DON'T GET LOST IN YOUR DIVORCE
WHEN I SAY DIVORCE…. YOU SAY QUICKSAND A Guide to Help the Divorcing Parent Stop Assess and Plan For Divorce
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TABLE OF CONTENTS
Chapter One
When I say Divorce You Say Quicksand…………………3
Chapter Two:
Understanding X factors in the Grieving Process……….4
Chapter Three - Mediate, Litigate or Collaborate?..................................... 8 Chapter Four:
Your Personality Conflict Style …………………………10
Chapter Five:
If Continents can Move, So can you…………………….17
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CHAPTER ONE
When I say Divorce, You say Quicksand‌.. When you think of the divorce I want you to think of quicksand. Because just like quicksand:
Why?
1. When you begin you will find yourself stuck, unable to know what steps to take in your divorce. 2. The more you struggle and choose to fight, the higher the probability the deeper you will sink into further litigation. 3. Getting out is going to require you to seek the help of OTHERS, such as mediators or mental health professionals. The Divorce Process, like quicksand requires you to Stop, Think and Evaluate Your Situation. It is hard to make good decisions if you do not understand where you are in the grieving process. It is hard to make good decisions if you have not educate yourself about your choices to Mediate, Litigate or Collaborate. Getting yourself out of quicksand means: 1. Educating yourself on your options to Mediate, Litigate or Collaborate. 2. Obtaining perspective of your situation 3. Seeking the advice from third parties for needed support and direction.
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Chapter Two Understanding the X Factor
“Being sad when a marriage ends is natural. Grief is a healthy emotional response to the loss of an important relationship. We know that from research, theoretical writings and personal experience with thousands of people going through divorce that the emotional impace of divorce is as severe as that of a death in the immediate family.” Pauline H. Tesler M.A., J.D. and Peggy Thompson, Ph.D. – Authors of Collaborative Divorce.
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The Seven stages of grief include:
1. 2. 3. 4.
Shock and Denial Pain and Guilt Anger Depression, loneliness
5. Upward Turn 6. Reconstruction 7. Acceptance and Hope.
Many parents find that their not emotionally ready to engage in the divorce process. They simply feel too angry or bitter to engage their soon to be former spouse.
As a divorce attorney I would suggest that your emotions affect your
cognitive ability to reason, focus and problem solve. From Dr. Leon Hoffman’s article in Pscyhology Today (October 2011) “Emotions Affect Cognitions.” “There
is no question that contemporary cognitive neuroscientists such as
Kahneman and Tversky have systematically demonstrated "that the flaws [of human cognition, such as memory or decision making] are not just in the passions but in the machinery of cognition." Yet, we not only understand via the methods of psychoanalysis that passions DO affect cognitions, but modern
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cognitive neuroscientists have demonstrated neuralinterconnections between the areas of the brain that are actively prominent during cognition (prefrontal cortex) and the areas of the brain that are active during emotional arousal (the limbic system, such as the amygdala).
Whenever we have to make decisions as to how to act we always perform an unconscious mental compromise between our judgments and our emotions. This compromise has been demonstrated many times by cognitive neuroscientist Drew Westen and his colleagues. For example, these scientists found that in the Clinton-Lewinsky scandal, someone's emotional response to the scandal (whether they thought Clinton was right or wrong) "could account for 85 out of 100 subjects' inferences about the meaning of "high crimes and misdemeanors" in the U.S. Constitution, regardless of whether subjects had ever read either newspaper accounts or the Constitution." The fact that emotions impair an individual’s ability to cognitively process information is a major problem in the divorce process. If parents are not able to objectively assess their situation and act based on anger or ill feeling, mistakes are made along the way, creating an atmosphere of instability and future ill-will. Grief interferes with your ability to resolving conflict, and even worse, interferes with how you typically engage your spouse when resolving disputes. 6
Given the fact that you and your spouse may be in different stages of the grieving process, the level of cognitive impairment becomes the X factor that causes uncertainty and instability in resolving divorce conflict.
Common mistakes made during the divorce process: 1. Believing that the court system is there to decide who was right and who was wrong in the break of the relationship; 2. Consumed by anger, spouses go the court and unload an onslaught of bad facts their spouse has done during the marriage; 3. Believing that the judge’s primary role is to decide who was at fault in the divorce. 4. Putting their children in the middle of the divorce conflict.
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CHAPTER THREE Mediate Litigate or Collaborate? In 2017 I have noticed a rise in Divorce Option Courses offered to parents throughout the United States.
Parents entering the divorce process now can
understand their options BEFORE engaging the legal process. If you haven’t signed up for one, do so. Understanding options helps you STOP, THINK and ASSESS your situation.
