Booklets: The Initial Client Interview

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Thank you!

INTRODUCTION

Most potential divorcees and most divorce-related professionals define divorce as a legal event, dominated by the distribution of property, debt, future income (where and when applicable) and time and control of the family minor children (also where and when applicable). Because distribution is, by definition, a Zero Sum Game, spouses, almost always already dominated by ill feelings toward one another, find themselves positioned as adversaries in disputes. Efforts by divorce lawyers, mediators and court-connected classes and services go to great lengths to encourage collaborative and cooperative negotiations to resolve the distribution challenges, but these efforts all have an uphill battle. Even well intended lawyers often regress, along with their clients, to competitive tactics in the distribution battle.

This article posits that there are two challenges which must be addressed at the outset of any meaningful discussion about divorce and the initial client interview. We briefly discuss both of them in this Article before introducing our Five Step Life-changing Event Planning Model.

Simply stated, by way of introduction, a new approach for handling any divorce is needed, starting with:

The definition of divorce itself, which is currently mis-defined, and

The importance of the initial client interview, which is often misunderstood.

DEFINITIONS OF DIVORCE

(A life-changing event)

While a divorce has the necessary ingredients of a legal event, we define divorce as primarily a life-changing event. Some life changing events are unwanted and come without warning (e.g., loss of a job, serious health issue), and some are chosen with anticipated rewards (e.g., marriage, giving birth, etc.). What they have in common is that people are on one life path and then, sometimes suddenly, on a different path. In divorce, spouses who had been on the life path of a marriage are now faced with a different life path- heading to a divorce. This is a life-changing event!

EMOTIONS

(Where spouses become adversaries unless things change)

Because distribution is always a Zero Sum Game, spouses who are almost always dominated by ill feelings toward one another at the time, find themselves positioned as adversaries in disputes. This is a basic principle of Game Theory, too complex to cover now, but discussed in our book on Game Theory. See cite in Footnote 2. Because most life-changing events are initially dominated by strong emotions, these emotions must be understood and at least contained. This allows everyone to focus on the Non-zero Sum Game of planning, dominated by cooperation and collaboration- and not by emotions.

A divorce is a unique life experience because emotions usually overshadow all other considerations, at least initially.

EMOTIONS AT PLAY

Note: There are Primary and Secondary Emotions at play. All of them need to be addressed.

Problematic Emotions/ Cognitive Disturbances/ Real Emotional Obstacles[3]	Challenging Feelings/ Defense Mechanisms/ Coverups[4]
Blaming	Guilt
Distrusting	Shame
Taking Things Personally	Anger
Thinking Inferentially	Trauma Triggers
	Distorted Perceptions
	Sadness of Loss of the Marriage and the Dream
	Sadness of Anticipated Loss in the Future
	Fear
	Blaming
	Distrusting
	Insecurity

Problematic Emotions can, at the time of the divorce, take the form of spouses feeling disgust for one another. An escalation of already destructive emotional patterns in the marriage can also occur.
Worse yet, but only slightly under the surface, are the various Challenging Feelings. The exposure of the “failure” of the marriage often creates shame, which can also compound the emotional challenges at play. Lawyers, sometimes positioning their clients for advantages in future disputes, can inadvertently add to the emotional intensity. All this distracts the spouses from focusing on the divorce as a life-changing event.

A refocus is needed. Putting the focus on divorce as a life-changing event with planning and collaboration can at least reduce the impact of interfering emotions. Focusing on or at least containing the strong emotions at play can diminish their negative impact on the outcomes.

This refocus starts with the Initial Client Interview. These principles also provide the perfect segue to introduce our Five Step Life-Changing Event Planning Model, introduced in Section 5 of this Article.

THE INITIAL CLIENT INTERVIEW:TWO EVENT SETTINGS; THREE SETS OF QUESTIONS

If the lawyer views a divorce as predominantly, or perhaps solely, as a legal event, the questions asked of the client will channel the client into the Zero Sum Game of distribution. Unfortunately, this means that the spouses are in a legal event where they are adversaries in disputes, grasping at maintaining a meaningful role in their children’s lives and at gaining as good an economic outcome as possible.

Teamwork: The lawyer and the client. They need to work together as a team, where the primary focus is on the divorce as a life-changing event. The goal is to find the appropriate balance between these two events- where it is first a life-changing event and second a legal event.

