Divorce Clarity: Insights from Attorney and Therapist


Divorce Clarity: Insights from Attorney and Therapist

Explore the intricate world of Discernment Counseling as a seasoned Divorce Attorney and information from skilled Therapists join forces to unravel the complexities of marriage and divorce. Gain clarity about the divorce process, understand the legal aspects, and assess your emotional readiness. This insightful episode combines legal expertise with emotional support, providing practical advice for those navigating the delicate balance between law and emotions. Tune in for a presentation that empowers you to make informed decisions about your future.

Listen to the episode, click here.

[00:00] Erin Birt: Welcome to the Restorative Divorce podcast, where we focus on all things divorce and parenting related to help you find clarity, stay informed and stay out of family court. With 20 plus years of family law experience, our attorney and mediator, Erin Birt, has seen too many times how family court will negatively impact your health, your relationship with your kids, and your wallet. This podcast s aims to turn that around and empower our listeners to take back control of their family law process and their lives by working with divorced professionals that seek to help and not hurt. Our goal is to provide you with expert tips that you can implement today to restore your finances, emotional well being, and co parenting skills. Of course, our team at Birtlaw.com is always here to customize a restorative divorce plan for you. But for now, listen to this episode to get help today.

Excerpt of Erin Birt's Presentation at the Illinois Counseling Association's Annual Conference

[00:57] Erin Birt: My name is Erin Birt. I am a mediator and a divorce attorney. I do have my CADC. I used to work with DUI populations and do risk education counseling and group work for outpatient treatment. I now use that skill set to help families that are still involved in the court system but are involved in the family law court system that might have substance abuse issues. That is basically my focus, and one of the reasons why I'm here today is because I do work with families in the court system, but I try to keep them out of the court system. And I'll tell you why a little bit later as to why this (Discernment Counseling) is a good option to help families.

Discernment Counseling Training

As an attorney, I can tell you, not often do divorce attorneys and mental health professionals sit in the same club. And so a lot of times, divorce attorneys just focus on their lane. But I had heard about discernment counseling through a group that I belong to out of California, and they raised my awareness and said discernment counseling is a very good topic for the types of couples that you're working with. And so then I also became certified, not as a mental health professional, but as an attorney, in discernment counseling. And that is how I found Mike (Michael Galbraith helped and co-presented with Erin at this presentation). And we are here to help raise the awareness about discernment counseling, and again, describe that process to you.

Before we get started, I just wanted to gauge the room, how many are familiar with discernment counseling. All right, that's great. That's a good handful of people.

[02:45] Erin Birt: Out of those people, are any of you trained in discernment counseling already or you just are aware of it? Okay. At the end, we can provide you with some resources. If anybody wanted to follow the same path and to be trained in discernment counseling, okay. So what we'd like to focus on today is this idea of ambivalence, divorce, the divorced population, and discernment counseling.

Why do you have an interest in discernment counseling? Anybody want to share?

[03:20] Attendee: I have a lot of couples where in the description that you had, there's very often one, I think that's often very typical when they tend to come into counseling when one person is barely in it.

Discernment Counseling for Clarity About Process

[03:36] Erin Birt: Yeah. And what do you do? I think sometimes, and I don't want to speak for mental health professionals, but sometimes you have: Is this reconciliation? Is this couples counseling? What are my goals for working with this population? And as a divorce attorney? My goal is I get you divorced. That's what you pay me to do. Right. Hopefully the divorce attorney has a bit of awareness of other things that are going on, but essentially my role is to get you divorced. But I should also use my professional judgment to say when I think my services aren't best suited for you. And are there resources out there for you? Just because you come into a divorce attorney's office seeking questions, seeking advice, doesn't mean you have to sign a contract. And now you're at the courthouse and you're wondering how you got into that mess. Okay. And that's what I find appealing about discernment counseling, that it provides, albeit a little window of opportunity, but it provides an opportunity to say, we're not going to focus just on reconciliation, because that might turn off half of the couple or kind of alienate that one person that's not thinking of reconciliation, but it helps them find clarity, know what the path is going forward.

