Next week I have the pleasure of going to the St Louis area to teach brain-based interventions for teachers, clinicians and parents. We’ll explore neurocognition, self-regulation skills and enhancing executive function. Here is the slide show. Download it, view it, use it. Let’s spread the word that kids need skill sets not punishment.
JOIN US April 30, 2014 For a LIVE 6 hr webcast on brain-based interventions. Watch from the comfort of your home or office. For registration call 1-800-844-8260.
ON SALE 70% off TODAY ~ Find The Complete Parenting Package HERE. 75 pages of neurocognitive printables with a license for practice, Bloom: Helping Children Blossom and The Family Coach Method.
Guest Blog: Should Parents Be Allowed To Make Custody And Visitation Agreements Without Being Challenged?
April 18, 2014
In theory, it is best when parents with minor children are able to work out a custody and visitation arrangement on their own when they separate and/or divorce. After all, the matter involves their children/family and wouldn’t they know what is best for their particular situation? Not always!
I was recently representing a father of three (3) minor children in a divorce case in which he and his wife entered into an Agreement under which he would see his children every other Friday from 7:00 p.m. to Sunday at 4:00 p.m. He entered into this Agreement in Conciliation Court, which is the mediation program that parents are required to attend in Los Angeles County before going into court on a matter relating to child custody and visitation. For those who are unaware, lawyers are not permitted to participate in Conciliation Court.
Before my client ‘s Conciliation Court appointment, I warned him against entering into a Custody and Parenting Agreement that he would not be able to live with for a long time. As requested, my client contacted me as soon as he left the courthouse. During that conversation, he informed me that he had entered into a Conciliation Court Custody Agreement and Parenting Plan. As soon as he finished describing the terms of the Agreement, I asked him whether or not he realized that he would not see his children for twelve (12) days between each of his alternate weekend visits. I commented that most, if not all, of his children’s friends will see their fathers on a more frequent basis, regardless of marital status. I explained to him that his children will most likely assume that he sees them less than other father’s see their children because he loves them less and that this would most certainly negatively impact his relationship with them. After our conversation, he agreed with me that his children would most likely perceive their relationship with him in the way in which I had described, especially since he resided in close proximity to them. He then requested that I file an Objection to the Conciliation Court Agreement and Parenting Plan. As discussed in my article from the September/October edition of the San Gabriel Valley Psychological Association Newsletter, I informed him that the Court might refuse to acknowledge the Objection to that Agreement.
I immediately contacted his wife’s attorney, who had not yet been informed of the fact that they had reached an Agreement regarding the custody issues. I explained my concerns to him and he immediately acknowledged the problem and validated my concerns. I requested that he see if we could modify the Agreement to include some visitation during the week. He told me that he would discuss the matter with his client. Meanwhile, I filed an Objection to the Conciliation Court Agreement and Parenting Plan. As an additional complication, the hearing on this matter was scheduled for the next Court day and therefore it was virtually impossible to resolve the matter prior to that hearing. As a result, I suggested that everyone arrive at the Courthouse at 7:00 a.m. the following morning (1 ¾ hours before the scheduled hearing) in order to try and resolve the matter without judicial intervention. Everyone agreed to my proposal and we were able to settle the matter outside of Court. With the assistance of their attorneys, the parents were able to work out a parenting plan that suited their particular situation and which was in the best interest of the children.
After entering into that Agreement, which was signed off by the Court and made into an Order, I received a copy of the Conciliation Court Agreement and Parenting Plan which the Court also signed off on, even though we had subsequently resolved the matter differently and I had filed an Objection to that Agreement. Under the circumstances, the fact that the Court signed off on the Conciliation Court Agreement and Parenting Plan in that case is of no significance. However, it is indicative of the fact that courts tend to disregard Objections to such Agreements. Although I knew and had previously written about such concerns, it bothered me that courts sign off on Agreements entered into by parents which most certainly are not in the best interest of the children and will negatively impact the children’s relationship with one or both parents.
Over the years, I have come across many situations in which parents enter into Custody and Visitation Agreements which are clearly detrimental to the children. Nevertheless, the courts sign off on such Agreements because they are “Agreements.” On several occasions, I have seen parents with multiple children enter into Agreements whereby each parent would have 100% of the time with particular children of the relationship in order to “avoid conflict with the other parent and to protect the children from being exposed to such conflict.” In other words, rather than learning to co-parent, the parents decide that it is in the best interest of the children that they have a relationship with only one of the parents and that their relationship with their siblings in the other parent’s custody be severed. Such a parenting arrangement is by no means in the best interest of the children. Under such circumstances, the children not only need to deal with their parent’s divorce, but also with the loss of one parent and certain of their siblings. Although courts would never make such orders, they do sign off on such Agreements, thereby making them binding Orders of the court.
