Episode 1: What do I do if…I want a 'good divorce'?

00:00:05 David Lee, Host

Hello, my name is David Lee and welcome to Podcast by Brodies.

Experts from Brodies operate in many areas of the law every day, and their clients ask a very wide range of questions during their time working with the lawyers, whether they are navigating new or more familiar situations together.

In each episode of our series, "What do I do if…?" Brodies experts from different fields explain how they help clients when faced with some of those different and often difficult questions.

The latest series of episodes features Brodies personal family team, and today we're looking at the question, ‘What do I do if...I want a good divorce?’

To discuss this holy grail of marital breakdown, I'm joined by Susie Mountain, a partner, solicitor advocate, and experienced family lawyer with Brodies, and by Jennie Sutton, a divorce coach with Untying the Knot.

Welcome to you both and Jennie, if I can start with you; when we talk about a good divorce, what does that mean to you?

00:01:06 Jennie Sutton, Divorce coach, Untying the Knot

A good divorce is about having the end in mind. It's about controlling their narrative, the narrative of the story. So each client that I have, has a different starting point and the end may be different, and it's the transition through a good divorce.

So can I give you 3 scenarios just to demonstrate this?

Okay so, just for consistency, we've got three females, all in their 50s and all gone through a level of betrayal.

The first client, she comes and sees me, she's in her second marriage, she's absolutely raging. She's taken all her husband's belongings and she stuffed them in black bin liners and she's dumped them at the end of the drive. Basically she wants her husband to jog on and have a quick divorce.

The second client, absolutely overwhelmed with emotion; crying all the time, uncertain of the future, giving up her career to be a homemaker. Just trying to navigate through the emotions.

And the last client is absolutely thankful. Thankful that her husband has been betraying her, because she sees it as an opportunity for freedom. No more compromise and she just wants some assistance on how to tell her adult children.

So you see those 3 scenarios all start with a different point and yet the transition through to the end is to have a good divorce, to have that opportunity of being on the same page in some shape or form, and it's about an attitude and having the right approach to get to the end, so I think that's what a good divorce is - the end result as opposed to the starting blocks.

00:03:13 David Lee, Host

Susie, anything to add to that from your experience?

00:03:18 Susie Mountain, Partner, Brodies LLP

I think what Jennie says is very sensible actually, that it is about keeping the end in mind.

People do come when they've first separated, and it's not a situation that anybody goes into a marriage hoping that they'll end up in, but sadly it does happen and divorce rates are really high. So a good divorce, from my point of view, is where matters are resolved as fairly and amicably as possible. We ideally want to avoid the bin liner scenario, although that does happen, but what you hope to get to by the end of the process is to have an outcome that both parties can live with and where they have come out of it feeling that there can be some kind of channel of communication with their spouse.

That's the ideal, it can't always happen, but particularly when there are children, it is really important to try to have those channels. Even where there aren't children, it can be very difficult for extended families to have to cope with the separation of the parties.

In an ideal world, you want to be able to walk down the street and say "hi" to each other. There's always going to be issues about mail redirection and you've left some special belonging behind, or you're going to stand next to each other at sports day and if both of you feel that you've managed to go through the process, coming out of it with something that you can live with and with being able to keep some common ground between you, then that, I think, is the key to having a good divorce.

00:04:41 David Lee, Host

When you outline those scenarios, Jennie, to begin with, we're talking about a lot of raw emotion there, whether it's the rage of dumping the bin liners, whether it's the tears, there's a lot of raw emotion there.

How do you start to tackle those negative emotions and try and get to that point where there can be an amicable agreement to divorce?

00:05:16 Jennie Sutton, Divorce coach, Untying the Knot

It's perfectly normal to feel those emotions.

Divorce is the second most traumatic life experience next to the death of a loved one and both of which are part of a grieving cycle. So, when we're talking about raw emotions, we're talking about things like anger, denial, bargaining, depression. And then eventually acceptance, which is where both Susie and I are thinking about having the end in mind.

So how to deal with that is about dealing with the here and now, where the clients are at. So, it's about looking through the lens of the divorce, and I tend to think about it as S.T.O.P. - using the pneumonic they might feel Stark, they might feel Tearful, a sense of Overwhelm. "Where do I start? How do I manage this? I've never been divorced before" to Pain, actually physical pain, which our body actually contains.

