DIVORCE IS WAR
By: Michael Kelly, Santa Monica, California, November 2009
In writings covering more than a thousand years, both Sun Tzu and Carl Von Clausewitz have taught the principles and strategies necessary to win conflicts.
Divorce is most definitely a conflict.
There is no legal confrontation in America today with more at stake for the individual participants than a divorce. Some of the things that are at stake are as follows:
1) The children: Who gets primary custody of them, how much support do they receive, what are the visitation periods, what state or county will they live in, what school will they be educated in, what will their religion be, etc.
2) The family residence: Who gets it, is it sold, what is its evaluation, can the operating spouse afford to buy it?
3) The family business: Who gets it, what is its value and should it be sold?
4) The pension: Should it be divided now, who gets it, and what is its value?
5) Spousal support: Who gets it, how much will it be, how long will it last, and can the person receiving it be forced to work to reduce the amount that is received? Can the person paying support have a life also?
Any person who thinks that these items are not the most hotly contested issues in a human being's life should visit a California divorce court for one day and experience the anger, fear, and intensity that fill the courtroom and halls.
Divorce is not for the weak of heart, the inexperienced, the unorganized, or the single practitioner.
CARL VON CLAUSEWITZ
Carl Von Clausewitz wrote a book entitled, "On War", 179 years ago.
This book written in 1832, outlines the same strategic principles behind all successful lawyers and litigation concepts.
Carl Von Clausewitz had keen insights on war. His ideas and principles have lasted more than a century. West Point, Sandhurst, and numerous other war colleges around the world teach his ideas.
Carl Von Clausewitz stated that war is based on two characteristics: tactics and strategies.
Think for a moment if divorce were actually a war. One of the main things that must come out of a legal case memorandum ("battle plan") will be observations (such as a list of the weaknesses and strengths of opposing counsel).
Successful legal case memorandum and strategies must be planned exactly like a military campaign.
Los Angeles divorce lawyers will have to learn how to attack and flank their opposition, how to defend their own positions, and how and when to wage conventional warfare or switch to guerilla warfare. They will need superior research and intelligence to anticipate opposing counsel's or opposing spouse's moves.
The true nature of divorce involves a conflict between competing primal interests of human beings. Who gets the house? Who gets the children? How much money to whom?
"WHY VIEW DIVORCE AS PERSONAL CONFLICT AND WARFARE?"
Some psychologists and some judicial officers will object to the application of military warfare principles to the divorce process. "It is horrible enough," people have told us, "without extending the principles of warfare to it." If you are of the that particular frame of mind, I urge you to consider the results of the warfare principle rather than the principle itself.
In observing thousands of divorces cases in the past four decades I suggest that many of the disastrous financial and psychological losses registered in divorces might have been avoided by the applications of the principles of war.
The study of warfare in divorce is not just the study of how to win; it is absolutely just as important to study how not to lose a divorce.
Divorce is legal warfare.
If you are forced to be in divorce, it makes some significant sense to learn the principles first.
THE PRINCIPLE OF FORCE
"KEEP THE FORCES CONCENTRATED IN AN OVER POWERING MASS, THE FUNDAMENTAL IDEA IS ALWAYS TO BE AIMED AT AND FOR ALL AND AS FAR AS POSSIBLE."
In divorce, never forget what Von Clausewitz calls "the principle of force". The victory usually belongs to the side with more men. "As God", Napoleon Bonaparte is believed to have said, "is on the side of the big battalions".
The second significant principle of warfare espoused by Von Clausewitz, is the "superiority of the defense." A defensive position, carefully thought out, and strategized, is very strong and very difficult to overcome.
When you examine it no other principle of life and warfare is as fundamental as the principle of force. The law of the jungle dictates that the predator eats the prey and so on... The larger fish eats the smaller fish... And so on down the food chain.
The big company beats the small company, and, in divorce, most often the large, well-organized divorce firm beats the single lawyer.
When you look at the arithmetic of a fire fight it is relatively simple to see why the larger organization wins. Assume that green squad with 9 soldiers meets the white squad with six soldiers. Green has 50% numerical superiority over the white, or 9 versus 6.
Let's say one out of every three shots fired by both green and white will inflict a casualty.