Thus, while it is best when parents with minor children are able to work out a custody and visitation arrangement on their own when they separate and/or divorce, some parents need assistance in determining what is in the best interest of the children. Without such assistance, parents can do things that are very detrimental to their children, often without even realizing it. Should Judge’s just sign off on such Agreements, without even addressing the possible consequences? Who protects the children from such parents?
April 16, 2014
Forthcoming changes to the family law in England and Wales amount to a “revolution”, the President of the Family Division has claimed.
In the recently published 11th View from the President’s Chamber, Sir James Munby said:
“Central to this revolution has been – has had to be – a fundamental change in the cultures of the family courts. This is truly a cultural revolution.”
The family courts stand “on the cusp of history” and the changes due on April 22nd mark “the largest reform of the family justice system any of us have seen or will see in our professional lifetimes.”
Tuesday sees the introduction of the ‘Single Family Court’ and the retirement of the current Family Proceedings Court. The newly unified court will deal with all but a few family proceedings which will be reserved for the High Court. Family cases will no longer be heard in either magistrates or county courts, although the family courts will sometimes sit in county and magistrates court buildings.
Amongst other changes, April 22 will also see the introduction of compulsory attendance at a MIAM – mediation information and assessment meeting – for anyone planning to take a family dispute to court. People attending such meetings will be provided with information on mediation as an alternative way to resolve their differences.
In addition, child arrangements orders will be introduced, replacing the residence and contact orders currently used to settle the circumstances of children following divorce or separation.
Child arrangement orders are defined by the Children and Families Act 2014 as:
“…an order regulating arrangements relating to any of the following—
(a) with whom a child is to live, spend time or otherwise have contact, and
(b) when a child is to live, spend time or otherwise have contact with any person.”
Family systems theory has been around for decades, but there is little discussion of it today. Yet understanding how family systems work can help professionals and parents going through separation and divorce. In this article, I explain some of the basics, some of what happens to family systems in divorce and how to truly help families in divorce. I also point out why the adversarial process of family courts successfully managed family conflicts in the past, but is guaranteed to fail today’s high-conflict family systems (regardless of procedural changes within the adversarial structure) – whereas skillful family mediation and other non-adversarial processes can succeed.
Family Systems Theory
Family systems theory describes families as operating like the solar system: each member of the family has a “pull” on every other member of the family – like gravity pulls planets towards each other and other forces push them away, so that they stay in balance spinning around each other in a predictable orbit. Family systems have many common characteristics, including the following:
They are powerful: Family systems are a powerful source of support. You can take them for granted. Family members will consistently act in predictable ways, so you don’t have to guess each day. You can focus on what your tasks are and respond fairly automatically to each other. In this regard, a family system is like a personality – very predictable, so that you know what you can get from whom, when and where without putting a lot of energy into thinking about it. Family systems have built houses, companies (family businesses are everywhere) and nations (dynasties). For example, most successful Olympic athletes, musicians and actors had strong family support – from a very young age. The family system organized itself around their success.
They seek stability: A family system develops standard ways of doing things. The whole family participates in enforcing its code of conduct, values and roles people play in it. Even young children tell each other, their parents and their toys how they should or shouldn’t behave, which helps them learn the rules of the family system and follow them. Family secrets are kept, so that the family system is not thrown off balance. The more dysfunctional the family, the more rigid the roles to help keep it stable, the more extreme behavior and the more secrets to keep it as stable as possible. Everyone is part of the family system – no member is an “island.”
They create roles: In every family system, everyone develops a role. One member talks a lot and another may be quiet. One person is highly competent at one skill and another is good at something else. In traditional family systems, especially in rural societies, the roles have been very clear-cut. In modern times, roles are more flexible and may overlap, as family members interact with the larger society. This can cause instability, so that the family may spend more time arguing over roles or members may simply leave the family system and have little or no contact.
They are part of larger social systems: Family systems, like “nuclear families” (two parents and their child or children), are part of larger extended families, which are part of communities, which are part of regional cultures, which are part of nations and world social systems. The values, rules and behaviors of these larger social systems strongly influence smaller family social systems. As one changes, so do the others – but not necessarily happily so.
