The Florida Bar

Florida Bar Journal

Coping with Client Expectations in Divorce

Family Law

The family lawyer who wishes to maximize professional effectiveness must take seriously not only the technical aspects of the discipline but also the client’s perception of the overall service. These perceptions are not always obvious, often are not well communicated, and are comprised of measures unique to each individual client. Further, the attorney’s status of being very familiar with the practice of law, the legal system, and divorce can actually impede an understanding of the client’s perspective. This perspective includes feelings about the fact of divorce, the process and outcome of resolution, and also treatment from their own attorney. The divorcing client presents a special challenge since the individual engages the family lawyer at a time of great emotional strain, with diminished ability to function, and hypersensitivity to rejection and disappointment. For these reasons, observations and experiences of the mental health professional who works with divorcing clients may provide important information about the client that is not routinely accessed by the attorney. virtue of training, and the experience of seeing divorcing clients during their time of representation, the mental health practitioner is in a unique position to assist the family lawyer.

The psychotherapy setting is one in which divorcing clients frequently share their feelings of the divorce and encounters with their attorney. These same clients often are reluctant to share these perceptions in the attorney’s office. Increased awareness and sensitivity to the professional relationship may first provide the attorney with a valuable method to determine whether a case should be accepted. The premise is that a poor attorney-client fit can result in several undesirable outcomes: being fired, reputation damaged from unhappy clients, and reduced professional satisfaction. Conversely, the ability to establish a sound relationship at the outset should reduce the incidence of dissatisfied clients since both parties will begin the divorce process with a better understanding of their respective roles.

The purpose of this article is to help the attorney understand typical emotions of divorcing individuals, client-reported difficulties in working with their attorneys, and ways to think about particular client relationship issues.

The Emotional Status
of Divorcing Individuals

While some mental health experts1 view divorce as a growth experience, for the majority of divorcing persons it represents one of life’s most painful conditions. In fact, research 2 suggests that divorce ranks as a potent contributor of the kind of emotional stress that ultimately can contribute to physical illness. Not surprisingly, divorcing persons often exhibit various psychological disorders at a higher rate than the general population,3 with some of these conditions seriously compromising the client’s ability to function effectively on a daily basis.

Divorcing persons enter the legal arena sometimes with little desire to participate, and frequently with little understanding of the language and procedures of divorce. Most persons who divorce will do so only once or twice in their lives. Therefore, the emotional tenor is one of fear, ignorance, and, because of clients’ emotional fragility, an often-limited ability to think and act effectively. Given the state of demoralization that characterizes divorcing persons, the way that bad news is delivered by the attorney is critical to maintaining a good relationship. From a general understanding of divorcing clients, the attorney may consider the following practice points:

•Clients do not necessarily hear what the attorney is saying even when they appear to be doing so.

•Assume that clients will be hypersensitive to any professional communications.

•Clients will not necessarily report when they are dissatisfied with some aspect of the professional relationship.

•Clients may be limited in their ability to follow through on responsibilities accompanying the divorce process.

While divorce in general is associated with a range of negative emotional and behavioral features, it is not a discrete event but rather comprises a series of emotional experiences that have unique behavioral characteristics. One way to better understand this range of emotions is through a five-stage model developed through research conducted with terminally ill patients. 4 This model has been used as a metaphor to conceptualize psychological aspects of many types of loss, including divorce. It should be noted that clients may demonstrate any of these stages, and may move between stages throughout the divorce. These stages will be illustrated by reporting the orientation of the client represented by each stage of loss.

The Client Who Does Not Take Seriously the Fact of Divorce— Clients who present in the stage of denial typically report a spouse inexplicably and suddenly moving out or that they were served with a divorce action. They may seek an explanation for their mate’s conduct unrelated to marital satisfaction ( e.g., mental illness), and by definition will not be the initiator of a separation. The complementary reality reported to the therapist by the other partner is one of repeatedly attempting with little success to persuade the spouse of the critical state of the marriage. At that point, the spouse in denial will report wanting to do anything to save the marriage, and generally will acknowledge only being in the attorney’s office to understand the mechanics and/or rights that one has in a divorce. Their general posture will be one of incredulity at the prospect of divorce. An attorney may have the sense that the client is “dragging” relative to the estranged spouse. It is recommended that the client be confronted directly and questioned regarding beliefs about the inevitability of divorce. If not, it may be better to determine what the client expects of the attorney at the time, and possibly refer for psychotherapy as a means of clarifying the client’s marital status.

