Most of us have heard of the “fight, flight, or freeze” responses that we are pre-programmed to experience in the face of a threat. This is often attributed to the “reptilian” part of our brain or the part of our brains that evolved first and have the oldest programming.
Many people experience the news of divorce as a huge threat, if not an existential threat. So, it is only natural that an impending separation or divorce would trigger our reptilian brains and cause us to respond with a fight, flight, or freeze response.
The problem is that reptiles have really bad divorces. (If you can find one that had a reasonable divorce, I’d love to hear about it).
Engaging in a fight, flight, or freeze response upon learning that your spouse is considering ending the marriage prevents you from doing the most important thing you can do at that moment: Think.
Some people choose to fight immediately. This looks like someone seeking out the “toughest”, “meanest”, most “aggressive” divorce lawyer they can find. This move is protective in some ways, but also frequently leads to highly adversarial and needlessly expensive wars. The fight responses is often a self-fulfilling prophecy. You think there is going to be a fight, so you create one.
The flight response is no better. Some people simply avoid the situation and reality of what is happening. They refuse to engage an attorney or discuss things with their spouse. They simply try to pretend that it is not happening. This also leads to needless cost and fighting because their spouse has no choice but to ask a court to intervene when someone refuses to engage in the divorce process. The court is the only thing that can force someone to engage, or at least impose a high price for non-engagement.
Freezing is also a bad plan. Things begin to happen legally, financially, and practically when separation and divorce are on the horizon. If you cannot actively participate and shape those events then you may suffer negative consequences for a long time.
So, what is better than following our reptilian brain down one of these counterproductive paths? I believe that the best first move is to educate yourself. That does not have to mean talking to an attorney immediately. But, it should mean doing some research into your divorce process options, including negotiation, mediation, collaborative divorce, and even litigation. You can choose from many methods and processes to resolve your divorce issues. It is not a one size fits all area of the law. But, you should know which processes are a good fit for you, your spouse, your family, your resources, and your goals. A good lawyer can help you identify your goals, educate you about different methods, and help analyze what process is the best fit for you and your situation without pressuring you into the one they prefer.
Everyone will likely have some form of the fight, flight, or freeze response to the news of a divorce. It is only natural. But, that is not the part of your brain that should be making decisions in these important moments. The key to making sure the more evolved parts of your brain are in charge is to educate yourself on your options as quickly as you can.
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.
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.
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.
Clients frequently ask me in a first consult how long a collaborative divorce process takes. And I spend a lot of time thinking about what makes cases so different and why some move faster than others.
One of the biggest variables I’ve found is the set of expectations that clients bring into a case.
Some clients bring in very few expectations about the end result. Some bring in great expectations about the ultimate outcome.
In my experience, clients have more efficient, faster, and less expensive processes when neither party brings unrealistic or rigid expectations to a divorce process. The reason is that an attorney has to spend a lot of time managing these expectations and working to create the flexibility and open-mindedness that produce the best and most efficient results. I can’t tell you how many times I’ve heard the phrase “managing client expectations” in seminars for family law attorneys.
The truth is that in all but the most extreme cases neither party can impose results or outcomes on the other, even (and maybe especially) in court. The vast majority of divorce and family law matters are resolved by mutual agreement. And mutual agreement obviously does not involve imposing outcomes on one another.
To be clear, expectations are different than hopes, concerns, and goals. Hopes, concerns, and goals are helpful and necessary for identifying what is important to a client. Rigid expectations are counterproductive because they reduce the ability to think creatively, brainstorm possible solutions, and work collaboratively to find the best solutions. Expectations often cause people to “anchor” on a particular strategy or outcome and develop tunnel vision. That causes people to miss important, beneficial, and helpful alternatives.
So, if you are seeking the most efficient, productive, and beneficial divorce negotiation process, then challenge yourself to avoid overly rigid or unrealistic expectations in the beginning. It will save you time, money, and stress in finding your family’s new path.
One of the saddest, but most common losses in divorce occurs when one or both spouses lose their communities as a result of the divorce (perhaps even sadder is when divorce causes children to lose their communities, but that is another story for another day).
These communities are diverse and take many forms. They are neighborhoods, social friendships, church families, extended families, work families, and in-laws among others. These communities can even be clients, referral sources, and other networks that are foundational to your livelihood.
