When Clients Are Ambivalent About Divorce: A Guide to Discernment Counseling for Lawyers and Mediators

Clients who consult divorce lawyers and mediators have not necessarily made a final decision about ending their marriages. Some remain genuinely uncertain about whether divorce is the right path. This uncertainty, known as divorce ambivalence, can prolong the divorce process, complicate decision-making, and draw divorce professionals into the emotional work of helping clients decide if they want to divorce. Traditional couples therapy is often poorly suited to these couples because one or both partners may not want to work on fixing the marriage at that time.

Discernment Counseling is a brief, structured process – just one to five sessions – that was specifically designed for divorce-ambivalent couples. Its purpose is not to fix the marriage, but to help couples gain greater clarity and confidence about the way forward: whether to proceed with the divorce or make one last effort to restore the marriage. When the outcome of this counseling is a decision to divorce, the couple can return to their lawyers or mediators with greater clarity about that decision and greater readiness to engage in the divorce process.

1. The Divorce Ambivalent Client

It was Marty’s second meeting with his new client Shelly, and as Shelly shared her misgivings about divorcing Tim, her husband of 25 years, Marty recalled a scene from the movie Hell or High Water. In the scene, this crusty old waitress, paper pad in hand, stands ready to take lunch orders from Marcus and Alberto, the two Texas Rangers in her diner.

“So what don’t you want?” she asks them.

Marty could relate because in his legal practice as in the diner, there weren’t but two choices: you’re either divorcing your spouse or you aren’t.

There were cases, of course, when Marty had some doubts about divorce as a first recourse, and he’d then suggest the client try speaking with their spouse again or consider couples therapy. But in most instances, the client had already done both.

As Shelly’s account veered into self doubt, Marty felt his muted impatience morph into irritation. Irritation because he recalled what Shelly had shared in their first appointment about Tim: the months stretching into years during the pandemic when he all but disappeared into his office in the basement of their house while Shelly was left to deal on her own with the cascade of crises from their two kids, all of which was then followed by her discovery of his flings with random women.

And now that their kids were recovering and that Shelly’s architecture business was picking up again, Marty thought it was a no brainer to jettison this guy who brought so little to the table as a spouse, father, or provider.

“I know the cheating’s on him. That there’s no excuse for it,” Shelly said. “I’ve told our friends about what happened and they’re all on my side. But they don’t know about all the times I yelled at him. In front of the kids…” Shelly added and paused. “I mocked him,” she said. “Because he made so little money.”

Marty knew he could help Shelly with her divorce, but he didn’t know what to do about these doubts of hers.

2. What Is Divorce Ambivalence?

Shelly’s presentation is a familiar one to divorce professionals. Some clients go back and forth about divorce repeatedly, sometimes within the same conversation. In one moment they sound determined to end the marriage and the next, they fear the divorce is a terrible mistake.

In research on divorce, this uncertainty is called divorce ambivalence, a phenomenon Professor William Doherty at the University of Minnesota and his colleagues have studied for many years.

In their research, participants who were getting divorced were asked which of the following statements most closely matched their attitude toward divorce:

1. I’m done with this marriage; it’s too late now even if my spouse were to make major changes.
2. I have mixed feelings about the divorce; sometimes I think it’s a good idea and sometimes I’m not sure.
3. I would consider reconciling if my spouse got serious about making major changes.
4. I don’t want this divorce, and I would work hard to get us back together.

To provide context for these percentages, the CDC’s National Center for Health Statistics reported 672,502 divorces and annulments in 2023 among the 45 reporting states and the District of Columbia.

3. What Is a Mixed Agenda Couple?

In cases where both partners to the marriage are ambivalent about ending their marriage, many such partners nonetheless have different agendas, with one partner leaning toward ending the marriage, like Shelly, the “leaning out” partner, and the other partner leaning toward giving the marriage one last chance, the “leaning in” partner.

Doherty refers to couples where both partners are ambivalent but still have different agendas as mixed agenda couples.

For both the leaning in client and the leaning out client, unresolved divorce ambivalence does not remain confined to their emotional life. It can become a feature of the legal representation itself.

A leaning out client who has not reached a settled decision may repeatedly authorize and then reconsider legal steps, postpone decisions, change settlement positions, or spend substantial portions of meetings processing whether divorce is really what they want.

A leaning in client may resist providing information, delay responding to proposals, or otherwise struggle to participate in a process whose fundamental objective, the dissolution of the marriage, they continue to oppose.

In either case, the divorce professional can gradually get pulled into a role for which they were never retained: helping the client decide whether or not to end the marriage.

With such clients, divorce professionals will sometimes recommend couples counseling. But couples counseling is poorly suited to mixed agenda couples because a basic assumption of such counseling is that both partners want to work on improving the relationship.

That is not necessarily the case with a mixed agenda couple when the leaning out spouse has one eye on the exit.

Before these couples can work on their marriage, they need help deciding whether they want to work on it at all.

4. What Is Discernment Counseling for Mixed Agenda Couples?

Discernment Counseling is a service that can help mixed agenda couples gain clarity and confidence about the way forward.

