The Danger of Premature Certainty in Divorce
I recently heard a reporter and author discuss his team’s process for determining which stories to pursue, and which ones to shelve. He said that in their process “premature certainty is the enemy.”
I had never heard the term “premature certainty” before, and maybe he invented it on the spot (a quick Google search found it in one lone discussion of software development). But, it struck me as exactly what the collaborative divorce process is designed to avoid.
A general definition of premature certainty might be thinking that you know the facts or solutions before the prerequisite information has been determined or proper analytical steps have been taken.
In a divorce context, one or both spouses commonly try to figure out the solutions and answers to the legal, financial and practical challenges as soon as they realize what is happening. They frequently do this in their minds, before and without input from the other. That is, they become prematurely certain of the best way to resolve the issues.
That is a perfectly natural response to the new and unknown situation that spouses find themselves facing in separation and divorce. It is not a bad thing to begin thinking of those issues.
But, there is an important difference between initial thinking and premature certainty. One is thought and analysis, the other is a conclusion.
Why does it matter? Premature certainty negatively impacts the negotiation process by:
- Closing the door to alternative, potentially better, solutions before they can be analyzed
- Truncating the information and fact gathering and therefore eliminating necessary information from consideration
- Creating dangerous blind spots
- Entrenching thought processes and creating “positional” bargaining that often leads to the creation or increase of hostility and destruction of basic trust
- Creating a dynamic in which any challenge to one spouse’s premature certainty feels like a challenge or criticism; i.e. “I’m not sure that will work” is heard as “your idea is terrible/wrong/dumb”
- Making the other spouse feel as though their input is neither wanted nor valued
How to Understand Your Lawyer in Context
I think my law school acceptance letter was probably a week old when I was given the gift of the first lawyer joke that was directed at me (no, I don’t remember it). It was an early lesson in how society perceives or misperceives lawyers.
I didn’t know any lawyers growing up. No one in my family or extended family was a lawyer. As far as I knew, lawyer jokes were completely accurate. (Although I did hear with some frequency the exasperated refrain from every parent with an argumentative child: “You should be a lawyer when you grow up.”)
But, almost two decades into a legal career, it is clear to me that while our reputation as lawyers has largely been earned, so much of what we do and why we do it is a complete mystery to the public and our clients.
That mystery is a double-edged sword for lawyers. On the one hand, it creates a sense of value for our services because only the specially trained can understand and navigate the labyrinthine legal system. On the other hand, it allows for an interpretation of our professional behavior (and therefore our profession as a whole) as unethical, abusive, dishonest, and just plain mean.
I think one of the solutions to this is for both lawyers and clients to have a better understanding of what lawyers do and why they do it. As a client, I imagine it is very difficult to understand all of the context and the subtext of the advice provided and steps taken by an attorney. And while there are certainly some attorneys that have reveled in their inglorious reputations, the vast majority of attorneys that I’ve met would prefer to not be demonized by opposing parties and the public in general.
All of this led me to a book recommended by a colleague called “Why Lawyers Behave As They Do” by Paul G. Haskell. Part of an American Bar Association book series on law, culture, and society, the University of North Carolina at Chapel Hill Law Professor explores and explains the choices that lawyers have to make every day in representing clients. It explains why the attorney behaviors that society frowns upon come to pass, the often complex analysis of what the “right” thing is in a particular situation, and the tensions created by the pressures to obtain results for clients.
I read this book and immediately bought a copy for the young law school graduate I knew. In my perfect world, every lawyer would have to read this book before beginning their practice and every few years as a refresher. It is a tremendous resource for lawyers.
But, it is also the best source of insight for a client that I have found. At only 105 pages, it is a short read. But, it explains so much of what an attorney is required to do, the choices they face, and the sometimes very thin lines they walk in pursuing the best outcomes while acting honorably and in accord with their personal values.
If you are a lawyer, this book will be a valuable, if not fascinating, exploration of what you do every day, the decisions you make, and how and why you make them.
If you are a client that regularly uses legal services or is currently working with a lawyer, taking a few hours to read this book will give you a new and revealing perspective on what your attorney is doing, and why.
Apps to Help Ease the Divorce Transition
Technology is making a lot of things easier these days. We have apps for almost everything, some more useful than others.
One way apps can be very useful is in helping families handle the practical challenges of co-parenting during and after a divorce.
This article lists seven apps specifically, though I’m not endorsing any of them individually. They all have pros and cons and it usually is a matter of client preference and matching what the app does to what a particular family needs from it.
But, I have seen many cases in which finding a user-friendly system for communication, scheduling, and even financial coordination goes a long way towards easing the burden and tension in a divorce.
Some clients use shared calendars, emails, phone calls, and texts. Some are overwhelmed by too much communication on too many platforms and need one app to capture it all for them. Collaborative clients are not generally worried about creating a record of communication, but other clients sometimes are and apps are a good way to do that in a way that is easier to introduce as evidence later.