They are resistant to change: In times of threat from outside of a family system, the family can be very powerful, because everyone automatically knows how to behave and what their roles are. Regardless of internal squabbles, family systems can be strong in jointly warding off danger – especially threats to the family system. This includes resistance to positive changes. They maintain the status quo at all costs. They don’t let people change their behavior very much. They are always aiming for stability, like a ship at sea trying to balance itself in a storm.
Today’s Social Changes Regarding Marriage
Since about 1970, there have been dramatic changes in our larger social systems and within families around the world. We are shifting from fairly rigid family structures to quite flexible family structures. Freedom to divorce, gay marriage, multi-racial households, children born to unmarried parents, people living alone and a multitude of other changes are having unpredictable affects on the future of family systems and larger social systems.
In terms of the separation and divorce process (we now speak of “separation and divorce” because so many couples no longer get married), the relationship of Family Court to family systems has changed dramatically in the past few decades.
Individual over the family: Divorce laws gave social permission for people to get divorced at will, simply due to “irreconcilable differences.” If one person wants a divorce, they will have it. This creates an ease of disruption that impacts the whole family system. Rather than having skills to cope with these significant changes, many families instinctively put all their energy into resisting these changes in order to stabilize the family system – either by engaging in abusive behavior or publically blaming each other in an effort to get the public to force them to behave.
Lack of continuity: Families don’t last to raise the children in one household. The average age of children when their parents divorce is around 6 or 7 today. This means that they will be raised in two households longer than they were raised in one household all together.
Equal roles: In the past, one family member was the “breadwinner” and the other raised the children. In divorce 20-30 years ago, one family member often left the family system and the remaining parent raised the children. Now, both parents are expected to work and both want to raise the children. Both need new skills for cooperating in ways they never did before.
The Changing Role of Family Court
From approximately the 1970s to the 1990’s, family courts have been setting divorce policies that define these changes. Parenting is supposed to include “significant time” with both parents. Both parents are supposed to earn an income and child support and spousal support are supposed to adjust for differences in earning ability. Former spouses are free to engage in sexual activity of their own choosing. “Get over it” is a common expression heard in family courts, when one party resists the changes of the other. The individual is primary now. During this time period, the divorce rate rose to about fifty percent of marriages. Courts made decisions, the parties’ followed the court’s authority and new family routines were established.
Starting around the 1990’s, surprising changes occurred. Methods such as mediation and attorney negotiation took over the role of courts in family decision-making. Lawyers and mediators simply educated the parties about the laws that had been established over the prior 20 years and the parties started avoiding court all together.
But at the same time, the remaining cases in family courts started to focus on family violence, restraining orders, child alienation and supervised visitation. These were the families who were unable to make the shift to the “new world family order.” Much of the family violence was perpetrated by men who saw themselves in the traditional role of being “head of the family.” Their violence (often reactive and unplanned) was aimed at keeping their wives in the family and under their control. Much of the alienation and false allegations were perpetrated by women who saw themselves in the traditional role of “in charge of the children.” Their efforts (often unconscious) seemed to be to resist the changes to equal roles in shared parenting.
Why the Adversarial Process Fails Today
Today, the family court process of litigation has been abandoned by most families, who can make their decisions out of court – with or without professional assistance. They have the skills to cooperate at a level that can manage the transitions that go with their new family structures. The families who are going to court today are those who do not have the negotiation skills nor the emotional healing skills to manage on their own. Yet putting them through the traditional litigation process simple exaggerates their resistance to everything – changing roles, loss of partners and shared parenting. Many of these families have one or two parents with personality disorders – which are increasing during this time of rapid change in our society. The adversarial process makes them behave worse and does little to truly understand their underlying problems.
Non-adversarial methods are needed for today’s family court cases. That is why methods such as mediation, collaborative divorce, attorneys assisting in negotiations and judicial dispute resolution are the way of the future – especially for these family systems in pain and resistant to the changes of the larger society. This is why skills training is needed for the whole family to help the whole family system go through these changes and into new forms.
Family systems – especially dysfunctional family systems – will resist family courts until we learn these lessons. This is not to say that there is not a role for family courts – it’s a different role which needs new knowledge and skills for understanding and managing dysfunctional family systems and their common mental health issues today.
Part 2 of this article will focus on managing mental health issues in family court and out of court with non-adversarial methods, including mediation and collaborative divorce.
