Separating Emotionally

The previous section discussed the law about separation. This section talks about the emotional dimension of separation. The laws and the courts only deal with a narrow slice of all the things that go on when a relationship ends and often ignore, because they must, the larger emotional and psychological issues. These issues, however, influence a couple's ability to work together after separation and often play a huge role in determining how a separating couple will go about resolving their legal problems.

An understanding of the emotions involved in separation can help to reduce conflict and the cost of resolving the legal issues involved in separation. This section applies to both married and unmarried couples and provides an introduction to separating emotionally, looks at the grieving process that accompanies the end of a long-term relationship, and discusses how the emotional aspects of separation can impact on the resolution of the legal issues a couple might have to deal with.

Introduction

Ending a long-term relationship, whether married or unmarried, is not just a matter of packing your bags and walking out the front door. Separation stirs up incredibly powerful emotions that can take a surprisingly long time to work through; many counsellors liken these emotions to the grieving process that follows the death of a loved one. Chief among these emotions are love, anger, remorse and sadness, and separating couples often find themselves experiencing these emotions in a very intense manner and cycling through them over and over.

These emotions often wind up clouding a person's judgment. You can find yourself doing things and saying things you never thought you would, or doing things you promised you'd never do again. You can find yourself looking at your partner and wondering who the hell this person really is, and how can he or she be so different from the person you were together with for so long. Unrecognized and unmanaged emotions can take over the emotional and legal processes of separation like a runaway train and take you down tracks you never anticipated.

The emotions involved in separation are normal. Everyone experiences them, although we each process these emotions in our own way. From a lawyer's perspective, the key problems that must be processed in the midst of these distorted and confused feelings are:

1. settling the legal issues that crop up at the end of a relationship,
2. obtaining reasonable instructions from the client,
3. separating anger from the negotiation process,
4. separating anger from the litigation process, and
5. ensuring that the conflict doesn't spill out onto the children.

The vast majority of couples can resolve their issues through negotiation or mediation, no matter how angry they are with one another. Where a couple simply cannot separate the emotional baggage of separation from the resolution of the legal issues that come at the end of their relationship, litigation may be inevitable.

Many studies have shown that mediation and collaborative settlement processes produce agreements that are better for both parties and better for the children, and that last longer than the results of litigation. Mediation and collaborative processes can help a couple to work through their individual emotional issues and can produce an agreement that isn't so much a legal contract as it is a moral contract. Parents especially tend to deal with each other, and with their children, with a lot less rancour following a mediated or collaborative resolution of their problems.

Litigation is sometimes necessary, even when a couple is capable of a less antagonistic choice: when a party threatens to flee with a child; where there is a history of abuse or where abuse seems imminent; and, where a party is threatening to do something rash with family property.

When litigation is provoked by emotions arising from the end of the relationship and isn't really necessary, then you can run into some serious and expensive problems:

• One or both people will adopt an entrenched and unreasonable position about things like the children and other family issues, sometimes a position that they would never have considered taking. Sometimes positions are adopted out of spite or vindictiveness.
• The emotional tension will worsen, particularly when you see things you thought were long buried in the past put into an affidavit. There will be backstabbing, accusations and wounded feelings.
• There is an increased risk of the children being used to goad the other parent, although sometimes unintentionally.
• There is an increased risk of the alienation or estrangement of a child from a parent, and the permanent impairment of the child's relationship with that parent.
• There will be many interim applications and the litigation may not be settled even with a trial. In circumstances like these, the litigation many never truly end, especially when there are children involved.
• The litigation will cost an enormous amount of money, and you risk losing the equity in the family assets to court fees and legal fees.
• At the end of the day, you risk being permanently unable to communicate effectively with your former partner. This can be a serious problem when children are involved.

