Good Counsel: Helping Your Client Make the Divorce vs. Separation Decision

During the weeks prior to a divorce or separation, Individuals and couples facing turmoil in their relationship will often seek counsel from both a therapist and a divorce lawyer. While the main focus with the therapist might be on decisions about the merits of the marriage and conversations with the divorce lawyer may be centered around understanding the divorce process, these topics can overlap.  Having both “counselors” on the same page may be valuable for the client or couple.

The Decision about whether to Divorce or Separate.

Often the essential discussions about divorce, separation or reconciliation occur in the offices of the therapist.  However, it is increasingly common for couples who are unsure about the future of their marriage to seek out legal counsel to help them understand what might lie ahead for them.  These conversations are often precautionary with individuals and couples trying to find out what happens in a divorce and whether they need to do anything to “prepare” for divorce.   While some clients come in seeking advice about divorce preparation strategies, most are more concerned about simply understanding what happens during a divorce or legal separation so that the can be emotionally prepared to make important decisions.

A few years ago, William Doherty, psychologist and professor at the University of Minnesota, with an international reputation as an expert on marriage saving, met with Collaborative attorneys in Minnesota several times to help attorneys develop a protocol for talking to clients who are either ambivalent or opposed to the divorce.  While divorce attorneys are not experts in reconciliation, they do have the ability to help clients leave the door to reconciliation open and to help clients understand the legal implications of divorce alternatives, such as legal separation or post-nuptial agreements.  In addition, conscientious lawyers have an ethical duty to make sure that clients do not get pressed toward a divorce that one, (or both) spouses believe can be avoided.  While a divorce always starts with at least one spouse choosing to move ahead, a recent survey of Hennepin County divorcees revealed that there are occasions in which both parties, after the divorce, acknowledged that they believe the marriage might have been reconciled. In those instances, the momentum of the divorce was such that the clients apparently did not feel that they could express their doubts about the divorce, or put the divorce on hold. Part of the training provided by William Doherty was to help divorce attorneys develop skills in asking clients about their true desires in an appropriate manner.

In addition, the evolution of discernment counseling, a concept that Professor Doherty created, has provided divorce attorneys with another option to explain to individuals or couples that may be uncertain about divorce.  To learn more about discernment counseling, click here. Among the benefits of discernment counseling is that it provides a meaningful option for couples who are uncertain about both divorce and reconciliation.  The goal is for the couple to emerge with a clear plan to pursue one avenue or the other. For couples that determine that reconciliation is not possible, they can emerge from the discernment process with at least some closure on marital issues that can help them approach their divorce in a healthier manner.

Regardless of the path chosen by the couple, the early stages of the decisions about the future of the marriage present true opportunities for the therapist and the divorce attorney to work together.  Attorneys who develop skills in helping clients understand their options can make appropriate referrals to reconciliation counselors to assist client in making the best decision for their family.  Couples who cannot reconcile can be guided toward a more humane divorce process and can receive some of the emotional preparation or even “closure counseling” to help them achieve other goals, such as preserving peace for the children.  Communication between the divorce attorneys and the reconciliation counselors can be essential in those situations.

Even in a situation in which a couple is in communication with attorneys during reconciliation counseling, communication among the professionals can help them achieve better outcomes.  It is common for clients who are working on their marriage to be concerned about whether  the months (or even years) of counseling will work to their disadvantage if a divorce does happen. This anxiety about whether time is working against one of the spouses can jeopardize the efforts at reconciliation.   Faced with this situation, skilled divorce attorneys, perhaps in conjunction with the reconciliation counselors, can create agreements (such as separation agreements or postnuptial agreements) that either avoid or clarify these risks so that couples can pursue reconciliation with less risk and distraction.

Therapists who work with couples often find that one of the spouses may feel pushed toward divorce based on a belief (often mistaken) that holding off on divorce will work to his or her disadvantage.  The therapist may want to encourage the individual, or the couple, to get competent advice from a divorce attorney to either dispel these myths or to address the concerns in a productive manner.  However, the therapist may be justifiably concerned that sending the individual or the couple to a divorce attorney could hasten the divorce, against the true wishes of the couple.  Selecting divorce attorneys who are careful to avoid pushing clients in or out of a marriage.  Teaming, or even basic communication between the divorce attorney and the therapist, can help avoid these types of misunderstandings.

While the best counsel about the divorce itself will almost always come from the therapist, having the client’s counselor and legal counsel on the same page will help individuals and couples get the support they need to make the best decision.

By contrast, the next area we will explore, the decision about the divorce process, falls primarily within the expertise of attorneys.

Next: The Decision about the Divorce Process.

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