by Shawn Weber, JD, CLS-F | Jul 8, 2011 | Uncategorized
As the next installment in my series of tips for surviving a high conflict divorce, I want to focus on the issue of reactivity-or perhaps better said, over-reactivity.
Here is an email exchange that is very typical:
Email #1: Susie, I was hoping to take little Johnny to visit my mother in Montana for a week during the summer. As you know, my mom has been ailing a lot lately. She is only expected to get worse and I was just hoping to take Johnny to get to know her before she gets worse.
Email #2: Jim, your mother has done nothing but ruin our lives. We moved to California to get away from her and I don’t know why you would want to take our son around her. Besides, your father drinks and you know how I feel about that. Will you please think about what is in the best interests of our son instead of involving him in your twisted relationship with your parents?
Email #3: Why are you trying to involve my folks in our divorce. You always hated them. You are so selfish, which is one of the reasons we are divorcing. My father doesn’t drink any more than anyone else-certainly less than your drug addicted sister. I already talked to Johnny and he wants to visit his grandparents. You should follow his wishes! Why are you trying to get between him and his grandmother?
Email #4: You son of a $%#@! Why are you involving our son in this? You never cared about him. You are just using him as a pawn. I will go to court and do whatever I can do to stop you if you even think of taking him to see your abusive parents. I just told Johnny that he doesn’t have to go with you to Montana if he doesn’t want to go. He is already signed up for camp anyway and can’t go.
Email #5: F%&@ you! This is parental alienation and I am tired of it! I just retained a very tough attorney and she tells me that if you keep this up I will get sole custody and you will only be able to see Johnny with a supervisor. And don’t even think about keeping the house. My attorney tells me that you will have to pay my attorneys’ fees. Don’t even think of asking for support either. I will quit my job if you do!
I wish I could say that an email exchange like this is rare in my observations. Sadly, it’s quite common. Often times in high conflict cases, the parties have a tendency to feed off of each other. Negative energy has a way of creating more negative energy. We, as human beings, have a tendency to react strongly if we feel we are being attacked or if we are scared. Fear and anger are huge motivators. “Fight or flight” instincts kick in. Often these instincts lead us to involve the children inappropriately in adult business.
My advice is to resist the urge to pile on. We are not computers. This means that if our so-called “buttons are pushed,” we need not react in a prescribed, aggressive fashion. Although, this can be hard to do for some people, especially if they have a lot of anger and resentment bottled up in them. These individuals, however, should try to get rid of this negative energy that they’re holding onto if they really want to feel less angry all the time. Such turbulent emotions need to find a way out, otherwise, they might begin to manifest themselves into the personality of a person. One way to do that is by energy healing. With the help of energy healing (learn more by listening to various podcasts on LightSong or similar sources), they would be able to feel positive vibrations in them that might help them be less melancholic and more appreciative of life. Without any control over anger, the situation can go south really quickly, and that should be avoided at all costs. For instance, my spouse speaking ill of my parents does not mean that I will then launch into a tirade of obscenities. Emails are an excellent way of measuring how high the conflict in a situation can be because it is all there in print. However, most of the high conflict communications happen elsewhere. The same concepts apply though.
Here are some tips to be measured in your responses:
1. Court may not help. I can’t tell you how many times something bad happens in a case and the initial response of the wronged party is to file motions at court. I have to admit that early in my career, I was far more likely to have knee-jerk reactions to give ex parte notice and demand all sorts of remedies at court for every little perceived wrong. I learned quickly, though, that this rarely helps. Judges hate the tit-for-tat games being played out in their courtroom. If unchecked, dueling court motions can turn the courtroom into a forum for very bad and aggressive behavior. People write terrible, blistering affidavits full of he-said-she-said accusations that are rarely helpful to the court in making a decision. The judges become overwhelmed with the negativity and usually develop very bad opinions of both parties. I have also experienced that the most negative person at court is viewed the most negatively by the judge.
There are other options to resolve problems besides court. Mediators or mental health professionals can go a long way to diffuse problems and they can often do it faster. I just filed a motion in court the other day for a routine issue. It was set for four months away. You can often resolve problems with the help of ADR professionals and/or mental health professionals in a fraction of the time.
I am definitely not saying that Court should never be used. Sometimes, it’s the only way. But it should be used sparingly as a last resort. I generally don’t like to go to court unless I know I am going to win. Otherwise, my client should seriously consider keeping her powder dry.
