Is it really any wonder, that when a marriage ends, one or both parties are highly emotionally charged with negative feelings?
Each party in a divorce gets divorced twice:
- The Emotional Divorce - All of the emotional bonds created by the marriage must be severed with each party. The timing varies depending upon which party is the initiator and which is the non-initiator.
- The Legal Divorce - The actual separation of the parties lives: romantically, socially and financially. Often this must be accomplished when one or both of the parties have not completed the emotional divorce and are not resolved that divorce is the inevitable conclusion, filling the Legal Divorce with highly charged negative emotions.
The bigger issue is, why would a skilled professional dealing with those circumstances ignore the emotional state of the parties?
In fairness to the legal system, most attorneys and judges are simply not trained to address the emotional issues of parties. In litigation context, a highly charged emotional state of a party is considered a weakness to exploit.
However in a divorce litigation context, exploiting the emotional weakness of a party generates unwarranted controversy and maligns the Family Law Bar as it supports the feeling that divorce attorneys simply stir up controversy income for their own selfish gain.
of emotional weakness
inevitably costs both parties dearly:
- In the short term - more money in litigation fees and wasted time dealing with non-legal issues in the legal system;
- In the long term - humiliation of one or both and the loss of the ability to communicate and resolve problems out of court, and thereby a never ending obligation for future attorneys fees for next battle, in the War of Vengeance that will never end.
Letting Go of Anger
Until a party can let go of their anger over the divorce, they will not be emotionally prepared to address the legal issues of the divorce.
Residual anger can be found in both the Initiator and in the non-initiator, but it is more common for the non-initiator. The non-initiator usually has not had enough time to adjust while the Initiator is already resolved by the time he or she communicates initiation.
Anger is the response to the negative emotional feelings that people experience when going through a divorce and is part of the natural and inevitable grieving process of emotional divorce.
Anger is manifested from feelings of abandonment, betrayal, disloyalty, distrust, deception, infidelity or rejection, or a combination of other feelings based on the sense of a loss of entitlement or right.
Without discussing what the deal was, parties in a marital relationship have an expectation of certain things from their partner that in their mind constituted the Equity of the Deal.
The bond of marriage makes them feel these things are entitlements or rights.
When a party either:
- Determines that they can not continue the relationship because it is no longer a fair deal (the Initiator); or
- They are told the relationship will not continue (the Non-Initiator);
They feel the loss of an entitlement
and eventually become resentful and angry.
A party may still have residual feelings of anger, even if they apparently, as in the case of the Initiator, have become resolved of the inevitability of divorce as the inescapable conclusion.
To fully understand this process, it is important to understand the various stages of Emotional Divorce.
The Emotional Divorce
The Emotional Divorce is the emotional process of grieving over the loss of the martial relationship. In consists of five emotional stages that one must pass through to become emotionally divorced:
Shock and Denial - This cannot be happening. This is only a setback that we must work through. Given time he/she will change his/her mind;
Bargaining - I'll do whatever it takes, I'll change, we can work this out.
Anger - It is not uncommon for depression, or rage and assertion that ...you did not do... | ...its your own fault that.... This is the most dangerous stage during the Legal Divorce because it injects irrational and negative emotionally charged conditions into the process;
Guilt - Sadness and guilt over the loss and begin viewing the possibility of divorce as inevitable;
Acceptance - The acceptance of the inevitability of divorce as the ultimate conclusion is also described as being Resolved.
All parties to a divorce must go through the anger phase, and decisions made while angry will likely be emotionally motivated to counter-balance the anger.
It becomes clear that anger based decisions are more likely to seek retaliation rather than address legal issues, not only diverting the parties from resolving the real legal issues, but commencing the first shot of a potentially costly emotional battle.
Typically, emotional retaliation is achieved by pointing out the righteousness of the attacker by humiliating the target.
Unless the target party is aware of the danger of Controversy Trap, when a party is the target of retaliation, typically in the form of humiliation, he or she will probably respond in kind, with a similar attack, fully engaging the other in the never ending War of Vengeance.
When You Can't Let Go of Anger
Parties need time to adjust, to properly resolve their anger issues connected with their divorce. However, since the parties do not start the adjustment process at the same time, the timing of issue resolution is important to understanding how to address issues, and angry clients often misinterpret a lawyer's focus on legal issues as betrayal and disloyalty.
When a party is not emotionally prepared to Let Go of Anger they should consult with a qualified therapist.
