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For family lawyers: when to suggest discernment counselling to a client

Discernment counselling (spelled discernment counseling in the US) was developed with family lawyers and a family court judge, for clients who are not as certain about divorce as the legal process assumes. It may fit when a client is leaning towards divorce but has not decided, and their spouse wants to try to save the marriage. It does not fit where there is fear, violence or coercion, or where the decision is final. It runs alongside legal advice, not instead of it.

Written by Lucy Orton, MSc, PGDip, DipCouns, registered counsellor (ACA #27921), founder of The Centre for Intensives. Last reviewed .

Where discernment counselling came from

Discernment counselling, spelled discernment counseling in the US, has its origins in family law. In 2008, Bill Doherty, a family therapist at the University of Minnesota, began a research and intervention project with a family court judge and a group of collaborative divorce lawyers. They had recognised that their profession lacked systematic ways to assess ambivalence about divorce and interest in reconciliation among clients.

Research from that project, with parents already in the divorce process, found ambivalence and mixed agendas to be common, even after filing. The lawyers wanted a service they could suggest to these clients. Many had already been through couples therapy, and at least one spouse was often unwilling to try again. Discernment counselling was developed to fill that gap, and the lawyers in the group helped to name it.

What it is, briefly

Discernment counselling is for couples where one spouse is leaning out of the marriage and the other is leaning in. The published model involves:

  • One to five sessions, the first two hours and later ones an hour and a half
  • Mostly separate conversations between the counsellor and each spouse, with a short structured summary shared after each
  • A decision at the end of each session, by each spouse, about whether to continue
  • A choice between three paths: stay as things are for now, separate or divorce, or six months of couples therapy with divorce off the table

It is not couples therapy, and it does not give legal advice.

Signs a client may be ambivalent

Lawyers are often the first professionals to hear that a marriage is ending. Some signs that a client may not have finished deciding:

  • They describe the divorce as something that is happening to them, or that they "probably" want
  • They ask more about what might happen than about how to proceed
  • They mention that their spouse wants to try counselling, or that they themselves have not tried it properly
  • They return repeatedly to how things were, or to one event that changed everything
  • Their instructions shift between meetings

None of these means a client should not divorce. They may mean the decision is still open.

When a referral may fit

A suggestion of discernment counselling is most likely to fit when:

  1. Your client is leaning towards divorce but has not made a final decision, and their spouse wants to try to save the marriage
  2. Or your client is the spouse who wants to save the marriage, and the other spouse is unsure
  3. There is no fear, violence or coercion in the relationship
  4. There is no urgent legal step that cannot wait for a short pause

In the developers' account of 100 couples, about half had already seen a divorce lawyer before they began. So a lawyer's suggestion is a common and natural route in.

When it does not fit

Discernment counselling is not appropriate where:

  • Either spouse is afraid of the other, or there is a risk of violence or coercion. Discernment counsellors screen for this separately with each spouse before beginning.
  • One spouse has made a final decision to divorce and wants a setting in which to help the other accept it. The developers explicitly exclude this use, which they call closure counselling.
  • Both spouses already want to work on the marriage. Couples therapy is the better route.

How it relates to your work

Discernment counselling runs alongside legal advice and does not replace it. The counsellor does not advise on money, property, children's arrangements or procedure, and does not share what clients say without their consent.

If a couple chooses to separate, discernment counselling helps them set out principles for how they want to conduct the divorce, for example with respect and with the children's needs first, and connects them with professionals who support a constructive process. A small study of people who divorced after discernment counselling found that participants described it as helpful for reaching clarity and honesty about the decision, and said it led to more cooperative co-parenting afterwards. The study was small, with eleven participants, and relied on their own accounts.

Suggesting it to a client

There is no set wording, and lawyers will have their own way of raising it. Some find it helps to present discernment counselling as a short, structured way to be sure about a decision of this size, not as a suggestion that the client should stay married.

This article is general information for professionals, not legal advice.

Common questions

Does a referral to discernment counselling delay the legal process?

It can add a short pause, as discernment counselling runs for one to five sessions. Whether a pause is appropriate, and how it affects any proceedings or deadlines, is a matter for the lawyer and client.

Will the discernment counsellor share information with me?

Not without the client's consent. Discernment counselling is confidential within the limits the counsellor explains at the start, and its focus is the relationship, not the legal case.

Can I refer only my client, if the spouse is represented elsewhere?

Discernment counselling needs both spouses to take part. In practice, the suggestion usually reaches the other spouse through your client, or sometimes through their own lawyer.

Is discernment counselling the same as reconciliation counselling?

Not quite. It does not assume reconciliation is the goal. Its aim is a clear and confident decision, which may be to separate, to wait, or to try six months of couples therapy.

Lucy Orton is trained in Discernment Counseling through the Doherty Relationship Institute and offers it internationally and online. She speaks with each partner privately before anything is booked.

Discernment counselling at Couples Awaken

References

  1. Doherty, W. J., Harris, S. M., & Wilde, J. L. (2016). Discernment counseling for ‘mixed-agenda’ couples. Journal of Marital and Family Therapy, 42(2), 246-255. doi:10.1111/jmft.12132
  2. Emerson, A. J., Harris, S. M., & Ahmed, F. A. (2021). The impact of discernment counseling on individuals who decide to divorce: Experiences of post-divorce communication and coparenting. Journal of Marital and Family Therapy, 47(1), 36-51. doi:10.1111/jmft.12463
  3. Doherty Relationship Institute. Discernment Counseling. discernmentcounseling.com

If you feel unsafe with your partner or are afraid of them, couples work and discernment counselling are not the right starting point. Please contact a domestic abuse service or local emergency services.

This page is general information about intensive therapy. It is not a substitute for individual assessment or advice, and reading it does not create a therapeutic relationship. If you are in crisis or at risk of harm, contact local emergency services or a crisis line now. How these articles are written and checked: our editorial standards.

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