2. First listen, carefully, THEN respond. Often times one party expresses a concern that causes them anxiety. Perhaps the person doesn’t say it carefully, especially if the person is upset. Often what the other party hears is only the portions that make him the most angry or fearful. In the email example above, Jim asked if he could take the kids to see his family. But all Susie heard was her own reaction relating to her bad experiences with Jim’s family. Jim, for his part, didn’t hear some of the legitimate concerns that Susie had about his parents and reacted only to what caused him anxiety. Rather than take the time to really ponder and think about addressing Susie’s concerns, he flew off the handle. Naturally, the conversation deteriorated because the couple was reacting instead of listening.
I frequently coach my clients to listen carefully first to what the other person is saying. I ask them to avoid getting caught up in the “background noise.” As in many divorces, communications can be accompanied by the emotions of hurt, fear and anger. Language can be unintentionally combative. Sometimes the language is quite deliberately combative. But if a person listens carefully and isolates the core concern that is driving the emotion and responds to the concern rather than the emotion, the communication can be less combative and thereby more effective. Here’s an example,
Jared: I am going to take the kids to see a ballgame with Linda and me.
Nancy: I can’t believe you’re taking the kids out with your girlfriend! She is why we are getting divorced! You are so selfish and disrespectful. She shouldn’t even be around our kids let alone taking them to a ballgame!
Now, at this point, Jared has a choice to make. First, he could fly off the handle and react to a perceived attack on his new love interest by his ex as follows:
Jared: I can’t believe you are so petty! The kids like Linda! You are just jealous. I wish you could get over that we are divorced and move on! You just want to ruin things for me and Linda!
If this were his reaction, I am sure you can see how unproductive the discussion will be. Perhaps what Jared should do in this situation is stop a minute and think hard about what Linda is telling him. Perhaps, after some careful thought and reflection, his response could be more like this:
Jared: Oh, I didn’t realize that you were uncomfortable with the kids being around Linda. Linda is really a nice person. But, I want you to know that she can never replace you as the kids’ mother. It is important to me that the kids eventually have a relationship with Linda because she is an important part of my life. Do you think there is anything that you and I can do to help the kids with the transition of my having a new relationship? This could help us in the future as well if you should ever start dating again.
Perhaps the second more careful reaction could be more effective. Jared recognized the concern that Nancy was having about introducing the children to his new love interest. Instead of attacking her back, he moved the discussion away from conflict towards a search for productive solutions.
3. Be careful about emails. The same concept applies to emails. A good friend and colleague, Bill Eddy, J.D., LCSW and co-founder of The High Conflict Institute, wrote a great article about Responding to Hostile Emails using the “B.I.F.F.” method. “B.I.F.F.” is short for “Brief, Informative, Firm and Friendly.” Rather than simply reacting to hostile email with a tirade of your own, Mr. Eddy suggests writing a carefully crafted response (if a response is even needed) to the angry email. You reduce the chances of a prolonged and angry dialogue by keeping the response brief and to the point. By focusing on providing the facts in a clear and concise way the email can be informative and thereby less inflammatory, you can make an effective communication without escalating the conflict further. By maintaining a friendly and courteous tone even when tempted to respond with anger, you deprive the other person of a reason to get defensive and keep responding. Finally, by clearly stating your position in a firm but non-threatening way you can effectively communicate your position. Again the goal here is to shut down the back and forth with clear and effective communication devoid of threatening and angry language. (For more information, see Bill Eddy’s book, BIFF: Quick Responses to High Conflict People.)
In summary, avoid reacting emotionally and reactively. Listen carefully to what is being said and try to discover the concern being expressed. Then, rather than attack back, turn the conversation towards possible solutions. This doesn’t work every time, but with patience, it can help. Remember, while sometimes necessary, court is rarely the best answer to resolve a problem. Try to work it out and when in need of help, seek professional assistance from a mediator or mental health professional.
Humans are an emotional species and much of divorce litigation is driven purely by emotion. Take time to review your own thought processes and reactions to challenges during your divorce. Ask yourself, often, if you are reacting out of emotion or out of thought. While emotions are a part of who you are, if left unchecked, they can block out reason and lead to sad and terrible outcomes. Don’t hesitate to seek out a mental health professional for coaching. It can be the difference between an expensive, high-conflict divorce or a financially and emotionally less costly, amicable divorce.
For more information and guidance on dealing with your high conflict divorce, contact Shawn Weber at 858-345-1616 for a free telephone consulation or visit www.BraveWeberMack.com .
by Shawn Weber, JD, CLS-F | Jun 17, 2011 | Uncategorized
Judge has harsh words for Mom before sentencing her for spanking her kid
See this article about a Texan judged who sentenced a mother for felony abuse charges after she spanked her child. Note, she did not use a belt or leave any bruises, just some red marks.
Judge Jose Longoria said, “You don’t spank children today.”