Increasing your ability to think through problems of
course should remove you, by degree, from the grieving process. Parents can mediate, litigate or collaborate to resolve their divorce. Each option carries with it a different election and a different outcome.
Through
litigation parents ask that a judge hear the facts of their case and make a binding decision on how their children, for example, will be raised. Litigants present their case in their best facts scenario, disparaging and minimizing the other parents’ role in their children’s lives. Litigation typically leads to more litigation. Litigants by their very definition will most likely not want to engage one another AFTER the divorce process. You need to understand quickly that 90% of cases involved in litigation are resolved through mediation. Mediation allows parents the ability to caucus and 8
work through an independent person called a mediator. The mediator can provide options as to how parents can settle their lawsuit. The mediator directs the parents, focuses them on the issues they are presented with and hopefully a peaceful resolution is reached. Parents who choose mediation 1. to remove themselves from further litigation, 2. Be finished with their divorce, 3. They believe that they can find a peacefully resolve their pending issue. Parents finish mediation with a solution to the present problems facing them in the divorce process. Parents who choose the collaborative practice of law do so because they wish to problem solve through their difficulties and peacefully engage one another POST divorce for the benefit of their children. Parents will meet with a team of mental health professionals and financial planners who have the goal of helping find problem solving strategies to end present and future conflict. So with every election there is an effect or a consequence. It is important to seek guidance on which option is right for the parent entering the process based on your long term goals POST divorce.
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Chapter Four Matching Legal Conflict Models With Personal Conflict Styles Conflict is a natural part of human interaction.
Conflict arises from
miscommunication, individual perspective and opinion. The important thing to do is to identify your personal conflict style. Your conflict resolution style is based upon your personality, upbringing and work
experience.
Your
conflict style keeps you in control of your environment. It provides you a compass, a way to direct yourself and you keep you safe.
HOW DO YOU RESOLVE CONFLICT? The Thomas-Kilmann Conflict Mode Instrument (TKI) assesses an individual’s behavior in conflict situations—that is, situations in which the concerns of two people appear to be incompatible. In conflict situations, we can 10
describe a person’s behavior along two basic dimensions*: (1) assertiveness, the extent to which the individual attempts to satisfy his or her own concerns, and (2) cooperativeness, the extent to which the individual attempts to satisfy the other person’s concerns. These two dimensions of behavior can be used to define five methods of dealing with conflict. These five conflict-handling modes are shown below.
From the Thomas-Kilmann Conflict Mode Instrument Profile and
Interpretive Report Copyright 2001, 2007 by CPP, Inc.
Assertive
Win/Lose Power Dominance
Team Based Collaborative
Mediate Compromise
Unassertive
Suppression Smoothing
Avoidant
Uncooperative
Cooperative
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Research shows that you typically have at least two general styles of resolving conflict, based upon the environment you find yourself in. That provides you generally with two options as to how you will work through your conflict.
MINIMIZE THE X FACTOR The grieving process of divorce adds an additional factor in your conflict style equation, presumably, shifting a spouse from cooperative to uncooperative, unassertive to assertive. Anger is a powerful factor in shifting the problem solving paradigm. Injecting the X Factor (I.E. Anger, Sadness) Shifts the Problem Solving Dynamic Away From Your Natural Style of Solving Conflict
Assertive
Win/Lose
Team Based Collaborative
Litigation
Mediate Compromise
Unassertive
Suppression Smoothing
Avoidant
Uncooperative
Cooperative 12
A spouse who did not want a divorce, for example, may be a hurt and angry, impaired to cognitively process information, focus and problem solve.
In my
opinion it is for that very reason that individuals find themselves first in litigation and then over time move towards resolving their dispute. “Surprised parents� may have a tough time overcoming their personal feelings of anger and sadness BEFORE they can decide how they will manage their divorce. Most mental health professionals provide just the right assistance to help parents get past the grieving process. Remember, if you can move the past the grieving process, parents should be able to go back to their original conflict style and resolve their divorce dispute.
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MATCHING CONFLICT PERSONALITY STYLE WITH CONFLICT MODEL Matching
Legal Model
Personal Conflict Style
For Conflict Resolution
Compromising and Accommodating
Win-Win Strategies Collaborative Practices Interdisciplinary Approach Transformative Mediation Problem Solving Mediation
Competitive
Negotiation Informal Settlement Conferences Litigation Evaluative Mediation/Settlement Conf. Facilitative Mediation
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If parents are assertive and cooperative, they will engage in win-win integration strategies, such as mediation or collaboration. If parties are assertive and uncooperative, they will most likely select a conflict model using litigation to match their under a win-loss, power dominant style. The middle point to the differing styles is simply to compromise, which is one explanation of why mediation is so effective in settling suits outside of the courtroom. How did you resolve conflict during your marriage?