And if they ultimately then decide that they have to use a divorce attorney, hopefully it's a much better process for them than it would have been if we had one person leading the race and dragging the other person along, or people being completely confused about the stage of their marriage or the stage of their divorce.

Reconcile or Divorce Ambivalence 

[05:24] Erin Birt: So discernment counseling. I don't want to use this term incorrectly, but it's almost like a brief intervention where you can try to talk to these people, say there's resources available for you, and hopefully help them be in a better position, whether that's staying together, taking a certain amount of time to consider options, or working more productively with the divorce professionals. Okay.

Something I'd like you to think about is the idea of ambivalence. People might come into your office, they might talk to a divorce attorney to gather information, but they're really on the fence, or they're really not exactly sure they might just be wanting to have support or they want just more information to consider. And so today we're going to talk about that idea of ambivalence and where it might not fit in well with your services or in the legal system, it fits in pretty good for discernment counseling, because that's the whole point, is what do we do with ambivalence (about divorce/marriage).

Before we get into what discernment counseling is, I just wanted to talk a little bit about the background of it and some information that could be helpful as we're talking about these particular couples that might be good for discernment counseling.

Who is a Good Fit for Discernment Counseling?

And I tried to look up some current statistics on divorce. As a divorce attorney and mediator, I tend to just do my job and try to serve my clients well. I know that divorce rates are declining because the number of filings at the courthouse is down. And you know that as a professional, when you file, because every case gets assigned a number, and each year it's a lower number by the time we head into the holiday season. So there's many different reasons for that. It could be that the marriage rates are lower. That's true. It could be divorce rates are lower. It could be they're in a different process. Not all couples are doing litigation anymore. They might have a longer process working out their differences and then only filing and finishing their case in court. So there's many differences. But the statistics, I can tell you, if you've read about it or you've just heard about it, they are supported by the facts. Divorce rates are declining in Illinois.

We only have statistics from 2017. So I'm not really going to go over those, because quite frankly, I think those are aged out. And they also just show the same trend, that since 2010, divorce rates are declining. But again, I think that supports the fact that people are maybe considering their options or using other resources to reconcile or stay within their marriage.

Current Divorce Statistics

Then I turn to, well, there has to be some sort of more updated statistics on divorce. And Forbes in 2023 put out an article with some interesting information. They say that while we hear most marriages end in divorce, their statistic is actually the third marriage has that highest rate of divorce. So if it's a third marriage, 73% chance that that will end in divorce. Couples that live together before marriage or who have friends that are divorced have a higher risk of contemplating divorce or actually going through a divorce. And the most cited reasons within the last couple of years for a divorce is lack of commitment, incompatibility, and infidelity. Some of the lesser cited reasons, although you might read about it or hear about it or continuing education might focus on it: Some of the less reasons in recent past, the last couple of years is domestic violence. But a lot of people will report their final straw that made them determine divorce was the way to go: Infidelity, domestic violence, and substance abuse.

[09:37] Erin Birt: And those are people that just find themselves in divorce. They haven't gone through other options, but that's what they're reporting. That was the final straw that made them say, I'm going to go ahead with a divorce. Now, in the last two years, people reported 66% of men and 74% of women believed their partners could have worked harder to save the marriage. 74% of women felt that their partners could have worked harder to save the marriage. So I think that also tells you there's some ambivalence there. Are they really finally done? Or if they felt or perceived their partner worked harder on the marriage, they might reconcile. That's a huge percentage of couples facing divorce reporting that.

And then 70% of couples felt that they did not understand the stage of their marriage and that led to a downturn. I think that can be interpreted as maybe there's a lack of intimacy that could be common for that amount of years that you're married, but there is a discrepancy in how they look at that. So I would argue if 70% reported they had a difference in understanding at the stage of their marriage that they're in, I would probably argue they would also be confused about the stage of their divorce, whether or not they were ready to go through with it, whether or not they understood what they were facing, or if they were just putting their head down and doing it because they felt that was their only option at the time.

