The Gray Divorce Podcast: Episode 106 Using the Tools of Litigation with Olivia St. Clair Long

Andrew Hatherley |

One of the primary goals of The Gray Divorce Podcast is to help people avoid what Andrew calls the "divorce industrial complex": a prolonged, emotionally exhausting, and financially draining divorce process.

Mediation, collaboration, and amicable negotiation are often presented as the best ways to avoid that outcome.

And in many cases, they are.

But what happens when one spouse refuses to provide financial information, continually delays decisions, or simply won't participate in the divorce process?

What happens when being agreeable becomes an invitation for the other person to take advantage of the situation?

Andrew and Olivia explore why an effective divorce strategy sometimes requires a combination of cooperation, realistic expectations, and the willingness to use the court system when necessary.

Why Being Prepared for Court Can Help You Avoid It

Olivia approaches divorce with a philosophy shaped by her years as a commercial litigator.

She believes that one of the most important things an attorney can do is establish realistic expectations from the beginning.

That means explaining what a client can reasonably expect from a settlement, what outcomes are unlikely, and which issues may not be worth pursuing.

It also means understanding the personality and behavior of the spouse on the other side.

If someone has spent decades avoiding difficult conversations, ignoring responsibilities, or refusing to cooperate, there's little reason to assume that behavior will suddenly change during divorce.

In those situations, the possibility of court intervention may be what finally motivates meaningful participation.

Olivia's goal isn't to encourage unnecessary litigation. It's to recognize when the legal system can help move an otherwise stalled process forward.

The Difference Between Litigation and Trial

Many people hear the word litigation and immediately picture a courtroom trial.

Olivia explains that these are two very different things.

Litigation refers to the broader legal process of resolving a divorce through the court system.

That process may include filing motions, requesting financial documents, obtaining temporary support, and asking a judge to require one spouse to fulfill certain obligations.

A trial, on the other hand, generally occurs when the parties have been unable to resolve their remaining disputes.

Olivia describes cases that have continued for years, with trials extending across multiple court dates.

Trials can require extensive preparation, witnesses, formal evidence, and significant legal fees.

But participating in litigation doesn't necessarily mean a divorce will go to trial.

Sometimes, a relatively limited court intervention is enough to get the parties back on track toward settlement.

When Court Intervention Becomes Necessary

Olivia describes several circumstances in which court involvement may be appropriate.

These include situations where one spouse:

  • Refuses to provide financial statements or other required documents
  • Fails to participate in the divorce process
  • Withholds financial support needed for basic living expenses
  • Ignores deadlines or court orders
  • Attempts to delay the divorce indefinitely

In these cases, relying entirely on voluntary cooperation may create unnecessary delays and additional expenses.

Olivia explains that the court can provide a mechanism for compelling action when one party simply refuses to participate.

The objective is not necessarily to fight.

It's to establish accountability and keep the process moving.

Mediation Isn't the Same as Being Nice

Andrew is a strong advocate for mediation and has participated in divorce mediation from a financial perspective.

But he also recognizes that mediation has limitations.

Olivia explains that mediation is designed to be future-focused, solutions-oriented, and voluntary.

A mediator helps the parties identify interests, explore options, and work toward an agreement.

What a mediator generally cannot do is force someone to cooperate or accept a particular outcome.

That distinction matters.

If one spouse enters mediation without any genuine intention of reaching an agreement, the process may become another opportunity to delay.

Olivia cautions against assuming that mediation will succeed simply because both people say they want an amicable divorce.

There must be a willingness to participate honestly, provide information, and work toward resolution.

The Hidden Costs of Mediation

Mediation is often less expensive than litigation, but it isn't automatically the most cost-effective option.

If one spouse repeatedly cancels meetings, refuses to disclose financial information, or agrees to terms only to withdraw them later, mediation can consume significant time and money without producing progress.

Olivia describes situations where a spouse may attend mediation primarily to avoid moving forward with the divorce.

In those circumstances, the lack of enforceable participation requirements can become a problem.

This doesn't mean mediation should be abandoned.

In fact, Olivia explains that mediation plays a role in nearly all of her cases, including highly contentious divorces.

