Flexibility and Predictability in Your Separation Agreement

 There is a point in many of my divorce cases, whether collaborative, mediation or otherwise negotiated, at which the parties ask, “How many of these details do we need to figure out, and how many can we leave open?”   The general answer is that there are some items that need to be conclusively determined, but many that do not.  But, the more useful answer is that what you nail down in detail and what you leave open to future determination or adjustment is largely a matter of personal preference. 

Knowing Your Divorce Attorney’s Bias

Everybody has a bias. 

 

 

 

That’s not bad or wrong.  It just is.  No one can be completely objective. (Don’t believe me? Read “Thinking, Fast and Slow”!)

 

 

 

The challenge, then, is to understand the bias so that you know how to more accurately interpret information from that person.

 

 

 

Nowhere is this more important than in choosing and communicating with your divorce attorney.   Contrary to popular belief, divorce attorneys are people (at least that’s my working hypothesis).  And, as such, they have biases.  One of your jobs as a discriminating client is to figure out what that bias is, and then interpret the advice, information and counsel you get from your attorney accordingly. 

Bright Spots Are Key to Divorcing Well

Did you know that humans are psychologically predisposed to notice and dwell on problems instead of solutions? 


How does that play into divorce?

 

This phenomenon is explored in Switch:  How to Change Things When Change is Hard.    The Heath brothers wrote this book to give people a user-friendly paradigm for changing habits and dynamics between people and within organizations.

 

The book discusses research indicating that humans are more attuned to negative than positive experiences in almost every area that has been studied.  

 

They suggest that the best way to overcome this challenge is to look for the “bright spots”.  Bright spots are places or times when things went well.  The skill is to not focus on the times that things went poorly, but to focus on the times when things went well

 

It is, in essence, the difference between learning what to do, instead of what not to do.

 

Why would a divorce attorney care and what good would it do for you?

 

I spend a lot of time helping clients learn to change unhealthy dynamics with their spouse and sometimes even their kids.  We have to help them resolve issues that have likely been causing argument for years, and may have even led to the divorce itself:  Parenting differences, money differences, communication problems, etc…

 

But, even in really difficult cases, the spouses are able to have calm, respectful, productive conversations about something.  Those conversations are the bright spots for families in a divorce.

 

So, the key is to look at those good conversations and figure out what goes right in them.   Then, we can try to duplicate the things that make those conversations go well. 

 

All too often, attorneys and clients focus on the problems.  In my experience, that doesn’t get you very far.

 

It’s the focus on what’s working (no matter how small or how hard you have to look) that really helps. 

 

If you are facing a divorce, and conflict between you and your spouse is a problem, then try to find a bright spot.  Find a conversation or topic that you don’t fight about. Figure out why that conversation went well.  Then try to duplicate that in your next difficult conversation. 

 

In divorce, finding the bright spots will help pull you toward the positive changes that you both want to see in your lives.  

The Soul Mate Myth?

Many authors and theorists have proposed that the idea of a “soul mate” is a basis for our high divorce rate. 

The summary of this argument is that if you believe that your soul mate is out there, then you believe that marriage will work if you just find the right person. 

Thus, if marriage gets hard, then you married the wrong person.   

In short, believing in a soul mate is believing that marriage is about the other person’s personality, not our own efforts.  Or, so the argument goes.

Timothy and Kathy Keller argue against the soul mate idea in their recent book, The Meaning of Marriage. The following excerpt succinctly makes their point:

 You never marry the right person

The Bible explains why the quest for compatibility seems to be so impossible. As a pastor I have spoken to thousands of couples, some working on marriage-seeking, some working on marriage-sustaining and some working on marriage-saving. I’ve heard them say over and over, “Love shouldn’t be this hard, it should come naturally.” In response I always say something like: “Why believe that? Would someone who wants to play professional baseball say, ‘It shouldn’t be so hard to hit a fastball’? Would someone who wants to write the greatest American novel of her generation say, ‘It shouldn’t be hard to create believable characters and compelling narrative’?” The understandable retort is: “But this is not baseball or literature. This is love. Love should just come naturally if two people are compatible, if they are truly soul-mates. “

The Christian answer to this is that no two people are compatible. Duke University Ethics professor Stanley Hauerwas has famously made this point:

Destructive to marriage is the self-fulfillment ethic that assumes marriage and the family are primarily institutions of personal fulfillment, necessary for us to become “whole” and happy. The assumption is that there is someone just right for us to marry and that if we look closely enough we will find the right person. This moral assumption overlooks a crucial aspect to marriage. It fails to appreciate the fact that we always marry the wrong person.

We never know whom we marry; we just think we do. Or even if we first marry the right person, just give it a while and he or she will change. For marriage, being [the enormous thing it is] means we are not the same person after we have entered it. The primary challenge of marriage is learning how to love and care for the stranger to whom you find yourself married.

 

Their point is made from a Christian perspective.  But, the point stands regardless of religious or spiritual issues:  “The primary challenge of marriage is learning how to love and care for the stranger to whom you find yourself married.”

Food for thought for those married or wanting to be married.  I certainly see the soul mate belief echoed in many clients and their spouses.  