As a result of all of this, it can be critical to get a grip on your emotions right out of the starting gate. While all of these emotions are common, natural, and entirely understandable, failing to recognize and manage them can lead to disastrous short- and long-term consequences to your emotional well-being, your relationship with your children, your children's emotional well-being, and your financial situation. If you are having trouble managing your feelings and you have children, see a counsellor as soon as possible.

Parenting after separation

When a couple have children, they must accept that they will remain a permanent part of each other's lives, whether they like it or not. A couple may no longer be partners, but they will always be parents. The parental relationship does not end with the romantic relationship.

It is impossible to emphasize enough how important it is to always put the children first. This may sound a bit trite, but putting the children ahead of yourself can be an extremely challenging task when you are also trying to cope with the intense emotions involved in separation. It can be tremendously difficult to refrain from badmouthing your former partner to the children, "forgetting" to drop them off on time, and using them as a weapon.

The Parenting After Separation program is available throughout British Columbia. In my view, all couples with children can benefit from this program, no matter how well or poorly you think you and your former partner get along.

The Parenting After Separation (PAS) program can offer important advice about talking to your children about the separation, talking about your former partner with the children, and talking with your former partner in ways that avoid hurting and wounding and are focused on the children.

Information about parenting after separation, including contact information for the different agencies that offer the PAS program, is available in the chapter on Children within the section Parenting After Separation. As well, some very good research papers and literature reviews about parenting after separation, the costs of high-conflict separation, and other topics relating to the child's well-being and outcomes following separation can be found at the website of the Department of Justice. These papers are of a uniformly high quality and are well worth the read.

A few final notes

I am not a psychologist, a psychiatrist or a counsellor. As a result, this section should be read with a grain of salt as it is based on my observations of my clients' experiences and a healthy dose of common sense. For the same reason, this section should not be used as an authority for the propositions it sets out.

Finally, there are a ton of resources available to help you cope with the separation process and keep the emotionally harmful aspects of the process away from your children. In addition to public programs, many counsellors specialize in helping people work through the emotional turmoil that often follows the end of a long-term relationship.

Since counsellors are unregulated, anyone can hang a shingle saying that they offer counselling services. What you should be looking for are people with the designation of Registered Clinical Counsellor (RCC), Certified Canadian Counsellor (CCC) or Registered Psychologist (RPsych).

• The website counsellingbc.com offers a list of subscribing counsellors by area of practice.
• The BC Association of Clinical Counsellors also maintains a referral list of its members.
• The BC Association for Marriage and Family Therapy has a referral list and helpful information about how to choose a counsellor.

The grieving process

Many counsellors liken the process of emotionally separating from a long-term relationship to the grieving process that happens when a loved one dies. In general, this process can be expected to take one to two years to complete. Dr. Elizabeth Kubler-Ross, in her book On Death and Dying, describes a five-stage model of grief, and how grief affects our ability to make decisions in each stage.

• Shock and Denial: "This isn't happening to me!" An initial paralysis at hearing the bad news; trying to avoid the inevitable. People usually avoid making decisions or taking action at this point.
• Anger: "Why is this happening to me?" A frustrated outpouring of bottled-up emotion. Making decisions at this point is difficult because all one's energy gets put into the emotion rather than problem-solving, and the other partner is usually vilified.
• Dialogue and Bargaining: "I promise I'll be a better person if..." Seeking in vain for a way out; seeking solutions that might offer a solution. People generally become more willing to explore alternatives.
• Depression and Detachment: "I just don't care anymore." A final realization of the inevitable. It is hard to make reasonable decisions at this stage because of the sense of resignation.
• Acceptance: "I'm ready for whatever comes." Finally finding the way forward. Decisions are much easier to make because people have found new purpose, having begun to accept the loss.

Dr. Robert Emery agrees that the Kubler-Ross model applies to separating, but he looks at the grief process in a slightly different way. In his book Renegotiating Family Relationships, Dr. Emery describes the grieving process as a cycle of love, anger, and sadness, which gets repeated in varying degrees of intensity as a person works his or her way through the Kubler-Ross stages, from shock and denial through to acceptance of the end of the relationship.

