Skip to Content

Divorcing? To Punish or Not to Punish?


The divorce industry is plagued with the motto, “Fight! Fight! Fight!” It’s time for a welcome change!

When considering divorce, couples are usually familiar with going to court and fighting. More and more couples are learning there are more peaceful options.

These days, clients ask during consultations more about the difference between “litigation” and “mediation.” Sometimes after answering their questions, I ask, “Do you want to “punish” or “not to punish” your spouse?”

Believe it or not, there are those spouses who want to fight. They only see “red” and nothing is going to change their mind. But for those open to a non-adversarial option, there is a more positive and peaceful solution – it’s mediation.

I say, “The business of divorce is to litigate. The emotion of divorce is to mediate. Both paths, litigation and mediation, lead to a divorce but the intention and the process are very different."


Under the traditional system originally imported from England, couples went to court to obtain a divorce.

Each spouse hires his or her own "advocate," and they engage in what is normally an adversarial process. The steps can include negotiation between the attorneys. If or when this is not working, there is always the threat of "going to court," where a judge will make decisions about all the issues, including custody and visitation, child support, spousal support, and the division of property.

The court process is particularly daunting. It includes serving a summons and complaint, an answer, and exchanging financial information and documents. This exchange is called "discovery," and it is, in fact, a way to find out the facts about the parties' finances.

Discovery can include subpoenas served on banks, businesses, and third parties. It may also include applications made to the court for various types of relief, such as temporary child and spousal support, interim custody, and counsel fees.

Once you get locked into the system, it is extremely hard to find your way out. It is expensive, time-consuming, and emotionally draining. Ultimately, it may be the only vehicle for warring couples of a certain ilk.

In some cases, I call this the vehicle to “punish.” This path is often attractive to spouses who want revenge, enjoy conflict, and seek to maintain control over the other spouse.


Mediation is positive, productive and peaceful! Why fight when you can discuss, negotiate, and participate in a thoughtful and peaceful divorce process? Mediation offers a more humane, less painful way to approach divorce. With mediation there are no losers; everyone is a winner.

This path to divorce involves working with an unbiased mediator, usually a lawyer, whose function it is to assist a couple in a peaceful process, to make decisions together, and to arrive an agreement that is fair to both.

For people who have never experienced it, mediation is surprisingly and stunningly effective. It is quick, inexpensive, and not adversarial.

Mediation is a three-part process, consisting of the negotiations, the preparation of an agreement, and the preparation and submission of the divorce documents to a judge for signature.

Mediation is a negotiated process between divorcing spouses on the important issues: finances, support, property, and children.

The focus of mediation is for you to control your own divorce. Spouses have the opportunity to discuss their personal needs and priorities and to arrive together at an agreement that is fair to both of them.

What is important to most spouses in any divorce process is to be:

1.) heard
2.) informed
3.) understood
4.) emotionally supported

They also want:

5.) the process done in a timely manner
6.) a fair settlement
7.) to avoid court
8.) to not have to spend their life savings on lawyers

As a divorce attorney and psychologically trained meditator with over 35 years experience, I have seen mediation become the popular choice of many divorcing couples.

In fact, during the pandemic, while the courts have been closed, couples have embraced mediation and this method is growing in popularity.

Another appealing aspect of the mediation process is time and cost. Most divorce mediation cases can be resolved in months instead of years and can cost thousands instead of tens of thousands of dollars.

If you need some creative advice on how to approach your divorce using the power of mediation, call me.

I can provide you with the support and tools necessary to start your divorce journey. Our FREE 1 HOUR CONSULTATIONS are very informative and conveniently conducted virtually to reduce risk!

I look forward to speaking with you.

Stay healthy and safe!

Warm regards,

Call New York Divorce Attorney Lois Brenner to schedule your FREE consultation!