It seems that more and more courts are taking a strong stance against spankings. I am not sure I agree with such a hardline, but we are certainly seeing more and more bannings of corporal punishment in our family law cases in San Diego.
What do you think? Is spanking inappropriate all the time or are there times when spanking is ok?
by Shawn Weber, JD, CLS-F | May 25, 2011 | Uncategorized
In my career as a divorce professional, I have developed a name for myself as an attorney who knows how to guide clients through a high conflict divorce. My business partners observe that I have some of the craziest cases they have seen in their careers. Clients and professionals learn quickly that I am good with tough, emotionally charged cases. Lately, I am even being asked to provide consultation to other attorneys regarding how best to handle cases like this. My best talent is in helping parties settle even the most acrimonious cases outside of court.
Good Fences Make Good Neighbors
My first high conflict divorce tip: set clear boundaries early in the case.
A good deal of the emotional and legal pressure of family law cases results from the parties being unable to respect each other’s boundaries- or maybe just being unable to understand what boundaries should be set. I think of the Robert Frost poem, “Mending Fences”. Here is an excerpt:
I let my neighbor know beyond the hill;
And on a day we meet to walk the line
And set the wall between us once again.
We keep the wall between us as we go.
To each the boulders that have fallen to each.
And some are loaves and some so nearly balls
We have to use a spell to make them balance:
‘Stay where you are
until our backs are turned!’
We wear our fingers rough with handling them.
Oh, just another kind of out-door game,
One on a side. It comes to little more:
. . . .
He said it for himself. I see him there
Bringing a stone grasped firmly by the top
In each hand, like an old-stone savage armed.
He moves in darkness as it seems to me~
Not of woods only and the shade of trees.
He will not go behind his father’s saying,
And he likes having thought of it so well
He says again, “Good fences make good neighbors.”
(from http://writing.upenn.edu/~afilreis/88/frost-mending.html visited 05/21/2011.)
Family law is unique because in the vast majority of cases, the opposing parties have had sex with each other. That takes the whole dispute up to an entirely different emotional level from your garden variety legal dispute. The parties have likely spent years with each other lowering boundaries and emotional defenses between them. We are most vulnerable with the one’s we love. We also feel the safest and allow the mixing of our lives. Privacy becomes less important to us than closeness. Trust is more important than verification. We lower our defenses with our lovers and share everything. But when the break up happens, we try to go back to what we were before we met. The problem is that folks invest a lot in each other emotionally. So even though there is the intellectual understanding that lives should be disentangled, old habits die hard and we leave our boundaries open.
I had a difficult high conflict divorce case early in my career where a husband and wife chose to divorce, but live next door to each other. The idea was that this would be good for the kids. Having mom and dad live next door to each other would make co-parenting easy. They believed that an informal and less rigid co-parenting arrangement would be best.
However, what happened was that the father in this relationship didn’t quite sever the relationship in his head. He kept a key to the mother’s residence and would walk in unannounced. He tried to leave his dirty clothes in the hamper at the wife’s house. He would walk in and take food from the fridge. One day the wife came home and found him in her shower. He explained that he was remodeling his shower and that he needed to use hers. Naturally, he never paid towards her water bill or replaced any of the food he “borrowed”. The wife became exasperated and the tensions escalated. She asked him not to come in uninvited anymore and to do his own laundry. He became angry because, after all, the divorce was not final and his name was still on the deed to the house. He talked to the kids about how “unreasonable” their mother was being. Although she changed the locks, he obtained copy of the new key from their teenage daughter. Needless to say, we spent a lot of expensive time in court on this one.
In my opinion, the case got off to a bad start because the husband wanted to keep the same level of familiarity with his wife even though he had filed a petition for divorce. I am no shrink and I am sure a psychologist could talk about what issues there were that led him to not wish to sever the relationship. The wife’s mistake was not being very clear on her required boundaries early in the case. When he moved out, perhaps he should not have moved next door. Perhaps it should have been clearer for both of them that they now had separate residences and that although they used to sleep in the same bed, privacy and respect for personal space had to be respected. Sadly, the conflict in this high conflict divorce escalated to the point where their children were in emotional crisis.
I spent a good deal of time in this high conflict divorce case helping the parties set new boundaries. The locks would be changed again. The wife would express that he could not come over unannounced. He had to do his own laundry and buy his own food. He would shower at his own place. Most importantly, the children would not be exposed to the adult business of their dispute. With boundaries, things improved.
