Get a "Better Divorce"
In my meetings with divorce and common law separation clients I observe that there are typically many divorces occurring at the same time for any one family experiencing separation.
The two partners experience their divorce differently, their children experience the divorce, but differently from their parents, and extended families and friendly support people have an altogether different experience of their loved ones’ divorce.
When helping people restructure their lives into a different form of family than the one they hoped to have at the start of their relationships I find that understanding that there are three divorces coinciding informs my commitment to the use of a collaborative divorce team. Such a team is of great benefit to families in all but the simplest separations. The focus in collaboration is on the parties’ goals for the future, not expensive and fruitless processes which pore over the grievances of the past such as are found in litigation.
The first divorce is the hardest, the most unpredictable, and potentially the greatest source of litigation and long term trauma. This is the emotional divorce. Often one of the spouses has gone through it long before the physical separation. For that spouse the act of separation is a conclusion. Their spouse may then be surprised by a “sudden” separation which, for the initiating party, is not sudden at all. But their spouse is only just starting the emotional divorce process.
Taking client instructions when emotions are in a rollercoaster state can result in litigation, often entirely unnecessary, and can cause long term chaos, alienation, and an inability to move forward for clients whose emotional states are dictating their legal instructions. This has spin off damage for all the other people experiencing the divorce along with them – it becomes a form of vicarious trauma for loved ones who stand helplessly by, or even fund the fight at great cost. It can create destructive, debilitating trauma. How often I hear from a person in pain “my mom is taking it harder than me”, or “my brother is never going to speak to him again” and similar. The children are immersed in this trauma and experience lifetime consequences. Their brains become hard wired into the conflict patterns in which they live.
I routinely refer people having trouble navigating their divorce emotions to a collaborative “Divorce Coach”. A list of these mental health professionals is available on the collaborative law website at www.collaborativepractice.ca. Divorce Coaches help clients to process the emotional overload that can be caused by a change in their family situation. They are much less expensive and much more effective than lawyers at helping with the trauma. They are
not counsellors. They are life coaches. They are extensively trained in the “emotional divorce”. Lawyers are aware that the emotional divorce exists, but are not trained to coach people through the tough emotions. Running to court is the worst possible use of family resources when emotions are fuelling conflict.
The second divorce is the intellectual divorce. So often have I heard “I just can’t wrap my head around this” or “I’m not understanding what’s going on?” or “I’m confused”. The mind is trying to process the changes and the client needs guidance and information before that can occur. The brain must process logically the information it receives. This second divorce is affected by the stages of the emotional divorce experienced throughout different timeframes by each party. The head and the heart can be at odds. Rage impacts thought. The two divorces are in conflict. If not well handled, these conflicting divorces may result in family violence, and in extreme manifestations murder/suicide events. When the person is lacking intellectual control and clear information, their emotions can dictate their actions without heed for the consequences.
The third divorce is the added complexity for parties navigating the emotional and intellectual divorce processes. This is the “legal divorce”. There are formal legal steps necessary to dissolve a marriage. To get into a marriage, there must be a voluntary union of two spouses. (In Alberta, after a period of time people are considered to be spouses – Adult Interdependent Partners). To get out of a marriage, there must be a dissolution of that marriage by the court in a Divorce Judgment. In common law situations there is no need to start a divorce action, nor to obtain a Divorce Judgment. But it is important to know what the laws are in relation to separation and that getting a divorce does not finalize property of the parties. If there is property and debt the Family Property Act sets out how it is to be divided. As of January 2020 property law on separation includes common law couples. While everything can be wrapped up in a formal contract called a Separation Agreement, or Minutes of Settlement, if it concerns property, the contracts are unenforceable unless signed by lawyers with clients, one lawyer for each spouse, and financial disclosure exchanged prior to contract signing.
The third divorce – the legal divorce – can be concluded when the law permits. That may be earlier, or later than the emotional and intellectual divorces the clients are navigating, and usually around the same time as the property. But if negotiations in the legal divorce are impacted by the parties’ emotional divorce, or by their confusion and inability to think clearly during their intellectual divorce, then the legal divorce and the property division can be stalled until people are ready to move forward emotionally and are thinking clearly enough to process the legal advice they are receiving. Many times lawyers are blamed for “dragging things out”. In fact, it is the parties themselves and the stages of the three divorces that each of them are experiencing on differing timelines which can bog a case down.
A good agreement, one that both parties are able to ratify, has been negotiated when emotions are calmed down, there is full information as a foundation for clarity and understanding of the terms of agreement, and both parties are ready to move forward.
“But I just want it to be over!!” I often hear this plaintive cry from the person who cannot and has not processed all three divorces. Unfortunately, it is really never over until it is over, and each family will move through the multitude of separation and divorce steps on their own timelines.
We lawyers who practice family law must be conscious of our duty to obtain a legal divorce for our clients and to aid in getting property settled. But we must also be aware of and respectful of the other divorces that our clients are experiencing. The pain, the sorrow, the anger, the despair. Are these fuelling conflict in the courts? Are these running up costs? Is there a risk of family violence? Are there resources and referrals we can suggest for those who are suffering? Are we asking clients to decide too much, too soon? Will a little processing time make a difference?
Family law is 10% law, and 90% family. It is a privilege for me to work in this field and try to help people move forward. But it is a complex field requiring maturity and respect for the many divorces our clients, the children, the extended families and friends are going through. Referrals within the collaborative law team to the right professionals to help with the multi-faceted issues facing families who are in transition can help parties navigate change safely.
A divorce is like eating an elephant. We try to start in the right place, move at the right pace, and only ever eat it one bite at a time.
Linda L. Long Q.C.
Registered Collaborative Family Lawyer
Long Family Law Group LLP
Linda Long, Q.C. provides full-service collaborative divorce and mediation services, as well as offering family law consultations, assistance with negotiations, and divorce and family law coaching services for self represented clients who may not wish to retain legal counsel for all aspects of their cases.
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