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Divorcing clients often have ‘transient diminished capacity’
Dr Geoffrey Shannon SC and Pauline Tesler Pic: Tommy Dickson

20 Sep 2022 / family law Print

Divorce can cause ‘transient diminished capacity’

Collaborative family law expert Pauline Tesler addressed PPC students at Blackhall Place on the merits of a non-adversarial approach to family break-up on 19 September.

Tesler was introduced by Dr Geoffrey Shannon SC, who leads the family-law module for Law Society trainees.

Given that more than 40% of American children will grow up in a home without their biological parents, it was imperative that harm-reduction measures were put in place for them, Tesler said.

Blended families

These children might also experience revolving-door configurations of blended families, she added.

In any jurisdiction with freely available divorce, the risks of divorce are high.

The risks of relationship collapse are higher again for second and third marriages, for non-marital relationships, as well as for those of low wealth or educational status.

Exacerbates conflict

“This is not easy for children, and it makes it way more difficult for them if the way that the divorce is handled exacerbates the conflict rather than resolving it,” she said.

The legal profession was called upon at times of divorce, but might not always have training in human psychological needs, the collaborative law expert said.

“Lawyers are often taught nothing at all about how to help their clients rise to the occasion and handle their divorce in a socially responsible manner, at a time of significant trauma which impacts physical and mental health,” she said.

Clients in family-law matters often presented with feelings of anger, grief, regrets, vengefulness, despair, exhaustion, depression, fear, and confusion, she added.

Divorce lawyers often saw good people at their worst, she commented, and clients were often in a state of transient diminished capacity. 

This knowledge should shape the legal response, she said. 

Cognitive capacities

Client cognitive capacities plummeted, with dips in the immune systems of both parents and children often recorded, she said.

While clients would seek the ‘best’ divorce lawyer, they might also be frightened of what lawyers could do to raise the level of conflict and polarity, Tesler said. 

Lawyers had enormous power, simply by being lawyers, over the decisions and choices made, she added.

“We’re taught little or nothing about how to use those powers wisely in supporting healthy recovery for clients, and those they really care about,” she said.

More than 90% of divorces settled, rather than going to a full trial before a judge, Tesler said. 

Emotional damage

However, these settlements may resolve legal issues while leaving the client with emotional damage and huge financial costs.

While excellent legal skills were vital for a court resolution of issues, a better system would be an efficient, contained process that led to mutually acceptable solutions that had sticking power, Tesler said.

Each parent may believe they know what is in their child’s best interests, but collaborative divorce practice prioritises parenting and children through use of child development specialists and mental-health coaches, who are trained in navigating the troubled waters of high-conflict divorce.

This is the best model to meet the demands of the UN Convention of the Rights of the Child, which gives each child a voice in legal proceedings that concern them.

Tesler revealed that family lawyers in the US were sued for malpractice more than any other civil-law practitioners.

“We are not poor lawyers, we are excellent lawyers; but our clients are miserable, and who else are they going to sue? Their husband? They already did that,” she said.

The legal issues in a relationship rupture were just the tip of the iceberg in terms of what a divorcing client was going through, often with intense and overwhelming emotions, she said.


Collaborative practice would help reach solutions that dealt with the rest of the iceberg, she said.

So, while divorce lawyers must do everything in terms of issues resolution, analysis and advice, the assumptions of collaborative practice were dramatically different, Tesler explained.

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