In his excellent book The Truth about Children and Divorce, Dr. Emery says this:

"Over time the intensity of the emotions diminishes and people usually find that the feelings begin to blend. Early on, the grief of divorce is experienced as an intense period of feeling nothing but love, followed by an equally intense period of feeling nothing but anger, followed by an equally intense period of feeling nothing but sadness. ... Over time, however, the intensity of the feelings begins to wane, and the cycles of each emotion begin to blur and run into the other two. This overlapping of emotion results in a realistic, less emotionally painful view of the divorce.

"When the blending does not occur, people get stuck in one emotional cycle or another. Someone who gets stuck on love may deny the reality of the breakup and pine for reconciliation; someone caught up in anger will act out of vindictiveness and a need for revenge; those mired in sadness will assume an exaggerated and unrealistic sense of responsibility for what has occured."

For most people, the difficult thing is that knowing about the stages of divorce and the grief cycle does precious little to actually solve the problem. You can intellectually know what's going on, but knowing what's going doesn't mean that the emotions go away; there is no magic light switch that you can flip to turn your emotions off. Knowing about the emotional roller coaster can, however, keep you aware about what is motivating your reactions to your former partner and help you contain your emotions while you are negotiating the fallout from the end of your relationship.

It is important to remember that you and your former partner are probably not going to be at the same stage of the grieving process. One person can come to the conclusion the relationship is over long before separation and reach acceptance, while the other person is still in shock and denial that the relationship has ended. This is another factor that will aggravate feelings between you and your former partner.

Each person's goal at the end of the day is to find acceptance, that moment when you don't recognize your former partner's voice on the telephone right away. As Dr. Emery has observed, the opposite of love isn't hate; it's indifference.

A warning about allies

All of us seek allies as we cope with the end of a relationship. It's human nature. Allies may be found in family members, friends, co-workers, or a new boyfriend or girlfriend. While we all appreciate the support that allies can offer, allies can also polarize your position about your former partner, and sometimes encourage you to take an unreasonable and entrenched position when you need to be more flexible.

Allies take sides. That's just what they do. Imagine going to your mom or dad in tears, complaining about your former partner. Your parent's job isn't to say "Well, really Bob is a fine person and a great father, you really should lighten up a little and remember his good qualities." Their job is to comfort you, and that often means saying "Yeah, you're right, I can't believe what a complete asshole Bob is being! Whatever did you see in him anyway?"

You shouldn't stop seeking reassurance and comfort from your allies, but you should try to be alert to the influence allies can have, even though they're not intentionally trying to worsen the issues you and your former partner are dealing with.

A warning about parenting

Some people best manage a breakup by walking out the door and never looking back, and doing their grieving alone. This just isn't possible where there is property to manage and divide, and it's especially not possible when a couple have children. You can't change your phone number, you can't stop answering the phone, and you can't refuse to see your former partner if you have children. You are still mom or dad, and you'll always be mom or dad and have a relationship with the other parent until or unless your children predecease you.

As a result, it is even more critical for you to properly manage the roller-coaster emotions of separation when you have children. You may be caught up in a whirlwind of anger and remorse at the present, but you have to think of the long-term effect of any rash behaviour. Do you want to be able to attend your child's graduation ceremony? Do you want to go to your child's wedding? How do you want your child to think of you in five years?

It is enormously difficult, but you simply must keep a button on your emotions while you grieve. Dr. Emery offers these suggestions in The Truth about Children and Divorce:

• First, draw clear boundaries around your relationship with your former partner. Let your partner know what you're prepared to talk to him or her about, what information you're prepared to share, and what if anything you're prepared to do with the children together.
• Second, use those boundaries to form a more business-like relationship with your former partner. The two of you may not be friends, but together you are engaged in the "business" of parenting your children. Keep your emotional distance from your former partner.
• Third, respect these new rules. Don't intrude past those boundaries and keep your discussions focused on parenting. It may be hard not to react when your former partner pushes your buttons, but you're best off following this old saying: don't say anything if you don't have anything nice to say.

