High-conflict divorce is estimated to occur in approximately 15-30 percentage of divorce settlements. As a legal practitioner it is likely that you have had one or two (or maybe more) of these protracted and at times, baffling divorce negotiations on your caseload. If you are a client, you may now be finding yourself in what seems a never-ending round of claim and counter-claims. In either case, you are likely to be scratching your head as you try to work out what it is that is making this particular divorce take so long.
1. Tell me how to change my ex-partner so we can negotiate
When I see my clients they normally come with a thinly veiled agenda: that is to get me to help them change their opposite number’s behaviour. They want me to give them the magic bullet which will suddenly make sense to what they perceive as the ongoing, irrational behaviour of their ex-partner. They are looking for secret, mind techniques to make their divorce negotiations go smoothly. They want the ultimate Play Book.
By the time clients reach me, they have normally been on the divorce treadmill for a couple of years. They have seen specialist coaches of every kind and have read pretty much every book there is. They are knowledgeable on Asperger’s, Narcissism, Personality Disorders, and toxic relationships to name just a few of the topics they have desperately studied hoping to make sense of the insensible. However, what they have unfailing misunderstood in this reading, is the sheer intractability and resistance to change present in all these conditions. They still harbour the belief that if the learn just the right phrase or tactic, then they will open the door to high, quality communication.
So, they come to me still under the mis-guided impression that they can learn how to work around these diagnostic signs and symptoms, and thus reach a fair and reasonable agreement. They are still trying to find the right buttons to press, to get their ex to play nice. Ultimately, they have still not deeply comprehended what they are dealing with.
2. Introducing Party 1: The Covert-aggressive (C-Agg)
Where I start then is by recommending the book by Dr. George K Simon (1996) In Sheep’s Clothing: Understanding and Dealing With Manipulative People. Dr. Simon is an internationally-acclaimed expert on the Psychology of manipulative people, having made understanding this group of individuals his life’s work. In his easy-to-read, exquisitely practical book, Simon explains the nature of individuals with Covert-Aggression (C-Aggs). Covert-Aggression per se can be summed up relatively easily as a disorder of character.
What that translates to in practical terms, is a cluster of disorders which become visible when repeated and intractable behaviours are considered in relation to societal norms and standards.
Salient behavioural features in the presentation of a C-Agg, include:
- a total disregard of societal norms. Whilst this group of individuals is fully aware of what society expects of them, they simply choose to ignore the relevance of these requirements to themselves.
- a lack of regard for honesty and truth-telling (whilst oddly, often demanding a ludicrously high degree of rectitude in those around them). Either by omission or commission C-Agg individuals will lie without compunction.
- a lack of any demonstration of guilt or shame for transgressions.
- a deep-rooted, unrelenting desire to ‘win at all’ costs.
In addition, these individuals may also have features of Personality Disorders, shown as narcissistic arrogance, sadistic enjoyment in inflicting pain on others (physical, psychological or emotional) or psychopathic disregard for other’s as sentient beings. They are then a decidedly difficult group of people to work with.
3. Tactics of the C-Agg
When we think about domestic violence, we think about the sensational: the cuts, the bruises, the broken jaws, the tragic deaths. However, it is a good idea to think about domestic violence as an iceberg. Like with the iceberg, there are the behaviours which are literally visible. However, we also know that three quarters of what is going on is hidden and it is these techniques and tactics which you ultimately need to understand in order to make sense of what is going on in the relational dynamic.
Isolation – to maintain control over another person it is vitally important that they have little intimate others to confide in or seek social support from. The C-Agg knows this and will hijack the Victim’s social circle. It can be done on a sliding scale ranging from the relatively easy tactic of having an obvious bad mood that makes attendance at social event socially embarrassing to full out physical assault for leaving the house.
Destruction of a person’s character – there will be a relentless attack on the person’s character, beliefs, and self-efficacy. The C-Agg will search for any means to devalue and denigrate their Victim. Attacks may be about their intelligence, physical appearance, family, parenting, sex life – essentially anything that the perpetrator recognises as hurtful and undermining. Psychological pain is intentionally sought.