Minnesota Study: Brink of Divorce

Okay, some other statistics that get us here today: discernment counseling comes out of Minnesota. They did a study in Minnesota called Minnesota couples on the brink of divorce, and they took a look at 1800 individual people going through the divorce process. These couples were heading into the final phase of their divorce. They were told to go to parent education before they were allowed to enter their parenting judgment. And it was at that stage of their divorce that they did this study. And so these people are knee deep in the divorce process, right? They're not contemplating. They're not on the brink. They're in it. And they found that two thirds of those people said, I'm done. The divorce better go through. But one third had mixed feelings. And even when they had gone through the process for many months, probably spent a lot of money had a lot of hardship, and they were in a mandatory class saying, this is what you need to now do for your children. They still had mixed feelings. So it's a huge group of people, one third of those people in litigation still saying, I'm not sure this is the final route that I should be taking.

That same study took a look at 111 couples. And so now these are couples, not individuals, going through the court ordered program. But of 111 couples, 35% said they were done with the marriage and wanted a divorce. The remaining 65% said, I have mixed feelings. Maybe this is the route we're supposed to be going.

[13:02] Attendee: Can you clarify those two statistics?

[13:04] Erin Birt: Oh, I apologize. The first one were just individual. So it would be a parent, a mother, a father, a parent. And so individually, they reported on an assessment, then, they actually looked at couples. Maybe they weren't in the parenting program, but they were just a part of the divorce process.

Within the group of people that were helping in this Minnesota research group, they had three attorneys who collected information of 193 individuals that they screened. So they're divorce clients. And of those individuals, 57% said they were done with the marriage. So that's a little higher. But they're already meeting with a divorce attorney. But 43% said they had mixed feelings. They might reconcile. They don't want the divorce.

So the point of all of this is to show you there is a large group of people, even if they're in the midst of a divorce litigation process or in facing a divorce attorney, that aren't really sure if this is the way that they wanted to go.

And as I said earlier, mental health professionals and divorce attorneys – we're often stuck in our different lanes. And I'm hopeful today that we can start to bridge that gap and start working more together, because there's a huge population of people that are saying, even when I'm two thirds through a litigation process or in a court ordered program, that I might consider other options. So that's a big group of people that we can work with.

Soft and Hard Reasons for Divorce

Okay. I probably spent a little too much time on that side of it, but I just wanted to talk about some of these common couple problems. Most people, a majority of people are getting divorced for what is called soft reasons for divorce. And those could be really any reasons. Again, lack of personal connection. They're not able to talk to one another. They just have maybe personality disagreements. There might be money problems.

And a smaller percentage of people get divorced for what we call hard problems. And those are problems of abuse affairs, or addiction.

And I bring those two things up, because whether it's a hard or soft problem, you will still find within these populations people that lack clarity and might have mixed feelings or might say if there is a change in this person or how they're approaching our marriage, that they might be able to reconcile or they might need to work someone to find clarity as to why is this marriage done, and now what do we do about it?

And so it's also good to know the difference between hard and soft problems, because then you can realize, is the process getting escalated? Is the legal system going to be involved earlier than perhaps a soft problem or other problems? And is there an opportunity for discernment counseling to fit into that before the escalation occurs or something occurs larger and they have to be in the court system.

So that's just some background about the divorcing world where we're at currently. And to really illustrate that there is a need for helping people find clarity and understand, is it divorce? Is it reconciliation? Is it temporary separation? And what can they do and who can they work with to help them through that process?

Bill Doherty, Founder of Discernment Counseling

This idea of discernment counseling comes from, I should mention him, Bill Doherty. He's a gentleman in Minnesota that was tasked with doing this research. He is a research guy. He loves working with couples. He is a couples counselor. But he's now more in the realm of doing research and helping identify people that are appropriate for discernment counseling. And he was tasked with this in developing discernment counseling because a judge in his area came to him and said, is there any research on ambivalence? I have a lot of people coming into my courtroom that I don't know if they need to be there or they don't know why they're there or they're finalizing their divorce and they look like they don't want to finalize their divorce. And Bill Doherty said, there's no research out there on ambivalence. I'll do it. And so the information I shared with you earlier when I said out of Minnesota, that was Bill Doherty, he was the one that conducted this. He's the one that built a group think of professionals to come up with: what do we do about ambivalence? And what they decided to do is develop something called discernment counseling.