Bill Eddy is a lawyer, mediator and clinical social worker, and the President of the High Conflict Institute. He is the author of several books including The Future of Family Court: Structure, Skills and Less Stress and Splitting: Protecting Yourself While Divorcing Someone with Borderline or Narcissistic Personality Disorder. He is also the developer of the New Ways for Families method of teaching skills to family systems (both parents and the children) and New Ways for Mediation for managing potentially high-conflict families. His website is http://www.HighConflictInstitute.com.
March 18, 2014
Surely I was the oldest person at the Miley Cyrus concert in Phoenix last week. I was wearing my riding boots, yoga pants and a black dog t-shirt. I looked nothing like the 20K screaming girls with their long polished hair, Michael Jordan Bulls jerseys and red high-top sneakers.
As we left the gym last Thursday my friend said, “Bring the family over for dinner tonight.” My response, “So sorry, we’re busy.” “What are you all doing?” she asked. I leaned in with the secrecy of a sleuth, “I’m driving five teenagers to the Miley Cyrus concert.” She gave me the head cocked chin up look and I knew I was in trouble. “Don’t tell anyone, I’m not sure it’s the right decision, but I’d rather have the girls ask me, ‘Mom will you take us, than say can we go alone with our friends.’”
I had solicited opinions on Facebook and my friends said, “I’d never take my kids to see her,” “It’s like musical pornography.” No one said, “Oh yea, I’m dropping my kids off, going out to dinner with my husband and then picking them up.”
In our kitchen at 5:00 pm as we ate, dressed and discussed the pending ritual, I heard myself say, “Miley’s parents must be having a heart attack.” Then I wondered, how do I know, I don’t really even know what Miley does on stage, yet. The videos online show her grinding and simulating sex but those are the snippets. Now having gone, I observe she danced, she sang, she spoke, the energy was awesome. The music was great.
We used the days leading up to the concert as an opportunity to talk about our teens’ views on sexual expression.
“What about our sexuality do we want to keep private?”
“How open do we need to be?”
“Where is the line between self-confidence and self-exploitation?”
“Do we have to do what others are doing, just ‘cause they are doing it?”
“When your children ask about your 20’s what do you want them to know?”
In the car driving to the concert, I asked the teens “Do you feel fully armed?” “Do you know what you are about to see and are you ready for it?” “What will we learn from this experience that will help us be teenagers who take responsibility for our choices?” As we parked, to an audible sigh of relief I said, “Okay parent education is complete, now let’s go enjoy the music.”
Miley sang everything from cover songs like Jolene to Wrecking Ball. The costumes were tiny. She wore a beautiful black and white striped flamenco costume that was stunning and a thong we only wish we looked good in. The dancing was simple yet rhythmic. The graphic display at the top of the stage was creative and artistic. The audience loved her.
This concert was not pornography, it was exhibitionism. The fact that Miley had to show us she knows how to gyrate, is a sign of her youth. She is a 21 year-old exploring her sexuality in an era when we hear the F word, the N word and the C word on itunes. Yeesh. It’s all around us, what we need are teens who are critical thinkers and problem solvers; growing adults who can make informed decisions about keeping control of and respect for their bodies and their hearts.
Elvis was too sexy for our parents. Our parents felt that Madonna was too sexy for us. There is no sexual revolution going on here. It’s simply youth in development. Use it as a teaching opportunity, not yet another thing to fear. Most of all, talk with your teens then just enjoy the music.
Lynne Kenney, Psy.D., is a mother of two, a practicing pediatric psychologist in Scottsdale, AZ, and the author of The Family Coach Method. She has advanced fellowship training in forensic psychology and developmental pediatric psychology from Massachusetts General Hospital/Harvard Medical School and Harbor-UCLA/UCLA Medical School. Dr. Kenney speaks internationally about enhancing executive function, social and academic skills with motor movement. Her NEW book with Wendy Young Bloom: Helping children blossom is revolutionizing classrooms and homes worldwide. Combining her love for motor movement and brain development, Dr. Lynne’s recent endeavor, Play Math, is helping children ages 6-12 learn their math facts with playground balls and hoola-hoops for better algebraic thinking. For more visit http://www.lynnekenney.com.
However, acknowledging and being aware of your emotions during the divorce process is the first step in managing your emotions. And it is managing your emotions that will help you overcome some of the more difficult aspects of your divorce, not to mention it will also help you build a foundation for peace and harmony with your former spouse once the divorce is final.
