Communicating during divorce: six pointers

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Thomas A. McCormack Family Law

Cleveland, OH

One of the biggest challenges divorcing couples face is talking with each other during the process of dissolving their marriage. That's not really a surprise, since communication troubles are often a big part of the incompatibility that sinks a marriage.

Discussing things certainly doesn't get any easier during divorce. Yet issues have to be resolved and the input of both parties is important. And what and how you communicate can impact the legal process.

Why it's important to think about how you communicate

Divorce is a public process. Once your marriage becomes the concern of the court, you may expect that anything you say or write may be made public—repeated to opposing counsel, presented to the court in legal documents, testified to in court.

It's a little extreme to warn, ‘Anything you say can and will be used against you' but it certainly has happened. We've all said things to others in anger or frustration and sincerely apologized later. That's how it works in our private relationships. But during divorce, a promising negotiation can be derailed by one party citing something the other party said thoughtlessly as evidence of ill will, bad faith or threatening behavior—and playing the phone message.

Here are six ways to avoid negative results and increase the likelihood of positive outcomes from what you say and write.

Do: Change your habits

As a rule, each of us has a style of communicating that we think works pretty well, if we think about it at all. We casually toss off comments, observations, criticisms, jokes. But certain habitual expressions (‘He's such an idiot' or ‘What a shrew'), when put under the microscope of divorce, may be taken as evidence of bad intent, to say the least. Casual comments can easily be blown out of proportion.

And once your words are in a public record, they literally cannot be taken back.

The old adage of thinking before you speak applies here: ‘Do I want to hear this repeated in front of people in court?'

Do: Leave the kids out of it

Do not speak through your children. They're your kids-- not mediators, messengers, enforcers or partisans. There are four great reasons to leave the kids out of spousal communications:

Most important, the ill effects on children of being put in a position to fulfill any of these other functions is well-documented.

Second, like all of us, kids may get things wrong without meaning to, further increasing misunderstanding and tension and making them feel everything is their fault, to boot.

Third, both of the above are likely to have a negative impact on your own relationship with your children.

Finally, making a habit of communicating through the kids is going to come to light in the divorce process. It will be a mark against you that may affect judicial decisions.

Do: Leave family and friends out of it

Family and friends can play positive supporting roles in helping you cope with the stresses that come with the end of marriage. They may even be strongly on your side. But that's where they should stay— not between you and your spouse.

Sending a mutually respected family member out to talk with your spouse on your behalf can easily be construed as pressure. Or it can simply backfire, denting another relationship and defeating your –or your lawyer's-- effort to resolve an issue.

Allowing your friends and family to do verbal battle for you is simply a losing tactic. Discourage it. Strongly. If there is already mistrust between you and your spouse and distance between your positions on an issue, this is going to increase both and make it harder for you to prevail.

Do: Decline to tweet

Tweeting about what's on your mind about the spouse? Posting your frustration with her on Facebook? Talking about your new squeeze in text messages? Blogging about the breakup?

It's very unlikely that a court will intervene, even if your spouse asks for an order. Free speech applies, even in divorce. Everybody gets to tell their side of the story.

On the other hand, it's very easy to use what you say electronically, and the discussions you generate, as evidence of your true motivations and your real intentions. Maybe you're just venting online. But your words –‘What a tool! I'm taking the kids!' ‘Love? lol It was always about the $$!'-- can easily be construed as the truth of the matter, undermining your lawyer's ability to represent you as seeking fair solutions.

Here's a special word about email. In general, it can be the most effective way to communicate with the other party when the need arises. Many of my clients find that it enables them to look at what they're saying more objectively, reconsider and revise before they send a message. That's a positive thing. It also puts everyone on record.

On the other hand, many people pour it all out in emails and IMs to friends and family. Then they delete them. Delete isn't disappear. I know a few ships that sank thanks to recovered emails that said way too much, way too many times, to way too many people.

Do: Rely on legal counsel… wisely

You've certainly heard attorneys referred to as mouthpieces. It makes sense because one proper lawyerly function is to speak for clients, especially in the language that's foreign to most people—the language of lawyers and courts. This is what you hire your attorney to do and why he or she may also bring in other professionals –mediators, arbitrators, for example—to help you resolve difficult issues.

Sometimes the only solution on an issue of very high conflict is to communicate with your spouse exclusively through your attorney. No person-to-person messages of any kind—phone, writing, texting.

But that's an extremely expensive alternative for smaller issues. Could the parenting schedule be slightly adjusted this week? Can you also have the blue lawn chair when you pick up items this weekend? Who'll pay the $20 extracurricular activity fee? If you can find a platform to discuss and solve such smaller matters yourselves, seize it. Below is one good resource I recommend to my clients.

Do: use Our Family Wizard

This is useful website (not related to my practice) is designed to provide people –especially parents-- with easy-to-use tools for reducing conflicts during and after the end of marriage. It encourages writing thoughtfully and carefully tracking activities to make a record that is better than our imperfect memories. It also has videos and tutorials as well as easy-to use ways to record events and expenses, note developments, and communicate ideas and concerns. Take a look at it here:

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