The Chancery Court does not prosper under black and white thinking. The issues presented revolve almost exclusively around the things that happen behind closed doors and deal with the most precious things in our lives. Custody disputes, conservatorship, guardianships, divorces, and even disputes amongst neighbors and business partners seldom have an all-or-nothing resolution and, as such, viewing your case as a zero-sum game is short-sighted strategically and extremely short-sighted outside the court house.

As a quick refresher, a zero-sum game basically refers to a mindset where if one person gains then another necessarily loses. If I take an inch, you lose an inch. If I get five dollars, someone loses five dollars. Gains and losses exist in perfect balance.

There is an attractive simplicity in the balance of zero-sum thinking, but such thinking stands inapposite to the goals of the chancery court: equity. The mandate of the chancery court is to craft equitable remedies to issues in which the law cannot designate a set remedy (very generally). Unlike the circuit courts that apply fact to laws and provide resolution based on those laws, the chancery court has to apply laws to facts and craft the result based on those facts, with the mandate of doing equity i.e. be fair. For example, in a car accident case the law defines negligence, it sets out traffic laws, and sets out damages, the attorneys put on a case to present their version of the facts, arguing that they either do or do not satisfy the law, and the jury (or judge) then makes the decision. The judge basically calls balls and strikes if it is a jury trial and just applies the facts to see if they satisfy the law in bench trials. On the other hand, the chancellor must take a broad set of laws that provide broad governance to behavior and figure out the appropriate response. For example, there cannot be a specific mandate regarding custody because every custody case is different. Zero-sum thinking, which requires a clear winner and loser, simply does not work in family courts because there are no real winners and losers. Everything happens on a spectrum. Therefore, if you go into the court viewing your case in such black and white terms, you will simply miss the boat altogether. What you are asking for is, by and large, impossible.

More importantly, it also stands inapposite to common sense. If you think only in terms of winning and losing, you have already lost. In a legal world in which your relationship with the other parties often continue to some degree after the case is resolved, being the burn it all down party or the even just the overly bitter party is a poison pill. The court is going to see who is the grudge holding jerk and who is the person who sees the situation for what it is.

In the custody context, if you consider your ex getting time with the children as you losing time with the children, you are building resentment immediately into the co-parenting relationship. If you build resentment into the co-parenting relationship, you will make your kids miserable and will dilute your case if it ever does have to go back to court. The inevitable litany of pettiness and passive aggression is like flicking the same spot on an apply over and over again, eventually that spot will rot right away regardless of how soft you flick it. You will go back over a serious issue, but you’ll either emphasize the wrong thing because that is what has driven you crazy for years or your legitimate complaint will get buried in a sea of whataboutism.

In a property settlement context, locking in so tight on if they get it, I don’t get it mentality forecloses effective negotiation and effective litigation. To the latter, the problem is obvious. Wanting things simply so the other side does not get it makes you look like a petty fool. The former is perhaps more devastating. In Mississippi, property is divided equitably, which, again, is most easily understood as fair, not equal (giving an able bodied 42 year old doctor 1/2 of of the entire estate and his disabled wife of 20 years 1/2 of the estate and no alimony is not fair, he will continue to earn a substantial sum while she will be sitting in a leaking boat). Because the estate is viewed as a whole and the court has a great deal of discretion in how it divides the estate, isolating on any one asset or debt not only shows your hand but misses the point. In negotiating a property settlement agreement, you want to get a better deal than you are likely to get in court. You weigh all the risks, including the cost, financially and emotionally of trying the case, the emotional toil of dragging out the divorce, the size of the estate, and your needs, and then make a personal decision as to what you are willing to agree to. Your lawyer will advise you of your rights and the likely outcome, but it is the client who has to make the final call. Obviously, if you are judging things from a zero-sum perspective, you force yourself to either take massively damaging and unnecessary risks or to settle for something much less than what you are worth (for some people, punishing themselves or being overly conciliatory is a real issue). However, if you view in gradient degrees, you can make the more effective assessment of value and risk, and, if you are smart, exploit the zero sum thinking on the otherside, whether by negotiating what you want based on some erroneous point the other side is making or showing their true character on the stand.

Ultimately, you should know the rules of the game you are playing and the Chancery Court is simply not playing a zero-sum game. If you insist on playing in that manner, be prepared to get left holding the bag.

