Discernment counselling before divorce: should we see a therapist or a lawyer first?
Discernment counselling (spelled discernment counseling in the US) is designed for the point before a divorce decision is final, when one partner is leaning out and the other wants to try. If that describes you, seeing a discernment counsellor first lets the decision about the relationship be made before legal positions form. If you need urgent legal protection, or the decision is already made, a lawyer comes first. The two are not exclusive, and many people speak to both.
Two different questions
A discernment counsellor and a divorce lawyer answer different questions. Discernment counselling, spelled discernment counseling in the US, helps a couple answer: should we try to save this relationship, separate, or wait? A family lawyer answers: if we separate, what are my rights and obligations, and how should the process be handled?
Both questions can be urgent at the same time. The order in which people address them can make a difference to what happens next.
What the research suggests about the order
Discernment counselling has its roots in the legal world. Its developer, Bill Doherty, began the project that led to it in 2008 with a family court judge and a group of collaborative divorce lawyers. They had noticed that many of their clients were less certain about divorce than the legal process assumed. Research from that project, with parents in the divorce process, found ambivalence about divorce and interest in reconciliation to be common, even among couples who had already filed.
In the later account of 100 couples who went through discernment counselling, about half had seen a divorce lawyer before they started. Prior contact with a lawyer was the only intake factor linked to which path a couple chose. Of couples who had seen a lawyer, 55% chose divorce and 31% chose to try reconciliation. Of those who had not, 27% chose divorce and 52% chose reconciliation.
That finding needs care, because it does not show that seeing a lawyer causes divorce. People who have already seen a lawyer may be further along in their decision. It does suggest that by the time legal steps have begun, positions may have hardened, and that a decision about the relationship is easier to make while it is still open.
When a discernment counsellor first makes sense
Seeing a discernment counsellor first is likely to fit when:
- one partner is leaning out but has not made a final decision
- the other partner wants to try to save the relationship
- the partner who is leaning out is reluctant to start couples therapy
- neither partner is at risk and there is no urgent legal deadline
In this situation, discernment counselling gives both partners a structured way to decide, over one to five sessions, before legal processes take their own momentum. If the couple chooses to separate, discernment counselling helps them agree how they want to behave during the separation and connects them with professionals, including lawyers, who support a constructive divorce.
When a lawyer first makes sense
Legal advice should come first when:
- anyone is at risk of harm, or there are urgent questions about the safety of children
- there is a pressing legal deadline, or a risk that assets will be moved or hidden
- one partner has already made a final decision to divorce
- you need to understand your legal position before you can think about anything else
Discernment counselling is not designed for a partner who has already decided and wants help for the other to accept it. Its developers call that use closure counselling, and the method deliberately excludes it.
Doing both
Many people speak to a lawyer and a discernment counsellor around the same time, and the two need not conflict. Some practical points help:
- Be clear with yourself about why you are seeing a lawyer. Understanding your position is different from starting proceedings.
- Think about how your partner will learn of it. Discovering that a partner has instructed a lawyer can harden positions quickly.
- Keep the conversations separate. Discernment counselling is about the relationship. Legal advice is about the consequences of ending it.
- Tell the discernment counsellor at screening if legal steps are already under way, so the timing of sessions can take that into account.
If you are unsure where you stand
If you are not sure whether you have decided, that uncertainty is itself a reason to consider discernment counselling. The process exists for people who are leaning out but not certain, and it treats that ambivalence as something to work with, not something to overcome.
This article is general information, not legal advice. For advice about your own situation, speak to a family lawyer where you live.
Common questions
Will seeing a lawyer commit me to divorce?
No. Taking legal advice is not the same as starting proceedings, and many people want to understand their position before deciding anything. It can, however, change how a separation feels and how your partner responds if they find out, so it is worth thinking about how and when you do it.
Can we do discernment counselling after one of us has filed?
Yes, if a final decision has not been made. Discernment counselling was developed partly because research with divorcing parents found that ambivalence about divorce was common even after filing.
Does a discernment counsellor give legal advice?
No. A discernment counsellor helps a couple decide about the relationship. Questions about money, property, children's arrangements or the legal process belong with a family lawyer.
What if my partner has already seen a lawyer and I have not?
That is common and does not rule out discernment counselling. If you feel you need to understand your own legal position before you can think clearly about the relationship, it is reasonable to take advice too.
Lucy Orton is trained in Discernment Counseling through the Doherty Relationship Institute and offers it internationally and online. A private screening call with each partner comes before anything is booked.
References
- 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
- 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.