During this time, it is important for the client to understand why it is important not to retaliate so they can avoid the Controversy Trap. However, a party is not powerless, boundaries can be set to allow things to stabilize in the interim.
Control Your Destiny: Never Retaliate
When the motivating force of divorce litigation is:
The resolution of legal issues that remain as impediments to social, financial and intimate separation of the parties.
The case will proceed logically, and move in a forward manner, issue by issue, through a process of escalating cost levels.
However, the well-balanced and logical process provided by the litigation process, falls apart when the motivating force of the divorce by one or both of the parties is emotional retaliation.
When a party seeks emotional retaliation, the goal becomes vindication of honor and the truth is about who is at fault.
The Importance of Acceptance
Parties that are jointly motivated to resolve issues to obtain a divorce, understand that there must be a way to decide if they cannot agree. They understand that the structure of this four level system provides a process to equitably resolve disputed issues, and while not necessarily happy with the outcome, they will accept and abide by the result.
Parties in mediation, never need to leave level one, saving themselves thousands of dollars in costs and drastically shortening the time needed to get legally divorced.
As parties proceed to higher level, their input and control decreases as the neutral external authority becomes more and more important in deciding the issue. When they are motivated by resolving issues they are willing to accept this process as it supports their goal of issue resolution.
The problem is, what if the party or parties are motivated by anger rather than by issue resolution? Then, rather than seeking decisions on issues, they seek:
Justification that they are right and the humiliation of the other party who was morally wrong
The logical and ordered four level system of resolution makes no sense because it does not address their emotional issues.
A party will not accept a legal result for the settlement of an emotional issue. Righteousness will not be addressed by a court.
In fact, when the Righteousness of a party and the emotional issues and baggage are ignored, and the issue is resolved on legal grounds, it will appear to the angry party that the immoral party is being rewarded by the court.
The angry party then refuses to accept
the decision on the issue and rationalizes disobedience of the court decision with thoughts like:
- "I only have to answer to a higher moral standard";
- "The judge fails to consider the moral aspect so how can he be the authority on this?";
- "Obviously this judge is not neutral since he rewarded the immoral conduct of the other party"
The only way the legal system promotes the goals of an angry party seeking retaliation is through the escalation of pain caused by requiring a higher and more costly level for resolution. Thus, fueling an incentive to disagree, which feeds upon itself creating the Controversy Trap.
Avoiding the Controversy Trap
The Controversy Trap is the natural human instinct to respond in kind when you have been attacked, embarrassed or humiliated.
It feeds upon itself, propelled by unresolved feelings of anger. Each party, an intimate partner, knows how to press the buttons to cause the greatest amount of discomfort and pain. When attacked, the target party feels compelled to respond in kind, becoming defensive. This adds to the overall level of hostility.
This is compounded by the nature of the Adversarial Legal System. The premise is that by positioning parties in an adversarial position, the truth will emerge from the conflict. There is also a dangerous precedent that:
Silence means admission or agreement
Hence, the attacked party cannot stand by, or the portions of the attack that deal with legal issues, will be assumed as agreed with. Thus, forcing the attacked party to counter with their version of the truth.
However, the distortion arises because there are different truths
- The Truth of the Legal Issues - Under the law, which party is entitled to what rights; versus
- The Truth of Moral Rightousnes - Who was at fault for the demise of the marriage.
The law does not consider fault. The law is concerned with rights and obligations and the legal issues involved is determining those rights and obligations.
Therefore, if the parties were simply considering the truth of the legal issues at hand, "Is this property part of the marital estate?" for example, then the adversarial system works well.
However, when a party uses the system to establish the truth of who is to blame, then the adversarial system makes things much worse.
Parties as well as their lawyers, should be cautious not to fuel controversy over moral issues or who was right. It does nothing to help the parties acheive their ultimate goal of getting divorced, and simply makes the process much more costly and time consuming.
Common Examples of the Controversy Trap
While by no means an exhaustive list of all possibilities, there are basically two general categories where the controversy is usually manifested. The following examples help to illustrate scenarios where a client can be lured into the Controversy Trap.
Money Leverage - A common situation is that the non-initiator husband threatens to cut off the money unless the wife agrees to certain concession like taking no interst in his pension plan or some other compromise.
This scenario is also played out in other ways, "If you seek child support I will stop paying the mortgage", or "You'll get no more money until you account for what you are spending and only spend on what I aprove."