So, it's about analysing where the client is at on the grief cycle, and the type of raw emotions that there are and dialling it down so that with tools and strategies to help them shift their focus to move further on in this transition. Because that's what a divorce process is, it's a transition from being married to being free or separated or having a different life totally.

So it's about recognising where the individual is, acknowledging their emotions, which are perfectly normal, and shifting their focus so that they can move forward.

00:07:08 David Lee, Host

And what are the biggest challenges in doing that, Jennie?

It sounds like there's a structure there, you're talking about using tools and strategies, but, it's a tough process.

What are the biggest challenges in that path to trying to achieve a good divorce?

00:07:23 Jennie Sutton, Divorce coach, Untying the Knot

The biggest challenge is, well, it is the emotion, to be honest, because a lot of the emotion is about past. It's about how we used to be, it's about the marriage, the good stuff. And yes, when you get married, you get married to be together. Nobody thinks further down the line that you're going to get married only to get divorced.

But equally, if you look at divorce and marriage from days gone by, it was considered frowned upon to be divorced, but you would never buy a pair of shoes and wear them day in day out for 30 years. And equally, there's this expectation in the past that we would be married for an awful long time and that is not necessarily the status quo because we are living longer.

So the biggest challenge is the emotions, but also some of the red flags, because there's more and more, breakups that are being in the focus of domestic abuse, which is really sad to see, and yet it is quite common, particularly after the pandemic, I have to say.

Domestic abuse isn't necessarily violence, it's coercion, it's gaslighting, it is financial abuse, it's control, and that's more evident as we were coming out of the pandemic. As someone who is dual accredited with the DASH charity, which is "Domestic Abuse Stops Here", my role is to raise the red flags to help those individuals acknowledge the type of marriage that they've had. Because they've just gone through their marriage and stayed in their marriage thinking this is the norm, and it is not the norm and it is not their fault, walking on egg shells constantly being compromised and their boundaries and self-esteem and self-respect are completely on the floor.

So this all packs into the emotion aspect that I've mentioned before. That is a challenge, and it's like teasing out, it's like having a ball of wool that's in a knot, and you're pulling the thread to find the end and you're pulling another thread to find that end. And so hopefully unravelling the whole scenario of the marriage so that those individuals can see what it is at a distance and move forward.

00:10:00 David Lee, Host

And Susie, from your perspective. When you see some former partners or partners wanting to divorce in entrenched positions, how do you help get them out of that?

What's your role in trying to get people out of those entrenched positions and stopping them seeing the ex-partner as the other side type approach?

00:10:21 Susie Mountain, Partner, Brodies LLP

It can be very difficult for people, and one thing that's quite important to remember is that it's not often that two people mutually, at exactly the same time, decide that they're going to end their marriage. So, one person psychologically will be further ahead in the process of thinking about separation than the other. So, there can sometimes just be a case of giving the other person time to catch up emotionally so that they are in a proper place to deal with it.

The other thing to do to avoid parties becoming too positional, is to see what common ground there is.

There is always going to be some common ground, even if it's a case of we both want to come out of this with the children being happy, we're both going to need a place to live. Recognising that you've actually both got fairly similar goals in some ways, so then you can concentrate on which areas actually are in dispute, and it's often not many.

It's just sometimes hard to see the wood for the trees when you think that that person is the other side, they’re out to get you. I think that reminding clients that the person on the other side of the case, a lot of aggression actually comes from a place of defensiveness, that they'll be as worried about what their own future is going to look like, as you are about yours, can really help.

But what we talk about a lot in the training we undergo is about going to an interest-based thinking rather than from positional thinking. So one person might come in and say to you, well, I absolutely must keep this house and it might become clear throughout the process that that's going to be really difficult for them to achieve and actually manage to fund. So if you look beneath that and find out, well, what is it about this house? Why is it so important? Does it have to be that property? And what you might end up finding out that it's actually more to do with keeping a house in the children's catchment area or some particular feature of that? So that they might be able to get somewhere else.

So, getting beneath it to try to open up options and see if you can generate other thinking.