I don’t know whether the soul mate belief contributes to our divorce rate, and we may never know for sure.  But, I do think some serious consideration of the issue helps immunize a marriage from divorce.

Immunizing Your Marriage Against Divorce

In my experience, differing and unmet expectations are often the genesis for divorces.

Typically, tension develops because the husband and wife entered the marriage with unspoken but differing expectations about the issues they will confront after the wedding.

Those differing expectations can create conflict.  Unresolved conflict creates rifts in marriages.  Rifts create divorces.

One way to immunize your marriage against divorce is to learn to resolve conflict effectively.  That is something that typically takes time to learn and very few people possess that skill on the day they are married. 

Another great way to help immunize your marriage against divorce is to identify and address your differing expectations before the wedding.

How do you do this?  Pre-marital counseling is a great tool for identifying potential future conflicts. 

But, if pre-marital counseling is not your cup of tea, there are tremendous benefits to simply having a conversation with your future spouse about some typical issues that I have seen come up in marriages that end in divorce, such as:

– Who will work and how much will they work?  What kind of work/life balance do you expect the other person to maintain?

– How much money do you expect to make as a couple?

Ÿ – What kind of lifestyle do you each expect?

– Will one of you will stay home if you have kids?

– Do you want kids?  How many?

Ÿ – Do you prefer to be financially conservative (lots of saving, low risk moves) or more daring (lower savings, higher risk moves)?

– What kind of parenting styles do you anticipate?

– What are appropriate discipline techniques for your family?

– Where will you spend holidays and who else will be there?

– How involved will your in-laws and extended families be in your lives?

– How will you share the chores of the household?  Will you share them at all?  If not, who is going to do them?

– How clean do you expect your house to be on a regular basis? 

– What kinds of things do you expect to be able to spend money on?

– Who will handle the family finances?  

– Will the family follow a budget? 

– Do you believe in having debt, or are you debt averse?

All of these issues and more can be sources of friction in a marriage if not addressed early on.  Every couple has their own points of conflict.

I have found that many people make assumptions about their future spouse’s feelings on these topics; only to later find out they were wrong.  There’s an old saying about what happens when you “assume”, and it holds true in marriage as well.  Don’t assume what your future spouse thinks about something; find out.

Identifying and discussing these issues early on may not be comfortable. But those conversations will help prevent future conflict and therefore immunize your marriage against divorce down the road.  And that is a truly worthy goal.

Top Five Slightly Sarcastic Co-Parenting Tips for the Holidays

The holidays can be stressful.  And they can be especially stressful for families in the midst of a separation or divorce.  But, there are some better and worse ways to handle the holidays.  Here are five tips to help you avoid mistakes that I’ve seen others make (it’s late in the year and my sarcasm filter is a bit fatigued, so excuse the snark):


1.         Don’t Hog the Kids:  Big holidays are important to kids.  They want to share the experiences with both parents and maybe even both sides of the extended family.  Just because you don’t care whether the kids see the other parent for these holidays doesn’t mean that it’s not important to the kids.

 

2.         Gift Giving is Not a Competition:  Don’t try to outdo or show-up the other parent with your over-the-top gift deluge.  You can’t buy your kids’ love; they already love you.  And, if they don’t, then that life size robotic T-Rex from the Times Square Toys R Us isn’t going to change that.

 

3.         Respect Traditions:  Kids like their family’s traditions (well, usually anyway).  Traditions represent stability and predictability for kids, something they are desperately looking for in the midst of a separation or divorce.   Maybe you’d rather eat a giant bowl of Aunt Bethany’s lime Jell-O mold with the cat food topping (anybody catch that reference?) than go on that caroling trip through the neighborhood.  But, that doesn’t mean that the kids don’t like it. 

 

4.         Don’t Argue About The Holidays In Front of the Kids:  Wanna know how to ruin the holidays for the kids?  Get in a fight about the holidays in front of the kids!  They’ll really come to cherish the annual holiday family shouting match.  Good times.

 

5.         Don’t Force the Kids to Choose Their Holiday Schedule:  Another stellar way to take the fun out of the kids’ holidays is to tell them “You get to choose whom to spend the holidays with!”  No pressure.  “Dear Santa:  You know, toys are great and all, but this year for Christmas I would like to be faced with a no-win decision that forces me to choose between two people that I love dearly, with the risk of terribly disappointing one of them!  And, if you can fit some self-esteem and peace of mind in your sack for next year, that would be great.  I think I’m gonna need it.  Love, Timmy.”

HOLIDAY BONUS!  (Sorry if you were expecting a Jelly of the Month Club membership):  

6.  Have a Conversation About When To Reveal the Santa Clause Truth:  If you really want a lump of coal, then go ahead and tell your kids that Santa isn’t real without consulting the other parent.  Imagine the Christmas joy when the other parent finds out that their 5 year old doesn’t believe in Santa anymore because you let the cat out of the bag!  Seriously, it’s the gift that keeps on giving.  If the kids at school get to your kids first, then so be it.  But, nobody likes a Grinch.  Except for Cindy Lou Who and Martha May Who.  And they’re not real.

 

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.