After the first volley the situation will have changed dramatically. Instead of a 9 - 6 advantage, green would have a 7 - 3 advantage. A 50% superiority in force has now changed to more than 100% superiority. The same disastrous multiplication effect continues with the passage of time.
After the second volley, the troops left would be 6 -1 in favor of green. After the third volley, white would be wiped out completely. Please notice how the fatalities were divided between the two sides. Superior force "green" suffered only half the casualties of the inferior force "white".
In real life - in divorce - it is exactly the same.
There is no secret why the Allies won World War II in Europe.
Where Germany had two soldiers, we had four...where they had four soldiers, we had eight. No one disputes the skill and effectiveness of German soldiers, particularly given the war-like capacity and strategy of a people (German) who practically invented modern warfare.
Superior generals simply could not change the mathematics of the battle ground any more than could white change the superiority of green in the previous illustration.
Numbers and forces are so crucially important, that all military services have an intelligence branch known as the Order of Battle. It informs generals of the size, location, and nature of the opposing force.
When two law firms go head-to-head in a California divorce or family law case, the same principle applies. I quote Napoleon again, "God smiles on the side of big battalions."
The larger organization will almost invariably win.
There is a fallacy in a California divorce called "the better lawyer wins." I say, "Only sometimes".
A superiority of force, numbers, and organization is such an overwhelming advantage that it very often overcomes most quality differences. The worst team in the NFL could usually beat the best team in the NFL if it were to field fourteen men against the opposition's eleven.
Don't plan on winning a divorce war with only superior people.
You need to plan on winning it with superior organization and superior strategy while delivering the case to the judicial officer in better condition and in more organized fashion than the opposing counsel.
Some of the most successful divorce lawyers in the country limit their caseload to ten or twenty divorces and charge a great deal of money for managing those ten or twenty divorce cases.
But, they are almost always successful because they are handling the case against another single practitioner with seventy, eighty, or ninety cases who cannot afford to put the time, effort, and concentration on his ninety cases that the other lawyer is placing on only twentycases.
THE SUPERIORITY OF DEFENSE
The second principle of Von Clausewitz, is the "superiority of defense".
The defensive part of war or divorce, is in itself stronger than the offense.
The basic rule of thumb in warfare is that a successful attacking force must have a superiority of at least three troops to one, at the point of the attack.
The arithmetic of the defensive fighter fighting in an open field (as was shown in the green and white illustration), in a fire fight between two squads is rapidly decided in favor of the larger unit. Let us analyze the mathematics in the situation with the same numbers as before.
A green commander with a force of nine soldiers meets a white commander with a force of six soldiers. In this illustration, though the white force is in the defensive position such as a bunker or a trench.
For the white soldier the odds will be the same as in the prior situation when one of three shots will hit the green attacker.
The deadly change in the illustration are the odds that a green soldier will be able to hit one of the white soldiers, now in a strong defensive position: the odds now are only one out of nine shots instead of one out of three.
After the first volley, the green force still out numbers the white but only by a margin of 7 - 5 after the second volley the margin is further reduced to 5 - 4 after the third volley the forces are equal at 4 - 4.
Green started out the attack with 50% superiority in numbers, but now, after three volleys, it is even.
As long as military history has been recorded, excellent defense has proven to be the superior form of warfare.
In Korea, America won in the South on defense and lost in the North in offense. In colonial times, England lost in the colonies on offense and beat Napoleon at Waterloo on defense.
In the NFL the defense wins football games.
In divorce, whomever is in the house needs merely to defend it - in legal terms, it is called "status quo."
The easier thing for a judicial officer to do, is rule to keep the status quo.
The spouse who owns the business and the spouse who is working the business, usually keeps the business.
This also provides that person with a superior position when the court is forced to decide who gets it and how much it is worth.
The parent who has the children at the start of a divorce conflict will almost always have them at the end of it.
The children then become the possessing parent's prize to lose, not the nonpossessing parent's prize to win.
Defense prevails.
All the possessing parent needs to do is defend his or her position by doing an acceptable job of parenting with the children versus the other parent's position.
The attacker in a divorce case must spend far more money in order to dislodge an already existing position and the person with the existing position needs to spend less in order to keep it.
The attacker must always spend far more money and time.