00:12:05 David Lee, Host

Okay. And what do you think is the ideal relationship, Susie, between solicitor and client in trying to achieve a good divorce?

From what you've just said there, sometimes it's about taking a bit of time, understanding that it might not be the right time to address certain issues, moving from fixed positions to what's in our best interests, and so on.

What's the ideal relationship between solicitor and client?

00:12:34 Susie Mountain, Partner, Brodies LLP

The ideal relationship is to be able to have as much communication as possible, so it's really important to open that up.

It would be very easy to go through an initial meeting with the client and just fire information at them and they go away and completely mind boggled. And I think that's really common for clients in a first meeting because they've got so much that they want to find out, they want to get to the end as quickly as possible.

They've got all this information rattling around in their brains, but actually to take time to get beneath what it is that they're saying, actually get to get under that and find out what is really important to them in resolving this, and what outcome are they looking for and are they open to achieving that in more than one different way?

But there absolutely must be mutual trust between solicitor and client. There absolutely must be good communication. All the time. We can't always tell clients exactly what they want to hear, but that's inevitably going to be more acceptable if they know that you're really on their side and we are, that's our job is to protect our client's position by doing the best we can for them and by exploring as many options as possible.

00:13:39 David Lee, Host

And in your experience again, Susie, what's the role of a divorce coach and how can they best compliment the solicitor's role in in this process?

00:13:48 Susie Mountain, Partner, Brodies LLP

I think divorce coaches can be extremely helpful because there is so much emotion around this, and it can assist clients if they have somebody who isn't their family, who isn't their lawyer, who isn't their pal because people get awfully worried that they're burdening family and friends with all of this. They don't want to keep going back there.

There's no point paying a lawyer to do all of this for you. Yes, of course we'll support our clients through everything, but it's helpful for them to have somebody else that they can help to get them to an emotional place where they are then ready to deal with the legal side of things.

00:14:20 David Lee, Host

And Jennie, how common is it for divorcing couples to use a coach and what are the main reasons why they might choose to go down that path?

00:14:29 Jennie Sutton, Divorce coach, Untying the Knot

Well, a divorce coach is a relatively new member to the party so to speak. We haven't been around that often and I think the benefit is because a majority of divorce coaches have gone through divorce themselves -I certainly have after a 30-year marriage.

I think you bring that actual experience to the table and you assist the individual to look at the emotions. To deal with strategies of how to have communication with their ex in a position that they are comfortable with, which may be, setting up an individual e-mail or only dealing with the emails when they feel grounded and ready, or negotiating pick up points at the school gates - all of this is about building resilience.

So it's about practical applications in the day-to-day transition of the divorce process.

As much as Susie saying we will support our clients, their role is the legal. To ask a lawyer, "I need emotional support here" is not really their remit and it's costing an awful lot of money. Whereas a divorce coach is more resourceful, has time, builds up that relationship, and it actually provides even an SOS type of service, where people out of hours can get the support when they want it at a price and time that is appropriate for them and their budget.

00:16:13 David Lee, Host

So you feel, Jennie, that there are very complimentary and very different roles here between the solicitor and the divorce coach?

00:16:20 Jennie Sutton, Divorce coach, Untying the Knot

Oh, absolutely because if you look at the divorce process, it's a transition.

It's emotional and it's legal and you have to have a holistic approach to deal with that.

So I think it's really about a blend, and the blend helps with the 3C's.

• Clarity. Helping with decision making.
• I'll give you an example. When I when I got divorced, my clarity in my decision making was on the floor. I wanted to buy some tea towels, and I looked at the array of tea towels and I couldn't make a decision. It's just so simple and yet because you've become stuck in your decision making and you're trust in yourself is at such a low level.
  
  
• You need to build your Confidence, which is another "C."
  
• Take Control so you can create a future that is owned by you and for you.

So, it is about using divorce coach with your lawyer in a complementary fashion to help with the transition to transformation.

00:17:27 David Lee, Host

And Susie, every divorce is going to be different, but is there such a thing as a typical timescale for a divorce?

And is it always the fact that clients want it to be quicker, they want it to be over more quickly than it often is?

