In this episode, I wanted to talk a little bit about the consideration of whether and to what degree to have contact with your spouse during a divorce process outside of the process. So, if you’re in mediation, outside of the mediation sessions, or if you’re working through attorneys, then having contact directly with your spouse at all not through the attorneys.
For many people listening to this, there’s going to be an obvious answer. “Yes, obviously, we have contact with each other. We have no issue with that. We have great communication. That’s not a problem for us in this process.” Or the reverse. “There’s no way on God’s green earth that we’re going to be in communication. Everything is going through the attorneys.” And often for people who feel that way, they may not be in mediation but they may actually be and they’re feeling maybe, “It’s so clear to me that we can talk only in mediation but absolutely not outside under any circumstances.”
However, there’s a large swath of the population of couples who are going through a divorce for whom it may be unclear to them whether or not they should be having direct contact with their spouse outside of their mediation process or not through their attorney. And I just wanted to speak to that a little bit.
Let me start off by talking about the pros and cons of having direct contact with your spouse when you’re going through a divorce process.
The upside of direct contact is that waiting to have everything go through your attorneys or only happen in mediation does slow down the process and it does cost more. That’s for sure. Then, if you were able to, at the other extreme, just sit down together over the kitchen table and figure out everything to do with your divorce, which pretty much no one is, so don’t beat yourself up if that’s not you. But it is generally true that the more you need to only talk through lawyers or only talk in the presence of a mediator, the more time your process may take and the more expensive it will likely be. That’s not necessarily a bad thing if that’s the better choice for you, but one upside of speaking directly is that if it’s effective and productive, it cuts down on the timeline and the cost of the process.
I will say that another thing that I’ve noticed where your contact between you and your spouse is effective and productive, and we’ll talk about that in a second, is that it can be not just more efficient but almost more accurate.
Bear in mind that it’s one thing if you’re in mediation and you’re having conversations in the room with a third party neutral person who is able to help track what’s being said in the moment and clarify and relay it to each of you and you can correct any misunderstanding in the moment.
In contrast, if you are in a more traditional negotiation process and you talk only to your attorney, your attorney talks to your spouse’s attorney, and your spouse’s attorney talks to your spouse, and they respond and it goes back in the opposite direction, there can be a little bit of a game of telephone effect. Not a huge one. That’s not to say that anything you say to your attorney will ultimately get distorted by the time it gets to your spouse, but some things could get lost in translation or communicated in a slightly different way. And it can be to your benefit, again, if effective and productive, to be communicating directly to your spouse what you actually think about something or what you’re actually asking for or offering.
Another thing that I notice, and I actually think this is true when you’re in the mediation room and it can be a little bit tougher when you are not in the room together, is that one of the benefits of direct communication is that I think people generally feel more empathy and more compassion for the other person when they are in that person’s presence. When that person is not an idea in their head, but they’re a real, living, breathing human in your presence, whether that be in your presence over the phone or whether it be in person or over FaceTime or whatever, I think there’s something that’s a little bit more humanizing about communicating directly with another person rather than communicating to your representative, to the other person’s representative, to them, and then back to you.
Those are some of the pros of direct communication. Let’s talk about some of the downsides because there are a few.
I would say the top two that I notice are: (1) direct communication with your spouse can sometimes be upsetting to you. And by that, I mean upsetting to the degree that it has a sort of ripple out effect in other areas of your life. So it’s upsetting enough that it impacts your ability to be effective and productive at work, that it impacts you in such a way that you end up being way more irritable with your kids, or just way more on edge or less able to do the amount of stuff you normally do in a day.
Communication with an ex can be very upsetting. And for some people, it really does set them back a bit, and that’s a big downside. The divorce itself is enough to try to cope with and manage as you manage the rest of your busy life. And if direct contact with your spouse aggravates that or intensifies it, then that’s a real downside to having direct contact and it might be something you want to reconsider having.
The other big downside that I see is that direct contact can sometimes make things worse with the negotiation.
Maybe you both walk away from the direct contact with each other feeling fine, or annoyed but it’s not rippling out into your work or into your other relationships, but you’ve gotten so much more annoyed with each other that you’re now even more polarized or further apart than you were. And that can be unhelpful in getting you through the negotiation in a timely way.
The final thing, which I think is maybe related to the second point, is that sometimes direct communication can almost leave you with a less accurate understanding of each other than going through your lawyers or talking in mediation.
I mentioned before the idea of sometimes going through lawyers back and forth, there can be a little bit of a game of telephone impact, but sometimes that option is actually far more accurate and efficient than talking directly with your spouse.
If you are not able to hear each other accurately, and as a result of having that direct communication, you both get distorted enough that you really have a gross misunderstanding of the substance of your conversation, that is not productive. It is far more productive in that case for you to be going through your attorneys or talking in the presence if a neutral mediator.
Those are the pros and cons of speaking directly with a spouse during a divorce process. And let’s say that you still feel kind of on the fence about it. You’re still in that group of people who are…you’re not sure it’s a yes. You’re not sure it’s a no. I just want to get a couple of suggestions for how you might handle that and some tips for how you might maximize your chances of success if you choose to have direct communication with your spouse during the divorce.
The first one is to ask your divorce team, I’ll call them, for feedback. And by that, I mean if you’re in mediation, ask your mediator – that’s fine to do in the room with your spouse – “Based on your observations of us, do you think it would be productive for us to try to have conversations outside the room?” And they’ll answer you honestly.