These apps are also a good way to let other caretakers keep up with a busy family. These people include nannies, babysitters, step-parents, extended family, grandparents, etc… As a parent, I know that sometimes one small schedule change can generate a lot of different emails, texts, and phone calls to keep the people in the system on the same page. This usually becomes even more difficult when co-parenting from different homes.
I recommend that any parent going through a divorce investigate these apps and determine whether they can ease the burden for their family. In a transition that is never easy, and sometimes quite difficult, every little bit helps.
Legal Resolution v. Conflict Resolution
I expect that any experienced attorney, and especially any experienced divorce attorney, has experienced the difference between resolving the legal issues in a case and resolving the conflict in a case.
There is a big difference.
There are many family law cases in which a judge enters an order resolving the legal issues in a case, only to see that same family over and over again year after year. Each time that family appears the judge resolves the legal issue at issue and sends them away, only to have them re-appear again with some new (or not so new) legal issue. (These are the most lucrative clients for a family law attorney, by the way).
The reason for this revolving door on the courthouse is that while the legal issues in the case get resolved, the conflict does not. And in family law, it is the conflict that births the legal issues, not the other way around. However, the way the legal issues are handled often fuels the conflict, which in turn fuels more legal issues. It becomes a feedback loop.
This is perhaps the biggest limitation of the legal system when it comes to family conflict and divorce. A judge can issue orders to fill several court files, but the judge is almost powerless to resolve the underlying conflicts that fuel the legal issues. Judges can and do order family therapy in some cases to try to address the deeper dynamics at the root of the problem. But, that is not the norm, and it frequently comes so late in the game that real change is difficult.
To get to the root of the problem the conflict between parents or spouses needs to be addressed. Legal issues and problems are symptoms of the conflict. A judge can treat the symptoms, but it takes skilled lawyers and other professionals to work on a cure.
The legal profession as a whole, in my experience, has been narrowly focused on treating symptoms for family law clients instead of working on the root causes. In some ways that makes sense; lawyers are trained from law school through their early years of legal work to learn how to deal with legal problems. They are not trained to deal with anything deeper than the legal issue involved. And many lawyers have no desire to look behind the legal issues to the root of the conflict. It may come as a surprise that many lawyers, including family lawyers, are not comfortable with the emotions that are behind the curtain and don’t possess the skills to effectively handle them.
To be fair, some clients who hire a family law attorney have no interest in looking at the conflict either, and only want an attorney that will get the best legal outcome possible, regardless of collateral damage, or the feedback loop. Those attorneys don’t have the opportunity to address the conflict if their clients are not interested or able.
But, in my experience, most clients are open to addressing the actual conflict if they are shown in the early stages how that conflict is fueling the legal issues and that addressing the conflict will likely reduce or eliminate future legal problems. It is not easy or fun. It certainly takes maturity and self-discipline. But it is possible and it is possible in many more cases than it is offered.
If you are facing a divorce or family law issues, give some thought to whether you prefer to address a string of legal issues for years, or address the conflict upfront to avoid a string of legal issues for years. And find an attorney that is willing and able to help you do that.
Proxies in Negotiation
When involved in a divorce negotiation people frequently use terms of the negotiation as proxies for measuring deeper issues and needs that they are afraid to talk about.
For example, some clients see time with the kids as a proxy of how much they are valued as a parent or how good a parent the other person thinks they are. Some see the amount of spousal support or the division of marital assets as a proxy for how much their contribution to the marriage was or is valued by their spouse.
These proxies are ever present. And they are very tricky. They are tricky because the proxies are often inaccurate, and they are being used differently by each party.
For example, money may mean acknowledgement of the value of raising kids to one spouse, but not the other. Time with the kids may represent an acknowledgement of equal parenting skill for one parent, but not have that meaning for the other. When this is the case and it is not revealed, the parties often are missing the point of what the other is saying.
It becomes easy to see how this creates a lot of the conflict, tension, miscommunication, and misundertanding in a divorce negotiation. Understanding these proxies is the point of “mining for interests” that collaborative attorneys are trained to discuss with clients. Good collaborative attorneys can uncover these proxies and then help the clients see them. One of the tricky parts of divorce or any human conflict is that our proxies often obscure our actual deeper concerns even from ourselves. But once uncovered we can find solutions that address the actual needs, instead of just arguing about the proxies. This uncovering of proxies and problem solving around underlying needs for both parties may be the heart of what makes a collaborative attorney and the collaborative process different than an adversarial attorney and process. Some collaborative professionals even refer to this process of breaking down these proxies as identifying the “conversation that we’re not having” or the “conversation that we need to have” to highlight that the deeper, obscured, and often unspoken needs of the parties are really driving the conflict, not the surface proxy issues.