Obviously, the husband cannot succeed if brought to court. If he remains stubborn, the issue can escalate until a judge finally orders compliance. However, this dramatically increases the cost of the divorce to both parties, and the husband, who continually blames the wife for the divorce, will probably not comply voluntarily, and post-judgment, they will return to court with the threat of jail to force force the husband to comply.
This can play out in other ways as well. If the level of dependancy of the wife is great enough, the husband may be able to intimidate her, typically, by postponing action.
Forcing the parties to continue to meet their financial obligations pending the divorce process should never be avoided, even if one party tries to tie their obligation up into terms of moral justificaftion. This is the "Wack 'em in the head with a 2 x 4" analogy to set limits on anger and focus attention on the unbiased legal obligations of the parties.
Custody Threats - The initiator wife threatens to keep the kids from him and/or tell them the truth about what a horrible man he is. Commonly, this takes the form of the wife's assertion that she must have sole custody and she will allow him to visit with her children when she sees fit.
These types of attacks will usually justify their outragousness by stating "He never cared about the children", or "He was always too busy working" or "He doesn't know how to take care of them". These feed into the abandonment issues of the wife, and are an assertion that she is good and the husband is uncaring, cold or incompetant.
Once again, these attacks will not hold up in court, but the nature of the adversarial system will require the husband to respond or it will be assumed he agrees with the allegations of the wife. Normally, the husband's response will be as vicious as the wife's allegations.
Another version of the custody threat, is the husband asserting sole custody, but having no real intent or believe to follow through. These will illustrate all the faults of the wife with the kids, and point out that she is an irresponsible spendthrift to boot.
Unless a party is a drug addict, alcoholic or suffers from serious mental or physicl defects that substantially impair their ability to think and function normally:
The real motivation is monetary when one or the other demands sole custody.
This pattern will be different is the parties roles in the relationship are not typical. What is always the same, is that each party will use their area of strength, in an attempt to extort an unreasonable concession from the other side.
Capsizing the Lifeboat
The controversy trap, can itself be an intended method of operation if your goal is to destroy the family unit as a way to generate controversy income. As bizarre as it sounds, this is far too common of an appoach, and many divorce attoneys earn their reputations based upon how well they destroy the other party.
Capsizing the lifeboat to throw the family to the sharks is done intentionally to create a crisis, so that the application of law is distorted to artifically extreme circumstances.
If controversy is allowed to continue without restraint, the level of mutual controversy rises, and the extremeness of positions also intensifies. Attorneys that permit or encourage this type of engagment, profit from controversy income, needlessly undermine the family's ability to reconcile their differences, and tend to waste valuable court resources in needless litigation.
The difficulty is, when this type of activity is engineered by an attorney, it can lead the court to view the couple as so dishamonious, that they fall into the domestic violence cateory of cases, where it is presumed that the parties cannot work things out.
So for example, if an angry dependant wife, wants to demand sole custody, an unethical attorney can intentionally undermine the family struture so much, that they appear too dysfunctional for anything other than sole custody. In reality, if the parties were given time and counseling, and the ability to raise the level of controversy was neutralized, they could amicably resolve their differences.
However, in the short term, the angry wife is pleased with the attorney who delivered sole custody, and brags to friends about her wonderful and aggressive attorney.
The reality is the result was unfair so the husband refuses to accept it. The War of Vengence is fully engaged, and for many years, the husband will return to court to battle with the wife. The children will be alienated from their parents and will suffer with severe long term relatinship issues. The parties will expend a substantial portion of their incomes on more and more attorney fees, battle after battle, supporting the anuity for the attoneys that the uncontrolled anger created. In many cases, if the court does not re-address the custody issue in a meaningful way, the husband will give up, stop seeing the children, stop paying support and leave the jurisdiction.
Setting Limits on Anger
Being wary to retaliate, does not leave a client impotent when the other party strikes out in anger.
In those sitiuations it is important to respond
, but without retaliation, so that the:
- Controversy is Neutralized;
- Target Party is protected; and
- Angry Party learns that there are boundaries and limits to their abuse of the legal system as a weapon for inflicting pain.
There are clear distinctions between retailiation
and setting boundaries
. These distinctions are manifested in the:
- Motivation for the action - "Why Take Action?";
- Target Issues being addressed "About What Should Action Be Undertaken?"; and
- Perception by the other party - "How Should Action be Taken?".
When asked these question by your lawyer you should answer them truthfully.
A lawyer should understand that the emotional state of the parties to a divorce can affect a client's ability to decide rationally, so that it is important for the attorney to take into consideration emotional context when rendering legal advice.