Is there such a thing as a good divorce experience? Most family law attorneys are familiar with the adage: “It is a good settlement when both parties are equally unhappy.” This conventional wisdom raises some interesting questions.
Narrowly, what are the implications for the future functioning of a family with such unhappiness? More broadly, with roughly half of all marriages ending in divorce, what are the long-term societal implications if mutual unhappiness is deemed not merely acceptable, but an indication of a job well done? Might the old assumptions about how we handle and settle divorce cases have serious long-term unintended consequences?
As part of her study about how families fare after divorce,1 psychologist Constance Ahrons, Ph.D., describes in her book The Good Divorce2 how divorced couples can create a respectful and productive relationship in a post-divorce “bi-nuclear family.” The focus of Ahrons’ work is on parenting, but the concept of a “good divorce” applies equally to maintaining and recreating other relationships, including those with mutual friends and acquaintances, and even in-laws.3 Ahrons notes how the divorce process can significantly affect the chances of a “good divorce” that minimizes adverse impact on relationships and creates a functional, bi-nuclear family.
A number of studies note how the biggest predictor of the dysfunction of children after divorce is the degree of acrimony between their parents. Children of acrimonious divorce have statistically more physical illnesses, a higher dropout rate, greater drug abuse and more mental health issues, and do poorer in school.4
Ahrons suggests there may be a link between the structure of the adversarial process and acrimonious divorce. What were once mutual interests become personal interests that “need to be protected by counsel,” who “treat spouses as angry enemies who need protection from the tricks and maneuvers of their expartners.” This results in a “highly dysfunctional” divorce model that “destroys the potential for cooperation so essential for a good divorce.”5
Most family law attorneys fully recognize the problems with the all-out war that Ahrons describes and do their utmost to avoid it. But attorneys can only respond in the manner in which we have been trained and within the limitations of the tools and structure that are provided. We provide a legal response that is inherently unilateral; we are often poorly equipped to understand the underlying dynamics that drive the conflict; and the structure of the adversarial system makes it difficult or impossible to contain conflict and provide a better resolution. In other words, we do the best we can under trying circumstances, making do with a process that seems better designed to ferret guilt from innocence in criminal cases than to restructure families.
Complicating our task is the fact that divorce is among the most stressful events in a person’s life, second only to the death of a spouse. In many ways, divorce is a death: the loss of at least one relationship, a dream, an expected future and a financial situation. Most people going through a divorce experience the stages of grief described by Elisabeth Kubler-Ross in her seminal work, On Death and Dying: denial, anger, bargaining, depression and — eventually — acceptance. Such intense emotions can easily overwhelm and may cloud the ability to make sound decisions. For example, there can be a tendency to use the adversarial process as a means for venting anger.
Lawyers can contribute to acrimony by exacerbating the normal grief emotions. An attorney who may want to please a client with aggressive behavior can easily intensify and even entrench both parties’ anger or depression, thereby damaging the parties’ ability to move toward acceptance. While litigation techniques may be useful in some situations, overzealous representation can be harmful to a client’s long-term interests by increasing acrimony that lingers long after the decree is entered. Clients whose relationships are damaged by overzealous litigation do not experience a good divorce.
Collaborative law has developed as one of the structural limitations of adversarial divorce. It contains an institutionalized recognition that clients are in crisis and will therefore necessarily experience intense emotions as they restructure their families. Generally, the collaborative process focuses the clients on their highest long-term goals, helps them obtain and understand the information needed to make good decisions, and then ushers them to productively and jointly work toward satisfying those interests.
Both clients are represented by attorneys who are trained in the formal collaborative process and its procedures to help clients move safely through their normal emotions and dynamics to a successful outcome, while also thoroughly addressing legal, parenting and financial issues. The measure of success is a durable agreement, which necessarily means that relationships important to the client be preserved.
There are only a handful of law schools that offer collaborative law as part of their curricula. For most of us, the process and techniques used in collaborative law lie outside our prior legal training and experience. While knowledge and skills in substantive law and court procedures are needed, conventional legal training and experience do not prepare attorneys to work within the formal process structure.
I continue to be surprised how often clients heartily thank me at the conclusion of a collaborative divorce. A client whose case involved significant conflict recently told me: “If it hadn’t been for this process, I would never have been able to have a co-parenting relationship with my daughters.” Often, spouses sign their final divorce papers and then hug, recognizing that they both chose to partner toward achieving resolution, confident they will be able to work through future challenges that are inherent in co-parenting their children.
Surprisingly, these are clients who frequently start with significant conflict, some anger and mistrust about their spouse, and feelings of hopelessness. What they did have in common was that they chose a non-adversarial process designed to help them resolve their significant differences. Perhaps these clients experienced as good a divorce as was possible.
J. Mark Weiss is a Seattle attorney who, after two decades of conventional family law practice, has retooled his practice for collaborative law and mediation. Weiss was named the 2005 Attorney of the Year by the WSBA Family Law Section and is a Fellow of the American Academy of Matrimonial Lawyers. His website is www.mark-weiss.com.
1 Ahrons’ longitudinal, bi-nuclear family study focused on normal divorced families and was funded by the National Institutes of Mental Health and the University of Wisconsin. The study involved tracking 98 families (196 parents) over a six-year period.
2 Ahrons, The Good Divorce (1995).
3 Since converting my practice to collaborative divorce work, I have been surprised how frequently it is important for some divorcing spouses to maintain a cordial relationship with their former in-laws.
4 E.g., Wallerstein and Blakeslee, What About the Kids? (2003), p. 206, and Emery, The Truth About Children and Divorce (2006), p. 64.
5 Ahrons, The Good Divorce, pp. 176–78.
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