Time with the kids is about actual time with the kids, but it is often about other things as well. Money is about paying the bills, but it is often about other things as well. We need to understand what those “other things” are, so we can help address them, whether with the concrete things like time and money or with less concrete things like expressions of gratitude, expressions of value as a parent, or acknowledgement of a spouse’s contributions to the life that the family built.
Sometimes for clients the negotiation of a divorce is actually emotionally about trying to redress the hurtful dynamics of the marriage after the fact. Some clients are trying to “fix” in divorce what they didn’t like about the marriage. In this dynamic, time with kids and money become a means of measuring gratitude, contrition, absolution, forgiveness, recognition, value and many other feelings that the parties do not feel were sufficient in the marriage.
There is no divorce process that can promise that old hurts from the marriage will be resolved or that all of the deeper needs of the clients will be met. But, in the intimacy of a divorce negotiation, identifying those proxies and the associated deeper issues is often the only way to remove them as barriers to a successful resolution of a divorce. Until they are uncovered and addressed, these deeper needs often serve as hidden barriers to resolution. This technique of getting to the heart of the matter instead of misguided arguing about proxies typically makes for more efficient, less drawn out, and therefore less expensive divorce negotiations in the collaborative process.
If you would rather efficiently address the heart of the matter in your divorce negotiation instead of just arguing about proxies, then consider the collaborative divorce process.
A Legal Definition for Emojis?
In yet another example of society outpacing the law, the courts are being asked to interpret what emojis mean, legally.
As a person who has experienced some emoji confusion myself, I can see this being yet another giant question mark in divorce and family law cases (yet another question that has to be answered with “it depends”). (Sadly, I thought the steam emoji meant anger until I read this article. Don’t tell my wife or kids how lame I am).
As the article points out, each emoji has a cultural significance, and even subcultures within subcultures can interpret them differently.
This is a morass for judges (and therefore lawyers) of every age, but as mentioned in the article, especially for the older judges that did not grow up using emojis (or cell phones or text messages for that matter).
As a half joking, half serious question, are we going to need interpreters for emojis at some point?
Some other questions that come to mind: Am I going to have to buy a new Black’s Law Dictionary for the first time ever because they define emojis? Will the emojis go at the beginning of the dictionary or the end? In an appendix? Are lawyers going to be allowed or banned from communicating with each via emojis?
The issue can have serious repercussions in family cases, especially domestic violence and child custody cases where issues of threats, insults, degradation, and tone of communication can make all of the difference in a judge’s eyes. How many judges are prepared to read that tone accurately?
I’m not aware of any North Carolina cases that have tackled emojis in general, or specific emojis and their meaning. But, at some point, it is going to happen. And the ramifications will be fascinating.
The Downside of Marriage?
As a society and culture, most of us view marriage as an unqualified positive. A hard thing. But a positive and beneficial thing.
This article from The Atlantic explores what people may be giving up when they get married. These losses can include extended support networks and opportunities to grow your other relationships and resources. These are not a necessary result of marriage, but as the article argues, they are frequent results.
The article touches on several points that I find fascinating, from the impact of same-sex marriage on the couples’ activity level in the LGBTQ community, to the pressure put on marriage by the loss of external support systems, to the potential benefits of marriage alternatives, to the question of whether marriage or stability is best for kids (and are they the same thing?).
I read a fair number of articles on family, culture, and society and this is one of the most thought-provoking I’ve read in a long while. I hope you find it useful as well.
Are Your Rights the Right Perspective?
One of the first things that come to mind for anyone when they realize that they are going to be divorced is “What are my rights?”.
Typically what people mean is “What laws can I use to impose my will on the outcome?” That is a smart and reasonable question.
However, it is seldom the most important question. Rights are essentially laws that you can seek to utilize to help achieve your desired outcome. But, they are just one tool that can be used to achieve an outcome, and they frequently come with unintended and unwanted consequences.
For example, each parent has the right to file a custody action and ask for sole primary and physical custody of a child. The problem with that is that in most North Carolina cases neither parent is going to be given sole legal or physical custody of a child. And, the government has now been invited into your family and will assume control of key aspects of how you parent your child. Another common example: You have the right to refuse to take your kids to activities that interfere with your time. But, that may have negative consequences for your child.
In a similar vein, you may have the right to own half of a business, but if that change of ownership leads to the destruction of the business, you may lose the benefit of the income that business provides.
The point is that the outcomes that result from exercising every right you have may not be your best outcomes.
Instead, the more productive focus is what’s in your best interest? It may be that exercising some of your rights and choosing to not exercise others actually leads to a better outcome for you. If you are so focused on “your rights” that you lose sight of other options, then you lose out on outcomes that may serve you better.
Knowing your legal rights is certainly a necessary part of making an educated decision in divorce. But, making those rights the sole focus of your efforts is not necessarily going to produce your best outcome.