Preventing the Nuclear Option of Divorce Litigation

Divorce litigation is the "nuclear option" when it comes to divorce processes — it's hostile, adversarial, and leaves a wake of financial and emotional destruction behind it.

Recently, I learned something about the real nuclear option that drove the point home even further.

In March 1981, Roger Fisher, co-author of the seminal negotiation book, Getting to Yes, wrote an article titled Preventing Nuclear War. In it, he described a suggestion he had made to the Pentagon.

The goal was to ensure that the President would not order the launch of nuclear weapons without fully understanding the impact of his decision.

Fisher's suggestion was simple:

Put [the nuclear launch code] in a little capsule, and then implant that capsule right next to the heart of a volunteer. The volunteer would carry a big, heavy butcher knife as he accompanied the President. If ever the President wanted to fire nuclear weapons, the only way he could do so would be for him first, with his own hands, to kill one human being. The President says, "George, I'm sorry but tens of millions must die." He has to look at someone and realize what death is—what an innocent death is.... It's reality brought home.

Obviously, the Pentagon didn't adopt Fisher's suggestion. And let me be clear: I am not comparing divorce to nuclear war in terms of scope or impact. Still, if litigation is the "nuclear option" in divorce, then what would the equivalent of Fisher's proposal be?

What step would a spouse have to take before filing for a contested divorce, to fully understand the impact of that decision?

Let me suggest a few exercises:

  • Take a full day off of work to sit in the gallery in family court, to see what it really looks like to fight over your family and finances in court.
  • For a full month, eliminate all face-to-face communication with your spouse. Communicate only by text or email — including about parenting issues.
  • Ask a stranger (playing the judge's role in this exercise) to make an important parenting decision for you.
  • Burn a $100 bill that you had earmarked for something important.

The idea is simple: bring reality home. Make divorce litigation an informed decision.

I guarantee that, given the necessary perspective, far fewer couples would choose the nuclear option, and more would choose out-of-court solutions like mediation and collaborative law.