A warning about children

It can be extremely tempting to rely on your children to comfort you as you go through the grieving process. One word: don't. Whatever else you do, don't do this.

Children will be well aware when something's wrong. They will know when you're upset, when you're withdrawn, and when you're crying. Younger children will react with confusion and possibly fear. Older children who are more emotionally sophisticated will want to comfort you. There's nothing wrong with this either, but you do need to control your emotions.

When a child becomes too involved in soothing a parent, there are two main risks: you may develop an overly adult relationship with the child and burden the child with too much information about what's going on, information that is usually age-inappropriate; or, the child may turn into a caretaker, handling your emotions, picking up the housework that's falling behind, and assuming a parenting role towards any younger children.

According to Dr. Emery, "extreme emotional care taking is developmentally inappropriate and can have long-term consequences on children's mental health." Children who grow up too soon are robbed of their right to be children. In the long-term they have trouble forming meaningful relationships, they may be emotionally distant, and they may be compulsively over-responsible.

Resolving the issues

There are a variety of ways to resolve the issues that arise when a relationship ends, the most common of which are negotiation, mediation, and litigation. Collaborative law is sort of a cross between negotiation and mediation.

Litigation is a contest between two parties, at the end of which, following trial, there is a winner and a loser. That's a bit of of a gloss on things, but litigation really is adversarial in nature, and if the parties can't come to an agreement between themselves, a trial will be held and a judge will impose a resolution on the parties.

With mediation and negotiation, it's the parties themselves who come up with the resolution of their issues. Mediation in particular is cooperative in nature, and requires both parties to commit themselves to a dialogue aimed at finding a solution. There is no winner and no loser, as mediation and negotiation both demand accommodation, and neither party gets exactly what they want; these processes are about compromise.

Unless there is a pressing and manifest urgency, in my view negotiation and mediation are to be preferred over litigation. While it is absolutely true that in some situations court is the only way out, most people can find compromise no matter how wound up their emotional states happen to be.

In The Truth about Children and Divorce, Dr. Emery describes three general categories of divorcing couples: the angry divorce, the distant divorce, and the cooperative divorce. While these categories are not exactly exhaustive and are drawn from an American legal construct, they are useful in discussing the impact of emotional separation on negotiation, mediation, and litigation.

The cooperative separation

Couples engaged in a cooperative separation have usually worked out a lot of their emotions and resolved much of their grief. They recognize their emotions for what they are, and avoid acting out of spite or tearfully reminiscing about the lost relationship. These couples attempt to work things out between themselves, with and without help from lawyers and mediators.

Cooperative separations usually result in a separation agreement or an order that they agree the court should make. Often, what little litigation may occur is limited to simply getting the divorce order.

The distant separation

Couples in a distant separation are able to keep their conflict from their children, but are still dealing with feelings of hurt, resentment, anger and pain. While there is plenty of intense anger, this emotion usually fades to a growing dislike or indifference. These couples have done a lot less emotional work on their feelings, and their recollections of the relationship are characterized by bitterness rather than sadness.

These couples are not friends but know better than to become enemies, perhaps because of the children or past experience with the court system. They deal with each other minimally, without a great deal of warmth or demonstrated anger.

The angry separation

This, of course, is the type of separation to be wary of. These separations are also known as "high-conflict" separations. Couples in an angry separation have trouble letting go of the marriage, and feel intense pain and anger. Their emotions are usually raw and neither party has done a great deal to manage their feelings.

These couples have the hardest time dealing with each other and the legal issues between them, as they focus on "fault" and "blame," and are often unable to stop themselves from lashing out hurtfully. Resolving the issues is the most difficult for these couples, and they are the most prone to protracted, ugly litigation.