We are all familiar with this, having either been the divorcing spouse feeling shunned or anxious about how those communities will receive us. Or, as the community member unsure of what to say, whether to reach out or how to navigate the waters of someone else’s divorce.
The question is how to prevent it. The answer lies largely in how the spouses handle their divorce.
In general, the less conflict involved in a divorce, the fewer community relationships suffer. Just as children are highly sensitive to the conflict in their family, communities are highly sensitive to conflict among its members.
Every divorce has conflict. For that matter, every happy marriage has conflict. The difference is that in cases where communities are lost, the conflict has spilled over to community members. A spouse is sharing negative information about the other with the community. Conflict erupts into arguments in front of friends or family. In seeking support from their communities, spouses sometimes “poison the well” for the other spouse, intentionally or not.
When conflict spills over to the community, the community rarely knows how to react appropriately. Most communities are not trained to manage that conflict. They don’t know how to support both spouses without shunning either of them.
The best way that I know to get through a divorce without losing your communities is to adopt a divorce process that can contain the conflict so that it does not spill over into other areas of your life.
While all divorce processes have pros and cons, some are designed to contain conflict, while others are designed (intentionally or not) to intensify conflict. For example, court processes are designed to contain conflict in the sense that it substitutes for vigilante justice. But an adversarial court process is not designed to avoid collateral damage to your communities. In fact, your communities are often dragged into court as witnesses. Mediation is designed to contain conflict before it spills over to trial. But mediation is most often highly leveraged based on strong-arm tactics, increasing the odds that the conflict spills over into communities, even if it avoids more courtroom time.
The best process for containing conflict, and preventing it from costing you your communities in divorce is the Collaborative Process. There are many reasons, but they all come back to the fact that experienced collaborative attorneys are extensively trained and committed to handle conflict, even highly emotional conflict, productively, by de-escalating it and channeling that energy it into problem-solving without becoming adversarial with each other or the clients.
If you are facing a divorce, then give some thought to preserving your communities, and how to do that. Give some thought to the collaborative process.
“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.
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.
If you are facing a separation and divorce, and looking for legal counsel, then you need to be an educated consumer of legal services. That means doing your research, meeting someone before you hire them, and understanding what kind of lawyer you are hiring and the processes by which that attorney is going to help you.
This helps protect you from a dynamic within the legal profession described by a colleague in a recent article as follows:
What does this mean? It means that more and more lawyers are competing for the same clients. This encourages lawyers in consults to bad mouth other lawyers and convince clients that they are superior and should be hired. It also encourages the starving lawyer to “churn” the case or to lead their clients down the more expensive and painful path of litigation rather than the often times superior (but less lucrative) choice to attempt to resolve a case. Finally, it encourages the lawyer to “show off” for their client in Court and in nasty emails and letters. (Whether it helps the case or not.)
Contrary to popular opinion, the majority of family law and divorce attorney are dignified, mature professionals who would not sacrifice their integrity to gain or keep a client, to make more money or to “win” a case. But, all of those lawyers (and the judges) know colleagues that employ the tactics described above and ruin the reputation of the entire profession.
The problem is that you can’t know whether any particular attorney is going to lead you down this path without doing your homework. So, be mindful of the dynamic described above and hire an attorney that you are confident is not going to drag you into it with them. If you are considering an attorney and hear them badmouth other lawyers or your spouse, or they aren’t willing to truly help you avoid litigation when appropriate, then give some thought to whether that attorney is right for you.
The reality is that many, if not most, expensive divorces feed off of anger and clients that cannot reign in their emotional behavior. Certainly, complex legal questions and difficult situations play a part as well. But, as a consumer of legal services, you need to be very intentional about whether you are hiring an attorney that will fan the flames of conflict and thereby increase the time and cost of your divorce or reduce the time and cost by dampening strong client emotions and focusing on problem-solving.
The divorce rate in the United States has been worrying people for a long time. People have been researching it and trying to find the reasons for it for decades. I’ve heard a lot of theories, but I recently heard a new one.
In this podcast from Hidden Brain, researchers discuss their theory that marriage has become more difficult in the last hundred years. The theory, in general, is that we have come to expect far more out of the institution of marriage than ever before. And those expectations have become so great that the institution cannot possibly live up to them.
So, the theory goes, the higher divorce rates are a reflection of our expectations about marriage, rather than any flaws with marriage itself.
It is a fascinating theory, a great listen, and food for thought for anyone that is married or may want to marry someday.