Acting like an asshole during your divorce is not only a poor strategy but is guaranteed to hurt your children. It is okay to be angry. It is okay to be hurt. It is okay to feel betrayed. Often, those feelings are not only well-deserved but needed to process the dissolution of what you once thought was a life long loving partnership. However, it is not okay to put those feelings on your children.

In my office, we often discuss the length of litigation versus the length of co-parenting. Litigation ends. Your connection to the other parent never really ends and, absent termination, only recedes far into the background once your children have grown. Until then, the goal is for you and your ex to co-parent as peacefully as possible, not for them, but for your children. And if your counter-part insists on acting like a prick, you do not get a free pass to act like one back.

Why?

Because your kids are what matters. Your job during the divorce is to help your kids get through it with as little stress, anxiety and trauma as possible. You want them to remain kids. Lord, let them remain kids.

To do that, you have to not bad mouth the other parent. You have to be supportive even with things you do not necessarily agree with. You have to give your kids time to adjust and the other parent to adjust. You have to be polite at events. You should send pictures of your kids to your ex just like you did when you were together. You do not discuss the court case with the kids. You reassure them they are loved by both parents.

You do draw lines for the kids safety and well-being. Some things are easy. If your ex smokes meth or is violent or has severe mental health problems, then it is a no brainer to take action to protect your kids - take legal action (Employing self-help (going against a court order) is a bad idea. Your lawyer is not just your advocate, he or she is also your counselor. Use their counsel). If the other side is bad off and putting your kids in danger or may put them in real danger, your lawyer has weapons at his or her disposal to help you.

Other things, however, are much more complicated. Things like bedtimes, meals, outside play, and screen consumption may drive you up the wall. You may think the way your ex is handling things is harmful to your kids, but you have to draw a careful line on how you handle things.

Generally, first you try to address these things with your ex. Talk like grown-ups. Point out the concerns. Give your ex room to parent and trust them as much as you can. Assume good intentions. Is your ex the type of person who would hurt your kid? If the answer is no (and if they never have in the past and have never feigned as if they would, then the answer is no), then back off and help your ex in a way they will accept.

If it is more than that, talk to your lawyer. You may have a case for modifying custody. The court’s paramount concern is the best interest of children. Discuss the standards and the level of bad behavior needed to change custody or visitation. These things happen all the time. You have to do it the right way though.

What you cannot do is spiral. You cannot get in fights. You cannot bad mouth the parent to your kids. You absolutely cannot air grievances on social media. All of these things are bad for your kids but also bad for your court case.

The courts want maturity and stability. They are not perfect, but you must put yourself in a position at all times to say loudly and proudly “My kids come first” and you actions have to show the truth in that statement.

If you need help, contact my office and set up a consultation.

Be cool. Easy advice to give, harder to follow.

Every family law lawyer should strive to always keep the sheer emotional intensity of their client’s situation at the forefront of their mind. We have many cases, but, typically, the client has one case and that one case deals with what is most precious in the world to them: their family. When our families are threatened, it is easy to lash out. Don’t.

A lot of custody cases come down to what is, in essence, a maturity competition i.e. which parent is going to act like a grown-up and put their kid first. This seems self-evident, but, again, we are dealing with big emotions and complicated dynamics - remember, at some point, dollars to donuts, the parties liked each other enough to sleep together and have a child, and that falling apart tends to be quite difficult. Not only is your heartbroken but you are also dealing with a person who knows how to push all of your buttons and, often, an intense financial strain. It is a lot.

The rules, however, remain the same. Get your kids to school on time every day. Take them to the doctor when they are sick and need to go to the doctor - no gaming the system with constant urgent care visits. Speak politely to the other parent and his or her family. Don’t post your personal business on social media. Keep your job. Don’t move your new girlfriend or boyfriend in. If you do, make sure you’ve done a background check. Many, many times I have had to deal with women in particular who did not know their new boyfriend had any felonies until I told them. Make sure your kids get balanced meals. Spend time with your kids. Take them to their extracurriculars. Send pictures to your ex when the kids are doing something cool. Send pictures to your ex’s parents too if that is what you did before the separation.

All of these things may feel repugnant in the moment and your ex may do everything in his or her power to make you lash out, but its all about the kids and, in the end, the court is going to see who is the mature parent and who is acting like an immature jackass. And, even if you misstepped and primary custody is unlikely, it is never too late to grow up. You do not know when your kids are going to need you to step up. Be prepared.