Talking to the Enemy, Communication with the Other Party

In any other kind of legal action – criminal or civil or divorce – your attorney is going to tell you not to have any communication with the opposing party, represented or not. There is too much risk that you, as a party, will say the wrong thing, make admissions that will be damaging to your case, or create new conflict, making an already difficult situation worse.

But what if the opposing party is also the person that you have spent in an intimate relationship for many years, someone that you have many ties to, including ties of shared children, shared family relationships and shared friendships. Unless there is a court order that prohibits contact, especially if you have children, you are going to have to have communication with the opposing party.

This is a complicated line to walk. On one hand, statements that you make are “admissions” which means that other people can talk and testify about what you said. You may feel guilty because you started a new relationship that triggered the divorce. You want forgiveness, and so you make statements that affect the custody and parenting time that is trying to be worked out. You may feel angry because you are the one who feels wronged, and you want to hit back, and so you make statements which can be used against you in court. You feel emotionally exhausted, and you want everything to just go away, and so you make agreements that a more rational person, and certainly your attorney, would not make, just to try and get some peace, even temporarily. All of these are good reasons to not engage in any communication regarding divorce issues.

However, if you have children, you are going to have those myriad of logistical decisions that still have to be made. Who is going to pick up Johnny from soccer practice? Who is going to put money on the school lunch account? Those don’t go away just because you have physically separated, and are going through a divorce. More importantly, you are in the process of establishing a new relationship with your spouse that will go forward for years, and needs to be established for the sake of your children.

How do you know what to do?

This is where your attorney should be your counselor. Attorneys are referred to as counselors, because we do more than litigate. We advise and guide our clients through a difficult process, hopefully with the goal of coming out on the other side of the litigation with a path that allows you to be a more whole person going forward. When situations come up, and you aren’t sure how to handle it in a way that will not cause your harm, and will help you, ask your attorney. As you ask questions, and get experience with how you can communicate in a way that is precise but that does not harm you, you will need to ask your attorney advice about how to approach situations less and less. The worst feeling an attorney can have is to hear about a problem after action has been taken, action that cannot be reversed and cannot be changed, only mitigated.

Learning how to communication with your soon-to-be-ex-spouse means creating new boundaries for yourself and your relationship. Your relationship must be moved away from intimate partner to a parenting colleague, someone that you only need to communicate with on a limited subject matter, particularly during the divorce process. If you think about your relationship as a business relationship, and it is a business relationship of parenting, then you start to remove the past emotional connections and focus on the facts. Before you engage in any communication, create a mantra: be very clear as to what your goal is. What do you want out of the communication? What are the facts? What is your goal? How does this affect your child? Will your actions accomplish your goal?

If you can go through the mantra, you will avoid escalating conflict and get done what needs to be done. Let’s take the following example: Your child, Sue, is on a soccer team, and it is the other parent’s turn to pick her up from practice. And once again, you are the one getting a call from the coach saying that practice was over 30 minutes ago, and no one is there to pick up Sue. Your first reaction, after you go to pick up Sue, is to send a communication to your spouse saying something along the lines of:

“You total jerk. Once again, you show what a terrible parent you are. No wonder the kids all hate you. They know they can’t trust you. Maybe we should change the parenting time so that your time is reduced since you are so irresponsible.”

Wait a minute. Start going through your mantra.

What is your goal? To solve the problem of missed pickups.

What are the facts? You know your spouse didn’t pick up Sue on time. But you don’t know why or what happened. You need to get more information before you can determine what needs to be done to correct it.

How does this affect your child? The immediate impact is that your child was distressed by not having a parent to pick her up on time. However, the long term goal is to have a system that works for the benefit of your child. Your proposed response doesn’t address either of the impacts on your child.

Will your communication accomplish your goal? Unless your goal is to start a verbal and emotional war using your children as weapons, your communication did not accomplish your goal.

In thinking about your mantra, here would be a better communication:

“Hi. I think it is your night to pick up Sue from practice. I got a call from Coach saying she had not been picked up. Was there a problem? How can we make the logistics of pickups better for the kids? Thanks.”

What’s your goal? Getting more information and figure out what went wrong to correct it in the future.

You will hopefully get a response back that will give you more information. Maybe the information will be that your spouse got stuck in traffic, and couldn’t get a cell signal, or the battery wasn’t charged enough.

Then you can go forward with a proposed solution: asking to check that the cell phone is charged, and to call as soon as there is an issue, so that your child is not left standing alone on the soccer field. Your communication matches your goal.

It’s a strange new world out there, and we all need all the tools we can get to learn a new navigation system!