“We are in a tricky spot because I want a divorce and my husband does not.” [We do not mean this is a gender specific concern. We have heard it from both husbands and wives. This is just an actual recent example of the situation].
As you can imagine, wife’s concern not an unusual circumstance. We often get some version of this comment from spouses seeking a consultation. For most family law litigators this would be no problem. They would schedule the consultation and plan the filing and service of the Petition and request for a hearing establishing temporary orders.
Collaborative attorneys and Mediators take a different approach. We consider the impact such an approach would have on the spouses’ current relationship and prospects for peaceful or strained future relationship. We consider the impact on their ability to work together to plan their family’s transition and post-divorce future. We support proceeding by inviting dialogue and agreements.
To explain, let’s compare the two approaches.
First, let’s answer the question from what I’ll call the ‘legal rights’ approach. Where legal rights are concerned, wife doesn’t have to be concerned that her husband doesn’t want the divorce. After all, it only takes one to divorce, right?
The answer to that is not obvious. As a strictly legal matter, you may answer ‘yes’. If the husband chooses not to participate in any way, then yes, his wife may proceed to file for divorce and eventually proceed by ‘default’. She has legal rights she can assert.
If the husband Responds to the wife’s filing, however, then you may answer ‘no’, it takes two to divorce.
Husband has rights and he can engage in the legal battle by Responding to wife’s request asserting his legal rights. In the long run, he cannot deny her the divorce. But he can impede, resist, oppose and battle until he feels he’s ready to stop the fight or the money runs out. This is a lose-lose scenario.
That’s how it goes if you view divorce as strictly, or mostly, a matter of ‘legal rights’. The law is coercive and involves a contest between wife’s legal rights and husband’s legal rights.
Now, let’s consider a different approach, what I’ll call the Collaborative approach.
Divorce may be a legal process but it is 80% emotional and 50% financial. Yes, that does add up. The reasons and circumstances that lead couples to separate and divorce rarely have anything to do with the law and everything to do with the 80% emotional and 50% financial.
In truth each spouse takes the journey to acceptance that the marriage is over at different times, for different reasons, and in their own way. Denial, anger, sadness and all the stages associated with grieving a loss are the human response to this loss, too. The loss of “us”. Wife probably has already come a long way through those emotions. Husband may just be starting or stuck in denial and anger.
The wife who reached out to us with her comment, above, is concerned that her husband doesn’t want the divorce. Why? she understands that taking ‘legal steps’ to force/coerce her husband to enter the legal process while he is resisting her request for a divorce would not go well for their family’s current or future relationships, for co-parenting their kids, in particular, and risks entering the lose – lose scenario. She recognizes it takes two to successfully and peacefully divorce.
It is often wise in such circumstances to move forward in small steps. Be patient with husband’s emotional journey and understand that denial and anger are part of the grieving process. Take the pressure of the “D-word” off and focus on steps to create safety, boundaries and restore peace at home. Start with a discussion about separation and what that would look like. Agree to have a certain amount of patience before taking legal steps as long as some of their personal, emotional and financial boundaries are agreed upon.
We do this work at Family Peacemaker. We can facilitate the conversations and help them make those agreements.
We frequently recommend couples work with divorce coaches. Divorce coaches often are the key to a peaceful divorce, helping spouses manage emotions and improve communications, in such circumstances.
The Collaborative approach is non-coercive and focuses on relationships and helps restore peace quickly, during the process and throughout the journey for the whole family.
If you find yourself in a tricky spot, contact us for assistance. Family Peacemaker helps divorcing families in Orange County and all throughout California regain control, remain amicable and save money.