What is Reconciliation Law?

Posted by Michael HillerNov 06, 20180 Comments

One of the things about reconciliation law is that it doesn't sound like it's really possible to legally require somebody to reconcile, but that's not necessarily what you mean.

I'll give you some examples. For example, Texas has a counseling statute that a lot of people are not that familiar with. However, it's actually a very good statute in that it allows a person to file a motion with the court, and then the court can grant the motion, which … So, here's how it works. It's what I call a discernment statute. This is one example of reconciliation law. Somebody files a motion with the court under this counseling statute in Texas, and then the judge can rule whether or not the couple should go to a counselor, whose job is to determine whether there's a reasonable chance of reconciliation. That's how that works. That's one example.

Now, there are other examples of how you can use what I call reconciliation law. For example, there are prenuptial and postnuptial agreements. With the prenuptial agreement, most people know what that is, and most people think of that, rightfully so, that it's an opportunity to decide how your assets and debts are going to be handled, and expenses for that matter, are going to be handled during the marriage. And particularly, people think of it as protecting their separate property. That is, what they are coming into the marriage with.

At the same time, what I've done is added clauses that I call marriage booster clauses, and what does that mean? There's been a movement growing since about 1998 that's kind of slowly growing, and not very well publicized, unfortunately, that marriage counseling doesn't work, but that something called marriage education or relationship education does work, so you can build in these marriage booster clauses into your prenuptial agreements that say as the marriage moves down the road that you'll continue to work on skills that help your marriage.

And particularly, I find when your first kid is born, that's a time to really pay attention. It's a joyous time for most, but it's also a time when the relationship begins to change and sometimes without the couple even being aware of it. So that's another way of doing reconciliation law.

You're a divorce attorney, a family law attorney. Talking about reconciliation law sort of seems to run contrary to what your business is, so why is reconciliation important to you?

Number one, I can't really necessarily identify where this comes from for me personally. My parents weren't divorced. There are a lot of people in the movement whose parents were divorced or are divorced, and they vowed to work toward helping other people stay together whenever they could.

But that's not my experience at all. In fact, the opposite. My parents had, I thought, a very good marriage for 50, I don't know, 59 years perhaps. I can't remember exactly, but a long time. But it's important to me. For example, I've been married almost 37 years, and it definitely hasn't been perfect every step of the way, but we continue to work at it and continue to find ways to enjoy each other. And it does take some skill building, and it does take learning some communication skills. Of course, it takes love. And, at the same time, it takes the ability to communicate and, maybe most importantly, manage conflict.

Then there are other things like how to manage your finances. Nobody's usually taught these things, and we just have this almost crazy idea that romance can somehow carry you through years and years of a marriage, and romance is important, but it can't be there all the time, everybody knows that, and it certainly can't sustain a marriage by itself.

It's just something that I think it's important, whether it's because I'm dedicated to my religion, and I know that almost every religion, marriage is a central part of maintaining a community. And I've also just read a lot about it. There's studies that show five years after a divorce, many people, if they don't regret their divorce, they wish they had worked on their marriage harder. It's just personally important to me that people are given the opportunity to work on their marriage if that's something they want to do. And this marriage and relationship education movement, there's so little awareness of it. I think that's part of my job is to get the … part of what I want to do is to get that out.

Can every marriage be reconciled?

Definitely not, and if for no other reason, we live in a no-fault world, Texas being included, meaning that if one person wants to divorce for any reason, or no reason, just because, right, then they can get it, and I've worked very hard at maintaining that posture that I'm not here to really save marriages per se. That's not my job. My job is to offer avenues for people to get what they want or what they think they need to do. So, definitely not.

There are many marriages that won't be saved because somebody wants to get divorced, and they don't want to hear about it, and because it's a terrible marriage. I mean, there are marriages, they should have never happened in the first place. There's family violence. It's never recommended that you stay with someone who's physically abused you. There's emotional abuse that can really cross the line. There's incorrigible drug and alcohol use that, if somebody refuses to get help, all kinds of things like that. And we kind of all know what those are.

And then, like I said, there's some that say, “Hey, I want to get divorced. Don't talk to me about it.” And a judge will rarely order counseling if both parties are at least somewhat interested.

So, if someone is moving through sort of this three track family law process that you have, and reconciliation just isn't going to work out, what then happens?

Well, I recommend at that point, if I've got a client that wants that, really wants to stay together, and invariable almost every divorce I've handled in, what is it now, 29 years of practice, one party wants it less at the beginning, or doesn't want the divorce at all, and so there usually is opportunity to look at that issue. So, let's say, even my client doesn't want it but the other client does, want to stay to together, that is, then collaborative divorce, which is ironic, usually call it collaborative divorce, collaborative divorce is an opportunity to improve communication skills and other skills that helps you co-parent after divorce.

