Why do so many people have such a hard time facing divorce, even when it gets to the point of inevitability? Why are they sometimes unrealistic and in denial about their circumstances? Why do they have such difficulty going about making the decisions and gathering the information that will allow the process to move ahead? Why do they become angry and seek to strike out at others, even those whom they love or loved, and those who love or loved them? Lawyers most especially, and also accountants and financial planners, are not trained in the course of their professional education to know how to go about analyzing these questions. After all, the decisions that need to be made are relatively few, there aren’t all that many options, and there are guidelines to steer by. Right?
People who are facing divorce have many of the same difficulties as those who learn that they or a loved one has a terminal illness. They tend to move through stages of denial, anger, bargaining, despair or depression, and eventually acceptance. See, K. Kubler-Ross, On Death and Dying (McMillan, 1969). The progression is seldom linear. Sometimes the path turns back on itself or spirals. Those facing divorce or death may follow a path that circles back on itself, either in a regression or at a higher level. Death, which is the loss of one’s self and one’s life, is almost unbearable for most people to contemplate. See, E. Becker, The Denial of Death (Simon & Schuster, 1973). Divorce is for many people the same as a death, but perhaps to a lesser degree. But for one going through the process the “lesser degree” may be little comfort.
How is divorce like death? The answer is that both represent diminishment and loss. What are the losses/deaths that divorcing people perceive themselves to be encountering? There are many:
In a strange way, divorce may have less closure than death. There is generally not a funeral or ceremony to commemorate the death of a marriage. The former spouse is not deadbut still very much alive, often serving as a reminder of the failed marriage.
So why do our divorcing clients operate at such a low performing level? Why do they delay, move in a circular pattern rather than forward towards the goals they are assumed to have, fail to do tasks they need to do to achieve the assumed goals, etc.? The answer should be clear. In a sense, they are too busy suffering loss and death. Importantly, this loss and suffering is what they actually need to go through before they can move on and do anything else effectively.
It is not so difficult to see how the traditional adversarial approach taps into and plays negatively upon the experiences of persons going through divorce. The following may be overstatement and generalization, but it is not too off the mark:
(A) The clients are low performing, so their attorneys become high performing for them.
(B) The clients are in denial, so their attorneys become confrontational and demanding with each other on the clients’ behalf.
(C) The clients are angry, so their attorneys get angry, too.
(D) The clients are depressed, so their attorneys seek to perk them up by putting telling them they can “win” and by putting pressure on the other side.
(E) The clients are resigned, so the attorneys keep pushing them to get as good a deal as possible because they are each ostensibly acting in their client’s best interest.
One or both of the clients may feel victimized (the one dying) and see their spouse as the perpetrator (the one inflicting the mortal wound). The attorneys, depending on the clients’ perspectives, may become the defenders or the accessories to the death-by-divorce. This creates triangles in which clients may not take responsibility for themselves and may not work through the process of grieving the loss of the marriage in as healthy a way as they otherwise might. Is it any wonder that many divorce cases come to an end not because the clients reach a stage of peace and acceptance, but because the clients can no longer bear what the legal process is doing to them?
This is because traditional divorce so often does a poor job of allowing them the time and space to process their way through the death of the marriage and work toward a state of peace and acceptance concerning the divorce. If allowed to go through the grief process, clients will frequently reach a point at which they will be able to put the death of the marriage behind them, find new energy, and learn that there is life after divorce.