Divorce for Grownups

Divorce: Reducing the Impact on Children

How to help your children manage the divorce

Divorce is always painful for children and there is no way to protect them from pain. But divorce does not have to injure children. That is something you can influence greatly. There have been numerous studies about the psychological impact of divorce on children and all reach a similar conclusion. How well your children will manage the divorce will be influenced by one factor: the level of cooperation between you and your spouse. If your divorce is characterized by a high level of conflict and bitterness your children will not do well. If your divorce is characterized by a high level of civility and cooperation between you and your spouse, your children will come through without major disruption to their lives.

The most reliable way to achieve a cooperative divorce is by using mediation do resolve the issues of your divorce quickly, fairly and without exhausting yourselves emotionally and financially. Mediation, well done, can teach you and your spouse a new mode of communication, not as intimates but as colleagues who treat each other with cordiality and respect. This is one of the most important advantages of mediation that conventional divorce can not do.

For most people who get divorced, the biggest worry is how the divorce will affect their children.

Enough horror stories abound about children who suffer from disrupted lives that parents who anticipate divorce often experience acute guilt about what they are about to inflict on their children. Popular literature and the media have added to the sense that divorce is very harmful for kids and divorcing couples often have to cope with the disapproval of relatives and friends.

Yet the real story is much better than it seems. Inevitably, divorce is painful for children. Divorce requires that children adapt to changes that they do not like. They will have two households instead of one. Money may be tight. There may be stepparents and stepsiblings to get used to. No child welcomes these changes. Children are inherently conservative and do not like departures from the status quo. But although painful, divorce does not have to result in injury to children. There is no reason that children have to end up depressed or have to lose developmental progress. There is no reason that children have to be cast into chaos or sustain trauma leading to lifelong scars. Divorcing couples have much more choice than they think.

The adversarial divorce system

The key is to understand that divorcing parents will choose whether they have a cooperative or antagonistic relationship after the divorce is over. The choice will be made in the decisions about how they will divorce. If their choice leads to a high level of anger and conflict, their children will probably have more problems with the divorce. If their choice leads to a cooperative post divorce relationship, their children will probably come through the divorce with relative ease.

There are two distinct sources of anger that flow from divorce. The first concerns all the feelings attendant upon the end of the marital relationship that include sadness, betrayal, loneliness and fear of loss. These are all intense feelings that have to be managed successfully in order to have a decent divorce. The second source of anger arises from the way couples divorce. Court documents that hold either spouse up to public humiliation and scorn, proceedings experienced as unfair and humiliating, lawyers who treat each other's clients poorly-all the experiences of adversarial divorce-often do more long-term damage than the marital breakup itself. Lawyers are trained to be advocates and to get the most they can for their clients. Fairness for the whole family unit is not the aim of divorce lawyers. Their job, or at least their job as most of them see it, is to "win" for the client. If the wife is the client, the lawyer's job is to get her as much alimony and child support as possible. If the husband is the client, the job is to pay as little as possible. Winning is more important than fairness and a peaceful, family-enhancing outcome.

This is not the place to review how this system came about. What is important is how each spouse experiences the actions of the other's lawyer. The lawyer just sees himself as doing his job. But from the client's perspective, each action of the other's lawyer is experienced as the hostile act of the other's spouse. Each one holds the other responsible for all the pain and humiliation inflicted by the other's lawyer. The position taken by the husband's lawyer, for example, that the wife should not receive alimony, may simply be a bargaining ploy by a lawyer who fully intends to agree to alimony-eventually. The lawyer simply regards this as part of the "game" of negotiation. But what the wife hears is that her husband intends to abandon her. What is simply strategy to the lawyer is emotionally devastating to the wife. It also provides her with the justification to egg on her own lawyer toward ever more aggressive posturing. And so this death spiral continues. The consequence of the polarization induced by the adversarial divorce system is that the capacity for cooperation between the parents disappears over time. Two things contribute to this.