00:17:44 Susie Mountain, Partner, Brodies LLP

I think it probably is true to say that a client comes in and they just want it done as fast as possible in most cases.

The important thing that we must emphasise is that it's something that you need to get right. There's no point rushing it and coming out with an outcome that you're going to look back and regret 5-10 years down the line.

Whatever it is, you've really got one shot to get it right, so it's important to take time over it and gather the information.

It's really a sort of three stage process for us. We need to identify what the matrimonial property is.

Then we need to gather information about that property and have it all valued, and then we look at fair ways to divide it up.

That's in terms of the finances. But these things can take time. So a lot of people just say, "well, I just won't worry about my pension valuation. I don't care. That's going to take too long." It can make an absolutely huge financial difference and it's just encouraging people that yes, I understand the frustration, but it's really key that you really think about this and you get it right. Because you can't come back later and say, "I wish I hadn't done that."

I do think people listen to their friends, "my friend got divorced in a week and why can't I be divorced in a week?" Some cases are just more complex than others. Some spouses are more difficult to deal with than others. There can be all kinds of reasons why one person's divorce may take longer.

So it's really, really hard. It is a case of how long is a piece of string and all that. We can really promise our clients that we will be as efficient as possible with it and keep them updated. I think as long as clients know where it's heading and understand why things are happening, then they'll tend to accept that.

If we could do them all in 24 hours, I'm sure everybody would be a lot happier.

00:19:22 David Lee, Host

Very occasionally, Susie, we see celebrity divorce cases on the news in the in the High Court in London or in the court of session in Edinburgh. What are the other alternative dispute resolution methods that can be used in a divorce, and how common are they all?

00:19:40 Susie Mountain, Partner, Brodies LLP

There's definitely more than one way to skin a cat.

The court, that's really one end of the spectrum. We would never encourage clients to go to court unless it was absolutely necessary.

Generally, if you've got one person who is being extremely awkward, or they're adopting an ostrich approach, or even if there's just one issue in a case and the parties just cannot agree and you need a third party to come in and make a determination about that, then fine.

But it is expensive, it is very stressful for people, so it certainly wouldn't be our first port of call.

A lot of clients just resolve things by way of sort of traditional negotiations or letters or emails going back and forth between solicitors. But as part of that we would always try and involve phone calls to the solicitor acting for the other spouse. Or you can have joint meetings as part of that process, and sometimes that can really help to cut through.

I think there can be a real resistance to receiving correspondence from another solicitor. It doesn't matter how well you try to phrase your letter, it can still be amazing how one word that you've used in that letter can really get up the back of the other spouse. So cutting through, that's important.

Other methods that can be used. We've got collaborative practise that's becoming increasingly common in Scotland. That's when you have two spouses and each of their respective solicitors and they deal with things by way of a series of meetings with all four of those people present at each meeting.

It's a very transparent process and in fact the parties have to sign up at the start of the process to state that they will be very open and honest, they will make a full disclosure of any financial positions and that if the collaborative procedure doesn't work out for whatever reason they will not be able to go to court with those solicitors.

So, it's really about trying to encourage everybody to reach an end goal. It's really good, whether children involved or where parties have to keep communicating beyond divorce.

Mediation is another option where you have one mediator and you have the two parties. The mediator isn't there to give advice, specific advice to either of those parties, but they're there to facilitate discussion, and that can work really well, where there is good trust and good communication between the parties. They can really help them to generate a lot of options, so it could be very good. Sometimes the right answer is not the immediately obvious one and a mediator can help to facilitate that discussion.

The other thing that can be used is arbitration. It's not that common in Scotland at the moment but it's where you appoint basically a private judge.

So if there's an issue in your case that parties cannot agree upon, then instead of going through the sort of public court, then you would appoint a specialist in family law to make a decision on that issue, and there are advantages to that because it could be done in private. It can be done at times of your choosing. It does differ quite markedly from the court process and I do think that as time goes on that might start to become more popular.

00:22:39 David Lee, Host

A lot of options there. And when we talk about the legal side, there has been the TV drama, The Split which many people will have watched, following the fortunes of female family divorce lawyers. I've watched every episode. That touched on the idea of a good divorce in its final season.