How did you
communicate through your differences? If you went to marriage therapy, was that a joint decision or a requirement that you made to your spouse? Did you seek out independent resources when you had a disagreement? Absent emergency, family violence or other exigent circumstances, it is important that during divorce you engage in a conflict model that you are accustomed to using. ASSESS YOUR SITUATION When you assess your conflict style, identify the way that your partner resolves conflict. How have you resolved differences in the past? Did you talk through your problems? Did you seek help from marriage therapists or other professionals?
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Take a moment and ask yourself how you are managing conflict in your divorce. Is your choice based on your normal conflict style? If not, why not? Chart your progression through the emotional stages of divorce. If you are still angry about the divorce, is that affecting your ability to engage and resolve conflict? A conflict assessment is attached at the end of this book. Ask your spouse to take one as well.
The assessments/interviews are there to help you fit your
conflict style into the conflict model that the legal system provides to resolve your divorce dispute through Mediation the collaborative process or litigation.
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Chapter Five IF CONTINENTS CAN MOVE, SO CAN YOU: At the early stages of divorce many parents will choose litigation to resolve their dispute. Why? Go back to the X factor that shifts you away from your natural style of resolving conflict.
Most of us do not want to talk to our future ex
husbands or ex-wifes. Very few parents know about mediation and even few know about the collaborative practice of law. Stop think and assess. Most importantly think long term. If you understand that ninety percent of all cases settle outside of litigation, does it make sense to choose litigation to start your divorce matter? Is it in your interest to accept a model that comes at high cost and brings your children into conflict? Pick up the phone and talk to your spouse. See if you can get on the same page about different ways to resolve your dispute. Is there a better way that we can resolve our differences? Then ask: CAN WE DO BETTER?
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Start by addressing the needs of your child. Talk to your spouse and answer these questions: 1. How can we work together and be parents to our child? 2. Can we talk to a neutral mental health professional to get direction in our case? 3. Can we go to mediation? 4. Can we consider a collaborative divorce? 5. How will we resolve future problems to avoid future conflict?
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Parents should be focusing on: 1. How will our child be affected by our divorce. 2. Day Care 3. Child Support 4. Parenting Schedules 5. Holidays 6. Schooling 7. Religion 8. Extracurricular activities. 9. Child’s Schedule 10.Discipline Focusing on the primary issues that need to be resolved for life POSTDIVORCE goes a long way to choosing what conflict style you need to choose to resolve your dispute.
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CONFLICT ASSESSMENT QUESTIONAIRRE 2017
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ENGAGING THE PROCESS 1. Prior to engaging an attorney, what resources did you use to educate yourself about the divorce process? ______________ None ___________ Coparenting Website ______________ Website ___________ Kids First Parents Second ______________ Books ___________ Video/Youtube 2. What is your age (in range) ______________ 18-24
__________ 35-40
______________ 25-30
__________ 40-45
______________ 30-35
__________ 45 and beyond
3. How long did you know your spouse PRIOR to having children? ______________ 0-3 months
__________ 3-9 months
______________ 9 months to 2 years __________ 2 yrs to 5 yrs. 4. List the Highest Education level achieved _________________ High School _________________ GED _________________ Trade School _________________ College _________________ Masters/Doctorate 5. Prior to the Divorce, did you and your spouse engage in a marital therapist to work through differences in the marriage? _________________ Yes
_______________________ No
6. Did you and your spouse talk to your children about the divorce? _______________ Yes
________________ No
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7. Are you paying /receiving support for your children based on a VOLUNTARY agreement you have with your spouse? ______________ _________________ Yes No
8. Are the children able to go see either parent after the separation? ________________ Yes _____________________ My Lawyer said Not to Allow it
_________________ No ___________________________________ My Lawyer said to wait for the temporary hearing
9. Three months PRIOR to the divorce what was your ability to work with your children’s other parent, with 10 being the greatest and 1 being the all time lowest. 1
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10. After the divorce started, what is your ability to work with your children’s other parent, with 10 being the greatest and 1 being the all time lowest. 1
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11. What is the level of understanding you believe you have in the legal process you will be involved in (with one being the greatest and one being the all time lowest). 1
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12. Before you begin the process, how important is it to you to be in control of the divorce process, with 10 being the greatest and 1 being the all time lowest.? 1
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13. Before you begin the process, how important was it to you to keep your children away from the legal process, with 10 being the greatest and 1 being the all time lowest. 1
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14. Do you believe that you have all the information needed for a judge to hear your case? ________________________ Yes
