Who's on Your Side in a Divorce
by Rob Fergusson, CDFA

Winning coaches know the value of understanding their players' strengths and weaknesses. If it's important in sports, it certainly is that much more important in marital separation and divorce, when so much of your present and future financial well-being, happiness, and emotional healing are at stake. So let's examine all the "players" on your divorce support team, to be mindful of their limitations and how you can make the best use of the help they offer.

You are the first player on your team. How do you see yourself performing? Whether you are a big help or a big hindrance to your cause will depend on three factors. The first is the intensity of your emotions. Part of this is how you came into the world and were raised by your parents. Some people live life emotionally, "wearing their heart on their sleeve." Others are more emotionally disconnected.

Your emotional intensity can be made worse by how the separation occurred. Often there is one spouse who knows well ahead that the marriage will end. That spouse will be less emotionally traumatized at separation, because they've had time to get accustomed to the idea. But for the other spouse, the surprise of the separation heightens their emotional response.

A second factor is your stage of grief. Grief has long been known to have distinct stages with a logical order. Of course, that doesn't mean each person goes through those stages in order. Sometimes a stage will be skipped over, and come back to later. And some stages may be visited more than once. The first stage is denial, often characterized by the irrational thought that if what is happening can just be ignored, is won't actually happen. The second stage is anger, when we finally open our eyes to what is happening. The third is bargaining, characterized by feelings that we can change the course of events by making enough concessions and promises. The fourth stage is letting go and accepting our powerlessness to change what is happening, which is often accompanied by hopelessness and depression. The last stage is acceptance of what is happening and seeing the future with some sense of hope. Which stage you are in will determine not only how emotionally ready you will be to help yourself, but will dictate the type of temporary blind spot you carry into divorce negotiations.

The final factor determining your readiness to help your cause is whether you feel you ended the relationship, or had the ending thrust upon you * whether you were the "dumper" or "dumpee". Dumpers tend to feel guilty and will punish themselves during negotiations. Dumpees tend to be angry and want to destroy their former spouse.

All of these factors help determine how much our emotions will drive us to illogical negotiating positions, and whether we will want to "give away the store" out of guilt, or "demand the sun, the moon and the stars" just to be angrily destructive to the other party. The proper prescription is to work to become intentionally aware of where you are emotionally and know how that is likely to affect your divorce negotiations. Being forewarned like that may be enough to help you wrest control from your emotions. If you can't, it is time to seek help from counselors or other professionals who can help you return to an even keel.

Some people are tempted to think of the spouse they are divorcing as a member of their support team. Some former spouses certainly look and sound supportive. The problem is that some are authentically caring and decent, while others are manipulators. The answer in both situations is for you to be fully informed and fully participating in the divorce process * to hold onto personal responsibility for your future. This protects you from manipulators, and doesn't get in the way if your soon to-be former spouse is indeed caring and helpful.

Family members and friends are members of your support team. They mean well, but they can undermine you. It is important to appreciate that each of them comes with a set of their own personal life values, attitudes, and unconscious life rules that may be at odds with yours. That is obvious when they urge you to take some unpalatable action such as to stay with an abusive partner. It is much more subtle when they press you to take less, or more, risk in divorce negotiations than would feel natural. The way to handle family and friends is to tell them what you need: someone who will listen without criticizing. Most will be happy to do what you need once they know what that is. For those who can't or won't, it's best to steer clear of them until your life crisis is past.

Many divorcing couples choose to work with a mediator, and you might view your mediator as a member of your support team. It is important to note, however, that the mediator, while a great help with the divorce process, is ethically bound to never be on your side. They must remain neutral in the mediation process.

And there is another boundary issue with mediators. Their ethical standards prohibit them giving you advice. They can make sure every divorce issue is addressed in mediation and they will work to keep the mediation atmosphere constructive. But they cannot give you advice. Perhaps that's just as well, since almost no mediators have any financial training anyway; almost all are divorce lawyers or family psychological counselors. The bottom line is to appreciate that the mediator is there to encourage you and your soon-to-be former spouse to come to some agreement, but it is not for the mediator to judge the fairness or quality of that agreement.

Whether you use a mediator or not, you will also need a divorce lawyer. You and your soon-to-be former spouse should not plan on using a single divorce lawyer. No ethical lawyer will attempt to represent both sides in a dispute. You should, at the least, have legal counsel that is looking out solely for your good.