The important distinction is that mediation can sometimes be more effective when supported by an active legal process that provides accountability.

Financial Knowledge and Power Imbalances

Financial inequality in divorce isn't always about who earns more money.

Sometimes, it's about who understands the finances.

Andrew raises a common gray divorce scenario: one spouse has handled investments, taxes, and financial decisions throughout the marriage, while the other has had little involvement.

Even when both parties appear cooperative, that difference in knowledge can create a significant disadvantage.

Olivia explains that attorneys must distinguish between an actual information imbalance and a perceived one.

Sometimes, neither spouse fully understands the household finances.

In other cases, one spouse genuinely controls the information and has reinforced the other's belief that they're incapable of understanding it.

The solution begins with obtaining the necessary financial documents and making sure both parties have access to accurate information.

Olivia believes attorney-assisted mediation can be particularly helpful when one spouse needs additional support to understand the financial picture and negotiate confidently.

Why Financial Disclosure Matters

A fair settlement depends on understanding what assets exist, how they're titled, what they're worth, and what financial obligations need to be addressed.

Olivia explains that informal document requests can often work when both spouses are cooperating.

But if one person refuses to provide information, the attorney may need to use formal discovery procedures.

These procedures allow the legal system to require the production of financial records.

For someone navigating gray divorce, where retirement accounts, investments, real estate, and other accumulated assets may represent decades of savings, incomplete financial information can have serious consequences.

The goal should be to obtain the information needed to make informed decisions without creating unnecessary legal expenses.

How Strong Negotiation Can Prevent Litigation

Olivia shares an example involving financial accounts established for children under the Uniform Transfers to Minors Act, commonly known as UTMA.

In the case she describes, one parent had transferred money into accounts belonging to the children and subsequently withdrawn funds.

The situation raised concerns about the parent's responsibilities in managing those accounts.

Olivia explains how understanding the legal and professional implications of those transactions gave her leverage to negotiate a resolution without taking the dispute to trial.

The amount of money involved was relatively small compared with the potential expense of litigation.

Her approach was to make the consequences of continued resistance clear while offering an opportunity to resolve the matter privately.

The broader lesson is that effective negotiation doesn't always require aggressive behavior.

Sometimes, a clear understanding of the facts, the law, and the other party's interests is enough to encourage cooperation.

Dealing With a High-Conflict Spouse

Andrew and Olivia discuss one of the most challenging divorce scenarios: dealing with a spouse who repeatedly creates conflict.

They distinguish difficult or uncooperative behavior from a clinical diagnosis such as narcissistic personality disorder.

Not every difficult spouse has a personality disorder, and labels alone don't explain how a person will behave during divorce.

Olivia notes that some individuals actively seek conflict, while others may repeatedly create it without recognizing their own role.

Either way, the result can be an exhausting cycle of arguments, delays, and escalating legal expenses.

One of the most important strategies is learning how to communicate without reinforcing that cycle.

The BIFF Method for High-Conflict Communication

Olivia recommends the BIFF communication method developed by Bill Eddy of the High Conflict Institute.

BIFF stands for:

  • Brief
  • Informative
  • Friendly
  • Firm

The idea is to respond to difficult communications without becoming drawn into unnecessary arguments.

For example, if you ask your spouse for bank statements and receive a personal attack in response, you don't need to defend yourself or revisit years of disagreements.

You can simply repeat the request in a calm, direct manner.

This approach can be particularly difficult for someone who has spent decades responding to the same patterns of criticism or blame.

Olivia explains that changing those habits takes practice, but doing so can help reduce the emotional intensity of divorce-related communication.

Choosing an Attorney Who Won't Fuel the Conflict

High-conflict divorces can become even more expensive when attorneys reinforce their clients' anger rather than help them work toward realistic outcomes.

Olivia describes situations where clients have wanted to pursue legal action primarily to punish a spouse for behavior during the marriage.

She explains that an attorney must distinguish between conduct that is emotionally painful and conduct that is legally relevant.

For example, Illinois law generally does not permit marital misconduct to determine how marital property is divided.

An attorney who encourages a client to pursue legally unsupported goals may increase costs without improving the outcome.

