Therapeutic Resolution Outside the Courts, Pre-Writ PART 1
This article is a collaborative effort between family lawyer Ms Susan Tay, and psychologist Ms Sylvia Tan.
This article is a collaborative effort between family lawyer Ms Susan Tay, and psychologist Ms Sylvia Tan. We are writing about yet another collaborative initiative we call PF Restructure. You can read more about this at this link.
This article focuses on cases before the Family Justice Courts. Pre-writ means before one files the writ for divorce.
This article stresses why resolution is best done outside the courts especially even before you file your writ for divorce.
Introduction – By Ms Susan Tay
I was reading one of Stephen Walker’s writing when I came across this question he asked of lawyers:
WHAT DO CLIENTS REALLY WANT DEEP DOWN?
and this was what he said:
No solicitor has ever said that their client came into their office and said what they wanted was two years of litigation with an uncertain outcome and a large bill plus an unquantifiable level of risk, anxiety and wasted time. What they say they want is either
• Revenge, justice or money. That is at the beginning of the dispute. But after the initial expression of outrage, as the City of London Survey results show, they just want an early solution that brings certainty.
• To ‘just make this problem go away’.
And when inviting parties to consider the benefits of settlement ask them to remember that no one’s last words are: ‘I wish I’d spent more time in court’.
Why Outside Court and Pre-Writ?
There is really only 1 simple answer: To save resources, heart ache and acrimony. 3 areas that one tends to grossly underestimate until they are thrown into the throes of a highly contentious court proceedings, especially divorce.
In the heat of litigation, words will be used as weapons, mud will be slung. And it will take some super human power to forgive and forget. That is why, you will want to see if you can talk before bridges are completely burnt and decent conversations become impossible.
In an ideal situation, parties should always try and talk through any and all issues that will affect them and their children before they decide they should end their marriage. If they can agree on all issues, that’s 100/100.
Pre-writ as we have stated in the preamble of this article, means before writ of divorce literally. What it really intends to convey is this: to have all issues resolved even before anyone files for divorce.
6 years ago, the Family Justice Courts introduced a process to expedite a divorce application if parties were able to agree on all issues, pre-writ. For the 1st time, there was no need to attend court to have your divorces pronounced. Technically, you would only need to meet your lawyers 3 times. First time, to give instructions. Second, to sign all the papers for filing and the last time, to sign your affidavit so you can get a hearing date. A hearing date where there is no hearing really because your orders will be granted according to the agreement that you have reached with your ex-spouse.
The critical element for a simplified divorce is of course an agreement reached pre-writ.
Simple? Not quite.
Pre Writ Done Wrong
Is simplified divorce really simple? I said not quite because as a family lawyer, I have had many clients coming to see me about unravelling all sorts of pre-writ agreements. Many said they signed without advice, or under duress or were in such a state emotionally or mentally that they did not fully appreciate what they were agreeing to. And then there were those who came because they regretted and often enough, because they changed their minds. Is that wrong? Can I not change my mind? You ask.
First, I want to acknowledge this. The one common thread running through the majority of all my divorce clients is the emotional roller coasters they go through. And the myriad of “decisions” they come to whenever they are in certain states of emotion. I want revenge and I will accept as long as the terms hurt her more than me. I am so tired, let’s just give him what he wants and end it now.
But will the court understand and appreciate this enough to allow you to unravel an agreement? Definitely not when you tell the court I made these decisions when I was hurt/tired.
Then there are those who come to me after they have signed the agreement, obviously not knowing what their rights are nor completely understanding what they have agreed to. Yes, I felt guilty. I had a transgression and now I just want to give her everything she wants including the house, the car, 80% of my monthly pay-check. It’s even ok that I don’t get to see the kids. Soon enough, the realisation that such an agreement is simply not workable strikes.
That is why in many of my articles, I often stressed “not just any settlement, but an enduring settlement”.
Even if you have good grounds to invalidate an agreement reached, imagine the litigation nightmare you will have to go through. Explaining to the court why the agreement that you had signed should not bind you is not going to be a walk in the park.
So why not try doing it right the 1st time around?
Pre-Writ Done Right
Eyes Wide Open AND THEN Eyes Wide Shut? Ingredients For An Enduring Agreement
These are 3 main ingredients for a good decision. One, your decision must be an informed one, two, open and honest dialogues between parties and finally, make the decision when you are not experiencing extreme emotions.
You can go in with your eyes wide open by:
1. Knowing the full facts (e.g. exactly how much each other earns), understanding what the law is (e.g. no child access to the other parent just because he cannot pay child maintenance is never going to get the green light from the Courts); that is part of an informed decision.
2. Having open and honest dialogues with each other. Understanding where each other is coming from. Asking important questions like WHY?
Having reached a settlement, many of my clients accept that they may be getting less or paying more and compromising. Importantly, however, they are OKAY and can live with that. That is what I will call an Eyes Wide Shut decision.
This kind of decision can be enduring when you know the facts and understand the law before you accept the compromised settlement. I have come to appreciate that clients accept the compromises they come to because there is always a side of the story that the law may not accommodate. For example, a parent who is planning to remarry may not get the blessings from his/her new spouse on access to the child of a previous marriage. And so, he may not want frequent access. And the other spouse is ok with this because her/his new spouse gets on famously with the child and is prepared to accept the child as his own. It is not always a sad case of neglect or being unwanted. This is a reality that may work well in the end.
Finally, I come to the trickiest of the 3 ingredients,
3. Make that decision when you have thought it through and are unencumbered by extreme emotions.
This third element is the one I find hardest to overcome without help. And this is where I will leave you in the good hands of counselling psychologist, Ms Sylvia Tan.