First, let’s discuss the definition of divorce as a legal event…

Q&A’S IF DIVORCE IS FRAMED AS A LEGAL EVENT

If the lawyer views the divorce as first and foremost a legal event, what follows are a sample of questions likely to be asked at the initial client interview:

Spouses
1. Years of marriage
2. Ages?
3. Jobs?
4. Incomes?
If children
1. Number and ages of children?
2. Health and special needs?
Size of the marital/divisible and non-marital/non-divisible estate?
Whether there is a Pre or Post-Marital Agreement?
Whether there is any spousal abuse?
Distribution Issues re: Children[5]
1. Custody?
2. Physical custody/placement
3. Child support?
Distribution Issues re: Financials[6]
1. Property division?
2. Child support?
3. Spousal support?
Any other miscellaneous distribution outcomes or positions of import?[7]

Next, let’s discuss the definition of divorce as a life-changing event…

Q&A’S IF DIVORCE IS FRAMED A LIFE-CHANGING EVENT

There are three areas of inquiry in our Model:

This involves the emotional obstacles to making a good plan for the future.
This involves a focus on long-term goals, helping set the stage for goal-based planning.
This involves informing the parties of the requirements of the legal event, but avoiding taking premature positions before addressing the live-changing event planning process.

Inquiry #1- Emotional Obstacles:

There are several options for how we negotiate with your spouse and attorney. The most effective and efficient way is to negotiate in four-way meetings. In that way, everyone has the same information at the same time. You and I would meet and prepare for each four-way meeting in order to work together and to make sure that what is important to you gets addressed. That allows for ideas to come up and be modified to work best for both spouses and avoids misunderstandings, jumping to false conclusions and making decisions with incomplete information. However, it can also be emotionally challenging for spouses to be face to face. Describe for me what the emotional climate is currently like between you and your spouse?
Most of the feelings that you describe are about the past. Will you be able to set them aside and focus on your future (and, if applicable, the future of your children)?
Do you think it would be helpful to meet with a counselor once or twice, so that you can focus on planning for the future instead of fighting about the past?
Do you fear that your spouse’s emotions will get in the way of our planning for your futures?
Are there some rules that you might suggest for you and your spouse in order to stay focused on planning for a good future for both of you (and, if applicable, for your children)?

Inquiry #2- Focus on Long-term Goals:

What financial condition would you like to be in 5 to 10 years from now? How about your spouse?
What kind of work would you like to be doing before retirement?
What is your thinking about retirement – yours and your spouse?
Regarding the children:
Number and ages of the children”
Personalities, current schools, activities, special needs?
Relationships with each parent? Relationships with other family members, neighbors and friends?
What are your goals for your children? What are your spouse’s goals for your children?
What are some of your goals for your children regarding holiday experiences? How about the goals of your spouse for holidays?
Is academic success of the children important to you? How about your spouse?
What would you like your children’s experience to be like now that their parents will be living separately?
When your children are grown, what would you like to hear them say about their experience with separated parents?
What kind of parental involvement of both parents would you like to have, separate from any custody schedule?
What type of relationship would you like your children to have with each of their parents in the future?
Is owning a residence important to you? How about your spouse?
In the long-term, what do you think a really healthy relationship with your ex-spouse would be like?
Is it important to you to someday lookback and be proud of how you and your spouse handled your divorce?
What obstacles, if any, are there to reaching your goals?

Inquiry #3- Requirements of the Legal Event:

Spouses
1. Years of marriage?
2. Ages? Jobs?
3. Incomes?
If children
1. Number and ages of children?
2. Health and special needs?
Details regarding the marital/divisible and non-marital/non-divisible estate?
Whether there is a Pre or Post-Marital Agreement?
Whether there is any spousal abuse?
Explaining the distribution Issues re: Children[8]
1. Custody?
2. Physical custody/placement
3. Child support?
Explaining the distribution Issues re: Financials[9]
1. Property division?
2. Child support?
3. Spousal support?
Any other miscellaneous outcomes or positions of import?

The questions above are just examples. There are plenty of other questions that could and should be asked.

However, this is what we mean by the teamwork referred to above. The client and the lawyer need to work together as a team, to find the appropriate balance between these two events- where it is a legal event versus a life-changing event.

If legal questions are important at the moment, the focus should be on specific legal questions.
If life-changing questions are important at the moment, asking about future family and financial goals for both of the spouses and the children should be the focus. This will involve a discussion of non-competitive goals and about the competitive distribution of what the clients have to distribute at the present time.

