In my meetings with divorce and common law separation clients, regardless of whether I am dealing with their matters through negotiation, as a mediator, as their collaborative lawyer and even in litigation, 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 support people have a different experience of their loved ones’ divorce.
But what I want to talk about is the three divorces that I am aware of as a family lawyer when helping people navigate the restructuring of their lives into a different form of family than the one they started with.
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 them the act of separation is simply a conclusion. Their spouse may 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 their 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 – a form of vicarious trauma for loved ones. It can be 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.
I routinely refer people having trouble navigating their divorce emotions to a “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. The 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 of it, but are not trained to coach people through the tough emotions.
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 emotional divorce, but they frequently have different timeframes. The head and the heart are at odds. Rage impacts thought. The two divorces are in conflict. If not well handled, these conflicting divorces may result in family violence, suicide, and in the worst cases of all, murder. 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 legal divorce. This is the formal legal step which is 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 simply 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. If there is property in a formal marriage, the Matrimonial Property Act sets out how it is to be divided. If there is property in a common law relationship, other judicially made laws apply. In both cases, everything can be wrapped up in a formal contract called a Separation Agreement, or Minutes of Settlement. If it concerns property, lawyers are required by law to sign the contract, one lawyer for each spouse.
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. 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 can be stalled until people are ready to move forward emotionally and are thinking clearly enough to process the legal advice they are receiving.
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 separation and divorce on their own timelines.
We lawyers who practice family law must be conscious of our duty to obtain the legal divorce for our clients. 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? Are there resources and referrals we can suggest for those who are suffering? Are we asking clients to do too much, too soon? Is the client’s anger at us, actually transferred anger from the situation? Are we being accused of “dragging things out”?
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 and their families and friends are going through.