The Divorcing Brain

By Caroline Kettlewell
Illustrations by Robert Meganck

Divorce messes with your head.

If that point seems obvious—after all, even the most amicable splits involve some pain, loss, and cost—it hasn’t been one that family law professionals have traditionally been trained to consider. Yet the stress and emotional toll that accompany divorce can have significant impacts on the process and long-lasting repercussions thereafter, not only for clients and their families but for attorneys as well.

This fall, the National Center for Family Law at the School of Law will focus on this cognitive and emotional side of divorce through a two-day conference, “The Divorcing Brain,” the latest in the Center’s “State of the Family” symposium series. Through a look at the latest neuroscientific research, the symposium will help participants better understand how stress affects decision-making and problem-solving skills. Presentations will also place contemporary marriage and divorce within a larger historical and sociocultural context, dispelling what even professionals in the field may not be aware are common myths and misperceptions. Finally, the symposium will offer tools and strategies to help divorce professionals work more effectively toward achieving the best possible outcomes for clients and their families.

The mission of National Center for Family Law is to “enhance the quality of the American legal system in matters relating to families and children,” and the Center’s “State of the Family” symposia are designed to explore new, innovative, and even controversial topics concerning families and the law, according to attorney Ron Tweel, who serves as chair of the symposium committee.

“We get a variety of nationally respected speakers on our topics, and we try to present issues that might be new or novel or open to question, and we encourage participants to express their opinions and even disagree with our speakers,” says Tweel. “We want much more of a symposium approach, not just a continuing legal education workshop.”

This year’s symposium, says Tweel, will look at what recent research in the field of neuroscience is revealing about how people respond to and behave under stress.

“There are a lot of emotional and psychological components to the divorce process, not only for clients but also for lawyers and mental health counselors who are working with those clients,” says Tweel. “The symposium will help participants understand the neurochemical factors in stress and explain why people behave in certain ways while under stress. We’ll have interdisciplinary conversations between lawyers and mental health professionals discussing how to communicate effectively with people who are under stress and how best to serve clients given the emotional strains everyone is going through in the divorce process.”

The symposium will begin with a broad overview through a keynote address from Stephanie Coontz, director of research and public education at the Council on Contemporary Families. An author, teacher, researcher, and frequent contributor to The New York Times, among other publications, Coontz is a nationally recognized authority on the cultural history of marriage and the family. At the symposium, she will offer some historical and sociological perspectives on shifting roles and fortunes of marriage in Western culture, including facts that some may find surprising—for example, that divorce was much more common in some societies in the past than it is even today.

She will also talk about new research on the changing reasons for and outcomes of divorce. The research, says Coontz, indicates a reality far more nuanced and complicated than is often portrayed. Oft-cited statistics, for example, such as the commonly repeated figure that 50 percent of marriages end in divorce, do not represent an entirely accurate picture of divorce in America, where the divorce rate varies across a range of demographic groups.

This contextual information provides an important framework for the symposium, explains Ron Tweel, because while divorce is a legal process, everyone involved, including the professionals, brings a range of very human emotions, experiences, and beliefs to the process, all of which can affect—and interfere with—effective communication and problem-solving. One goal of the symposium, therefore, is to make participants more conscious of how their own preconceived notions and presumptions, or “cognitive biases,” as well as those endemic to the family law system, play a role in divorce resolution.

The symposium will also consider in some depth the cognitive-emotional toll of the divorce process and suggest a changing vision for the role of the family law professional, from litigator to facilitator, that has been inspired by the growing movement toward a more collaborative, less adversarial model of divorce.

“Collaborative process is a movement that was started in 1994 by a few attorneys and now has grown worldwide,” explains psychotherapist Lisa Herrick, whose practice includes collaborative divorce work, and who will be one of the symposium speakers. “While the symposium isn’t focused on collaborative process, it draws from the emotional and cognitive model that collaboration is based on. What we’ve seen is that when you create a process in which the clients have a real voice and make active choices and have the opportunity to look at different options and focus on the ones that make the most sense to both parties, then you achieve deep and durable agreements that the clients are happy with. It is a really thoughtful process, and it is much better for the family and for everyone involved.”

Divorce couple and attorneys

Ideas drawn from the collaborative model that will be presented at the symposium begin with the importance of understanding how stress works on the brain. Anxiety, grief, fear, anger, hopelessness—divorce can trigger a very wide range of negative and highly stressful emotions. At the symposium, clinical neuropsychologist Angelo Bolea will discuss how these emotions can make it difficult for clients to process information, remember details, consider options, or make decisions.

Yet traditionally, notes Lisa Herrick, it is exactly these cognitive skills that have been called upon in the first interview between attorney and client. “In family law, those initial contacts have tended to be very focused on fact gathering and legal advising,” she says.

The symposium will instead offer strategies for a different, and arguably more effective, approach to the initial interview, one in which the focus is placed on “creating a real emotional connection with the client, developing what we call a ‘safe container,’ a place where the client begins to feel more safe and secure,” says Herrick. “When the body calms down, when the client can relax, then that in turn helps the brain begin to function better. The person begins to feel like they are in a place where they will have room to sort things out, where they can function and make decisions and get through this.”

Establishing this connection is the first step, Herrick says, in building a strong relationship with the client, one in which the family law attorney now serves not simply as legal counsel but more broadly as an advocate and a facilitator helping guide the client towards a lasting, successful divorce agreement.

Much of the symposium will be dedicated to looking at this evolving role for the family law professional, a role that can benefit not only clients and their families but also attorneys themselves, who, as one presentation in the symposium will demonstrate, can also be subject to considerable stress in family law cases. “Family law and criminal law are the two most stressful areas of practice in law,” notes Ron Tweel.

Although there remain barriers within the system that inadvertently favor a more traditional, conflict-oriented approach, “the new role for professionals is modeling dispute resolution,” says symposium speaker Kimberly Fauss, an attorney who practices exclusively in collaboration and mediation. “Litigation is not the first approach I would take in any divorce case, and we want to give lawyers more resources and empower them to ask themselves what their clients really need and how they can best serve those clients. What I hope is that lawyers will begin to see how they can encourage and empower their clients to step up and make the right decisions and make a plan and find paths to self-determine their futures.”

Adds Lisa Herrick, “We know so much more now about the brain and about what happens in trauma and conflict, and the old ways of handling divorce just don’t make sense for most human beings. We know there are better ways to resolve conflict that are simple and effective.”

Registration for the symposium is now open. For more information, go to law.richmond.edu/stateofthefamily.