Summary: The initial client interview when divorce is viewed first and foremost as a life-changing event:

If the lawyer views a divorce as first and foremost a life-changing event, where there is cooperative planning for the spouse’s and their children’s futures, the questions emphasized in the initial client interview will be quite different from those usually asked in the context of a legal event, as described above.
The discussion of the current situation will be similar, but the purpose will be substantially different.
The questions asked if addressing a life-changing event will be for the purpose of understanding the family’s starting point regarding family and financial goals. This will be more like a conversation- not developing arguments for and against desired outcomes in the legal event.

CAVEAT: This is a new way of thinking about divorce!

Here are a few more examples:

If divorce is treated as a legal event: “What is your position about a physical custody schedule for the children?” “What is your position about what to with the house or about your getting a part-time job outside the house?”
If divorce is treated as a life-changing event: “The two of you are likely to need some flexibility with one another and perhaps the involvement of other caregivers taking care of the children. Are there grandparents involved now, or other relatives or neighbors who help or could help?” “What do you believe is needed so you can handle the finances and sharing the children while living in two homes?”

Summary: The differences regarding the two divorce events are profound: They will generate very different types of questions if the focus is on divorce as a life-changing event or if the focus is on divorce as a legal event. If the former, the discussion will be about the financial and family goals. If the latter, the discussion will be about legal outcomes. Most clients entering a divorce are likely to be dependent on their lawyers to shape the process going forward. The shape and focus of the initial interview can guide them into a healthy focus on cooperative planning for themselves and, when applicable, for their children.

FIVE STEP LIFE-CHANGING EVENT PLANNING MODEL
Isolating the current strong emotions: Starting here is the first step. It is critically important to address the current strong emotions, which if not isolated from divorce planning, will likely continue during and after the divorce. It is also critical that these emotions be controlled- at least to the point of not interfering with the tasks of planning.

The key for professionals is to recognize that while the Problematic Emotions will appear to dominate a divorce, the real emotional obstacles are the Challenging Feelings at play.

Resolving the emotions takes more time than can be done early in a divorce, but emotions can be addressed and hopefully set aside, once recognized and once the planning process begins. In fact, planning for the future can often help resolve at least some of those troubling emotions. For example, a long-term plan for both parents to be actively involved in the children’s lives with parental communication and flexibility, independent of where the children sleep, undermines the feelings of potential loss and exclusion from at least parts of the children’s lives.

Planning is a better salve for these emotions rather than competing for limited supplies of money and/or time with the children.

Detailing the current situation: Spouses should identify everything about their current situation. [This step involves a task to be addressed in both divorce as a life-changing event and divorce as a legal event.] This includes the obvious, such as listing current assets, debt, income, and child-related issues. However, it might also include factors not necessarily included in the legal event, such as parenting strengths and weaknesses, support systems (e.g., grandparents), potential skills, insufficient income for the family, and so on.

Later discussions in the planning process will inevitably add additional information regarding the current situation.

Identifying the long-term family and financial goals: Long-term goals inevitably include desired life-style issues, both in terms of the children and financially related goals. “Long-term” can be defined by the spouses in a way that makes sense to them. For example, one set of spouses might set a “long-term” date of when the children are adults. Recognizing that even adult children benefit from help from their parents at times, they might even set the “long-term” much further in the future. For example, they might be grandparents at some point and want to include planning, such as identifying how grandparenting together might best work.

Long-term goals are not about distribution.

They involve a discussion of non-competitive financial

and family goals .

Thus, the relevant question is not “Do you want to both have custodial time with the children?” The relevant question is, “When your children are grown, what would you like to hear them say about their experience of your divorce?”

The question is not, “Do you want to retain the house?” The question is, “What lifestyle would you like to be living 5 or 10 years down the road?”

The optimal form of discussions for a life-changing event are joint meetings,

where and when they are appropriate.

This models and teaches skills for the collaborative life necessary to reach long-term goals together. As our Game Theory book points out, it also makes good use of the conscious and unconscious knowledge of the spouses in planning.[10]

Making a Plan and steps to reach long-term goals.: The applicable task is planning the steps to go from the current situation to reaching long-term goals. Those steps are not the legal agreements- at least not yet. As an example of planning, if opportunities for a child to participate in extra-curricular activities is a long-term goal of both parents, planning will involve how to jointly choose the activities and how to pay for them.

