About Discernment Counseling: For Lawyers

All divorce lawyers know that some of their new clients are not sure that divorce is the right option for them. But when divorce lawyers try to determine if clients are ready for a divorce, they may do so in a cursory way by asking questions such as "have you tried counseling?" or "is a divorce something you are sure you want to do?" With a spouse who does not want the divorce (but the partner does), the lawyer may simply state that under state law one spouse can unilaterally divorce the other, and then redirect the focus to the divorce process. This can leave the hopeful spouse feeling unsupported in his or her quest to save their marriage and sometimes determined to mount roadblocks.

Many lawyers are uncertain what services to recommend for these clients—those who are ambivalent and those who feel pushed into a divorce—except for marriage counseling that has often not worked in the past. Traditional marriage counseling tends to be ineffective because the counselor either expects both parties to work on the relationship, rendering the leaning out spouse the uncooperative one, or encourages the hopeful spouse to just let go of the marriage, leaving that individual feeling undercut and angry.

Discernment Counseling is a new service created after our research on the reconciliation interests of divorcing parents. It is brief, focused counseling for individuals and couples who are ambivalent about whether to divorce or work to repair their marriage. The goal is clarity and confidence in the decision, including whether there are avenues for reconciliation that the couple had not yet explored. It is not framed as marriage counseling to improve the relationship, and "leaning out" spouses are not pressured to be better partners at a time they are not sure they want to stay married. The decision is framed as whether to continue toward divorce or to carve out a reconciliation period of six months to work hard on saving the marriage, and then make a decision on divorcing or staying married. Discernment counseling has a maximum of five sessions.

When one partner is leaning out of the marriage and the other is strongly interested in saving it, the counselor works with them separately on their agendas. The leaning out spouse is helped to make a decision that has integrity for self and others, and the leaning in spouse is counseled with a "hopeful spouse" protocol. The goal is for hopeful spouses to bring their best self to this crisis (instead of the worst self which an unwanted divorce often elicits), to use the crisis as a wake up call for self-reflection and constructive personal change, and to neither pursue nor distance from the partner while the partner sorts out a decision. There are two potential positive outcomes from this counseling of the hopeful spouse: either the partner decides to try the reconciliation path or they both continue more constructively on the divorce path.

A group of Twin Cities area divorce lawyers are developing more nuanced skills in reconciliation-related conversations with clients, and then suggesting Discernment Counseling to appropriate clients. Clients have reported that they are grateful to their attorney for reading cues and then talking with them about options to explore their readiness to proceed with divorce. And some attorneys have reported that those clients who went through Discernment Counseling and opted to proceed with divorce, were more emotionally ready for the work ahead. The Minnesota Couples on the Brink Project is conducting more research and training on these issues, including preparing marriage therapists and mental health professionals to provide better services to couples on the brink of divorce.

To understand further how we think about marriage and divorce, see our values statement.