Forcing a Spouse into Counseling During Divorce?

This question came up over a lunch with some associates: if someone is going through a very rough divorce, and their spouse is obviously acting out of spite and malice and with zero empathy, should the two attempt to use counseling to make the divorce process less horrible?

The answer to this question is pretty obviously yes, so the question rapidly shifted: should either spouse be able to force the other to go to counseling with them for the same reason?

Rather than give my (possibly overly controversial) opinion on the matter, let’s talk about what would actually happen if, during a nasty divorce, one spouse tried to force the other into counseling. The first step would be to present a motion to the judge, essentially asking him or her to create a court order that enjoined the two to see a counselor together. The judge would then decide whether or not that order was going to meet the goals of a divorce proceeding.

Now, each judge is a human being, and thus it’s impossible to say with certainty how the judge would rule — but there are some pretty powerful legal reasons why the judge would deny that motion out-of-hand. First and foremost, the two of you are getting divorced already — the court’s job isn’t to improve your relationship; it’s to end it.

The Exception
That said, there is an entity that can flip that entire notion on its head: a child. If you and your spouse have one or more children and it’s clear that your spouse’s behavior is detrimental to your child’s well-being, a judge has to balance the potential impact that counseling might have on your child’s life. If the judge believes that, by sending the two of you to a counselor, they can encourage your spouse back into the role of willing co-parent, they will have to strongly take that into account in deciding whether or not to grant the motion.

Alternative Ways to Seek a Smooth Divorce
If you don’t have children (or you’re uncomfortable using them as leverage to attempt to force counseling onto the table), you still have valid alternatives. The State of Michigan accepted the Uniform Collaborative Law Act in December of 2014, meaning that (among many other things) it’s now possible to seek a ‘collaborative divorce’ in our state. The process of a collaborative divorce attempts to remove the adversarial nature of a typical divorce proceeding and focuses on using mediation and counseling to achieve a settlement that is equally annoying to both spouses.

Of course, collaborative divorce is something that both participants have to agree to, so there’s no guarantee that you would be able to take that path, either. Unfortunately, as much as it would be wonderful to be able to force other people to play nice or do the right thing, the law supports our freedom to be a jerk just as much as our right to be free of jerks.