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The Matrimonial Commission
New York State
April 21, 2005

Since my esteemed partner has started out with a quote by Attorney Sanford J. Berger I would like to begin with the folklore "What doesn't kill you makes you stronger". While this may be true with life threatening illnesses, global disasters and financial crises, it is definitely not the case for families going through a divorce, especially if it becomes hostile. Although the legal system must concentrate on matrimonial laws when addressing divorce, it cannot turn a blind eye on the emotional and traumatic aftermath suffered by all involved when a divorce becomes unfriendly.

As professionals, we all understand the turmoil that follows divorce; therefore, it is important that we seek to address the process of divorce with more sensitivity to the emotional component. Mediation, collaborative law, and counseling should be the first option offered to couples that have made the decision to divorce. Regrettably, this option is not usually discussed, obliging the parties to assume adversarial positions that have long lasting consequences between the partners, as well as between parents and children. In fact, when one first mentions to a friend, a family member or a relative that they are considering a divorce, the typical first response is "get a good lawyer, one who will protect you". Without ever mentioning what needs to be protected, the message is clear, everyone involved realizes that they are in for a fight. Not only to protect their financial future and assets, but to protect their status as a parent.

An antagonistic atmosphere is created when one party hires an attorney who tells him or her something like, "Do not talk to your spouse, let me handle it, that's what you hired me for". Letters are sent, complete with demands and sometimes allegations, and communication between the spouses usually ends with phrases such as "talk to my lawyer". Since it is not unusual for families to continue to live together in their marital home, the lack of communication breeds more frustration, resentment, and anger - all contributing to an already fragile environment.

The hostility between parents is not lost on the children. In fact, more often than not, they are held emotional hostage in an environment that supports discord and mistrust. Phrases like "you tell your mother ", "you tell your father ", become commonplace and the children become their parent's respective messengers. The children begin to react to their parents in the same manner their parents react to one another; and they also absorb the context of the messages they carry back and forth between their parents. As a way of removing themselves from their parents' disagreements, they often turn to their legal representative, in much the same way their parents rely on their respective attorneys. Thus, the phrase "I'll talk to my lawyer" becomes part of the child's daily conversation when they believe they are caught in the middle and just want to end the entire process. The resentment each parent feels from their sense of disempowerment soon becomes part of the children's emotional makeup.

The settlement outcome of the divorce, instead of emotional healing and adjustment, becomes the focus of the litigant's lives. All energy is devoted to winning the divorce, and it not uncommon for each party to adopt the attitude of winning at any cost. While financial considerations are always a concern, children are often viewed as the big prize; therefore, custody, visitation, and access issues become battlegrounds for winning the marital war. When this occurs, the emotional toll on the children is immeasurable, like planting a malignant seed that grows, overtakes, and finally destroys relationships.

As a psychologist, unlike the attorneys, my role does not end when the divorce is finalized. Therefore, I have seen firsthand the damage done to families, children, parents, and grandparents when divorce becomes a war. When there is not a collaborative approach to the divorce process, the parties typically assume an adversarial posture. This antagonistic attitude affects the children, who are often put into a position of choosing one parent over another. Without help and guidance, this pattern of good parent vs. bad parent extends for many years, and sometimes a lifetime. As an example, I have had the unfortunate experience of trying to reconcile a daughter with her father after a particularly hostile divorce. This poor child was forced to endure the breakup of her family, but through the adversarial process, lost the emotional connection to her father as well. Be assured, this did not occur because her father was unfit, abusive or uncaring, but because she was forced to take sides. As a 12 year old girl, she was given the power by the legal system to decide not only where she wanted to live, but whom she wanted contact with. Since she was not cognitively sophisticated to sort through her feelings, she simply reacted to her immediate anger of her family breaking up. This meant she had to blame someone, and since her father had left the house, she "blamed" him for the divorce, not realizing that she was dictating her future relationship with her father in the most destructive manner.

Conversely, another child, also 12 years old, was faced with her parents ending their marriage. Her parents were advised by their respective attorneys to seek counseling to help them work through their feelings, and then mediate their differences rather than becoming adversaries. With this approach the parties were able to maintain a dignified and respectful attitude towards each other, and both were able to adjust to becoming divorced people, not divorced enemies. In the process, their child was given the opportunity to communicate her fears, feelings, and needs to both her parents, thereby, maintaining her connection to both as well as her sense of self with each parent.

Of course, every divorce is unique, and should be approached as such. Therefore, not all divorces should be forced to assume a confrontational posture when a collaborative approach would be more beneficial. In order for this to occur, it is imperative that the laws, as well as the legal community, accept that the divorce process does not end with the legal decision; rather the parties are left to face a very different and separate future. To help people emotionally navigate this difficult time, it is necessary direct the spouses to continue to communicate with each another, as well as their respective attorneys. Family divorce counseling should be considered an essential part of the process to help the parties repair, heal, and establish the new routines and schedules that are dictated by two, separate households. It is my belief that couples who are capable of compromise and negotiation should be given the opportunity to do so through the option of mediation and collaborative law. Perhaps the new rule of thumb should be "talk, talk again, then mediate before litigate."

Lorraine M. Engl, Ph.D.
Collaborative Parenting Associates
37 South Cayuga Rd.
Williamsville, New York 14221

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