I had another potentially high conflict divorce mediation case where the parties chose to remain in the same residence for a period of time. Given the state of today’s real estate market, many parties are choosing to delay the sale of real estate. We spent a good amount of time early in the case establishing boundaries, in spite of the choice to continue to cohabit. The parties agreed to a nesting schedule for the children, where one parent would be “on duty” at a time. They chose not to expect to have meals together. They bought two refrigerators. They did, however, agree that one day per week they would have dinner together with the children as a family. All of the finances were divided and they no longer shared expenses. They would pay equally on certain joint household bills like homeowner’s insurance, property taxes or the mortgage. Most importantly, they agreed that if there was ever going to be an argument or dispute between them, the children would never see it. If a disagreement became too much for them to navigate on their own, they would return to mediation for a facilitated discussion before letting it get out of hand.
I was very concerned about this case because of the parties’ close proximity. I was terrified it would become a high conflict divorce and I would be receiving a call in the middle of the night that one of them had been arrested. However, I was gratified that they followed their boundaries quite well and even came up with new rules as needed. Because they respected one another’s space and privacy, things actually went very well. In my opinion, they could only have such success in reducing the conflict between them because they chose early on to set rules and boundaries. Then, the respected the rules and boundaries that they set. Later they told me that at first it was easy to slip back into the old habits they had when married, but that they quickly learned that respecting the rules made their lives more peaceful.
Now, I would not recommend a cohabiting relationship for most divorcing couples – especially those in a high conflict divorce, but I can say that the lesson to be learned here is that boundaries matter. Redefining the relationship early in the process is essential and can have a tremendous effect on how the case goes. It can be the difference between a mutually agreeable settlement or thousands of dollars in court costs in a high conflict divorce. It can be the difference between happy and emotionally healthy children and kids in crisis.
Another useful metaphor for the high conflict divorce is that it is important to know, as if on the highway, which lane you are supposed to drive in. If people switch lanes chaotically or don’t follow the traffic rules, bad things can happen.
So here are some pointers for building good fences to prevent the case from devolving into a high conflict divorce:
- Have a meeting early in the case to determine what boundaries need to be set and what rules for interaction are agreeable to the parties’ transition from married to single people.
- Make sure the kids’ boundaries are respected. Don’t allow the kids to be used as messengers between the parents. Make sure they are not exposed to the parents’ legal dispute or “put in the middle” in any way. They just need to know that they have two parents, who love them. They don’t need to be immersed in “adult business”.
- Get a parenting plan figured out early and then follow it to the letter. Make sure that the parenting plan accounts for possible disagreements and clearly spells out times and locations for exchanges. The plan should specify a clear holiday and vacation schedule. Err on the side of overly detailed. The parties can always choose to be flexible with one another, but make sure there is a clearly defined procedure for parental communication and for how the parenting plan could be modified in the event of mutual agreement.
- Be sensitive about introducing new love interests. Sometimes it can be very upsetting to the other party when the new love interest comes into the picture. If step-parenting is anticipated, make sure that the parties have a conversation about the roles and expectations regarding the step-parents and their relationship with the children.
- Codify the agreed about boundaries by stipulated court order and make sure that the order includes clearly defined consequences should a boundary be crossed.
- Divide financial responsibilities early. Have clear understandings about who is responsible for what joint bills. Consider establishing a temporary support regime as early as possible. Make sure that financial disclosure happens early and that automatic temporary restraining orders relating to community assets and debts are followed and enforced. A lot of the fights in high conflict cases arise from simple misunderstandings about financial boundaries and responsibilities.
So, do fences make better neighbors? Possibly. Do good, clear and respectful boundaries make better ex-spouses and co-parents? Absolutely!
For more information about managing a high conflict divorce,
contact San Diego Divorce Mediator Shawn Weber at 858-410-0144.
Other helpful posts about setting boundaries in your high conflict divorce:
How to Establish Boundaries After Divorce
Bill Eddy, LCSW, JD, Clear Court Orders for Shared Parenting: http://billeddyhighconflictinstitute.blogspot.com/2010/08/clear-court-orders-for-shared-parenting.html
Women’sDivorce.com, Dealing With Your Ex After Divorce and Setting Boundaries: http://www.womansdivorce.com/ex-after-divorce.html
by Shawn Weber, JD, CLS-F | May 12, 2011 | Uncategorized
Collaborative Practice offers the promise of peaceful negotiation with maximum professional support.
I have been involved in matrimonial law most of my career. I have seen some pretty awful stuff. People come to my office at the worst time of their lives: a family in pain; lovers betrayed. As the family is the very heart of our existence and interaction as men and women, the demise of a marriage thrusts real, honest people into some of the deepest and most exquisite pain we humans are capable of experiencing. Divorce professionals, for better or for worse, are given a front row seat to such sorrow and tragedy. We go through a lot of tissue. I have seen a coffee cup thrown across a room. I have seen strong, grown men cry. I have seen suicide attempts and suicide successes.
