Untying the Knots | Episode 3 | Rules of Disengagement

Dawn Smith and Kristen Files, partners at Atlanta-based family law firm Smith & Files, host “Untying the Knots.” Season 1 offers practical advice and resources to families navigating crisis and covers such themes as co-parenting, intimate partner violence, myths about marriage and divorce, support systems, and financial safety after divorce. The 10-episode series launched July 1 with new episodes weekly through September 2 and includes special guests Chief Judge Christopher Brasher, Chief Assistant District Attorney Jennifer Stolarski, and Historian and Marriage Expert Stephanie Coontz.

Below is a transcript of Episode 3: Rules of Disengagement.

“Untying the Knots” is available on all streaming platforms, including Spotify and Apple Podcasts. To learn more, visit www.smithfileslaw.com/podcast.

DS: Dawn Smith | KF: Kristen Files | JB: Chief Judge Christopher S. Brasher

DS I’m Dawn Smith.
KF And I’m Kristin Files.
DS This is “Untying the Knots,” a podcast about family crisis.
KF And what it takes to survive the tangles and strengthen the ties.
KF Welcome to Untying the Knots. We are recording this episode in the midst of COVID. Right, Dawn?
DS Yes. Oh, are we in the midst. We are about 60 days in the midst of it right now.
KF And today’s episode is about the rules of disengagement, the do’s and don’ts of breaking up. We see so many don’ts all of the time, and we’ve engaged in our own don’ts of breaking up and separating.
DS Girl, have we seen some don’ts.
KF Right.
DS And I say that as someone who lived in the midst of what not to do. And I would not have believed what I’m getting ready to say to you, which is if you are in the midst of I break up, a dispute, a divorce, you are not at your best.
KF Say that again for the people in the back who can’t hear.
DS You are not at your best in the decisions you make. More frequently than not, you will wish you had not made them.
KF Right.
DS Based on our experience, because we’ve seen people really suffer from impulsive, not well thought off actions. You know, we’ve come up with three basic guidelines, right?
KF Right. You want to stay flexible. Operate in the gray. There’s no black and white answer here.
DS Right.
KF You also want to make sure that you have a support system because you cannot do this alone. And lastly, be wary of your receipts. And what do I mean by receipts? I mean, anything that you put in writing or into the world that can be saved forever.
DS Social media, blog posts, be careful. One, because your children may see it. Two, because it could kill your divorce case and what your long term goals are. And three, if you can’t practice or restraint of pen and tongue, you’re going to be living in a lot of regrets.
KF My mom used to always say to me, or she still says, when you know better, you do better. And we want our listeners to know better and do better.
DS So Kristin, I did not practice many of the do’s that you went over with our listeners earlier, when I found myself in the middle of a breakup. In fact, I felt like was in an epic battle. And my now ex and I were on different sides, and he was the enemy. So I practiced early on some of that black and white thinking, right? Whereas previously, we’d been a team and we’d been a team with these two small children. And when this happened, and when the split up occurred, all of the sudden it was like I saw life as being in the middle of a boxing ring. And he was on the other side of the ring, and I was on this side. And certainly in my court, I had all my people. He had a few people in his court on his side of the ring. And that is initially how I viewed everything. And the truth is that he continued to be the father of my children. We continued to need to co parent. We just needed to do it differently. And that black and white thinking that I held on to, because I was so hurt, kept me from progressing as quickly as I could have to get healthy and heal on the other side of that. When I began to move out of that black and white thinking and then be open to the fact that maybe holidays can look a little different, right?
KF Yeah. How did you do that?
DS How I did that is after some really good therapy. I have a pretty deep faith that I’ve turned to in the midst of it. But also, you know, I got help with my own feelings. So eventually I was able to open up my vision, or adjust the filter on my camera enough, to realize that events, parent teacher conferences, soccer games, holidays, could look different than I thought they had to look. Right? Than my whole vision of how it needed to happen. That, guess what? The kids could have a great Christmas at their dad’s house.
KF Right? Or that you all could maybe celebrate Christmas on a different day. You said something there that I think is really important and is going to be a recurring theme that listeners will hear throughout our podcast is that it sounds like the work began with you. Work that you had to do internally, so that you could be in a more emotionally receptive place.
DS Right, I could be receptive to different paradigms. I only had one paradigm, by God. And when I was in the middle of it, and at the beginning of it, that was the only one, but I’d slowly opened up to different paradigms.
KF And then as you open up to different paradigms, it allows your children to. Right?
