hellbent on destroying the other, no matter the cost.
It’s a shame, too, because those costs can be high and not always obvious, which is the topic of this article. So, if you’re considering a scorched earth divorce as your legal strategy, consider the following costs it can have first, and think about reconsidering your approach.
The Financial Toll of a Scorched-Earth Divorce
Fighting over every penny when dividing assets can backfire. Not only will you likely not get what you want the most because it’s rare for one spouse in a divorce to get everything, but you will also drain your assets as you pay higher-than-necessary legal fees.
Apart from losing assets in a divorce to the other party by demonstrating sheer greed and diminishing your assets to pay for legal fees, you may experience lost income should your divorce interfere with your ability to work.
Yes, that happens. Scorched earth divorces tend to lead people into making stupid choices that ultimately interfere with their livelihood or, at a minimum, make it difficult to concentrate at work. This can lead to poor performance or mental health issues that impede a person’s ability to focus and, depending on the role, lead to joblessness.
When there’s joblessness, particularly that resulting from a poorly managed divorce igniting everything in its path, it can create or exacerbate other issues for the entire family. Issues you and everyone involved may not be so quickly or easily able to rebound from.
The Emotional and Psychological Damage of a Scorched Earth Divorce
Apart from a monetary toll, a scorched earth divorce can have a significant impact on mental health, as alluded to above. Stress and anxiety usually become constant states of being, which result in long-term emotional exhaustion. In turn, long-term emotional exhaustion can lead to problems with physical health, the onset of disease, and, in severe cases, death. And that’s just you.
If you’re engaged in a scorched earth divorce, you probably aren’t so worried about your spouse encountering these same issues, but you should be. This is especially so if you share children. In the moment, it can seem appealing if your spouse were out of your and your children’s lives, but if they were, you would find yourself facing life as a single parent, which is not an easy path for most people.
The Kids
Speaking of children, how do you think they will fare in a scorched-earth divorce, watching one of their parents trying to obliterate the other? A high-conflict divorce affects kids’ well-being in some of the same ways it can affect adults, especially in terms of emotional and physical health.
A scorched-earth divorce can also damage co-parenting dynamics, relationships with extended family, and relationships with family friends or even neighborhood acquaintances who might decide to take sides. If these individuals were close to your children, too, this could leave them feeling isolated and alone due to those losses in their lives.
Legal Consequences of All-Out War
In addition to the financial, psychological, and emotional damage caused by a scorched-earth divorce, there can also be legal consequences. As mentioned earlier, the most obvious are unintended outcomes.
When you fight without thinking about what could happen and demonstrate that you will not work with your spouse, you will eventually lose control of your case. The court will take over, and a judge will be in charge of all decision-making. This could lead to decisions you weren’t anticipating and don’t want.
By working with your spouse, including using a mediator to resolve sticking points in your divorce, you retain control. You and your spouse call the shots, not a judge who doesn’t know you or your situation and will only have a limited time to acquaint themselves with your case’s myriad details.
Court Appearances Resulting From a Scorched Earth Approach
Going to court, incidentally, isn’t fun for most people. It’s expensive for one thing and a gamble, as already discussed. But what you might not realize yet is how emotionally draining court appearances can be. It’s stressful to stand before a judge, explain why you said or did what you did, and then face the music.
If a judge sees you and your spouse too often and gets to know you, but not in a good way, this could cause what’s known as judicial fatigue. Excessive conflict, even when caused by one party almost entirely, usually ends up penalizing both parties. The idea is not to get to court but to stay out of it if you can. Judges want to see that you’ve made efforts before going to court to resolve your issues and reach a settlement.
This extends to enforcement challenges. Judges won’t be happy to hear that you’re not complying with an agreement, whether during your divorce or after it. The agreements you make during and after a divorce are legally binding. So, if a judge is asked to enforce an agreement because a spouse is refusing to comply, and worse, if they see this happening repeatedly, the result often won’t be what you’re looking for, particularly if you’re the person causing trouble.
Why Some People Choose a Scorched Earth Divorce
It’s pretty plain to see that using a scorched earth strategy in divorce might not be the best option, leaving you wondering why people use it. There are a few reasons.
The first is revenge and resentment, which can be quite dangerous because when this happens, your emotions are leading the charge. You’re thinking with your heart, not your head, and this generally leads to making poor decisions, decisions that don’t take account of the consequences of your actions.
The second is bad advice or misinformation. You may come across an attorney who will say that a scorched earth approach is effective. Or a friend who said this approach worked for them. But these would be exceptions, not the rule. In general, if you’re looking to spend more but not get the outcome you desire, a scorched earth approach is the way to go.
The final reason for taking a scorched earth approach to divorce is that you think it will prevent you from losing control, a sentiment driven by fear. High-conflict individuals and narcissists struggle with losing control. But the truth is, a scorched earth approach, more often than not, leads to the person initiating it losing control once they force a judge’s hand to take over.
How to Protect Yourself From a Scorched Earth Divorce
Even if your high-conflict spouse is going this route, you can prevent yourself from being sucked into a scorched-earth divorce. The best way is to pick and choose your battles. This means you need to understand when to fight and when to compromise. Not everything deserves your attention. You may “let” them win on certain points, but when you do and are able to move forward with your divorce and onto more important issues, you’re actually winning.
The second way to protect yourself in a scorched earth divorce is to keep your eye on the prize: your long-term goals and stability. Yes, you want to make sure you’re protected in the short term, but don’t forget about the years that come after divorce, which should far exceed the length of the divorce process and the time right after.
Finally, utilize alternative dispute resolution, such as mediation, to avoid the courtroom until you absolutely can’t. A high-conflict spouse who wants to fight won’t find mediation appealing, but stay the course and get as much as you can resolved by mutual agreement. A trained mediator should have the skills to manage a high-conflict personality, keeping you in control of your divorce.
A scorched earth divorce isn’t as fun in real life as it looks on the screen when actors are the ones going through it, and then you get to go about your day. Not to mention, what you know about your neighbor or your friend’s divorce comes down to what they tell you.