As a family law attorney, clients contact me constantly when they are having a difficult time resolving issues with their spouse. And while many of these issues are of significant importance, there are many times when these issues can be resolved without the assistance of a professional. Calling your attorney every time you experience a stressful event is extremely costly and does not lay a foundation for problem solving once the divorce is complete. That is why I encourage individuals to think creatively about how to resolve these issues on their own so that their well-earned money can be used for another useful purpose and not always towards attorney’s fees and costs.
In my last blog post, I discussed some practical applications on how to cope with an impossible spouse during and after a divorce. Here, I am also going to discuss some practical applications on how to manage your emotions during the divorce process in hopes that it will help ease the difficult divorce process.
1. Flexible Thinking: Flexible thinking means that you don’t automatically reject what your former spouse may say when new ideas are discussed or decisions need to be made. Bill Eddy, President of the High Conflict Institute and author of several books related to high conflict divorce, explains that flexible thinking includes having the ability to think of several proposals for solving problems rather than just fighting for your first idea. This in turn results in making better decisions.
2. Check Yourself: It is always important to check yourself and your reactions to your spouse. Are you saying no because you’re angry and upset over what your spouse did to you during the divorce? Are you saying no to spite your spouse? Or are you making decisions based on the situation at hand and what is best for you and your family going forward? Ask these questions before you respond to your spouse. When you make decisions that are born out of a rational and calm thought-process, you may find that you are making better decisions. “Being able to focus on changing yourself and not trying to change the other person will make your life less frustrating and more successful” says Eddy.
3. Focus on the Big Picture: Look at the big picture and write your goals down on paper so that you can keep track of what you are hoping to accomplish at the end of your divorce and beyond. For example, if your goal is to be cost conscious, then you may think differently about constantly picking up the phone to call your attorney asking him or her to intervene on your behalf. If your goal is to make the divorce a peaceful and as seamless as possible transition for your children, you may think differently about how you react and respond to your spouse in front of your children. Focusing on your goals will help you avoid sweating the small stuff and focus on what’s really important.
With all of this being said, don’t beat yourself up when you are immersed with a sense of overwhelming emotion. Divorce is a difficult process and it is important to allow yourself to indulge in the emotions you are feeling during the process. Be sure to contact trusted family and friends and seek professional assistance from psychological experts if you need a safe place to process through your emotions. Do your best however to keep your emotions out of the divorce process because divorce is essentially a legal business transaction.
Follow Caroline Choi on Twitter: www.twitter.com/@carolineychoi
March 4, 2014
This is an essay on compassionate divorce and the role of lawyers in the divorce or dispute resolution process. For the parties, the core of my system is to negotiate for the welfare of both sides. For the lawyers, the core is to throw away the law books and let imagination help the lawyers find creative resolutions to their cases.
Of course, there is nothing new under the sun, and there is probably nothing new about my ideas, but perhaps I have cobbled many ideas together in a way that hasn’t been expressed before. It is like the Gutenberg press: nothing new, but a new compilation of technology and ideas of the day.
I have experience in the legal field because I was a practicing lawyer in Seattle from 1971 to 2007, and I worked in the areas of criminal defense, divorce, bankruptcy, personal injury and many other areas of litigation. In 2007 I moved to Svensen, Oregon, a rural area outside Astoria, practiced here a little, and spent a lot of time thinking about dispute resolution. I also took training as a collaborative lawyer both in Seattle and in Oregon. In collaborative cases, lawyers and clients negotiate in person. They do that because stressed people tend to flare into argument but they stop when others are present. Thus, the lawyers’ desire to argue is tamped out, and the clients’ desire to blame is tamped out too. The lawyers and parties negotiate for what they want, rather than arguing about rights and liability. The lawyers agree to drop out if they cannot settle, which motivates the lawyers to succeed and stimulates candor.
I have some basic ideas or postulates about how people work and about how lawyers and the legal system work. These ideas are the basis for believing that benevolent divorce works.
First, I believe that most people in a divorce have a deep down desire to be kind and beneficial to the departing spouse that is stronger than a desire to hurt the spouse or accumulate property.Oxytocin over testosterone!
Second, in any divorce where children are involved, the parties have a deep common interest in the children. Usually the parties benefit the children when they act for the welfare of each other, and they hurt the children when they fight.