DS Yeah, they didn’t have any, I mean, they had some sadness. One of them was an infant, but you know, the other one, he had some sadness because things were different. And that’s appropriate. You know? And I guess what I would say in relation to that, because so many parents, I can’t tell you how many cases I have where I hear people going, “Johnny’s so upset. He’s so sad. What’s gonna happen?” And the truth is, Johnny being upset is appropriate, right? Mommy being upset is appropriate. Mommy modeling that you can be upset and not die from it helps Johnny know he can be upset and not die from it.
KF Right.
DS So, you know, my black and white thinking really set me up for an us versus them for longer than it should have. And I think we lost some valuable time while I had to do my internal work to get to the other side of that, but we’re there now.
KF Right, right. That makes sense. So let’s break down in a little more detail what the do’s and don’ts are. Dawn, what’s the first one.
DS So Kristin talked about keeping an open mind and what that really means is what we’ve talked some about, which is don’t decide that there’s only one way for your family to look after divorce, or only one right way for you to interact with your ex, or only one right way for your children to be raised. There are lots of right ways for this to be done. And you need to open up your paradigm a bit and look at all of the different options rather than drawing bright lines in the sand that typically you, a court, and your ex can’t meet.
KF That’s so true. Don’t act out of anger. And that’s very hard to do. It’s easier said than done. Don’t act out of anger. Allow yourself to live in the gray. And I’ve had clients who were able to really like jump on to that a lot more quickly than others. And really, I think it boils down to that the person who’s able to go more quickly into the gray has support systems in place that help them swim in the gray, if that makes sense. So I had a client who, when they were divorcing, her spouse was already entering into a new relationship with someone. And that’s the perfect narrative for even more bitterness than there would already be without a new person getting into the mix. And they decided to go to counseling together with the new partner. I was really impressed with that because I think that takes a lot of intentionality around saying, okay, what do we need, how can we have support and let’s create this new family so everybody feels comfortable. She did that do really well.
DS As opposed to your client, had she been so upset that she could not get over her feelings, that does what we’ve seen many people do when her spouse gets a new love interest, which is to go out and maybe spray paint the car or the front of the new love interest’s house that says “You hussy” or some other horrible words.
KF Right. Slash a few tires. Key a few things.
DS Key the car.
KF Yeah, we’ve seen all that stuff too. And that doesn’t really turn out well.
DS Right. And it might feel good in that moment, probably because of the vodka that you’ve had to drink while you do it. And then it’s like the biggest emotional hangover in the world.
KF Right. Right.
DS You know what I did, Kristen, in the midst of my divorce at the advice of my therapist, because I could not stop myself from emailing out of anger and getting into the ever present email war with my ex.
KF Email wars are great, right. (laughter)
DS They’re just great. You accomplish so much, don’t you?
KF So productive.
DS Because people always admit that you’re right and they’re wrong.
KF Mmhmm.
DS Always happens. It always happens. So I actually had his emails come in to me and go right into a folder. And at a time during the week when I might have been emotionally a little more prepared, typically right after my therapy session, then I would read them.
KF That’s a great idea.
DS Because I could not stop myself, initially, from reacting out of anger. And I will say it’s something that’s happened over the years as I’ve aged. I’ve got very good at pausing and not reacting. And if I’m reacting really quickly, I normally send the draft to a friend I have a couple good friends that will read it first.
KF Those are such good tips and also things I tell my clients and then I’ve had to tell myself. So something you said was that you might wait until after having talked to your therapist to reply to those emails. Even though you were struggling with the don’t, there’s a good do their due seek emotional support, no matter how okay you think that you are. And, you know, I can talk about this from personal experience. At any time in life when you’re going through something, you may think or you may be telling yourself, I’m fine, I got all under control. I got it handled. But just acknowledge that moving out of a relationship and having a large life transition is an emotional process and does require you to have support systems in place to help you as you go through it.
DS It is really great to have your girlfriends, or boyfriends, or whoever, who are gonna cosign whatever story you’ve got or your BS.
KF Right.
DS But that’s not what we mean by emotional support, right? We need generally a professional or a member of the clergy, or someone who will look at things for you objectively, and tell you the hard truth.
KF Right.
DS Along with the things that you need to hear in the comfort. So that’s what we mean by emotional support.
KF Don’t be reckless with social media and technology. Do you think we need to say that again?
DS I think we need to say that again. Let me just tell you, I’m just gonna go.
KF We need to say it again and again. And again.