First is that the divorce process not only destroys whatever trust the parents may have had, but also provides proof to each parent that the other cannot be trusted. Adversarial relations tend to cause each party to increasingly demonize the other so that every act of the other parent is interpreted in the worst possible light. During the initial stages of the divorce each parent is in what for each is uncharted territory. Each makes mistakes that affect the other spouse. When there is trust between two people, mistakes are interpreted as inadvertent. "You stepped on my toe. It must have been an accident." But as trust is diminished, mistakes are often interpreted as maliciously intended. "You stepped on my toe. You must have been intending to hurt me." As this process of mutual negative attribution accelerates so does the mutual antagonism. Adversarial processes contribute to this escalation of hostility.

The second thing that happens is that lawyers tend to encourage clients to communicate through the lawyers rather than directly with ach other, so that by the time the divorce is over the two are not talking at all. Once the lawyers are paid and disappear from the scene, the parents are left without a viable method of communication. The loss of communication combined with decreasing trust is a lethal potion indeed.

It is the losses caused by this process that do the most damage to the children. We know that the one factor that best predicts the successful adaptation of children to divorce is the level of cooperation or conflict between the parents. When parents can cooperate children generally regain their balance and thrive after the divorce. And when the level of post-divorce conflict between parents is high, the children are most likely to be a mess.

What this means is that the way to reduce the impact of divorce on children is to focus on how the method chosen to divorce affects the level of cooperation between the parents. To do this requires couples to discard the assumption that divorce has to be mean and ugly, and to they understand that there is an alternative.

A divorce story

After eighteen years of marriage Mary decided to divorce Mike. They had been having problems for three years and had tried counseling with two different marriage counselors to no avail. Mike did not want to divorce. His own parents had divorced when he was a child, and he carried many traumatic memories of their bitter and nasty battles. "It scarred me for life," he said. "I never want to do that to my kids." He felt that although Mary was unhappy, she should remain in the marriage and continue working on it. Mary, however, felt that the relationship was dead. She wanted to get on with her life. She felt lonely and emotionally starved and was unwilling to wait any longer. "My parents couldn't stand each other, but they stayed together so my sister and I would have a stable childhood. By the time we were grown, they believed they were too old to begin all over again. I don't want that to happen to me." She remained determined to end the marriage.

Mike was employed as an engineer. Mary taught part-time to be able to spend time with the children, Ellen, age 15, and Alan, age 12. Mike earned $87,000 a year. Mary earned $16,000 for her half-time job. Although the couple had little debt, they also had little in the way of savings. Mike had a 401k plan and a pension plan at work. They owned a few stocks and had a few thousand dollars in the bank. Their house was worth $200,000 and had a $60,000 mortgage.

The first time they tried to talk about separating they immediately locked horns and appeared to be at an impasse. Mary thought Mike should move out and let her stay in the house with the kids until the kids graduated high school. She wanted Mike to spend lots of time with the children, but felt that they should live primarily with her. She proposed that the kids spend alternate weekends with Mike and have dinner with him a couple of times a week. Mary also thought that it was important that she continue to work part-time so as to have time to meet the children's needs. She believed that Mike should provide both alimony and child support.

Mike was irate. He felt that since the divorce was her idea, she should move out of the house and leave him with the kids. "I'm just as good a parent as you are, and perfectly capable of taking care of the kids. Why should I lose everything just because you want to break the vows you took?" He also felt that she should get a full-time job. "There is no way we can afford two households on the income we have now. The kids are old enough for you to work full-time."

Faced with her husband's unwillingness to adopt what she saw as a "reasonable" position, Mary felt at a loss. She shared her frustration with a colleague at work, who advised her to see a lawyer-and not just any lawyer, but a really tough one. " I went through three lawyers until I found one tough enough to stand up to my husband," reported the colleague. Mary made appointment to see her friend's lawyer.

When she interviewed the lawyer, she was impressed by how aggressive he seemed. He advised her not to change jobs but to maintain the status quo until the case could go to trial. He said that she would be entitled to permanent alimony as well as child support, that she would get the kids and probably get to stay in the house. He asked her to pay a retainer of $5,000 but told her that the cost could go higher if a fight developed.

Mike was referred by one of his friends to a lawyer with a reputation for being as "tough as nails." The lawyer told Mike that he had a good chance of winning a custody fight, but that he should not move out of the house lest that be viewed as conceding the house and kids to Mary. The lawyer also said that Mary should get a full-time job and that Mike should not have to pay much, if any, alimony. It would depend on which judge tried the case when it came up for trial. If they got lucky and were assigned to Judge Marks, then Mary would be unlikely to get alimony. They would just have to wait and see. The lawyer told Mike she would require a $4,000 retainer but that there would be significant additional costs if Mike really wanted to contest custody.

