Why You Shouldn’t Let Your Attorney Take Over Your Divorce

“I hear and I forget.  I see and I remember.  I do and I understand.” – Confucius Divorce is often a confusing, anxious time.  People often report feeling as if they are the mercy of “the system”,  the law, their spouse, the attorneys, or the courts in their divorce.  This feeling of helplessness and loss of control only exacerbates the already difficult feelings of loss, grief, and worry that come with any divorce. Ironically, people frequently respond to these feelings by relinquishing more control and letting their attorneys and the courts take over their divorce process.  They are consulted periodically, but the attorneys handle the financial analysis, the negotiation, the strategic decision making and the other important parts of a divorce case.  The courts dictate the what, when and where. In my view, this is counterproductive because it only adds to the feelings of anxiety and loss of control.  It provides a short-term feeling of relief because it takes some things off of your plate in the short term. But, long-term, it leads to less satisfactory outcomes for clients.  First, when you are not involved in the details of your divorce process, then you are far less likely to like your outcome over time.  You will not remember the decision-making process that led you to your outcome.  That may cause you to look back on your process and your outcome with confusion and doubt.  Second, when you are intimately involved in your divorce process, you will have far more understanding of the financial, legal and personal dynamics at play in your divorce.  You will not have to take your attorney’s word for what is going on and the possible solutions.  Instead, you will be processing it as it happens and be involved in generating the solutions to the issues.  That typically means that you will have a fuller understanding of how and why you reached the solutions that will shape your post-divorce life.  In my experience that leads to clients feeling more in control, more satisfied, and less victimized after their divorce. Third, many clients grow frustrated because so much of the work an attorney does is outside of the presence of the client.  A client will get a bill, but not have actually seen the work performed because they are largely detached from the work itself. In a collaborative process, the client is sitting beside their attorney for much of the time and has immediate knowledge of what their attorney is doing and how they are doing it.  There is much less “mystery time” involved in your legal fees when you are an active participant in your case. Certainly, some cases require you to involve the courts and litigation attorneys.  And no one gets to dictate the terms of their divorce just as they would like. But, there are enormous benefits to being an active participant in, and having a thorough understanding of the decisions and the decision-making process of your divorce.  The only way that I know to do that is to participate in a divorce process that involves you not delegating the analysis, problem-solving and decision making, but rather taking an active role with your attorney in those facets.  You do, and you understand.  

Being Divorced, But Not Broken

I received a message from a former client recently that reinforced and clarified for me why I focus my practice on helping people handle their divorce outside of an adversarial model. She indicated that now a year after their divorce her ex-husband comes to her home and brings dinner and sits down with her and their son to have dinner on a weekly basis.  (For context, this was not a couple that was trying to destroy each other, but there was plenty of difficult issues, hard feelings, hurt, and disagreements to make this a difficult case.) Hearing that struck a very important chord for me. That got me to thinking about why that outcome meant so much to me.  I realized that what meant the most to me in these outcomes is that people are not broken as a result of their divorce.  It is hard to define what broken is, but we’ve all seen it.  Some people are never the same after a divorce, they never get past it, they never find peace or love or satisfaction in life again.  They cannot fully commit to their new life or next relationship because their thoughts are dominated by ruminations on their divorce.  They cannot relate to their children (including adult children and even grandchildren) without mentioning their divorce.  Their divorce becomes the central event in their life and they never get past it.  It is that brokenness that I and my brethren work so hard to avoid. This is not to blame these people.  No one can blame someone for being devastated by a difficult event in their life. But, a difficult life event does not have to be traumatic.  Divorce is without question one of life’s most difficult events.  But what I seek to do, and what others who are truly committed to collaborative divorce and non-adversarial divorce processes seek to do, is to prevent a difficult divorce from becoming a traumatic divorce. Anyone who has litigated divorces for any real period of time knows that even the “winners” in court are often traumatized and broken by the experience.  “Winning” takes its own toll.  So, winning a divorce war is no protection from the trauma of the war.  There are plenty of broken winners walking out of family courts. And, importantly, my client’s son was not broken by his parents’ divorce.  His life changed, but it was not broken. The point is that is that while divorce will always be difficult, the reason that I do what I do, and the reason that you should look into handling your divorce in a non-adversarial process, is that you can be divorced without being broken.      