The Client Who Vacillates About Divorce— Clients in the stage of bargaining may act tentatively and leave the attorney wondering whether they want to divorce. In fact, they do not and often are acting out their role in a drama that they believe will have the happy ending of reconciliation. The role of the attorney may be to help protect them from their own inaccurate beliefs regarding their marital status. For example, clients often will believe that reasonableness regarding settlement demonstrates continued marital commitment and will result in the spouse’s return. Clients may believe that going slowly, not responding to the divorce process, or actively pursuing the estranged spouse will result in reconciliation. Their request that the court require marital counseling is either unheeded or met with disdainful participation by the divorce-initiating spouse. The wise attorney suspecting this phase asks directly whether the client believes that reconciliation is possible and the likely scenario to that outcome. In this way the attorney can better understand how to proceed to maintain professional integrity yet allow the client sufficient leeway to pursue individual goals. This phase should not be confused with a couple’s joint decision to stop divorce proceedings pending another attempt to reconcile.

The Angry Client— Clients in the angry phase are well known and difficult to work with because of their unreasonable positions. Attorneys working with clients during this phase often are perceived as “too easy going.” The degree of anger is directly related to the inevitability of the loss experience and acts to protect the individual from the more painful phase that follows. These clients are their own worst enemies since they will often demand actions that simply shed more heat than light on the settlement of the case. It is especially important for the attorney to assess satisfaction of these clients on a regular basis as a way to help clarify misconceptions and to allow the client to vent frustrations about the predictably less-than-satisfactory outcome that is at hand. The reputation of the attorney may be protected through these discussions by assisting the angry client in not misdirecting anger toward either the process of divorce or the specific actions of the attorney, but rather toward the larger issue of termination of the marital relationship.

The Depressed Client— Clients who are depressed will grieve openly the loss of mate, lifestyle, security, and other tangible and emotional components of their married life. Characteristics of depression include frequent tearfulness, lethargy, inability to focus, and a sense of hopelessness. Depressed clients may be extremely difficult to work with due to their lack of motivation and psychological energy to move forward. Of all clients, these will require more “hand holding,” and often can benefit from and are receptive to recommendations for psychological counseling. Their fragility often limits their ability to think clearly and requires the attorney to work slowly to ensure that the client clearly understands what is occurring in the case.

The Client Who Is Rationally Prepared to Divorce— Clients who have reached the stage of acceptance often are the ones who left their mates. These clients have passed through the earlier stages and appear rational and able to function collaboratively with great effectiveness in their own behalf. While they may seem “cold,” to both the attorney and certainly the estranged spouse, they often report having struggled with the decision to divorce for many years. They are often good candidates for resolution through mediation, and are clients who can look at settlement through a much more objective lens than those in the previous stages of loss.

The value of this model is that the attorney can quickly understand typical logjams that may occur in working with a client based on the stage of loss. The key to accessing this information will be to query the client’s desire for divorce, acceptance of the inevitability of divorce, and any actions being taken to salvage the marriage.

Assessing Awareness
of the Divorce Process

Divorcing clients in psychotherapy often report many confusing and disheartening aspects of initial meetings with their attorneys. From the outset, a potential client’s perception of the attorney and the process of divorce is colored by a number of experiences that are incidental to the face-to-face meeting with the attorney. These reported experiences include the warmth of the receptionist’s voice, length of time before meeting with the attorney, location and difficulty in finding the office, and the decor and “feel” of the office. They may also concern other subtle elements of interpersonal status, e.g., the attorney walking out to the waiting room instead of being brought in or sitting at a conference table instead of behind a desk. Continual awareness of the client’s potentially compromised ability to process information and make decisions will help the attorney to recognize that even simple communications may require both repetition and clarification.