Re-writing a person’s reality – the C-Agg is a supremely talented liar and this can be done either through omission (not sharing the truth) and/or commission (complete fabrication). A C-Agg has absolutely no guilt or shame in regard to untruth or untruthful behaviour. They can literally turn a Victim’s sense of reality on its head. They have learnt that the best defence against being caught in a lie, is just to stand by your lie. Even in the light of undisputable proof, they are so comfortable with lying they will quickly create a plausible excuse or counter interpretation for events.
Lack of responsibility – a C-Agg will determinedly refuse to accept culpability for anything that goes wrong. They will frequently blame others, play victim, and use distraction for example, simply refusing to acknowledge the topic to be discussed. They do not use these tactics as would be traditionally understood, to avoid social censure, but instead they mobilise these methods as a highly engrained psychological arsenal with which to pull off an expert sleight of hand. The aim is to get the Victim to be looking in the wrong direction – generally at their own behaviour as opposed to the C-Aggs.
Leverage – if the C-Agg has sadistic tendencies they will seek additional psychological weapons to control and terrify. These commonly centre on children, finance, and abandonment. A C-Agg may threaten that any children that are within the relationship will be harmed or removed by social services due to the Victim’s inadequate parenting. Money and access to it will be controlled, and the Victim will be told they will be destitute if they exit the relationship. Finally, the C-Agg will frequently threaten to abandon the Victim, often threatening that they will leave the Victim to pursue a new sexual rival.
4. Introducing Party 2 – The Victim
The result of these behaviours on the victimised individual’s psychological functioning is devastating. It cannot be underestimated how much damage has been inflicted throughout the course of the relationship, nor how much strength it has taken for the individual to exit this relationship.
This individual has been repeatedly told that are worthless, useless, and incapable of independent functioning. They have often become habituated to living in a heightened state of autonomic state of arousal, i.e. they are terrified. It has often become so every-day for them to be frightened, that now they do not even register they are experiencing fear.
For legal professionals working with these clients, it is imperative that they recognise the impact on ongoing and continuing global anxiety as it has catastrophic effects on your client’s neurological executive functions. That is, their ability to: attend to what you are saying, process the information you provide, analyse options available, problem-solve every day living activities and remember instructions. Essentially when dealing with a client exiting a destructive relationship, you are dealing with a psychologically compromised individual. The fact that they have been traumatised, denigrated, and controlled over a prolonged period of time cannot be simply dismissed. They are in need of special consideration and support in making sense of the divorce process.
5. What makes a divorce high conflict? Get rid of your assumptions.
I suspect by this point, you are being to suspect that a high-conflict divorce is not the product of the divorce process nor is it specific to the dynamics of the ‘couple’. But is in many, if not all cases, as a result of having one party, who is an incredibly difficult, controlling individual and one party, who is highly vulnerable and is presently, profoundly under-resourced and psychologically compromised.
However, in addition to the psychological make-up of the parties involved, there are some additional societal issues, in particular two deep rooted, norms embedded within the legal system which must be highlighted and in some ways disposed of, in order to truly understand the underlying incomprehensibility of high-conflict divorces. These beliefs are so assumed that they operate without any acknowledgement of their presence.
The first is that the needs of any children from the relationship will be put to the fore-front and protected above all else. The second is that divorce negotiations are undertaken to reach a reasonable agreement in as short a time as possible (especially if there are children involved). However, taking into consideration what we now know about C-Agg, we can see that in fact in the case of individuals with these character disorders, these are truly disastrous assumptions too make.
The idea that children are important, and their welfare is paramount, is a social construct and rule. As we have read, C-Agg individuals do not view themselves as bound by these rules; they know the rules, they simply chose to ignore them. Do not be fooled into believing that these individuals are mistaken or do not understand what is required of them – this is simply not the case. Instead C-Agg individuals simply reject this social reasoning. For them, children in this context are often used by this party merely as a means to prolong the ‘game’, inflict additional distress on their ex, and are part of an overall strategy of winning-at-all costs.
Because these individuals are all about winning, they have little interest in time or cost or how they are being viewed by others. What they want is simple: they want to fight until they win, and their partner loses. They will do pretty much anything, no matter how seemingly illogical to achieve this. And so, to assume that a quick resolution is sought by all, is in this context, a dangerous assumption to make.
6. Count the Pennies
This brings us then to the last point, money. Money ultimately what dictates strategy in a high conflict divorce. There are 4 potential scenarios. Two are of greater interest, but to be comprehensive we will consider the lesser of the possibilities first: the C-Agg has money and the Victim has money or the C-Agg has no money and the Victim has no money.
