This is one of the most common dilemmas that people face in negotiating divorce, custody, alimony, equitable distribution and child support issues. In fact, the fear of making the wrong decision can paralyze people and prevent them from making any decisions.
In my last blog post, I talked about the negative impact of indecision. The fear of making the wrong decision is one powerful fear that feeds indecision.
However, in a divorce context or any other, making decisions in the face of uncertainty it is critical.
The fact of the matter is that there are poor, better and best decisions. But, there are rarely right and wrong decisions. There are great decisions that turn out poorly and terrible decisions that work out well. No one has a crystal ball, and even the best analysis and prediction can be laid waste by future events. Life, as they say, is uncertain.
Nonetheless, decisions must be made. The best way that I know to handle the discomfort of making difficult decisions in the face of uncertain outcomes is from the book Difficult Conversations by Douglas Stone, Bruce Patton and Sheila Heen of the Harvard Negotiation Project.
These authors give the following advice:
“Don’t spend your time looking for the one right answer about what to do. It’s not only a useless standard, it’s crippling. Instead, hold as your goal to think clearly as you take on the task of making a considered choice. That is as good as any of us can do.”
That is tremendous advice in both divorce and life.
Most people who get divorced do so without the benefit of a tax expert.
They get tax information and/or advice from their divorce attorney. However, as this Forbes article points out, divorce lawyers are not the best tax advisors.
In fact, most divorce lawyers go out of their way to disclaim any liability for tax advice in separation agreements and fee agreements.
So, if you are getting a divorce, and you can’t rely on a divorce attorney for expert tax advice, what do you do?
Collaborative attorneys figured this out a long time ago. In a collaborative divorce case, expert tax advice comes from the financial neutral.
The financial neutral provides unbiased neutral information and advice about tax issues that relate to divorce. That way, both parties get the same information at the same time. And, they are not getting in unnecessary conflicts due to differing tax advice from either their attorneys or their own individual tax advisors.
And here’s the best part about financial neutrals in collaborative divorces: A good piece of tax advice can save tens of thousands, if not more, for the couple. One small piece of information can have a huge impact on the financial futures of both clients.
On the other hand, the absence of that information can have a huge negative impact on both clients.
Tax issues are another big reason to take advantage of the collaborative process and the financial neutrals that help clients in the process.
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.
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 seekingfirst 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:
That seeing the situation from the other party’s point of reference is crucial.
That you do not have to agree with the viewpoint, just understand it.
That empathic listening produces accurate data for the negotiation.
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.
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.
Learning from the experience of others is a double-edged sword. You can avoid a lot of mistakes by watching others make them first. But, you can also fall into a lot of mistakes by assuming that your experiences will be like someone else’s.
Case in point: I know someone whose mother had a heart attack decades ago. While hospitalized for the heart attack, her mother developed a serious complication. The doctors caught it pretty late and some extensive tissue removal was required. It was traumatic for my friend and the mother.
My friend learned a lot from that experience. Unfortunately, what she “learned” was that doctors cannot be trusted to take care of her. What she took away from her mother’s experience was that she was better off staying away from doctors because she would probably end up worse off for trusting them.
This has, in turn, led to her to avoid doctors for decades. She is now suffering from serious medical conditions that could perhaps have been avoided with regular care from a doctor. Her quality of life has been seriously impacted.
She made the mistake of watching her mother’s experience and assuming that her experiences with doctors would be the same.
This same dynamic is endemic to divorce. Many, if not most people going through a divorce will reach out to friends and family who have been through a divorce. In many ways, this is a great thing. It can provide support and succor in a very tough time.
Unfortunately, it usually comes with being given the gory details of the friends’ divorces. And that can lead to the same unhealthy learning that affects my friend.
Many clients “learn” from their friends that divorce is a war. They have learned that if you don’t strike first, then you will somehow suffer. They learn that lawyers and ex-spouses are dangerous, ill intentioned creatures that must be combated at every turn. They learn a false dichotomy of “fight or die”.
They then assume that their divorce experience has to be like their friends’. This causes more distress, worry, anxiety, fear, unnecessary aggression, cost and destruction than is warranted.
Just like my friend, a divorcing spouse can find himself or herself suffering the affects of this assumption for a long time.
While some divorces certainly become very ugly and destructive affairs, typically that happens because the parties have unwittingly chosen that kind of divorce. They may not have expressly agreed to have an ugly divorce. But, the indelicate handling of their divorce has made the decision for them.
In my friend’s situation, the unseen reality has always been that doctors, in fact, provide a great deal of help to people. Her mother’s experience was an anomaly.
For divorcing couples, the reality is that dignified, respectful and even transformative divorces are common. They are free to choose to not have an ugly, destructive divorce. But, it requires a choice.
The bottom line is this: Don’t assume that your divorce has to be like someone else’s. You have options. Your family and your marriage are unique. Therefore, your divorce should be unique as well.