DS I cannot tell you how many pieces of junk I have seen that people have mailed out to each other. I’m sorry. But that’s true. That show up in court, right? Just when you’re sitting there in your really nice dress or your suit and all the sudden there’s a picture your whatever that you decided to send out. Because in the moment, you were all hot and bothered, and it felt like the right thing to do. You know, the texts and the Facebook posts that I’ve seen trashing your ex who actually happens to be the father of your children, that doesn’t read really well to the judge, or the jury or anybody else. Because they believe, you know, more what you say in those texts in those Facebook posts than what you’re telling them sitting on the witness stand.
KF Yeah, absolutely. And one thing I would add to that goes to our last do is that if you are venting on Facebook, or using social media as the way to talk really poorly about your kid’s other parent. I’ve heard clients say to me, “Well, it’s not like my kid read it on Facebook, so they didn’t know that it was happening.” But what you do as parents does impact your children. So even if they’re not directly reading the Facebook message, it’s very hard to say, “I don’t act negatively about my kids dad around my kid, I just only vent all that terrible stuff on Facebook.” That doesn’t really sound that believable. How do you keep that separate, you know? Like your kids pick up signs, they pick it up,
DS Right. And if I am in the position to be the judge as to custody, that goes to me assessing your judgment. Be very careful. You know, we have clients, just so you know, and I think it’s good practice, they sign a social media and electronic agreement when they come in and see us where we say: get off. We have seen it do more harm than good. So today, we are honored to have Judge Chris Brasher, from the Fulton County Superior Court, who is an expert in all these things that we’re talking about, the do’s and don’ts of disengagement. What you might notice about Kristin and I today is that we may be a little more deferential than you’re used to hearing from us on this podcast. While we’ve got a lot of interesting stories, and we laugh a lot, and we might get a bit irreverent, judges are who we appear in front of all the time. And we are used to showing them great deference and this man deserves every bit of deference that we give him. So if you hear us being a little bit more subdued than normal, it’s because we’re talking to a judge, guys.
KF Right. It’s a big deal.
DS Yeah, it is a big deal.
KF Judge Brasher, thank you so much for coming on the show and speaking with us today.
JB I’m so glad to be here. Thanks very much for having me.
DS Could you please introduce yourself to our listeners?
JB Hi, my name is Chris Brasher and I’m a Superior Court Judge in Fulton County. I’ve been on the bench for 14 years. I was a lawyer and practiced for about 16 years before that.
DS You are not merely a superior court judge in Fulton County, you are presently the Chief Judge. Could you tell our listeners a little bit about what that means for us, as citizens of Fulton county and what your role is?
JB Sure, the Superior Court is the highest level of trial court in the state. So we try all kinds of civil cases, including family cases, and then we try felony criminal cases. There are 20 Superior Court judges in Fulton County. It’s the largest trial court in the state. And of those 20, one is selected by the bench to be the chief judge and I was elected last year to be the chief judge. And we’ll be doing that for the next year and a half.
KF Judge Brasher, again, thank you so much for being here. Dawn and I have been brainstorming about the rules of disengagement and we’ve taken some examples from our professional experiences, and we’d like to ask you some questions about those areas to see if you have any other rules and how your experience plays into these rules that we’ve come up with. So one, using children as pawns, or messengers, going on spending sprees to cover emotions they actually fee, and something that we see often in high conflict custody cases, are one parent attempting to control the child or control the access that the other parent has to the child or acting out of revenge or anger. Would you agree with that? And is there any way that you’d elaborate based on what you see in the courtroom in real time?
JB So Kristen, thank you for the question. I think, sadly, you’ve hit most of the highlights, or lowlights, of what I see among parents when these kinds of situations arise and common among several of them is kind of acting out if you will. You know, whether it’s trying to cover emotions or supplant emotional problems with spending on clothes or, if it’s substance abuse, or if it’s just acting out in other dangerous ways, these are things that we often see. And I think it comes out of a sense of kind of misplaced frustration, really not having an outlet, worrying about acting out in front of the children. So a lot of secretive behavior can occur. You know, imagine the emotional state of someone in that circumstance being like a balloon, and you can see it being squeezed at one end. And so it emerges. The bad parts emerge in another area. And it often happens and in ways that I would say are not healthy. One of the other things I’ll say is that the controlling of the parents access, that gatekeeping behavior, is really one of the most detrimental. It’s a situation where the relationship with the children is going to be strained anyway and that kind of gatekeeping behavior can really be deleterious to the relationship.
DS And just to follow up on Kristen’s statement of one of the rules about using children as pawns and messengers, I don’t know that all of our listeners know what that means. What have you seen with parents using kids as messengers or pawns? And why is that a problem if I can’t bear to look at my spouse in the face because he makes me so angry?
