The Value of Neutral Information in Child Custody Issues

Unbiased neutral information about the children and their families in custody issues is invaluable.

North Carolina judges seem to be placing greater value on the opinions of neural third parties in custody actions.  But, expert witnesses that testify in court are cost prohibitive for most people.  Most people simply cannot afford to pay $5,000 to $10,000 or more in addition to their legal fees to hire an expert to provide this testimony.  And, experts hired by just one of the parties are hardly considered neutral.

In the face of these issues, more judges are appointing a Guardian ad Litem to provide truly neutral opinions on what is in the best interest of the child.  In a growing number of cases, a Guardian ad Litem is appointed by the court to investigate the situation and make recommendations to the court regarding the child’s best interest.  A Guardian ad Litem can be an attorney, but can also be a non-attorney. 

The value of a Guardian ad Litem’s testimony is that it is coming to the court from a neutral source who is not advocating for one of the parents, but instead for the child.  It is a truly objective look at the family and the child.  Objective neutral information is hard to come by in a litigated family law case.  That is why it is so highly valued by judges. 

Collaborative divorce has long utilized child expert neutrals to provide the kind of objective unbiased information that a Guardian ad Litem can provide to a court.  The major advantage of the Collaborative process is that it provides not just neutral input, but expert neutral input.  The child/parenting neutrals that participate in the Collaborative Divorce process are trained therapists that specialize in children’s issues.  They are experts on how children react to divorce and provide neutral, unbiased expert input as to how the children in a particular case are handling the separation and divorce.  They also provide information on what the children will need moving forward to help them adjust to the new family situation in the healthiest way possible.  And, because the child neutral is hired by both parties in a Collaborative Divorce, the information remains unbiased and objective.

The courts’ increasingly active pursuit of information from neutral third parties in the form of Guardian ad Litems reinforces the time-tested wisdom and value of the child neutral in the Collaborative Divorce process.  The advantage of Collaborative Divorce is that this neutral information is more affordable and is provided by an expert in the field.

If you believe that obtaining neutral expert information about your children and their adjustment to the divorce would be helpful to your decision making, then you should consider obtaining that informaiton through the Collaborative Divorce process.

Opportunity Costs in Divorce

One issue that people frequently ignore in their divorce is opportunity cost

Opportunity cost is defined by my computer as “the loss of potential gain from other alternatives when one alternative is chosen.”

That’s a fancy way of saying that when you are doing one thing you are giving up the potential benefits of another.   It means that if you go west, then you give up whatever good things you would have found by going north, south or east.

So, what does that have to do with divorce? 

In divorce, people make choices from the day someone says that they want out until the divorce, and frequently far past that point.  They make choices about what to do with their energy, peace of mind, money, kids and stuff. The choose how to behave towards the soon to be ex-spouse.

In most cases, clients give some thought to the impact of their choice; i.e. “when I do this, the result will be ‘x’.” They think about the effect that will be brought about by their decision. 

What they generally fail to consider is the how that compares to the other possible decisions that they could make.  That is, they spend a lot of time thinking about what they’ll find if they go one direction, but very little time thinking about what they give up by not going another. 

For instance, when people choose to use an adversarial process for their divorce, they don’t give much thought to the benefits of non-adversarial processes that they are giving up.  They see what they hope to gain by duking it out, but they fail to see what the have given up. 

In many cases, people fail to see that choosing to fight about something is also a choice to forgo the peace of mind, free time or money that they could enjoy if they were to choose another way to handle their divorce. 

I frequently ask clients to consider what they could do with their time, energy and money if they resolved their case quickly and did not have to deal with their divorce anymore.  That gets them to think about the opportunity costs of the decision they are considering. 

Sometimes, it makes sense to continue the tough work of negotiation or a court battle.  But, that decision should only be made once the client considers the opportunity cost of that decision.

If you are considering a divorce, you may want to spend some time considering what you would do with the time, money, peace of mind and energy you can save by choosing to resolve your case through collaborative divorce, mediation or other non-adversarial processes.  

Empathic Communication Crucial to Negotiation

Perhaps the most crucial foundational skill of productive negotiation and communication is the ability to empathize with the other person.  Empathic communication (also known as “Non-violent communication”) is the cornerstone of the collaborative divorce process and interest based mediation. 

But, in the world of adversarial, positional and leverage based legal negotiations, this is a foreign concept.  Even today, in the vast majority of legal negotiations, the goal is not to understand the other party, but to “win”.  Period.  This seems to be especially true in divorce, custody, alimony, equitable distribution and other family law related cases.

The legal profession as a whole is simply behind the times in negotiation skills and processes. 

The business world has understood the importance of understanding and empathy between parties to a negotiation for decades.

As early as 1989, Stephen R. Covey, in his bestselling book The Seven Habits of Highly Effective People named empathic interest based communication as one of the seven habits.  Covey calls the habit “Seek First to Understand, Then To Be Understood.”

This book has been widely read and applied to the business world for over 20 years. 

Here’s what Covey has to say about empathy: 

“When I say empathic listening, I mean listening with the intent to understand.  I mean seeking first to understand, to really understand.  It’s an entirely different paradigm.”

