A divorce filing or informal separation does not mean life suddenly ceases to progress. There are still bills to be paid, friends to see, children to raise, and yes, soon-to-be exes to deal with. As a Divorce Attorney I have found that in some instances the former couple communicates more DURING a divorce than they probably did during their marriage.
Now to be sure sometimes the communications are not healthy or productive. But other times they are. I have often had clients tell me their spouse’s opinions about me as an attorney (usually negative). I have had cases where the parties have compared billing statements. I will also admit that there have been times in my career where my client has been able to work out a deal far greater than what any court would provide or that I could likely obtain. I will go on record that some of my client’s best outcomes were negotiated by them with little or no formal assistance from me.
A line I often use with my clients is this: “I know the law, but YOU know your spouse.” And so much of family and divorce law is determined by emotion rather than reason.
For that reason, absent risk of physical violence or harm (or the existence of a restraining order), I generally (and please note that I underlined that term) believe it is beneficial if the parties discuss the divorce case amongst themselves. I would caution any client to not put anything in writing, of course, (even if it is unlikely to be binding when represented by counsel) and to not make any guarantees, but generally dialogue between parties as part of a settlement negotiation is confidential under the Court Rules. I would also caution to not give away trial strategy and to cease communicating if the matter becomes tense. However, in certain cases where there is not much animosity, clearing the air and attempting to discuss amicable resolutions absent the presence of formal mediators or attorneys may be beneficial.
Indeed, it may prove beneficial for the simple reason that neither party is paying hundreds of dollars per hour for experts when engaging in such communications. It may also be beneficial in that some emotions simply need to run their course. I have had mediations and settlement conferences with clients that seemed a waste of time until the case suddenly settled a few days later. In such cases the terms of the deal were secondary to the emotions that had to drain. Although bloodletting has been found to have no medical efficacy, a bit of emotional bloodletting is sometimes what is required to get a divorce finalized.
The seven stages of grieving discussed by psychologists seems an accurate phenomenon from my experience. Although most clients ask me from the start “how long will it take to get divorced” the true answer is generally when the money runs out, after a judge issues an opinion following a divorce trial, shortly after all negative emotions are properly drained, or whenever reason sets in—whichever first occurs.
Sometimes the line “do you want to pay for my kid’s college or your own” can be an effective way to nicely advise clients they may be pushing too hard.
One thing I’ve noticed more and more, even amongst attorneys is the attitude or stated expression that divorce is a game to win. In my opinion such an attitude doesn’t serve anyone well. In my opinion it is best to think of divorce as creating a rulebook or a contract. Getting married is entering into a contract but absent a prenup, it’s one with vague terms. A good divorce lawyer should be able to guide you to the contract of divorce by creating fair terms, simply stated.
It’s perhaps more exciting to play a board game than to write the rules of a board game, but that agreement is what lets the rest of a divorced person’s life move forward in a clear manner. Just like in a board game, if you have an issue you can examine the rules to determine if the other side is treating you fairly or not. This cuts down on costs as post-divorce litigation is no less costly than the divorce itself.
To that end, in certain circumstances I believe it is helpful for the parties to have informal discussions about the case. The ability to communicate is the root of many divorces and will also lead to post-divorce issues if not confronted. Moreover, divorce is a highly personal endeavor. No matter how much you communicate with your lawyer, your desires will always be somewhat subconscious. Such discussions with your ex will allow you both to bring issues into the open and begin the process of determining what you both want out of the divorce.
So, to the question: “Should I discuss my divorce with my spouse,” the simple answer is that in many instances it can be effective provided that certain parameters are in place. That way, when the attorneys and/or mediators are in the room the parties can hopefully limit the issues and save litigation costs.
Partner with Carl Taylor, Esq.
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