Going through a divorce is one of the most traumatic and distressing experiences. The emotional pain of ending a marriage can be so intense that some people struggle to get through the day. They may find it hard to get out of bed, take care of themselves or attend to their kids.
Intense emotional pain can be accompanied by feelings such as stress, anger, sadness, sorrow, guilt, and shame. Emotional distress can also manifest into psychosomatic symptoms such a heaviness of heart, chest tightness, muscle tension, headaches, heart palpitations, insomnia or fatigue.
Experiencing intense levels of emotional distress at the brink of divorce or at early stages of the divorce proceedings is not uncommon. The frequency and level of intensity of distress varies with different people, and it also depends on factors such as reasons for divorce, duration of marriage, whether there are children in the marriage and the ages of the children.
To prepare oneself emotionally for an enduring agreement, one needs to understand the physiology of emotions, so as to know what can be done. When you are in a state of emotional distress, your emotional part of the brain, which is the limbic system is most activated and the executive functioning part of your brain, which governs rational thinking and decision making is the least activated. Thus the saying “do not make any decision when one is emotional” because the rational part of the brain is not performing at its best when you are in an emotional state.
If you are in emotional distress when you are trying to resolve issues or come to a settlement, it is not likely that you will be able to conduct the discussions constructively and objectively. It is also not likely that you will make sound decisions. Personally, I have seen many parties come to an unsatisfactory agreement because one or both parties were either too emotional during their discussions or when there were unresolved emotions at play.
If you find that you are in an emotional place, processing your emotions is probably one of the best things you can do for yourself. It not only helps you move past any emotional road-blocks, it can also help you have clarity of mind, so that you are ready to work out an agreement.
What does processing your emotions mean and why is it helpful to do so?
“Processing your emotions” is about bringing to awareness what feelings you are having, why you are having those feelings and how to cope with the feelings in a healthy and adaptive way. Having intense emotions is not bad in itself, but if emotions are left unprocessed, they can be stuck in repetitive negative cycles of anger outbursts, depressive episodes or apathy. It can also leave you stuck in an unconstructive perspective and leave you feeling insecure, anxious or fearful. In dealing with strong emotions, people tend to avoid feeling their feelings and use maladaptive coping strategies such as drinking alcohol, numbing oneself in front of the television, gaming or working excessively. Long term use of maladaptive coping strategies is not helpful and in fact can result in deterioration of mental health, relationship with others, as well as parenting.
How to process emotions?
Working through or processing emotion is part of emotional healing. Just like attending to an infected wound, you would first need to assess how bad the wound is, clean out the wound, apply antiseptic to the wound, bandage it up and let it heal.
Similarly, processing emotion involves the following steps:
i) Step 1: Notice and identify your emotions
The first step to emotional processing is to notice and identify your emotions. What emotions are you experiencing? Is it hurt, anger, rage, regret, shame? The stage here is to just notice. You may also notice where in your body you are having those feelings. Are those feelings in your chest? Stomach? Throat?
ii) Step 2: Be curious about your emotions and notice what thoughts are accompanying the emotions
The next step is to be non-judgemental of yourself, allow those feelings to be present and be curious about your feelings. You may ask yourself these questions to go deeper into processing your emotions: (if you are feeling very emotional, you may want to just take a few deep breaths, wait for your emotions to subside first, then come to these questions)
• What has happened that led me to feel this way?
• What was I thinking at that time that made me feel this way?
• What do I believe about the situation that is causing me to feel this way?
• What do I believe about my ex-spouse or myself that led me to feel this way?
• What does that situation mean to me at this point in time?
• What do I feel like doing with these emotions?
iii) Step 3: Reflect on your thoughts and feelings and make a choice that is realigned with your values and your child’s best interest
This is the step which I believe many people struggle with. It requires more soul searching and reflection of thoughts and beliefs. Our thoughts and feelings, while they are ours and we have rights to them, are not necessarily helpful or beneficial. In psychology practice, we help people identify unhelpful or distorted thinking that are causing havoc on people’s emotions and relationships. Once an unhelpful thought is identified, you can then make a conscious choice to act on that thought or change what you think or perceive about the situation.
You may want to ask yourself these questions:
• Is the way I am thinking beneficial to me, my children or other family members?
• Is acting on this feeling going to help the situation or make it worse?
• Are there any other ways of perceiving the situation?
• Is what I am thinking or perceiving 100% true?
• Am I only seeing the negatives about my ex and not seeing the positives?
iv) Step 4: Take necessary action to cope with your emotions in more adaptive way
The final step of processing your emotions is to take necessary step to cope with your emotions in a more adaptive way.
Once you have identified unhelpful thoughts or distorted thinking, you can reframe your thoughts to be more balanced. This is where you will find that your emotions will calm down and you can start to rationalise and think clearer. To cope with your emotions better, here are the following things you can consider doing:
• Self-care. Make sure you take time out to do things that you enjoy and would help you feel nurtured;
• Exercise regularly. Exercise is one very effective way of releasing stress;
• Make sure you have enough sleep. Sometimes stress can cause difficulties in sleep;
• Talk to a trusted friend about your emotions and feelings; and
• Speak to a counsellor or psychologist if you are having difficulties managing your emotions and processing them.
The next part of our article will be on how PF Restructure Pre-Writ can help parents who are going through a divorce come to enduring agreements for both financial and care issues of the family.
We hope that you have found this article helpful. If you are contemplating or going through a divorce and find that you require assistance in any way, please reach out to us at firstname.lastname@example.org or +65 6221 3009.
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