How many of you read the title to this post and thought “impossible?” or “How do I have a conversation with someone who hates me?”
I’ll turn this around: how can you find your mutual interest in resolving conflict if you don’t have a conversation?
Please understand that I’m not talking about situations that have turned violent or involve restraining orders. If there is a domestic violence restraining order, it’s best to obey that order to the letter and speak through attorneys or other intermediaries.
But for the rest of us, if you are getting a divorce, it’s time to have a tough conversation. It will be tough, because trust is likely at a low ebb. But if you can identify your common interests going forward, you’re far less likely to build an armed camp, complete with a hired bazooka of an attorney. Common interests include:
- Avoiding the huge fees that accompany legal battles;
- Avoiding the upsetting experience of repeated court confrontations between you and your ex;
- Setting up respectful communication between co-parents;
- Ensuring that you get to keep your parent-child and other family relationships;
- Controlling the outcome voluntarily (instead of submitting problems to third-party decision-makers);
- Finding win-win solutions to problems.
Divorce always involves difficult conversations. For one thing, you have to talk to your kids in a way that reassures them of your commitment to love them, while being respectful of the other parent.
But perhaps the most important conversation is the one you have early in the process, with your soon-to-be-ex. You need to get on the same page about resolving the estate, support and child rearing. Here are some tips on how to approach the conversation:
1. Left spouses, accept your spouse’s decision to end the marriage. As a left spouse, I learned early on that once someone has decided to divorce, they are usually resolute and over the relationship. As I tell my clients, assume that your spouse is “stick a fork in him/her, done with the relationship.” Your pleading for reconsideration will not help at all, and will hurt by directing energy away from exploring shared interests.
2. Leaving spouses, be resolute. This does not mean that your soon-to-be-ex should find out they are divorcing from a process server. It is important, when making “the announcement,” to consider the feelings of the other. I recommend using what I call the “and stance.” It goes like this: “Mike, we need to talk. I’ve decided that I am going to seek a divorce. And I’d like it to be amicable and peaceful, if possible. And, I know that this may be coming as a shock to you. And I recognize that you think that we should be able to work things out. And, I’m not changing my mind. And, I think we need to talk about how to proceed with this so that we don’t involve lawyers and wind up battling in court. And, I know that this will have a big impact on our kids. And I can see that you’re hurt. And, I’m not changing my mind.
The “and stance” sets up the paradigm of cooperation from the start, while showing empathy. It sets up the paradigm of “Husband and Wife versus the problems.” It gets you out of the adversarial stance.
3. Avoid rehashing what went on in the marriage. If your spouse wants to go there, gently redirect them to the problems at hand, which are, saving money, avoiding conflict, avoiding court, co-parenting children, etc.
4. By all means, avoid attributions. By attributions, I mean statements that begin with words like “you always…”, “you never …”, or “That’s what you always do …” Instead, start from a posture that assumes the basic decency of the other, and that you have some mutual problems to solve. The truth is, your soon-to-be-ex can be your greatest ally in reducing costs and achieving mutually beneficial outcomes.
The problem we all have is that we are trying to have this conversation at a time of high emotion. Often the situation can seem impossible, which is why I recommend the assistance of a trained mediator. As a mediator, I am not just trained in the law; I am trained in the art of having difficult conversations. I know how to handle the emotional minefield that is discussing divorce issues. And I know how to keep the conversation on the rails for the benefit of the parties. If you can get your spouse to just come in, we can almost always get you on to a cooperative footing.
Next week I will discuss some of the opt-outs of litigation, including mediation, in more detail. Until then, I remain…
Very truly yours,
Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are the intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warrantee or prediction regarding the results of your legal matter.