The Losses Avoided

Divorce involves loss.  That is an inescapable reality of the changes that come with the end of a marriage. Human nature is to weigh losses heavier than gains.  We have a natural psychological tendency to focus on what we may lose, as opposed to what we stand to gain. But, when assessing your divorce options, it makes sense to not just think about losses that may be realized, but also think about losses that may be avoided. When weighing and considering the outcome of your divorce, in addition to whatever you feel you may have gained or lost, the losses avoided must be given significant weight as well.  The amount of loss in your divorce is largely up to you and your spouse.  Some loss is unavoidable:  the cost of two homes is higher than for one, future plans may change, a parent may have less overall time to spend with children when parents live in two homes.  But, there are many losses that can be avoided if a divorce is handled well.  Legal fees can be held in check, the familial relationships can be salvaged, disruptions to children’s lives can be minimized, time lost at work and the impact on careers can be minimized, church and community families can be maintained, homes can be saved, traditions maintained; the list goes on. Another way of saying this is that whatever may be lost in a divorce, things are also saved.  The question for anyone facing a divorce is what do you want to save and how can you save it?  How can you save as many of the good things as possible? If you find yourself facing the prospect of a separation and divorce, you will automatically think of the losses that you fear coming.  But it is also wise to think of the losses that can be avoided, and how you can best avoid them. In my experience, perhaps the biggest difference between a “good” divorce and a “bad” divorce is that the good divorces avoid far more losses, and save more of the good things than the bad ones. The best way that I know to avoid unnecessary losses in divorce is to manage conflict instead of fueling it, to refrain from emotional behaviors instead of giving in to the urge, to jointly problem solve instead of blaming, threatening and manipulating, to retain your decision making authority instead of handing it over to the government, and to jointly work to insulate and nurture your children instead of fighting over them like property. That is not easy, and it may not be for every client and family. But it is possible, and in my practice, it is the rule instead of the exception. All it takes are two clients who are committed to avoiding unnecessary losses,  attorneys who know how to help them, and a well-designed process.  

What Divorce Attorneys (and Clients) Should Learn From Dr. Seuss

I’ve got young kids and there are no books I enjoy reading to them more than Dr. Seuss.  The lessons, philosophy and morality packed into each of his stories is truly genius. I recently read the read The Zax again and was reminded how apropos it was for a divorce lawyer and my clients. Here’s a refresher for you: Just as the north going Zax and the south going Zax find themselves at odds and refuse to move, many divorce attorneys and their clients do the same in trying to resolve family disputes and divorces.  And, just as the Zax waste their lives in intractable conflict while the world goes on around them, many clients are lead to waste time and money in intractable court battles or negotiations. (A telling part of the story is when the South Going Zax boasts that he was taught to handle conflict this way in South Going (read, law) school!) It is easy to see that the Zax are silly to act on their principles because their principles seem so inane to us. But, to the Zax, those principles are everything.  Those principles mean as much to the Zax as our children, financial security and peace of mind mean to us. So, the real lesson is that often in the world, even deeply held principle must give way to creative problem solving.  Otherwise, we would all still be standing in front of the first Zax that we came across. And we would miss the opportunity to resolve the conflict so that we could again focus on our children, financial security and peace of mind. If you are facing a divorce, or are in the middle of the divorce, think about whether you (or your attorney) are a Zax and what you are missing (or spending) while you stand there defending your principle.  Perhaps refusing to budge is your best strategy, but perhaps altering course slightly will get you to your goal quicker.

Being Tough in Divorce

What does it mean to be tough? In divorce, most people (including many lawyers) believe that it means “sticking to your guns”, never compromising, issuing the bigger threats, puffing more, “big talk”, using intimidation. In the name of toughness, people are frequently encouraged to be uncaring, to deny any empathy for their spouse, and to turn off all humane or positive feelings about their marriage and their spouse. That’s one way to do it.