Several specific areas appear to be chronically misunderstood and the source of angst for many clients. Clients report ignorance of either the procedures or rationale for particular actions in the divorce. Even though at least one publication5 distributed to clients by Florida family lawyers clearly outlines the process of divorce and the client’s responsibilities, it appears that many clients remain in the dark. Clients often will complain that “nothing is happening” with their case, with the implication that their attorney is negligent. This criticism often is simply the result of not understanding the process.

Issues regarding the role of paralegal and other support staff are reported as ambiguous and can leave clients feeling marginalized since they sometimes view contact with these persons as less valuable than talking with the attorney. This criticism is often leveled when the client receives a call from a support staff and does not know how that person fits into the case.

Expectations regarding fee arrangements, despite retainers and retainer agreements, are still sometimes unclear, with the lack of client understanding resulting in potential administrative and malpractice complaints. There is a unique and irrational indignation that people who are in distress experience about not wanting to pay for services that they may feel is an imposition in their lives. Clients need to be told what constitutes a billable event, ways to reduce fees, and the likelihood of the court’s requiring the estranged spouse to pay the client’s fees.

Perhaps the attorney’s most significant role with respect to managing expectations occurs by keeping the client apprised of both the fact of and rationale for various actions, e.g., hearings. While some of the matters may be routine and somewhat inconsequential in terms of the eventual settlement, clients begin to lose confidence when they feel that they have not been informed in a thorough and timely manner. Similarly, given that divorce is filled with innumerable moments of demoralization and defeat, the prudent attorney takes time frequently to inquire as to how the client is feeling about the level of service being provided.

A few minutes of debriefing about the outcome of various hearings will stem the rising tide of resentment by simply allowing the client to voice dissatisfaction and give the attorney an opportunity to respond. It should be emphasized that all communications regarding the process of divorce should be explained in layman’s terms and not legal jargon.

One may summarize the implications for improved practice conduct in dealing with the role of expectations in the following manner:

•Assess through direct inquiry what a client understands about critical aspects of the divorce process.

•Frequently inquire as to the level of satisfaction that the client is experiencing with the attorney.

Assessing Attorney-Client Interactional Styles

Clients come with differing expectations regarding the role that an attorney should play during the divorce. These expectations are influenced by stereotypes, personal experience with authority figures, the aforementioned stage of loss they are in, and reports from previous clients. These expectations may be cast into the following typology.

Clients Who Desire an Attorney-Counselor— This expectation is evident when office meetings or client calls repeatedly focus on feelings of victimization, betrayal, and rejection. Clients want to disclose painful issues regarding their marital life, or life during divorce, and will attempt to position the attorney into becoming their mental health counselor. Their distress should be noted and acknowledged as normal, with the suggestion that psychotherapy may be a more efficient method of dealing with their emotional suffering.

Clients Who Desire an Attorney as Parental Substitute— The client who reports ignorance and naiveté around settlement and an unwillingness to learn relevant details would demonstrate this expectation. These clients attempt to place in the attorney’s hand responsibility for decisions that generally reside with the client. They may flatter by placing an inordinate amount of trust and power in the attorney’s judgment. The attorney may feel protective due to the underperformance of the client. This lack of full participation is not due to the emotional distress of the client but rather is a function of the client’s belief that the attorney’s role is to make decisions as opposed to executing those decisions made by the client.

Clients Who Desire an Attorney to Inflict Pain— These clients are well known for an intensity that is matched only by their unreasonableness in settlement considerations. For these clients, divorce is the final platform of retribution for marital grievances, and following from the loss stages, is a way to prevent the depression that accompanies acceptance of the divorce. Clients who are unhappy with their attorneys often report them as “not strong enough” to deal with their spouses though these opinions are often formed only on stylistic aspects of the attorney’s behavior ( e.g., demeanor, sensitivity).

