Are You Cool Enough?/Sharon Oberst DeFala, Esq.

Posted on January 21, 2013

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Why do most states have a mandatory lag time between when you decide you want a divorce, and when the court is allowed to grant you a divorce?  Shouldn’t the fact that we are done being married to each other be a sufficient indication that we need a divorce?  I don’t remember a mandatory waiting period when we got married – which was a much bigger decision!

In fact, most states do not have any waiting period at all for marriages, and the longest waiting period by any state is Wisconsin, with a whopping 6 days.  By contrast, a few states have 18 month and two year waiting periods for divorce.  What happens during the divorce waiting periods (or “cooling off” periods, as they are sometimes called) differs widely.  This time period can be used for reconciliation counseling – which some states recommend, but none require; spontaneous reconciliation; preparing your litigation; testing the dating pool; working on the contents of your divorce agreement; or sometimes, just being separated.  Sometimes that waiting period is a good time to not interact with each other at all (or as little as possible).

Divorce frequently is – and has every right to be – an emotionally fraught process.  Two (or more) people are working to dismantle a life they dreamed of creating together.  We are literally dashing peoples’ hopes and dreams as we unpack each step of the divorce procedure.  In any single question we ask there is a legitimate opportunity for one or the other spouse to say “This is NOT what I wanted!”

For example, when working on a visitation arrangement, a mediator might turn to the husband and ask, “You said you wanted to have dinner with the kids every Wednesday night, correct?”  Now, the husband could, and frequently does, answer, “Yes. That works for me.”  But wouldn’t he be more honest if he answered, “NO! I want to have dinner every night with my kids AND my wife in the house where I pay the mortgage and my dog has a bed!”   A fair expression of the emotional turmoil probably experienced by anyone who loves his or her family but cannot stay married anymore.

The person who answers politely is usually the one who has already gone through emotional turmoil.  I have met clients who are ready to file for divorce because they spend long nights crying alone and cannot be in a relationship where they feel so isolated anymore.  By the time those people get to the negotiation table, they are willing to accept Wednesday night dinner as a better reality than the one they already have.

Of course, I also have plenty of clients who thought that they were in a reasonably happy and stable marriage until someone served them divorce papers.  Those clients have a lot of work to do before they can see the Wednesday night dinner as a welcome compromise.  If we push these clients to the negotiation table, or the courthouse, too quickly, we frequently get non-optimal results.

By non-optimal I mean I have witnessed everything from temper tantrums, to name-calling, frivolous motions, threats of violence or abandonment, and worse.  And that, to me, is the true beauty of the cooling-off period.  When there is a partner who needs more time before they can talk about divorce, it is a good idea to give that person the space and time reasonably necessary to embrace the advantages of the coming changes.

This does not mean that one partner should be held eternally while the other pretends to get ready.  At some point, ready-or-not, the wheels of justice turn and the divorce can be granted with or without consent in almost every situation.  (The rules of Covenant Marriages in Louisiana and Arizona do not apply here.) But it is a wise person who uses the cooling off period to, well, cool off.  To talk to friends, family, therapists, or bar tenders who help shed perspective on why we are getting a divorce and best to do it and keep the rest of your life (jobs, relationships, bank accounts) intact for the post-divorce aspect of your life.

Then, head on over to the mediation table, take a deep breath, and say, “Yes.  Wednesday night dinners would be great for me, if that works for everyone else.”

Sharon Oberst DeFala is a CT Family Attorney who blogs at http://www.LoveYourDivorce.Com. A number of her posts appear at this site.

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