Most people, understandably, will do almost anything to avoid going to court for any number of reasons, including the financial cost, the loss of privacy, the inevitable calcification of antagonism between you and someone you married, the pain it causes children and other family members, and the fear of putting your life in the hands of a complete stranger, sitting on a bench at the front of a courtroom. (Not to mention all those movies—Kramer vs. Kramer, The War of the Roses, The Squid and the Whale—that act as cautionary tales, the horror stories bounced around the Internet, and those of people you know.)
Despite the attention given to divorce cases that play out in court, especially when someone is rich or famous, the reality is that only about 5% of divorces end up in front of a judge. Some 95% of couples either work it out themselves, or use mediation or collaborative divorce techniques to minimize damage and the financial costs.
But the usual considerations that keep people out of court and make mediation and settlement viable alternatives simply don’t apply for those who inhabit the far end of the narcissistic spectrum. I’ve asked two experts—an attorney who specializes in litigation, Mary Kirkpatrick (disclosure: she was my lawyer) and Craig Malkin, a practicing therapist, blogger on this site, and author of Rethinking Narcissism—to help me untangle the threads of what, for most people, ends up a torturous mess.
The question of gender
Throughout this piece, I have used the pronouns he and she to avoid accusations of bias, although there are a few facts to keep in mind.
The first is that on the far end of the narcissistic spectrum (for simplicity, we’ll call people at this extreme ‘narcissists’), men outnumber women two to one. Yes, double. That makes it more likely that if there’s a narcissist in the courtroom, it will be the husband. That doesn’t mean it will never be the wife. As Malkin explained, “the largest review of gender differences and narcissism to date suggests that this gender gap stems mainly from the fact that men tend to be more aggressive than women—and, unlike women, they’re often encouraged to flaunt the exploitative, entitled behaviors that characterize narcissistic personality disorder.”
The second is that 60-69 percent of all divorces in the United States are initiated by women; this has been historically consistent since the 19th and 20th centuries and remains true today. It’s a counterintuitive finding: Divorce generally reduces the standard of living for women and improves it for men, and men are more likely to remarry than their female counterparts. Not surprisingly, researchers in law, psychology, and sociology have wanted to know why.
In their study, published in American Law and Economics Review, Margaret Brinig and Douglas Adams concluded that the issue of child custody drove women to file first, giving them—the primary caretaker—temporary custody at least. Attorney Kirkpatrick thinks it also may be because the wife knows she will likely get 50 percent of the marital property, alimony if she qualifies for it, and child support; this may be better than continuing a marriage with a financial tyrant or a spendthrift.
But Stanford sociologist Michael Rosenfeld took another tack, comparing the initiation of divorce with breakups in unmarried, heterosexual cohabitating and non-cohabitating couples. Rosenfeld looked specifically at some of the explanations proposed for why wives tend to initiate divorces:
- 1. women’s heightened sensitivity to relationship issues leads them to be more dissatisfied;
- 2. marriage is a factory for traditional gender expectations, which is supported by the finding that women still carry two-thirds of household responsibilities; and
- 3. an imbalance of power by gender.
He found that cohabitating and non-cohabitating couples demonstrated no gender imbalance in initiating breakups; either party was equally likely to end the relationship. Interestingly, compared to 19 percent of marriages in which partners reported mutuality in the decision to divorce, 32 percent of cohabitating couples and 36 percent of non-cohabitating couples described the decision as mutual.
Rosenfeld concluded that it’s the gendered nature of the institution of marriage itself that accounts for women initiating divorce. The initiation of a divorce doesn’t, of course, mean that this person intends to end up in front of a judge; a person may file first as a tactic to jump-start negotiations as well.
About the narcissist
Let’s start with why the narcissist—despite all the real reasons any sensible person would be highly motivated to stay out of court—is very likely to end up in it.
1. He or she is in it to win it.
Even though there aren’t real “winners” in divorce—with luck, there’s some equitable splitting of responsibilities and assets—that’s not the narcissist’s point of view. He or she is likely to see himself or herself as a victim, regardless of the facts, and has no intention of meeting in the middle, so you can forget negotiation or mediation. Being proven right is the ultimate goal, and the narcissist will do whatever it takes to make that happen. “One of my clients,” Malkin says, “went through hell with a man who’d enjoyed three affairs in the course of his marriage, and regularly spent their vacation money on his trysts. He tried to convince the judge my client was having an affair (she wasn’t), all the while sending, long pleading letters, asking, ‘why are you doing this to me?’ For many narcissists, truth isn’t just relative. It’s optional."
2. He or she is a game player.
Studies show this to be the narcissist’s relational pattern—maintaining power and an edge by keeping others off-balance—and he or she isn’t going to change just because you’re going to court. Gaming the system will be the first line of defense and, as we’ll see, the family court system can be gamed. “This is especially dangerous when your narcissistic ex is the extraverted, charming type with lots of money to burn,” Malkin says. “They’re apt to file endless motions, making empty (false) accusations about ‘neglectful parenting’ for example, wasting everyone’s time. It’s often an attempt to wear you down.”