JB Well, you’ve hit the nail on the head that the decision to use the child as a messenger is not one that’s born out of necessity. It’s born out of emotional incapacity. So someone has decided that they’re so angry or disgusted by the other person that they can’t look at them, which really means they won’t look at them not that they can’t. And so instead of facing up to that reality and dealing with it, they’re using the child as a go between. And so when the circumstances of that decision are all emotional, the messages will be emotional. There’s no way to disentangle that emotion that drives one parent to use the child as a messenger to the other. There’s no way to disengage that from the messages themselves. So even remember, I’ve got a performance tomorrow night comes out of the parents mouth with, “Tell your dad to remember, this time, that you’ve got a performance tomorrow night.” So it’s got all that baggage and the child hears that and now the child is put between a rock and a hard place because they’re having to deliver that emotion laden message. And it’s not going to be received well and there will be a retort. Now the child has no way to pass off that emotional baggage that they’ve received. Pawns, another example are when the message that’s passed along is just an emotion. “I can’t believe your father is 15 minutes late again.” That’s a power play between the parents because the child has no outlet for that other than the tell the other parent, which is going to cause even further unhealthy dynamics.
DS So pivoting a little bit, we’ve talked before you came on today about our digital footprint and social media and evidence. And my first question would be, how have you seen the role of all of our digital footprints change over the years that you’ve been on the bench? And secondarily, how does digital evidence influence you? Or have you seen it influencing in the courtroom?
JB Well, the arc of change is that when I started to practice law, there wasn’t anything such as that. And now, it is the default. People express themselves in a variety of channels, many of which are electronic. Lawyers called email “evidence mail” for a reason, and it’s because people would tend to say things in email that they wouldn’t say face to face. And so the evolution has been from, kind of, purposeful toe in the water experimentation a generation ago to all out no second thoughts interactions that occur now. And people’s digital footprints are much wider than they believe they are. And all of them are capable of being resurrected in court. I sign search warrants every day for Instagram accounts or other accounts. And those same accounts can be gotten to through subpoenas that lawyers can use in domestic cases. So it is an integral part of domestic relations law today, just as it is in every other kind of law today.
KF So you commented on many mistakes that parents make in the midst of these divorce proceedings. So what are some common mistakes that you see while you’re in the midst of the divorce proceeding acting as the judge?
JB Sure. Well, there’s always going to be some level, I’ll say, of unreasonableness, that comes along with a case. It can be one side is unreasonable and the other is not. It can be that each are equally unreasonable. A lack of self-awareness and self-reflection is mistake number one. So not having the wherewithal to see yourself, where you are and what you’re doing. That comes from the emotional state that suckering people are, are in it to win it, they want to prevail. They see the adversarial process played out in front of them and they know it from television and popular media that it’s a game that you want to win. And so that pushes people to make decisions without having introspection. So that would be the first thing. The second thing is people want to turn their life into a case, or their case becomes their life, as opposed to telling the truth of who they are and the truth of why they are where they are. And it always as I’ve made some mistakes, he or she has made some mistakes. We’re here because we couldn’t resolve those. We’re here because we couldn’t communicate adequately to resolve those or we’ve grown apart or whatever the case might be. So perhaps those are two sides of the same coin, that introspection and that decision that they’re going to externalize their life, kind of, turning it into the case itself.
DS I have people come to me frequently, very, very worried that they’re having received mental health care, either prior to a divorce or custody action being filed, or needing it when it’s initiated because of the stress of it. And they’re very worried that mental health care, whether it be treatment, or treatment and medication, will be viewed negatively. What is your sense about how individuals seeking mental health care impacts the decision maker?
JB What I say about that is that there are two kinds of people in child custody proceedings. There are those who’ve received treatment and those who need to receive treatment. And I say that not being funny. The process of having much of your time with your child wrested away from you by a legal process is extremely traumatic. It’s traumatic for you. It’s traumatic for the other adult and it is traumatic for the children. And either you need help yourself or you need help in learning how to help your child cope with that. So the people that I am concerned about are the ones who recalcitrantly say they don’t need it, that that’s the furthest thing that my ex-partner needs treatment, but I sure don’t. So kind of the opposite is the reality for me and honestly for most of the judges I know who have a background and understanding psychology and psychiatric issues.
DS What piece of advice would you give couples, families, who are considering divorce and separation and entering into the legal system?