“Empathic listening gets inside another person’s frame of reference.  You look out through it, you see the world the way they see the world, you understand their paradigm, you understand how they feel.”

“Empathy is not sympathy.  The essence of empathic listening is not that you agree with someone; it’s that you fully, deeply, understand that person, emotionally as well as intellectually.”

“Empathic listening is so powerful because it give you accurate data to work with.” 

“Next to physical survival, the greatest need of a human being is…to be understood, to be affirmed, to be validated, to be appreciated.”

“When you listen with empathy to another person, you give that person psychological air.  And after that vital need is met, you can then focus on influencing or problem solving.”

From a negotiation standpoint, the bottom line points are:

  1. That seeing the situation from the other party’s point of reference is crucial.
  2. That you do not have to agree with the viewpoint, just understand it.
  3. That empathic listening produces accurate data for the negotiation.
  4. You cannot influence the other person or problem solve until you have sought to understand the other party. 

Whether you are involved in a business negotiation or a divorce negotiation, understanding the crucial role that empathic communication plays in the conversation will be the foundation to finding an intelligent, durable and mutually beneficial resolution.

Communicating in Divorce: Tone Matters

One of the biggest challenges that many clients face in their divorce is how to communicate with their spouse or ex-spouse.  This especially important when a couple will be co-parenting down the road.

When children are involved, productive communication is crucial to protecting the kids from the ravages of a divorce.

That is easier said than done.  So, the question becomes how to productively communicate?  There is a lot of information about how do to that.  But, in my experience, a lot of it is somewhat hard to really grasp and put into practice in the heat of the moment.

One suggestion that I use is to speak to your spouse or ex-spouse the same way you would speak to your child’s teacher at a parent-teacher conference. 

After all, there are some strong similarities in the conversations.  The goal of a parent teacher conference is frequently the same as communication between divorced or separated parents: discuss issues regarding the kids and possible ways to address those issues.  Further, you may disagree with something the teacher says, you may be offended, and you are certainly emotionally invested in the topic of the conversation, i.e. your child.

Think about how you would speak to your child’s teacher.  What tone would you use?  What things would you say and not say, even if you were thinking them?  What would be your goal?


I suspect you would adopt some combination of the following techniques in a conversation with your child’s teacher:

            Ÿ          Paying attention

            Ÿ          Politeness

            Ÿ          Asking questions to clarify information

            Ÿ          Making an effort to understand what the teacher is saying

            Ÿ          Acting respectfully

            Ÿ          Working together

            Ÿ          Acknowledging the joint interest in your child’s well being


By contrast, you probably would not do the following in a conversation with your child’s teacher:

            Ÿ          Blame the teacher

            Ÿ          Accuse the teacher

            Ÿ          Yell

            Ÿ          Insult the teacher

            Ÿ          Threaten the teacher

            Ÿ          Act rudely

Why?  Because you understand that the teacher has a lot of influence over your child and spends a lot of time with your child.  Because your relationship with that caretaker is very important to your child’s well being. Because you know that you’re going to have to see that teacher again.  Because you actually want to have a productive meeting.  Because you want what is best for your child. 

That being the case, why would you treat your child’s other parent differently?  After all, isn’t your child’s other parent going to be at least as influential and important for your child as the teacher? 

Yes, there may be emotional reasons for treating your ex-spouse differently than your child’s teacher.  But, are your emotional issues more important than your child’s well being?

In my experience, having a parent adopt a tone appropriate for a parent teacher conference sets the stage for a productive collaborative conference or mediation.  And it gives clients an easy reference point, a convenient “go to” mode when they feel themselves struggling to communicate well.   

In my experience, this technique frequently helps, and rarely, if ever hurts.



Hidden Damage of Divorce: Revisionist History

Frankly, I don’t know the psychological term for it.  Maybe revisionist history is appropriate.  I seem to remember that the term “incongruence” may play into it.

But, whatever it is called, there is an odd (but predictable) event that frequently happens with divorcing couples.  Let’s call it the “contamination effect”. 

When a couple decides to separate, the disharmony of the tail end of the marriage somehow contaminates the rest of the marriage.  Sometimes one or both spouses look back on the whole marriage through the same lens that they view the separation or divorce.  The emotions of the very end of the marriage retrospectively color their view of the entire marriage.  Some couples even start playing the marriage over in their head looking for reasons to convert good memories of moments in their marriage to bad memories.  The phenomenon is displayed visually in this video.

This often becomes more prevalent as the legal fighting ramps up through adversarial negotiation and court battles.  In my experience, the worse the divorce gets, the more the couples’ view of their marriage is likely to be distorted.

And that phenomenon creates a lot more unnecessary destruction.  There are enough tough repercussions of divorce.  Couples should not have to lose the positive memories of their marriage in a divorce.  In fact, I suspect that this kind of thinking is what causes many people to give up on marriage once they have been divorced.

That is just one more reason why it is important that each couple make an educated decision about their divorce process.  Choosing a divorce process that does not create more hard feelings can be very important.  Honoring the years of marriage while creating a plan for each party to move forward can help couples leave a marriage without having to entirely revise their memories of the past. 