Third, lawyer imagination is stimulated if they throw away the law books, stop thinking about their clients’ prospects in court, stop modeling warfare with the other lawyer, and let imagination work. I have no basis for this in literature or elsewhere, but it works for me, and I believe it is extremely difficult to create imaginative resolutions to conflict while constantly preparing for war.
Fourth, the value of an estate can be increased by the cooperation of the parties. For example, if the parties cooperate, they can manipulate their assets in such a way as to minimize taxes, and create more wealth for the former husband and wife.
Fifth, criminal lawyers are skilled at seeing an objective and driving both themselves and their clients to that objective. [For example, sometimes a lawyer can negotiate a favorable plea if the client stops drinking. But often clients are not good at changing their ways. The lawyer drags the client to alcohol cessation classes; the lawyer cajoles the client into going to AA; the lawyer calls the client early in the morning to remind them to attend meetings; the lawyer is determined and eventually a manageable plea emerges.] Further, and in spite of what I said before, criminal lawyers think simultaneously about preparing for war and creating imaginative solutions; that is, they defend aggressively and at the same time look for ingenious ways to enable their client to make an advantageous plea. These criminal lawyer skills provide a basis for cross training divorce and other lawyers in the art of encouraging clients to reach a goal the lawyer and client both want.
Sixth, litigation is extremely expensive for both lawyers and clients, but in ways lawyers and clients often don’t see. The math is simple but many lawyers don’t consider it. As an example, a party may have an offer of $10,000 but wants $20,000. If it is fair to say there is a 50% chance of that result, then the value of the claim is $10,000 “on the table” plus $10,000 more, less 50% because half the time the case will be lost, for a cash value of $15,000. But the ultimate value is much less. In a divorce, time consumed by litigation is time lost from life. Just looking at tangibles, parties must devote valuable time attending to a divorce, and they must pay fees and costs. The value of money a year from now is less than the value today. Considering these burdens, the value of a resolution now is attractive compared to a larger amount somewhere in the future: most people would not sacrifice a year of their lives to the Gods of litigation for a few more dollars. One can guess at the chance of prevailing, that is, determine if there is a 50% chance of prevailing, by taking a hard, cold, realistic look at the amount a disinterested person would pay for the anticipated proceeds of the suit today.
Now some analysis of the legal profession: Lawyers settle cases by predicting court results. They analyze cases, statutes, facts, rules and personalities, predict the result if the case goes to trial, and argue about their respective predictions. They settle on the basis of compared predictions. This is like preparing for war. Lawyers have done this for 800 years, and don’t easily abandon it.
Lawyers are afraid to settle creatively because they are afraid to abandon possible court claims even for something that seems beneficial for both sides. This fear is reasonable.
Divorce becomes estate planning. The lawyer, or hopefully both lawyers, think about the welfare not only of their own client but also of the welfare of the departing spouse. When the lawyers think about both clients, it naturally follows that they stop thinking about battle in court, and it naturally follows that they stop thinking about the rules, laws, cases and traditions that apply to court. That clears the lawyers to be imaginative, and creative settlement possibilities start to boil out of the legal mind. It’s as simple as that.
The role of a court lawyer is to protect the property and limb of the client from abuse by a spouse. In this, the lawyer acts like private police by bringing abuse to the attention of the court, and the court protects the parties with its enforcement powers. The role of the court as the source of wisdom for dividing property and providing for children I believe came later in legal history. This essay walks away from the concept of the court as the “parent” who decides for the parties how their lives will be arranged. In some cases, courts are not necessary to act either as police or parent, and their role is to audit an agreement of the parties for possible abuse and then “sanctify” the agreement, sometimes until the parties pass away.
Now, finally, how a lawyer can assist a client to obtain a benevolent and divorce: the lawyer should first have a thorough discussion with the client to determine whether or to what degree the client wants to be benevolent to the departing spouse. It is important to do this right away because it can be difficult to back away from court conflict once it starts. Lawyer and client may understand where the parties want to be when the divorce is done; they may understand where the parties want to be when their lives are over. In this way the intentions of the parties evolve from fear and selfishness to benevolence and compassion. The lawyer should also determine whether there are “embedded” claims between the parties that are legitimate objects of recovery. For example, if one party has deliberately wasted assets, it is reasonable for the other party to ask for recompense, just like in any other arms length partnership situation.
It is also important ethically for the lawyers to obtain a thoroughly vetted consent to whatever process the parties take.
