Divorce is complicated and one of the challenges is the push and pull between transparency and protecting oneself.  Individuals in a divorce often want to hide information that they are worried will concern their soon-to-be ex-spouse or in some way potentially disadvantage them in court or in a settlement process.  The choice of whether to be transparent about any choice, including the choice to hire a lawyer, has to be weighed against the pros and cons of that decision.

As a mediator, I favor erring on the side of transparency.  If you hide something relevant during a negotiation where both spouses are supposed to be able to make informed decisions then you risk the negotiation failing and all future negotiations being conducted without any trust.  In other words, if you want your spouse to be transparent, you have to demonstrate that willingness as well.  This seems more obvious when you’re considering keeping relevant information secret, like the infamous “hidden bank account.”  Obviously you shouldn’t commit fraud and hide information you’re required to disclose.  But what about process decisions, like hiring a lawyer to advise you? Does it make sense to disclose that as well?

Should you disclose if you’re working with a lawyer?

I understand that some people don’t trust lawyers, and if they’re negotiating with their spouse, they’re worried that hiring a lawyer will make it harder, or even worse, force their case into a contentious court battle.  When one person needs a lawyer to help them decide what they think is fair, they might be nervous that the other person will be angry or scared if they share that they are working with a lawyer.

However, that is being afraid of one type of lawyer: the litigious advocate.  There are lawyers who approach cases with a more settlement oriented mindset.  When I mediate, I recommend that people hire mediation-friendly lawyers, to make sure that they have advice but in a way that reinforces that the ultimate decisions are still up to the client.  If you hire a lawyer like this, and you both commit to that type of approach, then you can avoid this fear that a lawyer will automatically make things harder.  My hope when a client hires me is that if there spouse looks at my website, they’ll be reassured that I’m going to help bring peace to their family, not ramp up the fight.

On the other hand, if the reason someone doesn’t want their spouse to get a lawyer is because they don’t want them to be informed, then their fear is justified but also disempowering. If you’re empowering yourself in a mediation, then I would encourage you not to hide that.  It’s not going to be a secret when you start to advocate more effectively for yourself anyway.  

I recognize that there are some situations in which people need to protect themselves, for example when one spouse is controlling or abusive, but if you are in one of those situations you are more likely to end up in a contested court action and have to disclose your attorney anyway.  

Ultimately, I believe that hiding information is more likely to backfire and hurt a relationship then being upfront initially about something, even if that thing is likely to upset the other party.  It’s so much worse if they find out later, and trust may never be recoverable.  In addition, if you’re in a process with a neutral, like a  mediator, you can use their assistance to break the news effectively and let the mediator help enforce the benefits of working with mediation-friendly attorneys in the mediation process. 


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