In the case of the Victim being relatively financial stability, settlement is likely to occur relatively quickly mainly because the Victim can afford to end the process as quickly as possible. They will often accept a lesser settlement just to end the nightmare. In the case of neither party having money, the C-Agg is likely to settle.
However, in both cases the important issue is whether there is continual contact. If contact can be severed, then peace will reign, however if there is contact, the C-Agg will undoubtedly move the battle to a different front, such as, childcare arrangements. Remember their aim is to win and they will fight till they perceive they have won. So much for these comparatively quick and easy scenarios.
The next scenario is the C-Agg has no money and the Victim is financially stable. This is more typically seen in female C-Aggs, with male Victims. This will be shown in repeated returns to Court for ever increasing settlement amounts, even when a reasonable and fair settlement has been offered. Again, the same dynamics are in play, these individuals will fight well beyond the need to fight as they are driven by the desire to win-at-all costs. They desire to see the other party destitute.
The last scenario which is by far the most common is a financially stable male C-Agg and a financially vulnerable female Victim. Often the woman has been actively encouraged to become financially dependent on the male and as we have read, the male uses this financial dependence as a form of control. The C-Agg is therefore able to prolong Court proceedings as long as possible, as they are not negatively, financially impacted.
If this describes your client (or is in fact you) the first thing that needs to be advised is to make sure there is an available, reasonable, liveable income. Clients cannot and should not await settlement. To do so is to face financial ruin.
The C-Agg will quite simply fight over every single penny and will not be constrained by sentiment, parental consideration, or ideals of fairness. The C-Agg does not perceive that the divorce process is about reaching a reasonable settlement, rather it is about making sure the other side loses. If a victimised client is led to believe that settlement will be reached quickly, then the harsh reality is, they will face financial ruin before the Court rules.
Make no mistake, the mind-set of the C-Agg is not one of negotiation. They will only reach an agreement if forced to do so by the Court. They will not tire, they will not turn aside, they will not deviate from their central motivation to win-at-all costs. The sooner clients and representing Counsel understand this, the better.
The only feasible strategy in this particular scenario is to petition the Court that the C-Agg makes full financial disclosure as soon as is possible and with this information, to request that ruling is made as soon as is legally possible on a reasonable settlement. This is especially true if children are involved as their welfare will be undermined if settlement is delayed due to repeated, futile attempts being made to negotiate.
High-conflict divorces are problematic for everyone involved, that is, with the exception of the cause of the issues, the Covert-Aggressive individual. It must be accepted from the outset that the C-Agg is a knowingly difficult individual, who is determined to win no matter the cost. Make no mistake C-Agg individuals are well-aware of the impact of their behaviours on others, they simply choose to ignore them. Do not make the error of believing they are acting unwittingly, they are not.
It is essential that clients and professionals involved in these types of cases firstly truly acknowledge what they are dealing, so they don’t waste their time trying to explain or justify legal argument. Save it for the Court. C-Aggs thrive on dissimilation and there is little point in wasting energy, time, and money on explanation; you are simply being distracted by them from the greater task – reaching a settlement.
If you a legal professional reading this, I advise you concentrate on educating your client as to what the dynamic at play is. If need be, find appropriate services to support and enable these individuals to make sense of their experiences and plan for a future when the divorce process is over. Be aware that the confusion and frustration that the C-Agg’s seemingly incomprehensible behaviour is causing you professionally, is what your client has been living with day in day out, often for years – it has caused a great deal of psychological damage. Your client’s suffering has been very real, and they are looking to you to advise them how to end this situation as cleanly as possible.
If you are reading this and have begun to recognise yourself in the Victim role, I advise you to seek appropriate support as quickly as possible. You cannot minimise the situation you find yourself in. You cannot under-estimated the toll that your relationship has taken on you, nor can you under-estimated how much the divorce process will take from you. However, with high-quality support you can get through this and you can move on to a happy, successful life. Undoubtedly you have some very real work ahead of you to build your confidence, skill set and safety, but without doubt you have the capacity to do so, as you have already made the first most difficult step by moving into the unknown, to continue on this path and make good choices it is vital you fully accept what you are up against.
Written for and published in the FamilyBlawg 5th October 2020