So Mike stayed in the house and Mary did not seek full-time employment. She even turned down a full-time job that became available in the school where she worked. The family settled into an uneasy state of deadlock. Mark and Mary were coldly cordial to one another and went their separate ways. They slept in separate bedrooms and no longer took meals together. The children realized that things were not right, but neither parent would explain what was going on other than to acknowledge that they were having some "problems." Mike and Mary essentially stopped talking other than to have occasional quarrels when it was time to pay the bills. The tension in the house increased month by month.

One day Mary received a call from the high school guidance counselor telling her that her daughter was having problems in school. Ellen's teachers had reported that Ellen's grades were slipping, that Ellen was sad and withdrawn in class and that there was concern that the child was in a depression. The counselor asked Mary and Mike to come in to talk about Ellen.

At the meeting with the counselor, Mike and Mary were asked whether there was anything happening at home that might explain Ellen's behavior. When Mary described the situation at home, the counselor said that there was probably a connection between the home conditions and Ellen's depressed state. She said that living in the same house with divorcing parents was often a cause of depression in kids. She asked what they were doing to get the divorce resolved. Mike said that they were at odds but that neither had been willing to start the battle. The counselor suggested that they might want to consult a divorce mediator to explore a better way to get the issues resolved. She gave them referrals to several local mediators. Mary called that afternoon and scheduled an appointment with me

I spent most of the first meeting just listening to Mike and Mary's differing perspectives. I asked each of them to describe what was happening and what each hoped to achieve through mediation. I took a brief history that included information about the children and about the couple's finances. After each described the issues, I told them that although these could be tough issues, they were typical of divorce and reassured them that most people could resolve them amicably and productively. I asked them to prepare a list of assets and liabilities and gave them budget forms to be filled out by each partner. They then scheduled four appointments over the next month, including one meeting in which each partner met with me alone.

I met with Mike and Mary for a total of nine sessions over the next two months. I helped them explore both the emotional issues and the financial issues. I helped Mike acknowledge that to him, the divorce represented unmitigated loss with no redeeming features, and that the thought of moving away from the whole structure of his life was frightening. And I helped Mary to understand that she and Mike had very different perspectives on the divorce and that patience was necessary until Mike could begin to come to terms with the changes that divorce would require.

Gradually, Mary and Mike began to grapple with the practical and emotional issues. They came to agreement that the kids should stay in the house, at least for a while. Mike also came to see that it was Mary, not he, who had time to attend to the daily chores of parenthood and that it was more practical for her to stay in the house for now. Mary also understood that having his own house was important to Mike and that he would only be able to afford that after this house had been sold and the equity divided. She reassured Mike that it was important to all of them to maximize contact between Mike and the kids and she acknowledged that he was an excellent father. Finally, after poring over the budgets that I had them prepare, Mary agreed that the only way to make up the deficit caused by the divorce was for her to take a full-time teaching job.

Mary and Mike reached an agreement in the ninth mediation session. He would move to a nearby apartment and Mary would stay in the house with the kids until the older child graduated high school in two and a half years. Then the house would be sold and the equity divided between them. All other assets were divided equally. Mary would take a full-time job and Mike would pay child support and a small amount of alimony. The kids would spend alternate weekends with Mike beginning Friday evening and ending Monday morning when they went to school. They would also spend one overnight each with Mike during the week. Mary was particularly relieved because the parenting schedule met everyone's needs-including her own need for some time off from the kids to begin expanding her social life.

Although neither Mike nor Mary got everything that they might have wanted, both thought the agreement was fair and they were both relieved that they had avoided a costly and bitter fight. They were also relieved that they had included an agreement to come back to mediation if conflicts arose between them after the divorce.

They were divorced one year later. Now, three years after the divorce, their house is being sold and each plans to buy a townhouse nearby. Mary has a steady boyfriend and Mike remarried two months ago. The kids are doing well. Both kids get along with Mike's new wife as well as Mary's boyfriend.

