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What Would Mike Brady Do?

Divorces and non-marital breakups involving children often bring out the worst in everyone. Reasonable people turn jaded, anger takes over, and people often understandably make poor decisions that do not reflect who they really are. Love might make the world go around, and love is better than fear, hate and anger. But psychological studies prove that fear, hate, and anger are much more powerful motivators because they directly invoke survival instincts. They stem from the most pressing "fight or flight" instincts we all have in us.

The problem for a family lawyer arises in proving who is at fault for this that or the other dispute, whether to prove liability for a wasted community asset, or to prove which one would be a better primary parent for the children. First, the answer to "who is at fault" often doesn't matter. The dispute, itself, is often just another symptom of the breakdown of the relationship: highlighting that these two people just should not stay together, anymore.

That is why no-fault divorce is the most common ground: although determining fault is often important for the litigants, arguing over fault in court often is far too often futile and irrelevant.

Nonetheless, proving fault sometimes becomes relevant in attaining a legal goal. There are endless reasons to get into fault beyond just sating a litigant's desire to prove the other side was wrong: ownership of an asset/liability; parenting allocations and responsibilities; fault-based grounds to obtain a disproportionate division of the community estate; and many, many other reasons.

From a legal-strategic standpoint, proving fault in a dispute is often difficult. Judges most often perceive just two unreasonable people bickering, and the better Judges don't try to measure or guess which one is the "more unreasonable" of the two.

So the best advice is to control human nature a bit. When we feel wronged, we often lower ourselves to respond unreasonably in return. Everybody does it, from ridiculous road rage responses to Thanksgiving arguments with family. When confronted with what we perceive to be unreasonable behavior (someone cutting us off in traffic, your uncle saying he proudly voted for [Trump or Obama]), we often do things we normally would never do. But when we do so, we often take care (in our own minds) to not be MORE unreasonable than the first person was. It is human nature. But human nature is not strategic or helpful in these situations.

So I often share a key strategy with my clients to address this problem. Christians often use the adage "What would Jesus do?" But that adage might sound odd coming from a Jewish divorce lawyer, especially to non-religious or ambivalently-religious clients. Fans of South Park know that the kids would often ask "What would Brian Boitano do?" But not everyone is a fan of South Park. For my purposes, I advise my clients that, when they are confronted with unreasonable behavior by the other side, they should take a moment to stop and think, "What would Mike Brady do?" The model "reasonable man" we all know from watching too much television as a kid: Mike Brady.

Would Mike Brady flip someone off in traffic for cutting him off? Of course not. Would Mike Brady call his uncle "evil" for the way in which his uncle voted? Nope. Mike Brady would respond in a way we all would respect. Reasonably and maturely.

Doing so helps level heads prevail. It also gives the other side an opportunity to do the right thing. If they do the right thing, problem solved. And if they do not do the right thing, then we have... evidence. And that demonstrates how to think strategically in a family law case: not in a smarmy, low-brow, Machiavellian way; but in a genuine, kind, and honest way. Not only is it the right thing to do, but doing so can only strengthen your case. Another case of how one can do well by doing the right thing.

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