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Decades Of Litigation Experience

Emotional Loss: The Not So Silent Partner in Divorce Litigation

by | Sep 16, 2021 | Firm News |

By: Michele Olsen, Esq., MA, MSW

Many of us know all too well the pain associated with loss. This loss can come in many forms: the loss of a child, parent, grandparent, pet or other family and/or friend; the loss of health; a relationship; job, and many others. No matter what the loss, all would agree that it is painful and quite subjective, as some may have better coping skills, tolerance or support systems that assist them in navigating through the loss.

Divorce is another such loss. It represents a change in the familial, financial and social status quo, and simultaneously affects multiple family members. For many of our clients, the world they once knew, often for a prolonged period of time, has been shattered. While we as attorneys work towards assisting our clients in maintaining the financial status quo, we often do not account for the havoc a divorce can wreak on the emotional and psychological status quo. While it is certainly not our role to address such issues directly, an ignorance or denial of its existence is a mistake in many regards. As virtually all attorneys know all too well, a divorce proceeding can proceed to settlement or litigation merely based upon the emotional state of either or both parties.

In order to overcome the hardship of any loss, the grieving process must be acknowledged and navigated. Popular psychology suggests that there are stages of grief, all of which an individual goes through at his/her own pace. The seminal work on the subject is the Kubler-Ross model (as set forth in the notable book “On Death and Dying” by Dr. Elisabeth Kubler-Ross) that suggests that there are five stages of grief, characterized by some of the following characteristics:

• denial (avoidance, confusion, fear, apprehension)

• anger (frustration, anxiety) • bargaining (the focus on “what if” and “if only” scenarios)

• depression (helplessness, flight)

• acceptance (thoughts of moving forward and formulating future plans)

While it is not suggested nor advisable for an attorney conduct a psychological evaluation of his/her client, it is useful to have a basic knowledge of these stages, as it can and will likely affect the demeanor of your client; how he/she communicates with you; and quite possibly the decisions they will want to make in the litigation. All divorce attorneys have at least several clients who compelled certain litigational strategies based upon anger, and others who insist on passive positions due to what can clearly be considered depression. Either way, a recognition that these stages exist, and can have an underlying, if not blatant impact on your legal representation, is critical.

While as attorneys, we cannot and should not practice psychology on our clients, we can, as sentient human beings, and responsible professionals, lead our client to other appropriate professionals, and at the very least suggest that they have a strong support system in place to assist in the emotionally draining divorce process.