I don't know if there are statistics on this, but it's reported to me, I think in part from you, Tim, particularly in the Dallas area where there are lots of collaborative divorces, or collaborative processes that people go through. Sometimes when couples learn those communication skills that help co-parent after the divorce, they find out, well, wait a minute. We're now communicated better … I'm laughing because it is ironic … communicating better, and maybe we should try staying together. And it's reported to me by you and others that this does happen quite a bit.

So, again, collaborative divorce, if you will, is an opportunity both to create post-divorce good co-parenting, but also opens the door to reconciliation in kind of an ironic way. And then, of course, there … No, I'm sorry. Go ahead and ask your question.

Well, yeah. And then, I guess, the last place to go would be if you actually had to go through a litigated process, that if you were working through reconciliation and that doesn't work, collaborative is a better way to manage that divorce, but ultimately you can end up in a litigated divorce, which is something that's fairly destructive to relationships.

Yes, I agree, and this is one of those kind of difficult … What's the right word, or the right … what I'm looking for is it's a difficult area for anybody who's a family lawyer, or has some connection to the family law process, like a therapist, but invariably, in 29 years of practice, somebody starts litigating. And perhaps not necessarily out of the desire, if you'll pardon the expression, not necessarily to screw the other person, but because that's what they know. Lawyers go to law school often to be in the courtroom. They don't really have much knowledge about communication or parenting or collaborative or reconciliation, or they have some misunderstanding about collaborative, like it's too expensive, which I don't agree with. Depends on how it's handled and what you're comparing it to.

But litigation is one of those things that, for example, right now I have several litigation cases in divorce and family law, and there hasn't been a whole lot I can do about it, even when the other attorney and I are negotiating, invariably their style is different from mine. I try to be a pretty honest person. I think that's my nature, and I'm getting lies and continually changing information, even if it could be verified factually.

So, litigation. Yes, it brings out not an opportunity, it brings out a situation where you go to court and blame the other person for everything that's gone wrong and is going wrong, and even if one person, there's objective evidence that they assaulted the other person. I have a case where a husband smashed a window of the party's vehicle while the children, five and eight, were sitting in the back seat. Police were called. CPS got involved. And he's still trying to blame her for even that action. So, you get to, you're in a situation where somebody perhaps has done something wrong, but the other side feels compelled to blame you regardless, and it just kind of goes back and forth, and nobody's happy.

I joke around sometimes, I kid my clients and I say, “My job is to make you reasonably unhappy when this case,” when this, let's just say, divorce, “when this divorce is over,” which sounds a little funny, but what I mean is I hope they're not unreasonably unhappy, and usually that's what happens in litigation. Maybe they have spent way too much money in the marriage and now they somehow think that you're going to magically find this pot of gold when they're like $70,000 in debt, which just happened to me in another case, happening right now. So, does that answer your question, Tim?

It does, and I think that to sort of bring it full circle here, one of the things that makes you different from other divorce attorneys is that you have a passion for reconciliation, and if you can help a marriage to reconcile, you feel like you will have accomplished a lot in the life of that couple. And it's probably more rewarding to you as an attorney to be in that position.

Yes, that's true, and I want to add I also have a passion, Tim, for collaborative, for resolving cases out of court. For whatever reason, I haven't done as much of it as I would have liked. It's one reason I opened an office in Austin recently. As you well know, I feel that the environment here in Austin is better than the one in Houston for collaboratives. I've only been here three months so we're just getting started, and it looks like that's true.

In other words, we were talking about co-parenting skills after the divorce. Although it didn't happen in collaborative, it happened in a case I mediated years ago, and I almost get tears thinking about it. I don't mind sharing that with the audience. I got a call from a father who was in a mediation, had a lawyer, so there were lawyers present, as in most mediations in Texas. I was the mediator, and again, two years later I got call out of the blue from a guy. He said his name, and at first it didn't mean anything to me. Then he reminded me of the case, and then I remembered.

What had happened was, he had been accused of dropping their infant, perhaps purposely, or negligently, from a baby changing table, and the infant had broken its arm. Mom was insistent that it was his fault or was extremely negligent, and she wanted him to be restricted from being alone with the child. I kicked the lawyers out and worked just with them for about 30 minutes, and I convinced Mom to give him another chance. That there wasn't any proof he did this intentionally, or even negligently.

He called me, telling me that it changed their life. They didn't stay together, they absolutely got divorced, but they were able to co-parent successfully for those next two years, and he said he didn't expect anything to change. And he thanked me for my talking to them about how it was important to not keep the cycle of blame and hatred when there really wasn't any proof that he had done anything wrong. That just shows you how important it is to work on those post-divorce skills as much as it is reconciliation, but that's only going to happen in certain situations.