B. The Emotional Divorce

Author:Julien D. Payne - Marilyn A. Payne

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For many people, there are two criteria of self-fulfilment. One is satisfaction on the job. The second, and more important one, is satisfaction with one’s marriage or family. When marriage breakdown occurs, the spouses and their children experience a grieving process. The devastating effect of marriage breakdown is particularly evident with the displaced long-term homemaking spouse whose united family has crumbled and who is ill-equipped, psychologically and otherwise, to convert homemaking skills into gainful employment.

Most legal divorces in Canada are uncontested. Issues relating to the economic and parenting consequences of marriage breakdown are usually resolved by negotiation between the spouses, who are often represented by independent lawyers. Because the overwhelming majority of all divorces are uncontested, it might be assumed that the legal system works well in resolving the economic and parenting consequences of marriage breakdown. That assumption cannot pass unchallenged.

In the typical legal divorce scenario, spouses negotiate a settlement at a time when one or both are undergoing the emotional trauma of marriage breakdown. Psychiatrists and psychologists agree that this "emotional divorce" passes through a variety of states, including denial, hostility, and depression, to the ultimate acceptance of the death of the marriage. Working through the spousal emotional divorce rarely takes less than two years. In the interim, permanent and legally binding decisions are often made to regulate the economic and parenting consequences of the marriage breakdown. From a legal perspective, the economic and parenting consequences of the marriage breakdown are interdependent. Decisions respecting any continued occupation of the matrimonial home, the amount of child support,

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and the amount of spousal support, if any, are conditioned on the arrangements made for the future upbringing of the children. The perceived legal interdependence of property rights, support rights, and parental rights after divorce naturally affords opportunities for abuse by lawyers and their clients. The lawyer who has been imbued with the "will to win" from the outset of his or her career, coupled with the client who negotiates a settlement when his or her emotional divorce is unresolved, can wreak future havoc on the spouses and on their children. Far too often, when settlements are negotiated, children become pawns or weapons in the hands of...

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