A cooperative, non-adversarial approach

There are two dominant myths about divorce. The first is that intense recrimination and hostility are inevitable. The second is that divorces need to go to trial to be resolved.

There is a surprising residue of affection and goodwill between most couples on the cusp of divorce. That does not mean that there is not intense anger or hurt or even sense of betrayal. Mike felt that Mary was disloyal and engaged in an act that could potentially damage the children. Mary felt misunderstood and discounted by Mike. Both felt sad about the end of the relationship. Painful emotions like these are inevitable as a marriage dies. However most couples, despite their hurt, continue to care about the welfare of the other and most partners desire a cooperative relationship with the other parent. It is not until the parties are polarized by the adversarial process that the goodwill dies and the mutual bitterness escalates.

If we can engage the couple in cooperative negotiation with each other before they allow their lawyers to take control, the couple has a good chance of using that residue of goodwill to build a responsible post-divorce relationship. The fortuitous intervention of a sensitive school counselor enabled Mike and Mary to seek help that served their purposes-particularly the objective of protecting the children from divorce-incurred damage. Divorce mediation, in which a neutral third party facilitates dialogue and negotiation between the couple, is the most efficient way to keep the divorce from becoming destructive. Mediation encourages a long view on the part of the spouses and helps them to deal with their fears without acting out on each other. It keeps them in control and insists that they are capable of direct problem solving communication. By modeling and reinforcing negotiation and compromise, mediation not only leads to settlement but also establishes the communication that enables the couple to cooperate around issues affecting the children. It promotes orderly transition and responsible adaptation to change.

A speedy and orderly resolution

Mediation provides a swifter avenue to resolution than does litigation. Mike and Mary's lawyers both foresaw a lengthy process ahead. What they didn't tell their clients is that approximately ninety-nine percent of all conventionally litigated divorces settle prior to trial. It is the rare exception that actually goes to trial before a judge. Settlement is the overwhelming norm. The probability of settlement is a fact. The critical issue is the timing of the settlement. Lawyers tend to pursue settlement late in a case; and although a protracted legal procedure enhances their income, it depletes the emotional and financial resources of their clients. The ones who often suffer the most are the clients' children.

Once a divorce is inevitable, children need an orderly process, with a quick and clean outcome. When divorcing parents continue to live in the same house, for example, the children are injured by the increasingly poisonous atmosphere. Children need to know what the new arrangements will be so that they are not left to their own imaginations. They need their parents to work out two viable households quickly and fairly so that they can spend time with each parent in a peaceful environment. Additionally, children need their parents to thrive so the parents have the energy to give the children what they need. Parents overwhelmed by anxiety, depressed by the continuing limbo and enraged by each other do not have the resources to take care of their children. Finally, all this has to occur in a few months and not drag on for years.

Litigated divorce settlements take a lot of time, cost a lot of money and steep the participants in pessimism and negativism. All these things detract from the ability of people to adequately parent their children. Speed the transaction, reduce the cost and help the parties stay in control, and children can survive relatively unscathed. Mediation can help most divorcing couples to do this.

The family as client

A divorce lawyer regards the member of the couple who consults her as her client. It is her job to serve the interests of that client. A mediator, however, regards the couple and, by extension, the entire family as the client. Therefore the mediator brings not only legal and financial but also psychological criteria to bear, working with the couple to find a resolution that enhances family functioning and promotes the adjustment and well-being of everyone-including the children.

The way to help children of divorce is to help their parents choose a method of divorce suitable to the needs of the children as well as the needs of the parents. Mental health professionals, like Ellen's school counselor, members of the clergy, physicians and others who work with families and children need to become aware of mediation as an option. It is a disturbing fact that even professional marriage counselors are often unaware of mediation, or are unwilling to recommend it. None of the therapists whom Mike and Mary consulted explored how the couple was going to proceed with the divorce once Mary had informed them of her decision to end the marriage. Many therapists believe that their role has concluded once a couple decides to divorce. They not provide guidance regarding what to do next. When the occasional client says, "I know I must leave the marriage-now what?" too many therapists still shrug and respond, "It's not really my job to get into that type of thing. I guess you'd better consult a lawyer." Professionals working with families need to do a better job of promoting mediation as the first resort and discouraging a couple's involvement with the adversarial process.