Like I always say, every case is different, which makes it very difficult to determine with certainty whether a particular couple should speak to each other during the divorce proceeding.
However, there are general guidelines that I share with my clients when they come to me with questions about whether they should continue to be in communication with their soon-to-be-ex, and there are several things to take into consideration.
Consider the Financial Cost
Divorce can be expensive, there’s no question about it. So, if both parties are truly working in a spirit of good faith to try and get things resolved, exchanging information amongst themselves is a far more cost-effective way to move forward (as opposed to using attorneys to facilitate the communication).
For example: If my client writes to me asking for end-of-year paystubs from his or her spouse, I’ll charge my client for the time it takes for me to contact the other attorney. Then the other attorney will charge the other side to relay the message and get back to me. So now everyone is being charged hourly—not to mention the time delay.
A couple on relatively good terms can eliminate all that cost and delay if they’re willing to communicate directly.
I should also be sure to mention that, if both parties aren’t operating in good faith, communications can be used against them, distorted and turned into ammunition. I’ve seen people re-create history through a series of emails. So although direct communication between the parties can certainly save money, the safe route will always be to have communications pass through the attorneys (which will also avoid my least favorite thing to deal with: he said vs. she said).
General Considerations for Communication
In general, there are four important things to consider when you’re determining whether it is suitable to communicate with the other side directly.
- Make sure you know what the law is. If you do communicate directly and you aren’t certain how divorce law works, you can get yourself into trouble. Here’s an example: a client was getting divorced for the third time. He was certain that he’d have to sell the house to buy out his wife, something that made him feel very disappointed. However, once we spoke, I told him that the value of the house would offset the appreciation of his wife’s retirement fund and he wouldn’t have to sell it, after all. Had he gone directly to his wife instead of working through me, he may have ended up selling the house, not understanding how the law works.
- Create a written agenda. If you do talk to the other side, you should each have a written agenda. Know what you want to talk about and what you don’t want to talk about.
- Avoid he said/she said. That may mean taping the conversation, ending the conversation by each party signing off on a written document confirming which agreements were met, or sending confirmation emails. Whatever the method, find a way to document the conversation to avoid a he said/she said in Court.
- The minute things get heated, end the meeting. Emotions can change behavior radically. When things get heated, take a deep breath and agree to end the meeting. You just might save yourself a lot of strife down the line.
Naturally, my preference is that there is always an attorney present in these communications, but if you do decide to interact with the other side, following these guidelines can make a world of difference.