The largest analytical error in divorce that people make, is failing to appreciate the strength of a defensive position. In thousands and thousands of cases, failing to appreciate the strength of a defensive position did not have to be the major reason for those losses.
One spouse, although having ample warnings of the opposing spouse's attitudes and plans, heard those warnings and failed to heed the caution of his/her attorneys.
In "Mein Kampf," a book that sold some ten million copies, the evil dictator Adolf Hitler told England and France exactly what he intended to do.
A decade later he did it. You will find that this is true in divorce also.
Spouses usually directly speak or write what they are going to do in the divorce, how they are going to do it, and why. Unfortunately, clients generally fail to heed the warnings of their Los Angeles divorce lawyer.
One of the most tragic statements that I ever hear from a client is, "I know my spouse, I understand him/her, I have been living with him/her for twenty years."
The truth is that divorce creates a brand new person.
A spouse changes to a person who is somewhat mentally deranged and more importantly, someone who has absolutely opposite goals of those of his/her partner.
There has never been a contested divorce where one side tried to figure out how much more child or spousal support they were going to give to the other spouse or how cheaply they could sell the house, or how high a value they could put on the business they were operating in order to pay more to the spouse with whom they are no longer living with.
In divorce, spouses are lulled to sleep by past years of intimate physical contact, joint child rearing, Thanksgiving, Christmas, Easter, and other family traditions and rituals. They fail to realize that in a divorce their spouse has a brand new advisor, who is usually in it for his/her own best interest.
This is further compounded by psychological denial, which is a normal stage for people going through a major crisis.
Denial means a failure to assess the true nature of the difficult event of divorce that is happening at the moment. This usually puts the client at odds with the cautions and warnings their California family lawyer is providing.
One of the most disastrous statements that a client makes to an attorney is, "This is my divorce, and I'll run it."
This is much akin to a privately (with no experience in a battle) telling the general about tactics and strategies that are among the most complex in existence, or a patient trying to tell a brain surgeon what to do and how to do it when performing surgery on him.
THE PRINCIPLES OF GUERRILLA WARFARE
IN A CALIFORNIA DIVORCE
1. Find areas of your case that are small enough to defend easily.
2. No matter how successful you are in a divorce, nor how many issues you win, never ever act like you are winning.
3. Be prepared to change your strategy at a moment's notice.
4. A quick change in tactical position may save that position for use at another time in the divorce.
CARL VAN CLAUSEWITZ
"WE FALL INTO ERROR IF WE ATTRIBUTE TO STRATEGY A POWER INDEPENDENT OF TACTICAL RESULTS."
The general who neglects the study of tactics and the development of a winning strategy often is too sensitive to tactics once the battle is joined.
Soundly conceived strategy should direct the tactics once the battle is started, not the other way around.
Von Clausewitz was quick to dismiss the idea that the taking of a certain geographic point or the occupation of an undefended city meant anything unless it contributed to the operation as a whole.
This is also true in divorce.
Small wins that do not contribute to the overall tactical direction of the divorce case are meaningless, and although they may feel good temporarily, they do nothing to achieve the over all win.
A divorce strategy should have a single point of attack at almost all times.
There is an axiom of physics which states that for every action there is an equal, but opposite, reaction. Nothing could be more accurate than that statement in a divorce confrontation. One must be careful not to be blindsided.
Any action that a Los Angeles divorce attorney takes, or intends to take, cannot be different from the strategy that the action is based upon. The action is the strategy. Strategy also dictates tactics.
An essential point in understanding the successful prosecution of a California divorce, is from another one of Von Clausewitz's observations about war:
"A great part of the information obtained in a war is contradictory, a still greater part is false, and by far the greatest part is of doubtful character."
In the fog of a divorce action, it is all too easy to apply the tried and true strategies that have worked in the past. This approach is the height of recklessness. At times this attitude is mistaken for strength.
"He has the courage of his convictions', is a typical misjudgment.
A rigid and inflexible attitude is a sign of weakness in a general and not one of strength.
Much meaningless posturing goes on in divorce wars.
Good divorce strategy has no built-in bias.
A good Los Angeles divorce lawyer will seriously consider all of the alternatives and listen to all of the points of view before making a decision on the necessary tactics or strategy.
