Emotions Play an Integral Role in Divorce Proceedings and Therefore Must be Understood by the Attorney

Posted By Pasadena Family Law Attorney || 29-Jun-2010

My last Blog entitled, "Empathetic Family Law Attorneys" explained the unfortunate reality that while lawyers tend to "lack sensitivity to human, emotional and interpersonal concerns," in the field of divorce/family law , such attorneys cause a great deal of damage to families.

In an article entitled, "Divorce and Your Emotional Needs: What You Should Know to Survive Your Divorce", Dr. Deborah Hecker states, "Most of the literature on the psychology of divorce treats divorce as the death of a relationship...." In fact, in " The Emotional Stages of Divorce", Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D. mention that, "[t]he emotional impact of a divorce is as severe as that of a death in the immediate family...,” including " the loss of a spouse through death." As expressed by Ellie Wymard, Ph.D. in " Men & Divorce", "Anyone who has mourned the death of a spouse may not appreciate the comparison, but death and divorce share similarities.... According to bereavement experts, when a man's wife dies, the mourning husband will come to the other side, and ultimately say, 'She is dead and is not coming back.' But when it comes to divorce, certain aspects of loss become slightly magnified. Cathleen Fanslow Brunjes, Bereavement Coordinator' for Hospice Care of Long Island, New York, made the distinction by saying, 'Bear in mind that with divorce there's not a body to mourn. It's disenfranchised grief.'"

In her article, Ellie Wymard, Ph.D., states, "Any experience of loss, regardless of what it is, carries with it similar issues that need to be resolved." The following are some examples "of the losses that are part of a divorce: loss of companionship, loss of financial security, loss of a sexual relationship, loss of time with children, loss of an extended family, loss of status as a married person, loss of self-esteem, loss of friends, etc." As expressed by Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D. in their article, "Although it's painful, grief is a healthy emotional response to the loss of an important relationship."

In "The Impact of Loss and Grief on Effective Co-Parenting," the authors point out that "There are five stages to the grieving process. These stages are denial, bargaining, anger, depression, and acceptance. These stages are extremely applicable to divorcing and divorced parents, divorcing persons in general, and to those parents who were never married and experienced a dissolved relationship."

As stated in "The Emotional Stages of Divorce," "Experiencing guilt and shame is also a normal reaction to the end of a marriage.... We know that for many individuals, guilt and shame can be so painful that they change very quickly into other, more tolerable feelings, such as anger or depression -- often without the person's even knowing that the guilt and shame are there. This is why it is common in divorce for each partner to blame the other and why it can be so difficult for divorcing partners to accept responsibility for their own part in a failed marriage.... Guilt can cause spouses to feel they have no right to ask for what they need in a divorce, causing them to negotiate unbalanced, unrealistic settlements they later regret.... Similarly, shame often transforms into blame, anger, or rage directed at the spouse."

In their article, Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D. note, "The wide array of emotional states that many people experience during the early stages of the divorce process can diminish their capacity to think clearly, impair their judgment, and make rational decision making difficult or impossible...." "Grief is like a storm that can sweep you off your feet leaving the person lonely, confused, and dazed."

Due to the grief caused by the death of a spouse, it is generally recommended that "In this state of vulnerability this is not a time to be making major decisions that you may regret later. Try to avoid making major decisions at least for the first year after the loss." Although the grief experienced as a result of a divorce is similar to that caused by a death of a spouse, " both our court system and our culture at large encourage us to take action in divorces based on how we feel when we are at the bottom of the emotional roller coaster, when we are most gripped by anxiety, fear, grief, guilt, and shame. After all, that's when most people are moved to make the first call to a divorce lawyer. As a result, people are encouraged to make shortsighted choices based on emotional reactions that do not take into account anyone's long-term best interests."

As I stated in my article entitled, "'Pit Bull' Attorneys and Family Law", "Many people hold the unfortunate belief that when they become involved in a lawsuit – including divorce - they need to find a lawyer who is a "fighter," or "pit bull" (i.e., like the dog bred specifically to fight other dogs). Since legal disputes are adversarial by nature, the logic seems to be that an aggressive attorney will more successfully advance one's interests in court. By logical extension, a lawyer who is not ruthlessly aggressive would be a suboptimal choice. However, I would like to point out that strong, proactive, and even aggressive representation does not necessarily equate with the "pit bull model." Attorneys classified as pit bulls often tend to be belligerent, argumentative, and eager to fight. What the public does not realize is that highly contentious individuals (attorneys included) usually place self-interest above all else. It should be obvious that always looking for more points to fight over, and even taking unreasonable positions on behalf of their clients, generates significantly more money in fees for the lawyer who charges on an hourly basis. Moreover, such attorneys tend to derive a great deal of pleasure from the fight in and of itself. In fact, many attorneys enter the field precisely because they enjoy argumentative confrontation, and tend to be disagreeable and difficult people in general. 'Pit bull attorneys' are not concerned with resolving a case in a fair and equitable manner, despite the fact that the family law court is considered a court of equity, or fairness.... Such attorneys are focused on 'winning,' no matter what the cost, irrespective of right and wrong, and in total disregard of equity."

It is horrific that "both our court system and our culture at large" encourage people to make the most important decisions relating to the dissolution of their marriage, including but not limited to selecting an attorney to represent them, at a time when they are most vulnerable to making major decisions that they will later regret. Yet, when people are grief stricken following the death of a spouse, they are advised to "try and avoid making major decisions at least for the first year following the loss." As Pamela Edwards-Swift stated in her article entitled, "Family Law Attorneys Can Make Or Break Your Case," "The more I do this, the more convinced I am that choosing the right attorney is one of the most important decisions you can make."

The failure of our society to recognize the similarity between the emotional vulnerability following the death of a spouse and that following the death of a marriage causes people to hire attorneys who are unwilling, unable, or incapable of properly managing their emotions.

As mentioned in the article by Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D., "The resulting 'bad divorces' harm everyone and serve no one well. They are very costly; they fail to plan intelligently for the future; and they inflict psychological scars on both the adults and the children."