What is vulnerability? Webster defines it as: “easily hurt or harmed, physically, mentally or emotionally. Open to attack, harm or damage.”
No wonder no one wants to be vulnerable!
In an adversarial divorce, clients get hit with a double whammy: they enter a public forum to engage in battle while emotionally depleted and vulnerable.
Clients will be easily hurt in this model. They are exposed and attacked through the process of discovery, depositions, and a contested formal hearing, with witnesses (former friends and family) being presented against them. All of this to simply get divorced, maintain their parental relationship with their children, and to have enough money to start over from scratch without their best friend, and lover with whom they expected to stay “until death do us part.”
Clients expect their lawyers to protect them from this harm, but lawyers have rules to follow as “officers of the court.” We are duty bound to represent our clients to the best of our competence. We are not allowed to cheat or lie, nor are we allowed to permit our clients to do so.
Our clients come to us in a state of emotional vulnerability which is easily exploited. The system is set up for a judge to discern the “truth” from competing evidence presented in accordance with rules of procedure and complex rules of evidence. The facts in a family law case are presented by two worthy advocates in a system designed for a different type of civil or criminal case.
Before anyone asked me for my opinion, our culture decided that a court was the place to get divorced.
I’ll be frank. I struggle with understanding how sending already emotionally wounded people into an adversarial court for resolution of the most important issues in their lives - their relationship to their children and their future financial security, was a good idea.
Simply changing the name of the court to “Family Court” did not change the underlying fundamental truth that lawyers are trained in civil and criminal litigation practice in courts of law. Family court is still a court of law, and clients routinely think they will receive some form of justice by going to court.
Lawyers who handle divorces in a family court skillfully and knowingly take their most vulnerable clients through a system that is designed to exploit weakness. Protection from harm is dependent upon the talents of the lawyers.
A major fallacy is that talented lawyers can protect a client in a divorce from having their lives irreparably altered. In fact, they will lose time with their children. They will lose a portion of their wealth. They are grieving the many losses that marriage promised them. That is the system we are working in unless the lawyers and clients agree that a Collaborative Divorce is more appropriate.
Just as employees resonate with a leader who is authentic, people in an adversarial system start to behave like adversaries and model what they see. If lawyers are not mindful, they pick up their client’s vitriol and unresolved emotions and behave uncivilly toward each other. This can lead to burnout and an unsatisfying professional life.
I’ll concede that this might be the classic chicken or the egg dilemma. Are clients behaving poorly because lawyers are so invested in their own identities that we are not counseling clients to behave better? Or are clients behaving poorly because of unresolved grief and because we “take our clients as we find them”? Lawyers may start to over-identify with their client’s narrative rather than insisting that they find a more balanced perspective.
Divorcing couple should not consider themselves adversaries. They are not in a zero-sum game, nor are they gladiators fighting in a public arena for blood sport and humiliation.
Clients need support in expressing their vulnerabilities and fears at this time of divorce. They need a culture that will support forgiveness and healing and an acknowledgement that their marriage isn’t working well. A change is necessary for the well-being of the whole.
It is time to re-think the wisdom of sending divorcing people into an adversarial model unless it is absolutely necessary.
Note: If you are a victim of financial, physical, emotional or other abuse, or you need to protect a child from abuse, then by all means go to court. Go quickly with the best lawyer you can find and afford. For the rest of you, I’m suggesting that you slow down and do not allow your fear or anger to overcome your decision-making faculties.
Feel the Pain and Move through It
It is a myth to think that you will avoid your pain or that you will feel better if you hire the biggest, meanest shark to hurt or punish your soon to be former spouse. Making your former spouse and other parent of your children an “adversary” sets you up for a rough fight that you cannot actually win. Think about that.
You are probably already fighting. Your communication skills have completely evaded you, and it may be all you can do to keep yourself from saying out loud the hurtful things you want to say as you seek short term relief from your suffering. Most people do not have that type of self-control, so hurtful things get said and then embarrassment and shame kick in. Furthermore, the children are watching and modeling what they see at home.
There are no apologies (or admissions of fault or wrongdoing in the adversarial system) and there is no room for an authentic apology or forgiveness. Often, that is all that is needed.
What I am suggesting is that we stop trying to pretend that clients are okay and that it doesn’t hurt. It is important to have both clients acknowledge the pain and suffering around the decision to separate. Both parties must come to an agreement that they will not play out their pain in the drama of a courtroom, or in an adversarial system, if that system is not necessary.
This is where using the Collaborative Divorce model could help. It takes away the shame and blame, and allows clients the opportunity to say what they need to say. This allows them to focus on the future, use more effective communication, and take their rightful stance as the leaders of their own lives.
We are all vulnerable at times, even when we are the ones who “keep it all together.” Even if we are the “rock” of the family. And that is okay!
Question: Do you remember a time during your marriage when you were actually vulnerable? Can you behave the way you had hoped your spouse would have handled it, or if they did a good job, acknowledge that?
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