As this recent New York Times article points out, some people are choosing to begin their marriage with the (potential) end in mind.
Pre-nuptial (a/k/a pre-marital) agreements have been around for a long time. The new trend is that couples that cannot, or do not want to get married are choosing to put their understanding about how their relationship will work and how it will end in writing up front.
In North Carolina, same sex couples cannot be legally married. So, a pre-marital agreement is not an option. Given that the number of same sex couples in North Carolina has risen 68% since 2000, cohabitation agreements may become far more popular.
For heterosexual couples that want to live together but choose not to marry, a pre-marital agreement is likewise useless.
But, both kinds of couples have the option of executing a co-habitation agreement.
This kind of agreement can set forth the understanding of how the relationship will operate. For instance, the terms can state that one partner will stay at home to raise children, while the other is expected to earn the family funds at work. Or, it can state that both parties will work outside of the home. The agreement can state how many children each party expects to have or adopt, how many vacations the couple will take and even whether one of the partners is expected to cook meals (I have actually seen that).
More commonly, these co-habitation agreements pre-arrange how (but not if) the relationship will end. The terms often set forth how assets and debts of the relationship will be handled in the event of a break-up. They can dictate what process the parties will use to determine these issues in the event of the break-up (Collaborative Law, mediation, etc…).
Some see these agreements as cold or anathema to romance. But many couples are comforted to know that they have agreed not to drag each other through a nasty court battle if things don’t work out. And, having a discussion about big important issues and expectations before entering a long-term relationship is a good idea, even if it does not lead to an agreement.
As for divorce insurance, one company (in North Carolina of all places) thinks it’s a great idea.
From my point of view, the best insurance for your marriage is to discuss the big issues before you get married, and then commit to really truly communicating during the relationship. Discussing the terms of a pre-nuptial agreement encourages that conversation far more than simply buying an insurance policy.
Perhaps the most important skill that Collaborative Divorce attorneys provide and teach their clients is fighting well.
(Cue my wife raising an eyebrow).
Actually, it’s not fighting. It’s resolving disagreements and conflict between divorcing spouses in difficult and tense situations without fighting.
Fighting well is really the art of communicating your viewpoint, needs, and interests in a way that can be effectively heard and received by your spouse. After all, the validity of your concern is invisible if it’s wrapped in anger or criticism.
In fact, the most important thing in communication in a divorce is not what is said, but what is heard.
So, fighting well often means first figuring out what you want the other party to hear. Then you have to form your words to ensure that your spouse will effectively receive the message.
Usually, this means that the words that impulsively come to mind need to be revised.
Many people are far more concerned about saying what they want to say, regardless of how it may be received. In fact, this is by the far the most prominent, if not effective, style of fighting in a marriage or divorce.
This discrepancy between what is said and what is heard may result from people arguing from different sides of their brains. As pointed out in this recent Wall Street Journal article and Today Show story, people have different fighting styles. And, some of that is determined by which part of your brain is doing the fighting.
The article points out that left-brain fighters tend to become blind to non-verbal information when they are fighting. They lose the ability to perceive and judge emotion, tone and body language.
Right brain fighters can become flooded with emotional reactions to words, and lose the ability to hear the actual words that are spoken.
So, in order to fight well, or rather to effectively discuss any point of conflict, it helps to know how you fight, and what information you may be missing from your spouse. At least that way, you can pay more attention to what you may be missing.
And, knowing how your spouse fights can help you communicate your concerns in a way that your spouse will actually hear.
This is one of the skills that we, as collaborative attorneys, work to build in our clients. It is one of the “secrets” to resolving divorce issues without creating more hostility and destruction.
In fact, if spouses can master this skill during their marriage, then they may never need to work on it in a divorce.
I have handled many collaborative divorce cases. However, I have never gone through the process as a client. So, it is difficult for me to fully explain to clients what the process will feel like for them.
However, Haleh Modasser has been through the process recently. So, her story is far more powerful than anything that I can tell others about the process.
The International Academy of Collaborative Professionals has released a video that follows a real couple through their collaborative divorce. These people are not actors.
It provides the best idea of what the collaborative practice looks and feels like of any resources that I have seen.
If you or someone you know is contemplating a separation or divorce, please share this video with them. It could literally have an impact on their families and children for years to come.
It may be the biggest favor that you ever do for them.
I find that many clients are completely unaware that they can actually choose the process for resolving their family law or divorce issues.
As many people are stunned to discovery, in North Carolina you don’t have to go to court to resolve the issues of property division, cash flow, support (alimony and child support), and co-parenting (child custody).
While a legal divorce does require court action, the other and usually more pressing issues can be resolved privately, through a number of other processes.
I have created a presentation that explains the basics of each process and briefly analyzes the pros and cons of each. This was initially presented to a large Triangle company through its employee services program. But, I think many more people can benefit from this information.
This informaiton may help you discuss your options with each other, and with any professionals that you consult.
Feel free to contact me if you have questions about this information.
