Commentary: Lawyers can make a difference in reducing acrimony in divorce
SINGAPORE: I had a client who shared a painful story involving his divorce. As her marriage broke down, in a fit of anger, she told her ex-husband: “I regret having been through this pregnancy.” The couple had been married for 15 years and had a daughter.
She was unaware that what she said to her ex-husband had not only been communicated to her daughter, but ended up in the affidavit as an argument used against her in the custody battle.
She was upset when she remembered that even though she had made this statement, she didn’t think it would be used against her.
Her ex-husband’s lawyer knew the case would turn out in her favor, despite the harm it would cause the family in the long run.
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This case illustrates the central role lawyers play when marriages break down and how lawyers advise on what should be included in a lawsuit.
In addition to determining who deserves what and defending the interests of their clients, lawyers also play a vital role in setting the tone of the divorce.
After all, they are there every step of the way to establish the validity of the grounds for divorce, negotiate the division of property, custody of the children, draft pleadings and affidavits, and prepare them for any legal proceedings.
It’s their job to make sure they get the best results for their clients, but there is a way for them to do it without harming families in the process.
GOOD AND BAD APPLES
In my 35 years of practice as a counselor, I have seen different types of lawyers and the effect they have had on their clients and divorce proceedings.
Couples who divorce often go through various stages of grief, from denial to acceptance. I have had clients who have been referred to me by their lawyers because they really care about their clients’ best interests and want someone to support them emotionally.
These lawyers could very well have thought about the money and handled every case. But instead, they assessed whether their clients were ready for a divorce and asked them to consider counseling instead. In some cases, clients would decide to stay in their marriage, thus losing a potential client’s lawyer.
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To be fair, when it comes to divorce, lawyers have a lot to do. They have to deal with the intense emotions that accompany the end of a marriage. And they know that the emotional injury can have a ripple effect on the procedure.
Many find it difficult to conduct an intensive interview to bring out the facts when the person in front of them is an emotional mess.
Some take up this challenge with kindness and do their best to ease tensions while protecting the interests of their clients. But there are also those whose âwin at any costâ approach might gain ownership or custody of their client, but destroy any semblance of family.
Acrimony goes against a fluid process because it makes people feel attacked and threatened. The brain then goes into defensive overdrive, pushing the body into flight or combat mode.
Rational thinking and problem solving disappear, and you end up with rash decisions that can do more harm than help. There have been cases of parents trying to leave the country with their offspring just to gain the upper hand in a custody battle – a move that could hurt the child for life.
READ: Commentary: Divorce, a painful, chaotic and contentious affair
CHANGING THE ROLE OF A LAWYER
In May, the Ministry of Social and Family Development (MSF) said it was seeking public input on measures to better support divorcing couples and their children. One suggestion was to have a no-fault option that does not require couples to prove fault such as adultery or show that they have been separated for at least three years.
Another suggestion is to allow couples to jointly file for divorce, rather than putting them at odds as plaintiff and defendant.
It’s a good shot. I see more couples who want a less acrimonious divorce. The effects of this situation on children are well documented and there is a growing awareness of the long-term impact that divorce can have on children.
If the proposals are put into politics, the role of the divorce lawyer will change as well. With this change, they will need to focus their client’s mindset on resolution rather than assigning blame. This reframing makes all parties realize that marriage was a bad decision, and it’s a chance to correct it and move on.
READ: Commentary: Conflict in families negatively affects children more than divorce
READ: Commentary: Couples who stay in unhappy unions for the sake of children may end up hurting them
Lawyers can now resume their original role as professionals who advise clients on their interests and how to protect them, instead of acting solely on their instructions to get a better case.
Like a plumber cleaning a clogged pipe, they’re not there to determine what debris has clogged the pipe. They are just there to clear the hose so that the water can flow smoothly again.
With a no-fault divorce, the legal process can be seen as an administrative step in dissolving the marriage rather than years of protracted negotiations that take a toll on the mental and financial health of couples.
Lawyers can now, more than ever before, play a critical role in determining whether the process is amicable or acrimonious.
With a deeper understanding of emotional, psychological, and interpersonal issues, they can begin to take steps to calm the situation down and reduce actions like raising their voice or using a quick questioning style that only adds to the stress of the process.
Children of divorcing couples will also benefit greatly. Children’s perceptions of the role lawyers play can shape how they cope with this painful transition.
In some of the cases that I have advised, they see the lawyers as some sort of hangman, seeking to kidnap either parent. And in other cases, where the lawyer is seen to be more compassionate and cooperative, they see him as helping their parents through a difficult time.
The judicial process does not have to be the arena of blame, revenge, the airing of grievances or the search for the last grain of truth.
(Should the proposed no-fault divorce option be limited only to couples with children? The author and a family lawyer provide their perspective on CNA’s Heart of the Matter podcast.)
Benny Bong is a family and marriage therapist in private practice. He has over 35 years of experience in consulting, training and education. He is also president of the Society Against Family Violence, a nonprofit group he helped form 30 years ago.