Couples in an angry separation, particularly those with children, generally need to get professional help in dealing with the emotional fallout from the end of the relationship if they are to avoid court and learn to cope with each other and their feelings in the months and years to come.

Angry separations are the sort that lawyers most often wind up dealing with. The epic battles couples engaged in an angry separation are capable of can barely be described. The legal issues arising from the breakup are rarely concluded within two years, and, when there are children, can run for six or more years! A trial rarely resolves issues between these couples, as they will often keep fighting long afterward about real or imagined changes in their respective circumstances following judgment. These couples are also living proof that money doesn't buy happiness — it buys you litigation, and lots of it.

Anger

By now, you will have guessed that the irrational thinking anger triggers can be the most important roadblock to resolving family law issues in a cooperative manner. Anger is an incredibly powerful emotion characterized by Dr. Emery as "the toxic residue of unresolved grief."

Anger also does a lot of very odd things that not many people are aware of. Ignorance of these different functions of anger can slow the grieving process, entrench unreasonable positions, and protract the resolution of the issues flowing from the end of a relationship.

Anger avoids other emotions

Anger can be used to divert blame from yourself and avoid feelings of guilt. People experiencing anger as a shield are often avoiding accepting responsibility for, perhaps, an affair or being the one who announced the end of the relationship. It can also stop you from experiencing the other primary emotions in the grieving process, sadness and love.

Anger prolongs the relationship

Intense anger can also signal that you are not yet done with the relationship. Conflict can be a way of drawing a former partner closer by getting their attention and maintaining the emotional relationship. Underneath this kind of anger remains love and a continuing attachment to a former partner, as illogical as this sounds.

Anger hides fear

The process of separation contains a lot of threats, whether real or imagined. Many of these threats are obvious: the risk of losing an asset, the risk of not being able to have another romantic relationship, the risk of losing one's children. Fear triggers the fight-or-flight response; anger can be a manifestation of the fight response.

Anger blinds

Anger can stop you from recognizing positive steps your former partner is taking to resolve issues, and lead you to assume that your partner is acting on false pretenses or on a hidden agenda. This kind of anger breeds suspicion that is often unwarranted.

Anger can also stop you from acknowledging your former partner's good qualities, especially around parenting issues. Avoiding admitting these qualities makes it easier to hold onto an objectively unreasonable position.

Anger is easy

For people who are emotionally bottled up, the emotions wrapped up in the grieving process can be very difficult. Both sadness and love can be difficult to acknowledge and deal with, particularly when feeling those emotions is associated with a loss of face. As a result, anger can be the easiest emotion to deal with and less painful to experience.

The results of anger

Apart from slowing down the grieving process, anger inevitably delays the resolution of the issues that come from the end of a relationship. An enraged person is not going to be able to negotiate since negotiation involves making concessions; an enraged person is mostly going to want to litigate. People in this state of mind make threats like "I'm going to take you for everything you've got," or "you'll never see the children again." They will also tell their lawyers that "it doesn't matter what it costs or whether I'm likely to lose, it's the principle of the thing!"

Sometimes these threats come true, and the consequences to both parties can be enormous.

• Someone who takes an unreasonable position out of anger will lose, but in carrying out their crusade they risk draining all of the family's assets to fund the litigation.
• Rage can permanently impair a couple's relationship with one another. Where there are no children, this may not be a problem, but where there are children this can be disastrous. You may not give a fig about your former partner, but what memories will your children have of the next five years of their lives?
• People can jump to ridiculous conclusions by expecting the worst from their former partner, leading to conflict after conflict ― and court application after court application. Redness on the buttocks of a toddler becomes evidence of molestation, rather than simple diaper rash.
• Rage can trigger "affidavit wars," in which each person makes inflated claims about the purported evils of the other. Minor events are exaggerated beyond all proportion. The costly "war" is triggered because the other party is put to the burden of addressing each inflated claim. Very rarely is a party able to refrain from making reciprocal claims about the misconduct of the other: "I drink all the time? Actually, I only drink socially but you smoked pot when you were pregnant." What is a judge to make of claims like these?
• Anger can strip you of your ability to see common sense and lead you to adopt positions that are objectively unreasonable and doomed to fail. In the process of failing, however, you can expect to spend a lot of money and further damage the tensions in your relationship with your former partner.