Clients Who Desire an Attorney as Legal Expert Only— These clients, often the initiators of separation, take a very rational approach to divorce. They are willing to make their own decisions, and simply want an attorney to guide them through the legal process. They, in fact, wish to take responsibility for the substantive issues and can assess their own sense of fairness. Many clients with this mindset are good candidates for resolution through mediation.

This typology may be used as a way to calibrate communication with clients along dimensions of directness, overall emotional demeanor, sensitivity to the need to listen, responsibility taking, and aggressiveness. One may inquire directly as to how the client believes the attorney should act and what constitutes good representation. The attorney also may ask what the client understands about the attorney’s style based on the referral source. Clearly, one size does not fit all in terms of what the client expects from a professional relationship. The attorney must reflect on his or her communication style especially as it relates to the boundary between professional interpretation of the law versus decisions that should reside with the client. Ideally, the attorney must individualize communications with each client, though with awareness that poor fit may result in either being fired by the client or feelings of strain about dealing with the client during divorce.

Assessing Attorney Reactions to Client

Though one may aspire to provide the best professional experience for each client, the reality is that different clients evoke different reactions in the attorney. Attorneys who are divorced may view the process from a much more emotional and personal standpoint. From the initial meeting it is important that the attorney examine emotional reactions to the entire experience of meeting with a divorcing client. Research has demonstrated that the majority of the impact of communication between two persons is nonverbal and includes elements such as postural orientation, facial gestures, intonation, rate of speech, and interruptions. Since many of these accompaniments of communication are beyond conscious control, one can infer that the way one feels toward a client ultimately will be communicated to that person. Feelings of jealousy, intolerance, competitiveness, attraction, empathy, sympathy, anger, and a host of other fundamental emotions will impact both the nature of the client-attorney relationship and possibly the motivation of the attorney to work on the case. This personal emotional audit by the attorney provides one template of understanding that can be used to enhance the professional relationship.

The Key Questions

To summarize a way to approach the issue of client relationships one may consider the following:

•What is it that the client expects?

•Are the client’s expectations realistic?

•What is the feeling toward the client?

•Will the fit between client and attorney allow for successful representation?

•What is the nature of the ongoing interaction between client and attorney?

•How does the client perceive the professional service being delivered?

Conclusion

There are no trends to suggest that divorce will vacate the American landscape. In any given year approximately six percent of married persons in Florida will divorce. While the percentage has varied through the years, the fact remains that there are typically about 75-80,000 Florida divorces recorded annually. 6 Though social mores have made its occurrence less stigmatizing, for each individual the experience is generally painful and remains forever part of a personal history with the family lawyer perceived as having played a significant role. In this article an attempt has been made to offer ways to think about approaching the client relationship in order to determine whether one should engage a particular client and then how to provide a service that each client values highly. q

1 Jean E. Veevers, Trauma versus Stress: A Paradigm of Positive versus Negative Outcome Patterns, Marital Instability and Divorce Outcomes 99-126 (Craig A. Everett ed.).
2 Thomas A. Holmes & Richard Rahe, The Social Readjustment Rating Scale, 11 Journal of Psychosomatic Research 213-218 (1966).
3 Gay Kitson & L. Morgan, The Multiple Consequences of Divorce: A Decade Review , 52 Journal of Marriage and the Family 913-924 (1990).
4 Elizabeth Kubler-Ross, On Death and Dying (1969).
5 A Divorce Manual for Clients (American Academy of Matrimonial Attorneys, 1995).
6 Public Health Service, U.S. Dep’t of Health and Human Services, Vital Statistics of the United States–1988 (1996).

James Kochalka holds a Ph.D. in clinical psychology from Georgia State University and has been practicing in Tampa since 1985. His clinical practice focuses on relational issues ranging from premarital to post-divorce counseling. He also provides organizational consultation to professional practices and family businesses.

This column is submitted on behalf of the Family Law Section, Deborah B. Marks, chair, and John S. Morse, editor.

Family Law