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.
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.
Years ago, we had a friend and neighbor that had the best co-parenting relationship with an ex-spouse that I’d ever seen. Her husband frequently spent the night at her house to watch their daughter when she had to be out of town. I never heard a cross word between them, and they had nothing but good things to say about each other in the presence of others.
After observing how well they co-parented for a year or so, I finally asked her how they did it. How did they create such an incredible relationship to co-parent their daughter after a (not rainbows and unicorns) divorce?
Here is what she said:
There were actually a few rules we put into place early on that we both agreed to:
1) [Our daughter] comes first. We came to realize eventually that it wasn’t about us anymore, it was about her. Our feelings about each other were irrelevant; her feelings about us and herself were the most important thing.
2) Don’t talk about the other to [our daughter] and don’t allow family members to do so either. We didn’t want her to have to figure out whether it was OK for her to love one of us if we hated each other.
3) We talked to each other almost every day after the separation and subsequent divorce because one of us would call [our daughter] to say goodnight. I actually believe we worked through a great deal of the anger and the emotions by talking every day. Even if it mainly consisted of conversations like ‘[our daughter] was sick today and stayed home from school. When you pick her up later, she may need Motrin.’ We actually inadvertently worked through our own issues by focusing on [our daughter’s] well being.
I hated talking to him every day, oh by the way, that was one of the hardest things I did that first year, but [our daughter] was [young] and she needed us both, just like she does now.
I could talk about how impressive and healthy this is forever. But, to me, the most important thing was that she hated talking to her ex, but did it every day for the benefit of her daughter. She and her ex made it about their child, not because they didn’t have hard feelings, but despite those hard feelings.
Surely, their journey was more complex and more challenging that can be reflected in her few paragraphs of wisdom. But, hopefully, their blueprint helps you in your efforts to co-parent your children through a separation and divorce.