JB Well, this probably isn’t gonna go over very well with the family bar, but it is don’t do it if you can help it. And I know that’s what all the good lawyers tell their prospective clients as well. And we make a joke about that, but it’s the reality. Reality is that this is no place to be if you can keep from being here. Understand my job is to get you through this process and to divide up what you have and divide up your time with your children. And that’s going to happen and it’s going to happen in a somewhat impersonal and rough and probably not to your liking way. If you can do that on your own. And you can do it in a way that you can live with, whether it’s with a lawyer, mediation, whether it’s without a lawyer mediation, whether it’s with trusted friends or advisors, like through churches or whatever. Even if you end up using a lawyer and you go through the court system, if you can resolve some of those issues, especially regarding children, please do that. Don’t put me in charge of deciding what your relationship with your children is going to be like, because as thoughtful as I believe I am about it, I’m not going to do it the way you want. I will promise that I can’t do it the way you want. I sometimes make a joke that a judge’s satisfaction rate tops out at 50%. It’s usually a lot lower than that. And it’s because we do things because we believe they’re right. And they’re almost always in a way that neither side is happy with it. Please resolve those things, especially as it relates to children as quickly and as amicably as you can. And the second thing is get yourself some treatment. Please get yourself some treatment. Talk to somebody. And it doesn’t have to be going to a psychiatrist or a psychologist, go to any of the mainline Christian churches. There’s Stephen Ministries. And the same kinds of things are available at synagogues and at places of worship everywhere. And if that’s not your thing, then go to, you know, seek out community help. There’s community help for it. Please do that because you need someplace to talk about it. You can’t talk to your partner about it because you’re divorcing. And you can’t talk to your children about it because you’re going to harm them. So you need somebody to talk to, not your mom or your sister who’s always going to take your side, somebody who’s going to be able to give you some real advice,
DS Here, here. And we always tell people that they deserve support.
JB Absolutely.
DS Not that they need it, but they deserve it, that this is a very difficult process. Judge, I want to thank you for your service to the citizens of Fulton County, to all the families, to our listeners, and for giving us your time right now. I see that you’re seated inside your chambers, even amidst the pandemic. So we do so appreciate it. Thank you very much.
KF Yes, thank you so much. It was great talking to you,
JB Kristen and Dawn, I appreciate it very much. And one of the joys of being a judge is that I get to have great lawyers practice in front of me and you two are among those. So it’s always a pleasure to have great lawyers bring cases in front of us and your service to our community and your service to the law is to be applauded. And your service to our community in doing this is to be applauded as well. So thank you very much for that. And thanks for the opportunity to talk to you. My best and best wishes and health to everybody who hears this.
KF So thank you for joining us on this episode. We really hope that our discussion today can help at least provide a framework on how to reduce some of the damage and trauma that comes with separation, naturally. Judge Brasher made an excellent point at the end about one way to reduce that trauma is trying very hard to make these decisions for your family, as a family, as opposed to relying on the legal system to do it for you.
DS And I think we wholeheartedly agree with that. You know, it certainly would mean we would not have a job if folks did not go forward in court. That is an ideal world for me, right? Where I can just maybe knit, do puzzles, and deliver food. I think it would be great because I do not think the justice system is a place for families to get justice. So I really encourage folks to listen to that.
KF I hope that some takeaways that people leave with today, we are acknowledging, because one, we have been through separations and we work with clients who are going through separations, that this is a very hard and traumatic process to unravel a relationship.
DS And if you’re at the beginning of the process, don’t trust that you’ll be operating at your best. In fact, you won’t be. This is an emotional process. The short dopamine hit that you get from posting something that you believe to be true is not worth the long term damage that you will do from posting it to your kids and their relationship with your ex, their other parent.
KF Thank you so much for listening today and we’ll see you for the next episode.
DS Thank you for joining Untying the Knots and thank you to Judge Brasher.
KF To find articles and resources on how to disengage in a healthy way, check out the American Psychological Association website at www.apa.org and search “healthy divorce.” Check out the American Bar Association website for helpful articles such as What Your Children Need Now, A Divorcing Parents Handbook. It’s published by the American Bar Association and available for purchase at Americanbar.org. If you’re embarking on the journey of divorce, please consult the American Academy of Matrimonial Lawyers, which has helpful publications such as The Divorce Manual. And you can find this and more at aaml.org. If you would like to know more about the topic we discussed today you can find show notes and resources on our website which will be linked in the episode description.
DS “Untying the Knots” is a production made in partnership with FRQNCY Media. I’m your host, Dawn Smith.
KF And I’m Kristin Files. Enna Garkusha is our producer. Peter LoPinto is our editor. Episode research is by Jessica Olivier, Becca Godwin and Vincent Mitchell. We are recording in Atlanta, Georgia during the pandemic. We want to thank all essential workers and those who are doing their best to keep us healthy and safe.