It is flexibility of mind (that most Califnria divorce attorneys don't have), that can unbalance the other side. Almost all divorce lawyers follow the rigid battle plan or processing plan that they have followed in divorce previously. That is tactical suicide.
One must also view the legal process in divorce as being extremely difficult, dangerous, and most important of all, very final.
If one can imagine his/her divorce akin to a baseball game with very unique rules. An individual has one time at bat -one at bat per game - you get only one out and one strike and you're finished. There are no other rules.
When you are out, you will lose your life.
Divorce has a series of consequences for people.
Many times parties are in the denial stage which I have referred to previously. They hold a naive opinion that in their divorce they can work it out and that the spouse will come to their senses.
They remember the old relationship and trust the spouse to do the right thing. That assumption is true in a small percentage of all of the cases that occur. In the other cases people assert their own best interest above that of their soon to be ex-spouse.
An individual going through a divorce fails to recognize the enormous change that occurs when the spouse gets a new boyfriend or girlfriend, and then has the new relationship's best interest and agenda in mind.
Once friendly in-laws assert their parental concern for their child and a usually one-sided view of who is at fault. Ex-fathers-in-law almost always financially and emotionally support their child, a.k.a. your opponent and ex-spouse. They pay for legal fees and expert fees in order to assert their child's best interest. Nothing could be more natural.
To paraphrase the expression, "Guns don't kill people, people kill people." I say that "lawyers don't make divorces terrible, divorcing people do."
One of the most irresponsible things that divorcing people ever do, is to say to their spouse, "I'm doing it because my lawyer told me to do it."
This simply stops the individual from being responsible for the effects that they are creating in life and puts the blame on someone else.
One of the most obvious things to all California divorce lawyers' is that we work for the client and within ethical bounds execute the wishes of the client.
It only takes one person to make a divorce terrible. One lawyer can have a personality defect. One individual can have hatred for the other and utilize the divorce process to punish them for past threats, physical abuse, drug or alcohol abuse, or affairs with a member of the opposite sex.
If none of the foregoing are operative in a divorce, then the divorce processing of it can become much easier.
The reason this comparison utilizing Von Clausewitz's On War was done, was to put the confrontation of divorce in a perspective that may communicate the sense of urgency and severity that exists in a divorce case to its participants.
Human beings are not normally trained or attuned to the divorce process.
Humans are not in any way designed or trained to be in confrontations. People also have no ability to accurately gauge the consequences of their failure to engage in the divorce in a manner that will protect their rights (that the opposing spouse is usually actively trying to reduce).
In turn, the financial and emotional consequences of avoiding active engagement in one's divorce are so enormous that it would be incomprehensible to the average human being.
Reduced pension rights, significantly reduced contact with children, increased financial responsibility with children, significantly reduced lifestyle, loss of a home and available, long-term finances, are all affected by the divorce.
To the individual paying child and spousal support, the effect is usually the complete inability to build any savings, or have any money to put into a pension plan that would reduce taxes, or to have enough money to continue the lifestyle one had prior to marriage.
GUERILLA TACTICS
China in the 1930's & 1940's against Japan...Cuba in the 1950's as Fidel Castro ousted the dictator Bautista...Vietnam, where the strongest military power in history, the United States, was defeated. History teaches the power of a guerilla movement. In divorce, of course, the same is true.
A guerilla attack may occur at an unexpected area in the divorce case.
A typical guerilla attack at an unexpected time in a California divorce can include an order shortening time for a court hearing to freeze bank accounts, to move someone out of a house, to attempt to get custody of the children, and to put a keeper in the business, etc.
Guerilla warfare is one of the ways to use a flanking movement and go around a strongly held defensive position, such as the Germans did with the French Maginot Line in World War I and as the Japanese did at Corregidor, in the Philippines. Large guns were pointing out to sea and they were immoveable.
The Japanese simply attacked through the jungle, through what was thought to be an inaccessible jungle and swamp, from the rear and easily took the position. One of the important principles in guerilla warfare is that the guerilla force be prepared to use attack tactics or disengage immediately.
"WE FALL INTO ERROR IF WE ATTRIBUTE TO STRATEGY OF POWER INDEPENDENT OF TACTICAL RESULTS."
CARL VAN CLAUSEWITZ
Strategy follows tactics.