What is Discernment Counseling?

Usually, you have participation agreement or a contract for that six month period to say, here are our expectations and we're not using divorce as a threat during that time that you have through the process of discernment counseling, whether it's one session or five determined your route and then you're going to implement the plan. And divorce, if you are doing that six month plan. is completely off the table. We're not going to keep using it, like, I'm going to go call my divorce attorney or I talked with her this morning… It's supposed to be completely off the table during that time.

Assessment Questions for Whether Discernment Counseling is Appropriate

If I can talk a little bit more about, say, the path is: to end the marriage and they come see somebody like me, what are some of the questions I might ask them to see what their process for divorce might look like. And these are some assessment questions that you can keep and use on your own since we only have a few minutes of time. If you'd like to email me, I will send you my form. It's from Bill Doherty. I don't take credit for it, but it has the four questions to assess attitudes and then their divorce readiness scale.

But the four things that I bring up, not this quickly, but through an hour meeting with my client, some of the questions that I'm looking for or want to hear more about is your attitude assessment: are you done with the marriage? And is it too late now, even if my spouse were to make major changes? Another question: I have mixed feelings about the divorce? Sometimes I think it's a good idea, and sometimes I'm not so sure?. I would consider the third question: I would consider reconciling if my spouse got serious and made some major changes? And then the fourth question: I don't want this divorce and I would work hard to get us back together?

Now, as a divorce professional, I'm going to take a look at that and see if there's opportunities for other resources, or at least to explain to them how their divorce process might look if they're the reluctant participant or if they're leading the divorce process.

Then they take a divorce readiness scale analysis. And it's a scale from zero to ten because people come into the divorce process with just different readiness degrees. Some want it, some are not emotionally prepared for it, others think they want it and they're done. And so on a scale of zero to 10 that they are ready and ten being not ready at all. Just real quick, I want to share with you some of my evidence that I collected over the last year. Out of 20 people that agreed to do the screening, 70% might have told me their attitude was I'm done with the marriage. 30% told me they had mixed feelings. 14% told me that they would consider reconciliation if major changes were made. But did you know? Nobody said they were completely ready for a divorce. None of the participants said that. Actually, the largest group, 45%, were in that middle of the scale. They were a six or seven. So even if someone's telling me, I'm done and I want you to get me divorced on the readiness scale, there's hesitation and they're in the middle of the pack.

Divorce Help Beyond a Divorce Attorney

So as a divorce professional, that shows me that they need other resources. Do they need a divorce coach to help with things? Do they need to go back and make some appointments with their providers or with their counselor to prepare for what's ahead? Do they need me to work collaboratively with somebody and slow the process down to help the family and the children? But again, just to wrap this all up, depending on what route they take or however they approach staying together or divorcing, going through this process is going to lead them either to a better reconciliation, hopefully with some longevity, or that's their route, or if they're going through the divorce process, a more reasonable divorce process because now they both understand the expectations and that there's a new chapter and they handle it much better. And then their children handle the divorce much better.

[22:26] Erin Birt: Thanks for listening to the restorative Divorce podcast with your hosts, attorney and mediator Erin Birt and our paralegal Tyler Birt. A special thanks to our contributors and to the authors of the many articles that inspire us and keep our clients informed. We hope you enjoyed our deep dive into the separation, divorce, or parenting tips covered today that you can use now to help restore yourself if you strive to improve your life or the lives of your children after a separation or divorce. Join us next week when we will cover more restorative divorce topics. You can head over to birtlaw.com to get the podcast transcripts, follow us on social media, and even find more valuable family law information, all for your benefit. Get help today and work with us one on one. Contact us to set up a consultation or planning session to start rebuilding your life today. Enjoy this day and we'll see you next time.

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