_________________________ No
15. If your answer to Number 14 was in the affirmative, what additional information do you think the Judge needs before a ruling can be had in your case? _____________ Discovery _____________ Social Study _____________ Testing 16. Do you believe that divorce, in and of itself, hurts children? ________________ Yes
__________________ No
17. Do you believe that conflict in divorce hurts children? ________________ Yes
__________________ No
18. Do you believe that you are in need of resources to minimize conflict in your divorce? _______________ Yes _______________ No 19. Do you believe that a class that teaches you communication skills would be beneficial in your divorce process? ________________________ Yes
______________________ No
20. Would your answer to Question #16 change if the classes were for an extended period of time, say 3- 6 months. ________________________
_____________________
Yes
No
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21. Ranking from 1 being the highest and 5 being the lowest - what are the level of priorities in your divorce? Privacy Cost Time Addressing Kids Needs Justice
_____________ _____________ _____________ _____________ _____________
22. I need to go to a hearing to see a judge because: Ranking from 1 being the highest and 5 being the lowest priorities? Justice Win Money No other option Protect Kids
_____________ _____________ _____________ _____________ _____________
23. What are the factors that do not allow you to communicate with your ex? __________ Hurt Feelings (The Divorce) __________ Immaturity __________ Drug Usage __________ Mental Illness __________ Extended Family 24. Do you believe that your spouse is impaired, bi-polar or has other mental health issues that hinder your ability to communicate? ____________________ Yes
_________________ No
25. Do you believe that testing is necessary to determine if either spouse has a mental incapacity? ____________________ Yes
_________________ No
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26. Psychologists are an independent resource that parents can use to solve problems confronting their children. Do you believe that involving a psychologist would be beneficial to solving the problems confronting you in your divorce? _____________ Yes
______________ No
27. If mental health professionals can help you and your ex to work together to solve problems facing your child, would that be beneficial to you? _______________ Yes
_______________ Not interested
CONFLICT ASSESSMENT 28. How Important is it to you to interact with your ex after the divorce? _____________________ None at all
_______________________________ We need to talk about the Kids Needs
_____________________ I’ll follow the court orders That’s it 29. Did you and your spouse attempt marriage counseling PRIOR to the divorce being filed? ____________ Yes
_________ No
30. Did you see a psychologist, LMFT or LPC to receive individual counseling when you began the divorce process? ____________ Yes
_________ No
31. Do you believe that the problems facing you in your divorce is simply based upon the fact that your child’s other parent will not LISTEN to your position? __________ Yes
_____________ No
32. Do you believe that the problem facing you in your divorce is based on the fact that your child’s other parent does not UNDERSTAND your position? 25
___________ Yes
_____________ No
33. Do believe that the problem facing you in your divorce is based on the fact that you and your child’s other parent are not EDUCATED on the issues affecting your child? ___________ Yes
____________ No
34. With 10 being the best and 1 being the worst, what level of communication do you share with your child’s other parent? 1
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35. Do you believe that you and your spouse simply need the issues ASSESSED by a neutral mental health professional to resolve the issues facing your dispute? ___________________ Yes
_____________________ No
36. Do you believe that you and your spouse need EDUCATION/SPECIALTRAINING on how to communicate with one another? _____________________ Yes
_________________ No
37. If your answer to question #3 was yes, please rate the level of training needed, with 10 being the most training needed and 1 being the least amount. 1
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38. Do you want your case being tried before a Family Law Judge? ___________
Yes
______________ No
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39. How interested would you be in having your case being assigned to preemptive mediation PRIOR to having your case heard on a temporary orders hearing with 10 being the most interested needed and 1 being the least interested 1
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40. If you believe that a court should ultimately rule on your case. What is your decision based on? ___________ Going to Court Will Give me My Most favorable outcome ___________ There is simply no other option, I can not communicate with my ex ___________ There’s simply no other option, our children are in danger ___________ That’s How Divorces are Handled, right? ___________ That’s my lawyer’s call, not mine. 41. What is your opinion of the legal system, positive or negative? ________ ________ ________ ________
Judges are there to protect our children Judges are there to listen to my case and my feelings I hope I won’t need a Judge I’m scared about taking my case to a Judge, I don’t know why we just can’t work a settlement and be done with it.
42. Collaboration by definition is a team based approach where everyone puts their ideas out there and through a collective process problems are solved. Do you think that you would benefit from a team based approach to the problems facing you in your divorce? __________ Yes
____________ No
43. If you answer to #38 was NO, would it be beneficial for you to seek an evaluative position on your case PRIOR to trial, something similar to a cost/benefit assessment? ___________
Yes
__________
No\
44. If you answer to #38 was NO, do you believe that you and your wife have the necessary communication skills required to work through your dispute? ___________
Yes
__________
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No