3. He or she doesn’t tally emotional losses.
Impaired empathy is one of the hallmarks of pathological narcissism, and what that translates into here is the narcissist’s total disregard of how anyone—including his or her spouse and, more important, children—might be hurt by the game-playing or other behaviors. It literally doesn’t occur to the narcissist because the focus is solely on him or her; nothing else really matters except satisfying personal needs and wants. Unfortunately, what keeps most of us on the relatively straight and narrow in stressful situations like divorce and tends to keep us out of court is our worry about other people—how they might be affected or hurt, what they will think of our behaviors, and how it will affect our future relationships. Not the narcissist. He or he is likely to indulge in what military strategists call a scorched-earth policy—leave nothing standing in his or her wake. This, unfortunately, often includes the children of the marriage, who become unwitting pawns in the narcissist’s strategizing. As discussed below, the gender of the narcissist actually comes into play here, especially if there is no agreement on custody or child support.
4. By engaging you in a court battle, the narcissist is still using you to feel powerful.
Narcissists need to be in relationships to self-regulate, and by dragging you through court, he or she will feel a thrilling surge of power and control. If the narcissist simply lets you go, he or she would have to find someone else to fill the need. Unfortunately, this also means that the narcissist doesn’t care how the long the process takes—which is surprising but true. Again, most people want to put the unpleasantness and stress of divorce and all of its attendant negotiations and give-and-take behind them; that’s just not true of the narcissist, which makes going up against one that much harder. “It’s a way of staying connected,” Malkin says. “Better to be your enemy than to become a nobody in your eyes.”
5. He or she wants you to capitulate.
It’s not enough that he can say that he or she won—the narcissist needs a symbolic trophy to prove it and the easiest way to achieve that is for you to fold your tents and go away. Besting other people makes the narcissist feel good, and going to court is often waged as a war of attrition.
How the narcissist changes the nature of the divorce
The likelihood is that you’ve ended up in court because of his or her refusal to discuss terms on any reasonable basis. Going to court and having a judge decide may actually make the narcissist more comfortable because it means he or she doesn’t have to take responsibility for the outcome, especially if it’s not favorable. That sounds counterintuitive, but the narcissist doesn’t want to give anything up willingly and the court system assures that, win or lose, it won’t be his or her fault. Paradoxically, ceding control permits the narcissist to maintain the illusion of control. Additionally, the process is likely to include:
1. The strategy of obstruction
Depending on which state you live in, family court proceedings can take a lot of time, and the narcissist will instruct his or her attorney to eat up as much of it as possible. Be prepared for the filing of lots of motions, requests for more time and delays, “emergencies" and the like. No matter which one of you is the plaintiff, the narcissist will be the self-described victim in all of his or her filings, the marriage revisited and retold. The thing is that the narcissist only believes his or her truth, even if it tests credulity. Narcissists may not be averse to lying in sworn documents, even about things that can be easily shown not to be true, because showing that they’re not true takes up more time and paper (and legal fees)—and that’s part of the strategy. Kirkpatrick notes that other tactics may include delaying when he or she thinks it can help or get under your skin, not showing up for court dates, including misleading information in filings and appeals that then needs to be challenged, and not disclosing information fully so that there are additional rounds of attorney correspondence and discovery requests and the legal fees continue to mount up. Because the narcissist is expert at self-presentation (and believes in his or her own superiority), the working assumption is that the judge will believe his or her story. (And if he or she is wealthy and outwardly successful, and you’re less so, the ploy might well work.)
2. Refuse to negotiate or settle.
Again, time is an arrow in the narcissist’s quiver and he or she also knows that the longer the process takes, the easier you’ll be to manipulate and pressure. He or she is counting on that. Because a narcissist is by nature a game player, Kirkpatrick reports, "There are patterns to dealings with a narcissist in settlement negotiations. They make low ball offers or offers that are patently objectionable. They fail to respond to all aspects of the proposal so that there are always bargaining chips to be used to stall the negotiation or begin at the beginning again, and they fail to respond to the matters presented. Do not expect any good faith dealings.
"They lack the ability to negotiate towards a middle ground; they will likely keep stating the same position over and over again, even when the facts and circumstances have changed.”
3. Run up your bills.
Yes, money is used as a bludgeon in most cases. The narcissist most likely sees it as a necessary expense—if, in fact, he or she intends on paying his attorney in the end.
4. Paint you black.
Yes, whatever Jello or mud is available, whether true or not, will be thrown to see what sticks to the wall. You should be prepared to be maligned both in the paperwork, in the courtroom itself, and in the world at large—it’s part of the narcissist’s lack of empathy, lack of interest in relational consequences, and desire to win no matter what the cost. Kirkpatrick notes that these filings will then have to be defended against or corrected, eating up more time and money and, of course, opening the door to the judge’s believing the narcissist. Additionally, Kirkpatrick comments that getting his or her story out there—told to new friends, old ones, family members, and people associated with your work and profession—is also typical of the narcissist’s efforts to pollute the waters, cause harm to reputation and children, while garnering support for him or herself.