Discernment Counseling is not couples therapy because the goal is not to fix the marriage. The goal is to help the couple decide whether the marriage is worth trying to fix.

Couples are screened to determine their eligibility for this kind of counseling, and the counseling process is structured and brief, consisting of no more than five sessions.

The goals of Discernment Counseling are to gain clarity and confidence about:

1. What happened to the marriage.
2. Each partner’s individual contribution to the marriage’s problems.
3. The direction for the marriage.

Both partners must affirmatively decide to meet again at the end of each session. At the end of the process, they must decide on one of three paths.

There are no “bad guys” in Discernment Counseling because Discernment Counseling honors both the significance of the marital commitment and the importance of individual autonomy.

In contrast, the leaning out spouse can look like “the bad guy” in couples therapy because they’re ambivalent about putting work into the marriage. In divorce proceedings, it is the leaning in spouse who can look like “the bad guy” because they’re resistant to the process.

Success in Discernment Counseling means that the couple has arrived at clarity and confidence about the direction of the marriage.

The counseling is not successful only when a marriage is preserved. If both partners emerge from the process with clarity and confidence that their marriage is over, the counseling process can also be considered successful.

Both partners can then bring that clarity and confidence to divorce negotiations, decisions about parenting and finances, and their collaboration with attorneys and mediators.

5. How Divorce Lawyers and Mediators Can Recognize a Potential Referral

When meeting new clients, Doherty recommends that divorce professionals assess for divorce ambivalence by asking which of the four attitudes described above most closely matches the client’s current outlook on divorce.

Alternatively, divorce professionals can ask questions such as:

Signs a Client May Be Ambivalent About Divorce

Responses like the following can reflect some ambivalence about ending the marriage:

• “I don’t know if I’m making a terrible mistake.”
• “If she really changed, maybe I’d reconsider.”
• “How do people know when they’ve really tried everything?”
• “My therapist thinks I should leave. My friends think I should leave. I just don’t know.”
• “What happens if I start the divorce and then decide I don’t want it?”
• “From what I’ve told you, does this marriage sound over to you?”

How to Introduce Discernment Counseling to a Client

If your client’s responses reflect divorce ambivalence, consider raising Discernment Counseling as follows:

“I’m not suggesting that you should or shouldn’t get divorced. That’s ultimately your decision. But I’m hearing that you’re still uncertain about whether divorce is what you want. There’s a short term process called Discernment Counseling specifically designed for couples when one or both spouses are uncertain about the direction for the marriage. It isn’t couples therapy, and its purpose isn’t to persuade you to stay married. Its purpose is to help you become clearer and more confident about which direction you want to take with your marriage. The process is brief: one to five sessions, and you decide at the end of each session if you want to go back.”

6. When and How to Refer a Client to a Discernment Counselor

Not every client who is distressed about divorce is divorce ambivalent.

Grief, anger, anxiety, guilt, or fear about the consequences of divorce are normal feelings even when a client is firmly committed to ending the marriage.

The client for whom Discernment Counseling may be helpful is therefore not simply a client who is anguished about divorcing, but a client who remains uncertain about whether they want to pursue divorce at all.

In the end, Marty’s job is to advise Shelly competently about her legal rights and to present her with a legal approach and strategy that safeguards those rights best.

But like a surgeon whose patient has significant knee arthritis but who has not yet made a final decision about knee replacement surgery, divorce professionals encounter many new clients who have scheduled and shown up for their appointments but have not yet made the final decision to end their marriage.

Discernment Counseling is an intermediary service where divorce professionals can refer these divorce ambivalent clients so they can gain greater clarity and confidence about the direction of their marriage.

If their eventual decision is to proceed with divorce after completing Discernment Counseling, they can return to their attorney or mediator with that clarity and confidence.

Resources for Divorce Professionals

Free online training for lawyers, mediators, and other divorce professionals is available at DiscernmentCounseling.com.

A directory of trained Discernment Counselors is available at DiscernmentCounselors.com.

References

1. Doherty, W. J. & Sears, L. W. (2011). Second Chances: A Proposal to Reduce Unnecessary Divorces. Institute for American Values, 16–17.
2. Doherty, W. J., Willoughby, B. J., & Peterson, B. (2011). Interest in reconciliation among divorcing parents. Family Court Review, 49, 313–321.
3. Hawkins, A. J., Willoughby, B. J., & Doherty, W. J. (2012). Reasons for divorce and openness to marital reconciliation. Journal of Divorce & Remarriage, 53, 453–463.
4. Doherty, W. J., Harris, S. M., & Didericksen, K. W. (2016). A typology of attitudes toward proceeding with divorce among parents in the divorce process. Journal of Divorce & Remarriage, 56, 1–11.
5. Doherty, W. J., Harris, S. M., & Wilde, J. L. (2016). Discernment Counseling for “mixed agenda” couples. Journal of Marital and Family Therapy, 42, 246–255.
6. National Center for Health Statistics, Centers for Disease Control and Prevention. Provisional Number and Rates of Marriages, Divorces, and Annulments: United States, 2000–2023.