As form should follow function, strategy should always follow tactic. The achievement of tactical results is the only goal of any strategy. It is the ultimate result. If a strategy doesn't contribute to tactical results, the strategy is nonfunctional no matter how brilliantly it was conceived. Strategy should be developed from the bottom up, not from the top down.
One of the other things that Von Clausewitz says is, "only a general with an inordinantly deep, intimate knowledge of what happens on the battlefield is in a position to develop effective strategy judgment."
This is also true in divorce warfare.
It takes a divorce counsel with many years of experience (normally 15 to 25) to develop an effective strategy because he/she must be able to anticipate all of the counter moves made by an opposing counsel.
The objective of a grand strategy is to make the confrontation effective on a tactical level. There is no other purpose. In military operations the objective of any master plan is to have two solders ready, willing and able to fight at a place and at a moment's notice, whereas the enemy only has one soldier.
It is to facilitate the application of the principle of force on a tactical level. Any grand strategy that does not put troops in the field at exactly the right time and place to accomplish the job is an abysmal failure.
Any grand strategy in a California divorce that does not put the maximum amount of force at exactly the right time to confront the opposition is not helpful.
There is no such thing as a bad strategy or a good strategy, any more than there is a good wind or bad wind in sailing. They just are. Strategies have no inherent merit in and of themselves.
Strategies be must fluid.
Von Clausewitz knew what war was like, because he had experienced it.
He was in Vienna when he was captured by the French. He was at Dino, the site of the massive confrontation between the armies of Napoleon and the armies of the Czar. He was at Berezina River one of the blackest sites in the history of war, where thousands of French were trampled under the horses.
He was at Waterloo. His phenomenal strategic concepts were developed from practical experience. Von Clausewitz knew the importance of victory because he had tasted the bitterness of defeat so often in his career.
All great military strategists have followed the same pattern; they learn strategy by first learning the tactics of warfare. This is also true of excellent divorce lawyers. Strategy follows tactics.
Excellent California divorce lawyers hate to lose.
Quoting General Patton, "One does not plan and then try to make the circumstances fit those plans. One tries to make plans to fit the circumstances."
I think that the difference between success and failure in high command depends on the ability or the lack of it to do just that. Again to quote Patton, "The enemy's rear is a happy hunting ground for armor." "Use every means to get it there."
To quote Von Clausewitz on situations where the odds are strongly against you, "The more hopeless the situation, the more everything presses toward one single desperate blow." Japan at Pearl Harbor is an example.
There should be a single point of attack in a divorce case, using what I call the fulcrum or the "trim tab". In one of the lectures I attended to hear the great genius Buckminster Fuller, he introduced the trim tab principle.
This has stuck with me all my life. Fuller said that an ocean liner that weighs one hundred thousand tons or two million pounds is ultimately turned by the rudder, and the rudder has a very, very small moveable part called the trim tab.
The trim tab is moved, which in turn moves the rudder, which in turn moves two million pounds of steel plowing through the ocean at twenty-five miles an hour.
Divorces almost always have some overriding trim tab;
vulnerable points which, when found and operated on, will cause circumstances in the divorce to change dramatically, even to the point of settlement.
Human beings are not trained for confrontation or conflict. This is more true of women than men. But my experience has been that men are nowhere near as deadly in divorce as women.
This is because women are clearer from the beginning that this an elemental conflict, and that whatever they get in the divorce is all that they will get for that moment in their life.
Men on the other hand, are usually clearer that they can replace their losses through their earning capacity or entrepreneurship. Women are just as clear that this is not true.
Further, women are battling for home and children...home, children, and their very life. We lost Vietnam for that same reason.
Castro in Cuba was really successful for that very reason. I do not minimize the intensity with which women approach divorce. In a divorce, once the panic and denial leaves, women are deadly, deadly adversaries.
In cases where two mature parties are involved, the aforementioned strategy and observations do not count. I believe that speaking to any psychologist or divorce attorney would indicate that a small percentage of all of the divorces in the country fall into the mediation category.
All of the rest, or more than 99%, of the divorces fall to various degrees of significant confrontation over varying issues such as: child custody, spousal/child support, house, business and/or pension appraisal, etc.
The purpose of this document is to assist people in identifying the degree of conflict that they have in their case, and the degree to which it can be resolved.
By Michael Kelly