This fourth Step will inevitably include a discussion identifying likely obstacles to reaching their goals and making a plan to overcome them. This is the only step in which the past can and should be addressed, particularly as it might identify obstacles to achieving goals.

For example, one parent might bring up that the other parent seems to have limited control over ending the workday, which can interfere with the care of children. This is not blame, but rather a potential obstacle that needs planning to reach a goal.

Making a Plan regarding the legal tasks for distribution. Once the planning tasks are complete, then and only then do the spouses consider the legal event- meaning Distribution Planning. It is important to point out that lawyers can be extraordinarily helpful in this planning process, particularly if they can help the spouses focus on the life-changing event first- not on the legal event. They can also be especially helpful in drafting the legal agreements that are, in effect, the first step in the long-term Plan.

DON’T FORGET THE LAWYERS

Given the complexity involved in many divorces, lawyers almost become a necessity in order to draft the legal agreements to support the spouses’ life-changing event plan. Perhaps even more importantly, lawyers can explain how having a good plan to reach long-term goals is far superior to the simple distribution plan required in the legal event.

Spouses representing themselves, without lawyers, are unlikely to know (or appreciate) this important and valuable insight and information.

Spouses are not likely to focus on divorce as a life-changing event

UNLESS their lawyers guide them in that direction,

starting with the questions asked at the Initial Client Interview.

CLOSING

Most divorce lawyers (and divorce mediators) enter their professions believing they are in a serious service profession. That is, they want to help people going through a difficult time.

As we discussed in this article, lawyers can help clients shift their focus from being absorbed by the legal event, by first helping them navigate a significant life-changing event. Better yet, this can be a much more satisfying role and one that will ultimately make their lawyer skills much more effective and put to much better use.

The future for divorce could be very different.

Having clients who spread the word that their divorce lawyers were incredibly helpful, rather than simply vicious fighters. This is your authors’ fondest hope. For this reason, we want to prompt an attitudinal change and reverse the trend of the do-it-yourself divorce.
Re-establishing a valuable place and new role for the divorce lawyer. This is a significant component in understanding what a divorce really means: primarily a life-changing event.

Imagine a future when most ex-spouses continue to work with one another

post-divorce, to accomplish important long-term goals

for each of them and for their children. Your authors reach

their goal when this becomes the norm- not the exception.

[2] Kenneth H. Waldron, Ph.D. and Allan R. Koritzinsky, J.D. are the authors of four books. Waldron, K. & Koritzinsky, A. Game Theory and the Transformation of Family Law: Change the Rules- Change the Game. A New Bargaining Model for Attorneys and Mediators to Optimize Outcomes for Divorcing Parties (Unhooked Media); Winning Strategies in Divorce: The Art and Science of Using Game Theory Principles and Skills in Negotiation and Mediation (Unhooked Media); The Road to a Successful Marriage is Unpaved: Seven Skills for Making Marriage Work (Austin Macauley); and Planning a Sensible Divorce: Avoid the Toxic Dance of a Messy Divorce. (Austin Macauley). Both authors, separately and together, have written numerous journal articles and other professional publications. We also invite you to check out our free articles, booklets and blogs: www.marriageanddivorce.org.

[3] See also Chapter 2, Planning a Sensible Divorce: Avoid the Toxic Dance of a Messy Divorce. Page 32 (updated in this Article). Available for purchase at our website, www.marriageanddivorce.org.

[4] See also Chapter 11, Planning a Sensible Divorce: Avoid the Toxic Dance of a Messy Divorce. Page 152 (updated in this Article). Available for purchase at our website, www.marriageanddivorce.org.

[5] We recommend that this “distribution issue” discussion be deferred and not discussed at the Initial Client Interview- or at least not too early in the process.

[6] We recommend that this “distribution issue” discussion be deferred and not discussed at the Initial Client Interview- or at least not too early in the process.

[7] We recommend that these miscellaneous “distribution issue” discussion be deferred and not discussed at the Initial Client Interview- or at least not too early in the process.

[8] We recommend that this “distribution issue” discussion be described but opinions be deferred- or at least not discussed too early in the process.

[9] We recommend that this “distribution issue” discussion be described but opinions be deferred- or at least not discussed too early in the process.

[10] See cite #2.