How far can you trust your lawyer to be on your side? The first part of that answer is to realize that lawyers vary greatly in their approach to handling clients. A few look at the client as a whole person - an emotional person with both legal needs and fears that require some understanding and careful answers. But most see divorce as just a legal process and themselves as preparers of legal documents. Those lawyers are impatient with clients, their needs and their goals. Perhaps their impatience is a blessing, since they charge such a high hourly rate that most clients can scant afford for their lawyer to take the time to understand what they want from the divorce. The prescription here is to meet with the lawyer before hiring them, and to intentionally size up the approach they take with client cases.

Lawyers also vary greatly in their fees. Some make a conscious effort to give you a fair price you can live with, and try to live up to completing the case in the allotted time. Others are happy to find any issue that will inflate their billings. The bottom line here is to make yourself an informed, active participant in everything that happens in this area. Shop around before settling on a lawyer. Read his retainer agreement before signing on. Examine billings, and question them if necessary. Make intentional choices aimed at speeding the case to conclusion. Ask the lawyer what you can do at every stage to keep your legal costs down.

There is one last issue to understand about lawyers as team members. It is to your tremendous benefit to have as amicable a relationship with your soon-to-be ex-spouse as possible. An amicable relationship gives you the best shot at successfully co-parenting your children after divorce. It does the least psychological damage to your children and other family members. It speeds you toward emotional healing and getting on with your life. And it will get you the most satisfying settlement while minimizing your legal fees. However, the mere act of bringing a divorce lawyer on board can be enough to scare your spouse into a much more combative stance toward you. If hiring the lawyer doesn't do that, then as soon as your lawyer starts acting strongly as your advocate - fighting to get you every possible dime, that constructive and amicable working relationship with your spouse will evaporate. That is one of the realities of divorce. Sometimes the protection of a lawyer as a strong legal advocate is the most appropriate resource for your situation. Sometimes it is not, and in those cases it may be beneficial to go through much or all of your divorce negotiations using mediation or other collaborative routes, before bringing the lawyers in to finalize everything. The prescription here is to be consciously aware that your working relationship with your soon-to-be ex-spouse is quite important, and that your lawyer may or may not be on your team when it comes to protecting that relationship.

If your divorce case goes to court, you'll likely wonder whether you can get the judge to be on your side. While we know the judge must remain impartial, some expect to sway the judge by presenting just how rotten their soon-to-be ex-spouse behaved. The advice many judges give is to recognize that there are two types of divorce cases. The first is divorce on fault grounds, meaning one spouse's actions killed the marriage and the divorce is being based explicitly on those grounds. This requires a lot of nasty court testimony to prove the allegations of wrong doing. While such a course is sometimes warranted and appropriate, it is also certainly very emotionally draining and wrenching to everyone involved. Most divorces today are the second type: no-fault divorces. In these the couple simply states they cannot stay married, and the judge sets about helping them dissolve the marriage. In no-fault cases, judges advise you to not try to sway the court with lots of claims of bad behavior by your spouse. It is inappropriate for a no-fault case, and can boomerang on you. So it is best to not expect your lawyer to handle your case this way.

How fair will the judge's final decision be? I heard a judge in Richmond admonish a couple to find a settlement they could both live with because, while he had great experience at crafting fair settlements, he knew nothing of their lives and what would feel fairest to their hearts. He said he could guarantee that his settlement would be less satisfying than one they came up with jointly.

Not only would a jointly-crafted settlement be closest to what you both could live with, but working out that settlement for yourselves can be a great source of emotional healing for you. Anytime you take control of your future, your subconscious notices and feels safer, which is part of accomplishing emotional healing.

So the bottom line is that you can't expect the judge to be a member of your team.

There is a very helpful person you can draft onto your support team, though few people are aware of this. That person is the certified divorce financial analyst. This is someone who works solely for you, can give you the guidance of a financial specialist in the divorce field, and with hourly rates well below that of a divorce lawyer, is quite accessible. In fact, many certified divorce financial analysts can help you prepare yourself mentally and emotionally for dealing with divorce negotiations and for dealing with the other professionals you might turn to, such as mediators and lawyers.

So there is your support team with all their strengths and limitations. Here's wishing you a successful season with your team.