If you’re working with an independent lawyer, ask your lawyer. And I’ll get to this later, but if the recommendation is that you not have contact with your spouse, really try to heed that. I would say that for the vast majority of lawyers, if they thought that you could productively have direct contact with your spouse and knock out some issues that then they would not have to negotiate on your behalf, they would love that.
More often than not, your attorney has more cases than they can handle, and they’re scrambling to get everything done. And, oh my gosh, if you can take some part of the negotiation off their plate and do so effectively, fabulous. So, if you’re hearing from your lawyer, “Do not communicate with your spouse,” that probably means that it is really not productive for you to communicate with your spouse.
There are some exceptions to that. For instance, if your lawyer in your first interview with them, knowing nothing about your relationship with your spouse, says, “It’s my approach that I never want my clients to talk with their spouse at any point in the divorce process,” personally, that seems kind of crazy to me, but that might be the right thing for you. Their advice maybe you don’t need to heed so closely, but for almost every other lawyer, if they’re telling you, “Don’t talk to your spouse,” please heed that advice. So, do ask your team for feedback.
Also, I want to add, critical to your team, if you’re in therapy, please ask your therapist for their feedback on whether or not they think you can effectively have direct communication with your spouse, and if so, how. And I’ll talk about the medium of communication in a second.
If you don’t have a therapist, you could run it by friends and family. And I would more be asking them for their observations of what they notice, if they notice any changes, in you after you’ve had contact with your spouse. So any way in which you’re way more irritable or way more upset or they notice that you just seem way more depressed for three weeks following contact, that’s good information to have.
They will not be as good a judge of whether or not you’re able to productively negotiate with your spouse directly, if that makes sense, but I think they would be great observers of how the communication with your spouse impacts you.
Another tip I want to give you is that you might want to see if you can distinguish if you would like to be able to have direct communication with your spouse, but it’s kind of a mixed bag, I suggest you try to identify topics that you and your spouse can have effective communication on that’s productive and not destructive, and then identify some topics that are off limits.
For instance, introducing significant others. Maybe that’s something you guys cannot talk effectively about on your own directly. Maybe that’s something you need to have your attorneys negotiate for you or talk about in mediation. Or, you do great talking about your kids outside the divorce process or outside the mediation room or outside your attorney’s office, but any discussion of finances just goes haywire. Or maybe you distinguish even further that you’ve really been able to talk well about what you want to do about your assets and your debts, but when it comes to talking about support, the conversation just derails.
In that case, don’t talk about support, but you can feel free to have direct communication on the other topics relevant to your divorce that you are able to talk productively about.
The other tip I have for you would be think about your mode of communication. Are you talking via text, via email, directly in person, via FaceTime, via phone?
Maybe email works for you, but in person does not, or vice-versa. Or texts are not working for one of you because one person is robo-texting, and the other is feeling totally overwhelmed and wanting to withdraw and shut down, and email would be more effective. So it can still be in writing. You can still both refer back to it, but the other person is not, having the experience of having their phone blow up, and they can pick a time when they’re not at work, for instance, to sit down and review the emails, compose themselves, and respond.
Or, maybe you do better in person when it doesn’t feel so formal or lawyery or divorce process-y, but it’s just the two of you sitting down, having a conversation, which you have been able to do throughout the course of your relationship, and maybe in the right environment that feels a little bit more relaxed than the mediation room or more relaxed than your lawyer’s office. Maybe you’re both able to just sit down in a comfortable place and talk through an issue that’s been a little thorny for you when the environment is less stressful and less agitating to both of you.
Finally, one thing that a lot of clients will find helpful is to ask for their lawyer’s help. This would not be relevant in asking for your mediator’s help. But if you have a lawyer that you’re working with, whether you’re working with that person outside of the mediation process or you’re just working with them independently, ask for their help in framing your conversation, the things that you want to say to your spouse when you have that direct conversation.
So, if you’re going to be talking in person, work with your lawyer on coming up with some very basic bullet points of what you want to cover. I really want to encourage you to prepare for these conversations, not as if they’re a formal negotiation, but just to not wing it.
If your communication is solid with your spouse, wing it. Great. If it works for you, that’s fabulous. But if direct communication with your spouse has been fraught in the past, I really want to recommend that you prepare for your communications with your lawyer. If they’re going to be in person or on the phone, like happening in real time, go ahead and just prepare some bullet points of what you want to say and have your lawyer help you anticipate things that your spouse might say and help you frame how you want to respond to them.
You’re not going to be able to script this completely, but just do some preparation along those lines. Basic bullet points and sort of basic ways of framing your response that are targeted to or tailored to optimize your spouse’s reaction to what you’re saying and to minimize the chance that you’re going to be aggravating or agitating the situation in the way that you’re presenting something.
If you are communicating by email or by text, a lot of clients find it helpful to run the text or the email by their lawyer and have a light edit of it before it goes to their spouse. That’s one of the things that I have to say I enjoy doing most for my independent, non-mediation clients, and that I find is often most productive in my work with them.
You won’t realize it, but there will be elements of what you write that will have a certain tone to them that you’re not conscious of or that you’re not intending to convey that hooks into some kind of historical dynamic that you have with your spouse that is likely to agitate them. And for somebody who is outside your dynamic, those are pretty easy to spot and pretty easy to neutralize.
So, engage the help of your lawyer. If you want to have direct communication and there have been some stumbling blocks there previously, engage the help of your lawyer in preparing for that communication or in structuring and editing that communication.
You’ve now got some tips and some suggestions for how to best set yourself up for success in having direct contact with your spouse.