Is Alimony Reform Headed to North Carolina?

As described in this article, Massachusetts has recently revised its alimony laws.

The lawmakers in that state established stricter guidelines as to the length of alimony payments, among other revisions. 

Could Massachusetts’s reforms begin a trend towards alimony law reforms across the United States, and more importantly for us, in North Carolina?

Currently, North Carolina has no guidelines that directly tie an alimony award to the length of a marriage.  Rather, the alimony statute lists “the duration of the marriage” as one of 16 factors that a court must consider in making an alimony decision.  The statute is silent as to the weight of each of the 16 factors. 

In practice, North Carolina judges have wide discretion in making alimony decisions.  With so many factors to consider and the freedom to give more weight to some factors and devalue others, alimony decisions can vary widely from judge to judge and from county to county.

Many North Carolina judges use a “needs and income” approach to alimony.  That means that a judge determines what income is available to the spouses, and then determines the financial needs (not wants) for each party.   After that, the judge can use the 16 factors in the statute to settle on a number that they believe is reasonable.

It appears that Massachusetts’s judges have retained some discretion on making alimony decisions under their new laws, but now have stricter boundaries for their decisions.

The question is whether other states, including North Carolina, will follow Massachusetts’s lead and move toward more defined rules for alimony decisions in the future. 


Money Panic in Divorce

One of the hardest moments for a couple in the collaborative divorce process or mediation is when they see that their projected budgets exceed their monthly income.  In my office that moment comes when we are all looking at the budget form on a large computer monitor.  The last number is plugged into the form and the totals appear at the bottom.  Then…

Silence.  Or moans.  Sometimes tears.  For the really loose couples, laughter.

This moment taps into what can be a couples’ deepest fears about whether they and/or their children are going to be OK. 

Here is the interesting thing that I’ve found:  This moment is the same for most people, no matter how much money they make.

Couples that make $500,000 a year (or more) typically have the same reaction as the couples that make $50,000 a year (or less).  Almost invariably, their projected budgets exceed their incomes.

And, almost invariably, it works out.  Through some combination of raising incomes, lowering expenses or using assets, couples find solutions to their financial and cash flow issues.

The point of this is that if you are facing a separation or a divorce, try not to let the cash flow and financial issues panic you.  Understand that the fears about money are part of the process. There is almost always a solution out there, no matter your income level.  You may just need to work harder to find it.

Work Email and The Attorney-Client Privilege

Email that you receive at your work email address may not be confidential.

Many people do not realize that email in your work email account may well belong to your employer, not you.  That is because your employer owns the system and provides the service to you.  And, you may well have signed something in your employee handbook by which you agreed to this fact.

This matters because under some situations, having an attorney send you emails at your work email address may waive the attorney-client privilege. 

That in turn means that there is some chance that an opposing attorney could force your employer to turn over the emails between you and your attorney that went to your work email account. 

The bottom line:  If you have an attorney, get a personal email account and have all emails from your attorney sent there.  And, as a broader rule, do not use your work email account for any personal business.  

Psycho Ex-Spouses

There is one big reason why I choose to represent divorce clients in collaborative divorce, mediation and other non-litigation processes:  Avoiding this

The story of The Psycho Ex Wife blog is awful.  It is the story of a couple with two children who were divorced but could not stop fighting.

Eventually, Anthony Morelli started the blog to essentially derogate his wife and say all of the nasty things about her that he could imagine.  And, to spread the love, he got his new wife involved in the fun.

I’m not sure how he thought this blog was in the best interests of his children.  As the judge in his case correctly pointed out, it seems unlikely that Morelli can adequately focus on both the best interests of his children and destroying their mother on the internet. 

In fact, child psychologists will tell you that one parent’s out of control anger towards the other will almost always have seriously negative implications for the children. After all, what kind of anger management is he modeling for his kids?  And, who really comes off as psycho?

However, based on the 200,000 visitors a month, and the number of visitors sharing their anger about an ex-spouse, it seems that this kind of nightmare divorce scenario is all too common these days. 

The good news is that there are good ways to get divorced without generating so much anger and hatred.  Is anger a natural emotion in a divorce?  Absolutely.   But, through collaborative divorce and mediation, the anger is processed and managed so that both parents and children can move on without having to live in the anger of the divorce for years down the road.

After all, what is the point of getting divorced if you are going to spend the rest of your life letting your ex-spouse still control so much of your time and energy?

Can you imagine what Anthony Morelli and his new wife could accomplish if they spent less time focusing on how angry they are, and invested that time into something more productive?   How much more time could they devote to their kids, their marriage, their careers, or, here’s a crazy thought, doing something constructive in the world?  And, how must the new wife feel about her husband being so wrapped up in his ex-wife? 

Bottom Line:  If you want to spend your days blogging about how crazy your ex is, then by all means, choose an adversarial process for your divorce.  Court rooms and hostile attorneys are the perfect recipe for that kind of post-divorce misery.

But, if you would actually like to move on from your divorce in some sort of healthy way so that you can focus on something other than how much you hate your ex, then collaborative divorce or mediation may be your answer.