Divorce becomes estate planning. The lawyer forgets all about the law of divorce, she or he forgets courtroom jousting, she or he forgets child support schedules, courthouse customs, and lets imagination work. It’s as simple as that. As an example, if the parties have children but want to live in different cities, this can be a terrible problem. The lawyer can consider both parties moving to the distant city, both moving to a different city, both staying put, or buying a giant Skype machine or other creative resolutions.
The lawyer might engage a CPA or financial person to save money and increase the wealth of the parties. For example, I once had a case with complicated assets and debts and mortgages, but the husband wanted to provide for the wife in old age. Every lawyer knows about alimony, or maintenance, or spousal support, as it is called in different places, but I thought of long term care insurance and realized I knew nothing about it, had no idea what it cost, had no idea whether it is a good replacement for alimony, had no idea what tax consequences might exist. This was a CPA problem, not a lawyer problem. An estate planning lawyer might have skills similar to that of an accountant, and so a lawyer could fill the role of “financial person.”
The lawyer supervises negotiations and keeps the client on the track of arriving at the result that was thoroughly discussed in the beginning. The lawyer may have to be determined and tenacious because divorcing clients sometimes have incendiary conflicts. Here criminal law skills might play, because criminal lawyers are often good in subtle ways at keeping a client on a track that leads to a beneficial disposition of their case.
It is of course true that both sides may not agree to the wisdom of cooperating. However, even if one party insists on punitive or competitive goals, the sweet voice of reason tells all parties that a court solution is more expensive, often vastly more expensive, than a cooperative settlement. And, as wise lawyers say, going to court is rolling the dice. Surprising results are not surprising: a party may hope for more but end up with less. To be repetitive, litigation means extended pain, and it means dropping normal activities to feed the dragon of litigation. Part of a lawyer’s job is to convince the other side of this, and it works some of the time… but not all the time.
Other lawyers or other lawyer roles have to exist. In my opinion, the lawyer should always have another lawyer on call to litigate in the event that hostilities break out. The course of true separation does not always run smooth. Sometimes parties grab children and flee. Both sides should be ready, unfortunately, to go from negotiation to war. In addition, there should be a lawyer skilled in translating whatever the parties may agree to into a final decree that is acceptable to a judge. This is more true the more unconventional an agreement may be.
Once a resolution is reached, the lawyer should thoroughly compare the proposed resolution with a prognosis of what might happen in court. This would be going from the imagination role to the role of negotiating on the basis of predicting the result of a court battle. For example, if the parties agree to divide property instead of agreeing to a traditional schedule of payments, the lawyer should know the comparable worth of the different options. With that knowledge, the lawyer and client should thoroughly discuss the options so the client can make an informed choice whether to use an unconventional settlement. The lawyer should also review any agreement to make sure it is understandable and viable from a legal standpoint for the many years it may be in effect.
The parties and lawyers may want to negotiate some claim of right by one party against another. In this my idea is possibly different from collaborative law, where the parties are supposed to negotiate for what they want, without regard for fault or liability.
I believe that if the customs of the legal world changed divorce would become a humane process, and the parties would end up on good terms for the remainder of their lives. Lawyers would be happy because they would be helping their clients. Lawyers and former spouses would be happy to see each other when they run into each other on the street. Lawyers starved for work might be able to find work by pioneering benevolent settlement of divorce cases. It is just possible that these concepts might spill over to other areas of law too.
As a postscript, I have found it very difficult to apply these ideas. Some clients are receptive. Most lawyers I have seen are not. Some people I know create benevolent forms of divorce for themselves without even thinking about it as such; for example, providing for health insurance for a departing spouse is a prime example of divorcing couples caring for each other.
I hope lawyers and mediators will consider the ideas I have expressed here.
Roger B. Ley was a litigation lawyer in Seattle from 1971 to 2007 and represented clients in business, divorce, malpractice,
criminal and other practice areas. He learned about mediation and collaborative law starting about 2005. In 2007, he relocated to
Oregon, near Astoria, and practiced law on a limited basis there.
He developed my ideas about compassionate or benevolent divorce in the course of representing clients in coastal Oregon. The idea that clients should think about where they want to be when their life is ending came from attending the funeral of a dear friend in Seattle. His former wife, with whom he had conducted a bitter divorce for years, was there, along with his current wife. The idea of avoiding focus on preparation for courthouse conflict as a means of invoking imagination comes from personal experience with clients. He has not located any literature on the role of imagination in conflict resolution.