5. Go back to court again and again even after a settlement or divorce.
For all the reasons outlined above, the narcissist is likely to keep on using the court system to resolve any real disputes as well as to promulgate new ones. As noted, the narcissist games the system. If there are children involved, Kirkpatrick tells me, “It’s endless. Lack of back and forth communication, not sharing schedules, appointments, or itineraries, signing up children for activities that fall on both parents’ time without notice and discussion when the parent doesn’t have the legal authority to do so are pretty typical after a high-conflict divorce. Add in trying to get the child’s psychological records without legal authority and invading the child’s privacy, and not paying bills in a timely fashion. Then there’s the warfare which is less than stealth: sending frequent emails that complain, harass, and show that he or she is grilling the child or children about the other parent or household and putting down the parenting received.” These can all become issues which must be resolved through the courts, as the narcissist well knows.
What you need to pay attention to
These are some generalized pieces of advice which should be discussed with your attorney. Given the psychological toll a contested divorce takes on you, it’s probably wise that you engage a therapist as well to keep you as steady and productively proactive—and not reactive—as possible. “A good therapist,” Malkin says, “should talk to you about the possibility of Post-traumatic Stress Disorder, common in abuse survivors, even when the only abuse has been serial infidelity.” Keep in mind that your lawyer isn’t a therapist, and your therapist isn’t an attorney.
1. Make sure your attorney is aware of the problem and proactive
It’s not always obvious that there’s a narcissist in the mix, especially if he or she appears to be well-spoken and well-off; self-presentation goes a long way in fooling people. Your ex’s narcissistic tendencies, in fact, may only fully reveal themselves during the divorce process because it’s during conflict that the narcissist shows his or her true colors. Discuss the patterns of your about-to-be-ex’s responses and the best way to deal with them and make sure that your side has a strategy. If your ex is acting as his or her own attorney, you need to pay close attention as well. Kirkpatrick also recommends that “If your lawyer isn’t familiar with this kind of difficult personality, you either have to change lawyers or be incredibly solid in directing the lawyer to take the actions you want to set boundaries. It’s best to switch lawyers because, as the client, you’re vulnerable and you don’t need to be told explicitly or implicitly that ‘it’s in your head’ or ‘there’s nothing to be done.’” She too recommends that you develop support by going into therapy since this kind of divorce is emotionally and psychologically wearing.
2. Keep copies of everything, especially expenditures
Even if you’ve never been much of a record keeper, this is the time to become one. If this case devolves into a “he said/she said” situation with conflicting storylines, muster all the evidence you can. “This one’s hugely important," Malkin says. “It’s helped more than one of my clients discredit their ex’s lies.”
3. Stay cool and avoid the traps
Do not indulge your anger in voice mail or send emails and texts that could be construed as harassing or demeaning, especially if there are children involved. “Restraint of pen and tongue is key. Know how risky all communication is with a narcissist ex because he or she is likely to edit your texts and emails to share them with others, his new inner circle people. Keep in mind the narcissist has to control the story because of his or her low self-esteem and the need to be viewed as the ‘good guy or gal,’" Kirkpatrick says. “Keep the narcissist’s game-playing in the forefront of your mind and do what you can not to be drawn in. Do not make comments about your spouse in front of your children or to the people he hangs out with, as they will get back to him and fuel more retaliation.”
Even if your spouse is using the kids to score points, try to hew to the high road. “Your kids will appreciate that you’ve kept your relationship with your ex out of the conversation with them,” Malkin says. “Eventually, they see their narcissistic parent’s mudslinging for what it is: an attempt to manipulate their own children. And that’s how the narcissist inevitably loses the game.”
Kirkpatrick adds, “They marginalize themselves if you just stay focused on the next right step.”
That said, the damage done to families and family finances by these divorces is very real, as is the stress of having to endure one and, if there are children, the terrific toll a fractious and sustained divorce takes on feelings of trust and security. But the more prepared you are, legally and psychologically, the better you’ll fare.
Craig Malkin, Ph.D., is a psychologist, author, lecturer at Harvard Medical School, and director of YM Psychotherapy & Consultation, which provides psychotherapy and couples workshops. As a blogger for Psychology Today and the Huffington Post, he frequently writes about psychology and relationships and works with media outlets such as Time, The New York Times, and NPR. His new book is Rethinking Narcissism.
Mary G. Kirkpatrick is a trial lawyer whose practice in Vermont has included complicated divorce cases since 1986. She has significant experience with the research on divorce and child custody, having worked with national and state experts regarding parental alienation, personality disorders and divorce, and the effects of divorce on the family system.
Copyright 2016 Peg Streep
Brinig, Margaret F. and Douglas W. Allen, “’These Boots are Made for Walking’: Why Most Divorce Filers are Women,” American Law and Economics Review (2000), vol.2, 126-169.
Rosenfeld, Michael J. “Who Wants the Breakup? Gender and Breakup in Heterosexual Couples.”