Rage, as Dr. Emery observes, is a symptom of unresolved grief. Whatever the cause, failing to move beyond anger can be poisonous to you, to your former partner, to your children, and to your relationship with your children. Some counselling, whether by yourself or with your former partner, can be critical in moving forward and out of anger.

Choosing your lawyer

Your choice of lawyer can play a large part in determining how your separation unfolds. Many lawyers are quite open to mediation and collaborative settlement processes, while a few others see litigation as the only means of resolving a dispute, particularly lawyers who have a reputation as being bulldogs. Other lawyers do not take their duty to respond promptly to correspondence particularly seriously, which will delay things and may result in an unnecessarily large number of interim applications. Still other lawyers see their duty as limited to militantly carrying out their clients' instructions, without supplying a great deal of options or cautions as to the likely effect of those instructions.

The best family law lawyers give their clients a common-sense analysis of their situation, based on probable outcomes and their expert knowledge of the law, and encourage their clients to take positions that are objectively reasonable. These lawyers will usually pursue settlement, both before and after litigation has started, and see litigation as a last resort. They are open to negotiation and mediation and other out-of-court processes, although they may prefer a result-oriented mediation process rather than the lengthier traditional mediation process that also tries to address emotional issues.

While some people, particularly those in angry separations, feel an almost irresistible urge to go out and hire the toughest bulldog around to exact revenge against their former partner, bulldogs rarely see any resolutions other than: a settlement on exactly the unreasonable, extortionate terms their clients want; or, a knock-down drag-'em-out trial. These lawyers cost the most, and you can expect the litigation process to drag out for an ungodly amount of time — with absolutely no guarantee of a better result than what you would have had if you'd taken a different, less antagonistic approach.

Even if you are in an angry separation, step back and take a breath. Remember that even though you may hate your former partner at present, you will have to live with the consequences of hasty litigation and your unreasonable positions well into the future. You might also lose your house to pay your lawyer's fees.

How do you find a lawyer? By reputation. Ask around; talk to friends who have had to deal with family lawyers before; ask for referrals from the other professionals in your life. You can also window shop. You don't have to hire the first lawyer you have a consultation with; go ahead and set up meetings with a bunch of different lawyers. You can find additional information about hiring a lawyer in the chapter The Legal System within the section Lawyers & The Law Society.

You should also know that many lawyers who litigate are also accredited family law mediators. If the lawyer you're speaking to is also a family law mediator, you may want to enquire about the possibility of using his or her services to mediate your dispute before you say much more about your case. If you give the lawyer too much information about your situation, he or she may not be able to assume the impartial role demanded of a mediator.

Required reading

• Renegotiating Family Relationships, by R.E. Emery
• The Truth about Children and Divorce, by R.E. Emery (Read this book!)
• Rebuilding: When Your Relationship Ends, by B. Fisher and R.E. Alberti
• Healing Hearts: Helping Children and Adults Recover from Divorce, by E. Hickey and E. Dalton
• Helping your Kids Cope with Divorce the Sandcastles Way, by M.G. Neuman
• Joint Custody with a Jerk: Raising your Child with an Uncooperative Ex, by J.A. Ross

Resources and links

Legislation

• Family Law Act
• Divorce Act

Links

• Legal Services Society’s Family Law Website: Separation
• Department of Justice Website: Supporting families experiencing separation and divorce
• BC Counsellors by Practice Area
• BC Association of Clinical Counsellors
• BC Association for Marriage and Family Therapy