I have seen the serious collateral damage that a divorce war can inflict on the most innocent – children. I witnessed divorces that were so acrimonious in their conflict that the children of the marriage were literally destroyed by the drug and alcohol addiction that so often accompanies children of divorce, and they had to eventually be admitted into Rehab centers like Arista Recovery (https://www.aristarecovery.com/) to overcome their addiction phase.
Early in my career, I enjoyed the thrill of a battle in court. Litigation can be intoxicating for an attorney. I experienced the adrenaline rush of a nasty phone call to an opposing counsel, the delivery of a strongly worded letter on attorneys’ stationary and the excitement of combat in the court room. It is easy to allow oneself to get caught up in the warfare and become a part of the problem rather than a guide to a solution. In law school we are taught to be “zealous advocates” for our clients. The problem, however, is that in our zeal, we often overlook and destroy our client’s most important asset – the family relationships. Furthermore, “zeal” with its weaponry of formal discovery, motions, court work and general nastiness can deplete the family finances in such an extreme way that our clients are left bankrupt. Sometimes I feel like some attorneys are more zealous advocates of collecting more fees than they are of doing what is best for the client. It is actually called the “adversarial process” in that parties are purposely pitted against one another. Surely, encouraging couples to be adversarial rather than constructive and mutual when discussing delicate issues like parenting is terrible for a family. Don’t get me wrong, some cases require a court battle. However, the vast majority do not.
I have since recovered from the mindset that everything must be scorched earth. Towards the beginning of my career I did mediation, which was a great way to keep folks out of court and focus on solutions. The limitations of mediation, however, are that the parties don’t often have the support of advising attorneys in the room. As a neutral mediator, I am unable to advise what is in a party’s best interests. I can’t protect the interests of my clients. I always recommend that clients seek independent legal advice, but it is hard sometimes, if the attorney is not in the room. On the other side of the same coin, some advising attorneys misunderstand their role and drive what could otherwise be a simple mediated case into litigation.
In Collaborative Practice, however, the parties and their attorneys jointly sign an agreement that they will not be going to court. The agreement further stipulates that should either party choose to litigate, both attorneys are disqualified from participating. This frees the attorney from having to posture with every meeting. If the attorneys are not constantly concerned that they will have to litigate every issue, they are freed to focus on solutions rather than looking for more conflict. The attorneys’ roles switch from zealous advocates to “legal educators” and “counselors at law”. The power shifts away from the attorneys to the parties. The parties decide what the agreement will be and the attorneys merely provide advice regarding the law.
Additionally, the parties can bring in additional professionals to work on their Collaborative Practice team. Mental health professionals can be utilized as divorce coaches or child specialists to assist with the hugely emotional issues in every divorce case. A neutral financial professional can be brought in to assist the parties with understanding the money issues and for planning for the future. As an attorney, I am then relieved of the burden of having to act (incompetently) as an emotional support, child custody expert or as a financial guide. Often these additional professionals will have a lower billing rate than the attorneys so tremendous economies of scale can be achieved. You pay money to the people most qualified to give the particular service.
I enjoy Collaborative Practice as a human being as well. It is wonderful to work with a 
couple to transition their family in the least destructive manner possible. I love collaborating with professionals from other disciplines to help the family find the very best solutions for their situation. Collaborative Practice is much more mutually respectful, civil, child-centered and humane than traditional litigation. Although divorce is always painful no matter which model of dispute resolution is used, couples can leave the collaborative divorce process feeling good about their futures and knowing that they found constructive solutions for their families.
For more information about Collaborative Practice, contact Shawn Weber for a consultation at 858-410-0144 or view:
https://weberdisputeresolution.com/explore-our-services/collaborative-divorce/
https://weberdisputeresolution.com/collaborative-divorce-a-safe-place/
See also:
Collaborative Practice California
Collaborative Family Law Group of San Diego
International Academy of Collaborative Professionals
collaborative practice, san diego divorce attorney, collaborative divorce, solana beach divorce attorney, Shawn Weber
by Shawn Weber, JD, CLS-F | May 11, 2011 | Uncategorized
This is a link to a fascinating study about the effect of divorce on children. I would think that many of these negative effects could be miniumized if the divorcing parents worked more cooperatively. I would think that methods of alternate dispute resolution such as collaborative divorce or mediation would go a long way in reducing the stress and long term effects on children.
Here is a link to the article: Study: Divorce harder on children than a parent’s death, shortens children’s own lives | Deseret News.