Susie, how do you think The Split handled it all? How did they handle the idea of a good divorce?

00:23:43 Susie Mountain, Partner, Brodies LLP

I think it's actually really good that media is starting to really look at the idea of a good divorce now.

My 9-year-old son said to me, "all people that get divorced hate each other," and I said, "no, that's absolutely not the case. Where did you hear that?" And he said "I heard it on YouTube," so I maybe need to monitor what he's watching more closely.

But there is still that perception that you have to come out of it with your spouse's face on a dartboard by the end of it. And that absolutely isn't where we need to end up.

So I think it's good that The Split has tackled this. I think it was quite realistic insofar as some of the bumps in the road that they had, with a new partner coming on the scene and that kind of threw everything off for a while.

The fact that when there was a very aggressive lawyer on board that that actually didn't help, all that does is inflame things and it didn't actually help the characters to achieve a resolution. It was only when they got their communication back on track. Of course they had the benefit of being lawyers and they already had the knowledge that they needed to have a proper discussion about it. But the more communication there can be the more chance you have of resolving it.

So now I think it did a good job of representing the sort of stages that you might go through in a divorce process.

00:24:53 David Lee, Host

Would you agree with that, Jennie?

00:24:55 Jennie Sutton, Divorce coach, Untying the Knot

Yes, I would. I certainly think it's important that you choose your lawyer appropriately. But when you are choosing your lawyer, you have to think about your budget, the type of divorce that you want.

I mean in my day when I was growing up, it was Kramer versus Kramer and it and that was very challenging.

And it doesn't have to be that way. Particularly if you've got children - you are a role model to your children and if they see you constantly and in conflict, what is that saying?

So, you can have a good divorce and with Hannah and Nathan, if you if you think about it they went through in the end they both accepted each other's point of view and the conclusion is that you have to move on and you can only control the bit in your life that you can control.

You don't have to necessarily accept your partner's new partner, but you just have to accept where you are and what you can do and it's your life and just move forward in a positive way for the benefit of everybody and leave conflict aside.

00:26:14 David Lee, Host

And what's your role then, Jennie, in helping that move forward after the divorce?

00:26:21 Jennie Sutton, Divorce coach, Untying the Knot

Well, it's about looking at life lessons.

Obviously when you have been married for a number of years you have had positives and it's about celebrating those positives; children, career achievements and the other partner has been there, so celebrate it.

Look at how you can build on creating an exciting opportunity for yourself.

Create a compelling vision for yourself, your new sense of freedom, which is being an opportunity to reclaim who you are, your identity, what your purpose is in life, making a difference, having more energy, excitement, growing as an individual, taking those lessons and look at creating something where it's your values that are more fulfilled.

Because often when we've married our values are constantly compromised and now the ball is in your court. It's your opportunity to really embrace the future that is so much in front of you and be true to your core.

00:27:36 David Lee, Host

OK. Thank you very much, Jennie. And Susie, a last word to you. What's your advice to clients on moving forward?

We've talked about a good divorce today, but how often is it the case when both parties emerged with what they genuinely feel is a good divorce?

00:27:54 Susie Mountain, Partner, Brodies LLP

I think it's becoming increasingly common for parties to feel, maybe not happy, I don't think it's right to say that at the end of at the end of a divorce that somebody is happy because I think they just often wish that they hadn't had to go through the process. It's something that that they wish hadn't happened in their lives.

But content to move forward with what they've got. I think then we know we've got them to a good place with things and I think that that is quite a common experience.

I think it is rare to come out with two people absolutely hating each other because that does then attract a lot of negative emotion, which is difficult for people to deal with. But I think everything Jennie said about focusing on the future moving forward is so important.

Even if there aren't children, of course that's important. But I did see a really good thing on Instagram at the weekend when I was thinking about this podcast.

Reese Witherspoon and Ryan Phillippe were there, and they were divorced several years ago and they had a graduation for their son. They both attended the pool party with their respective partners and I think that if you can do those kinds of things for your family and it's just a restructuring of your family then that I think is great.

That's exactly the kind of outcomes that we would hope families can have.

00:29:06 David Lee, Host

Thank you very much indeed, Susie, and thank you to Jennie for your great insights into a good divorce today.

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