Olivia believes attorneys should be willing to explain these limitations honestly, even when clients don't want to hear them.

For anyone selecting a divorce attorney, this raises an important question: Is the attorney helping you reach a reasonable resolution, or encouraging you to continue fighting?

Fear and Decision-Making in Gray Divorce

Toward the end of the conversation, Andrew raises an issue he has experienced personally and observed among clients: fear.

Divorce later in life can create significant anxiety about financial security, retirement, independence, and the future.

For someone in their 60s or 70s, the consequences of a financial mistake may feel especially serious because there is less time to recover.

Olivia discusses how fear can make it difficult for clients to evaluate their options and move forward.

Her approach is to help clients understand that choosing not to act is also a decision.

Remaining in an unhappy or financially uncertain situation has consequences, just as pursuing a divorce does.

By exploring realistic outcomes rather than focusing exclusively on worst-case scenarios, clients can begin making decisions with greater confidence.

Focus on the Life You Want After Divorce

Olivia encourages clients to think beyond individual settlement demands and consider what they actually need to build a workable life.

Someone may enter the process convinced they need a specific amount of monthly support.

But that figure may not be realistic given the other spouse's income or the available marital assets.

Rather than allowing an unrealistic number to drive the entire negotiation, Olivia asks clients to consider their actual expenses and what their future life might look like.

What does financial stability mean to them?

What resources will they need?

Which issues truly matter, and which have become emotionally important simply because of the divorce?

Andrew and Olivia discuss how the end of a long marriage can make even ordinary possessions feel unusually significant.

Learning to separate emotional attachment from practical needs can help people focus on the decisions that will matter most in the years ahead.

Rediscovering Yourself After Divorce

The conversation closes with a reflection on identity and the possibilities that can emerge after a long marriage ends.

Olivia notes that people who have spent decades together often develop a sense of self shaped by the relationship.

When that relationship ends, the prospect of living independently can feel both frightening and liberating.

Divorce requires difficult decisions, but it can also create opportunities to reconsider priorities, discover new interests, and build a different future.

Olivia encourages clients to recognize that possibility rather than focusing exclusively on what they're losing.

Key Takeaways

  • Litigation and trial are not the same thing. Court involvement doesn't necessarily mean a divorce will end in trial.
  • Being prepared to litigate can sometimes encourage cooperation and settlement.
  • Realistic expectations are essential to avoiding unnecessary legal expenses.
  • Mediation works best when both parties genuinely intend to participate and negotiate.
  • Mediation alone may be ineffective when one spouse refuses to cooperate or provide information.
  • Financial disclosure is critical, particularly when one spouse has historically managed the household finances.
  • Attorney-assisted mediation can help address financial knowledge imbalances.
  • Strong negotiation often involves understanding the other party's interests and the consequences of continued conflict.
  • High-conflict communication should be brief, informative, friendly, and firm.
  • Attorneys should help clients distinguish between emotional grievances and legally relevant issues.
  • Fear can interfere with decision-making, especially when divorce occurs near or during retirement.
  • Understanding realistic financial outcomes can help replace uncertainty with confidence.
  • A successful divorce strategy should focus on building a sustainable future, not simply winning individual disputes.

Final Thoughts

Most people entering divorce want the same things: a fair settlement, reasonable legal expenses, and the opportunity to move forward with their lives.

But achieving those goals doesn't always mean avoiding the courtroom at all costs.

As Olivia explains, there are situations where the willingness to use the legal system is precisely what makes a negotiated resolution possible.

The key is understanding the difference between unnecessary conflict and appropriate legal intervention.

For those navigating gray divorce, the stakes are particularly significant. The decisions made during this process can shape retirement security, housing, financial independence, and family relationships for years to come.

Having accurate financial information, realistic expectations, and an attorney who understands when to negotiate and when to take action can make an enormous difference.

And perhaps most importantly, divorce isn't only about the life you're leaving behind.

It's also about understanding who you can become and creating a future that reflects what matters most to you.

Resources

Olivia St. Clair Long 

Bill Eddy — High Conflict Institute 

BIFF Communication Method: Brief, Informative, Friendly, and Firm