When Abusers Weaponize Divorce Courts, with Dr. Whitney Danso

Hello there. Going through a divorce considering one. Sorry to hear that. But here you are. Welcome to Splitsville. You'll find Splitsville to be a pretty unique place, a new world really with its own rules, its own expectations with in many ways its own language. But don't worry, you have a knowledgeable guide along the way. And now here she is.

Well listeners today in our newest episode of Welcome to Splitsville, we are welcoming Whitney Danso. She has a PhD in clinical psychology and she is a licensed psychologist in both North and South Carolina. And we're excited to have her here today because she's been doing some work and helping educate a lot of us in the divorce and separation law space about sort of a phenomenon is what I'm calling it, of litigation abuse, which is an extension of the type of abuse that some people suffer in their marriage with either domestic violence or coercive control or some of the difficult marriages out there where there is just a gross power imbalance and how the legal system is sort of a continued tool. And this is something that has been somewhat new to a lot of US attorneys in this space to kind of learn about this. And when I first heard about it, I felt like it was so important that we all be more educated on it, but also that people that are getting ready to go through a divorce and separation become a little bit more educated on it. So Dr. Danso, thank you so much for coming. Tell the listeners a little bit about yourself.

So as you mentioned, I'm a licensed psychologist. My area of expertise is trauma and domestic violence. So I spend a lot of time working with and evaluating individuals who have had various traumatic experiences and then looking at how those experiences impact their behavioral responses, whether it be in their day-to-day life or as it impacts legal situations, whether that be in family court or criminal court.

Well, what led you to, I'm not going to say this niche, but led you to learn more about this concept of litigation abuse.

The interesting thing about litigation abuse is that when you work with clients clinically, you come across families who are divorcing. You talk to one member of a spouse, you see a family kind of head in that direction, you see children. And so litigation abuse became something that I started noticing when I was seeing more therapy clients. They were going through really nasty divorces and it wasn't just the typical aggressive kind of litigation that is just a part of the family court process, but it became much more, it became an extension of dynamics that were described as abusive during a relationship and had such a significant impact on clients much more than you would see just the typical stressors that come from going through a divorce. And so that really piqued my interest and so I did a lot of research and spent a lot of time reviewing literature. Sadly this is a newer area in the field of psychology as well. Finally starting to draw the connections between coercive control and domestic violence and some of how those patterns of behavior can continue and then how it shows up in the legal system.

For people that may not have heard the concept, people have heard the term domestic violence, but not everyone, if they haven't had the opportunity to work with a therapist or sort of enter that space, have heard the term coercive control. Can you define that a little bit for listeners?

Yes. So coercive control came out of the earlier literature battered person syndrome with Lenora Walker learned helplessness theory. There's pieces that drive our understanding of domestic violence today. And so coercive control is a little bit of a more broad concept beyond the physical abuse that we think of with domestic violence, but looks at controlling pattern of behavior that's meant to dominate, isolate, and really keep a person stuck in that dynamic. The physical abuse that can come up in these relationships is oftentimes used as an enforcement. So a lot of times when we think of domestic violence, we think of it as first physical abuse kind of these other behaviors follow. But I think based on the things that I've seen in working with clients, it's first this coercive control and then we see that those physical episodes of violence is a way to further reinforce you're stuck and you have to do what I want you to do.

So one thing I wanted to, before we get too far into it is just to clarify, when I work with clients, we talk about the various types of ways to resolve separating and divorcing a significant other. And there are going to be people that aren't married, so it could just be a separation and they could have children in common. And so their dispute is about children, but we have multiple ways. We have mediation, we have arbitration, we have collaborative divorce, and of course we have litigation. And the litigation part is where we're taking the clients out of an arena where they're making their own decisions and we're starting to advocate them in a court of law in front of a third party who's going to make those decisions. So we go through that. So when we're talking about litigation abuse, I'm really thinking about it in terms of when we have attorneys involved, we have cases in court, we have judges involved, we have those decision makers.

The more formal construct of divorce and separation, not the more we call collaborative cooperative ways of people trying to resolve it without a third party. All litigation is adversarial. So if you have an attorney and you've chosen or you have been thrust into the only option of that you're having to work with a judge, that whole process is adversarial and stressful for everybody involved and feels like a constant attack on you. So almost anybody going through a litigation process is going to have stress and related hard feelings about the other attorney and the process. It's not a pleasant place to be and we try to navigate outside of that as much as possible for people. But that's not litigation abuse. There's a difference between aggressive advocacy and litigation abuse. Can you explain that a little bit?

Yes, absolutely. And it's such an important concept because it's very easy to, especially in a situation, it's as stressful as going through family court and that adversarial process to view everything as abusive. But what we really see is with litigation abuse at times is a continuation of abuse that was occurring within the relationship, whether it was a marriage or whether it was parents kind of parenting together without that marriage piece. And so we see a continuation of that. So the same kinds of tactics that were being used within the relationship then carry into the family court arena. There's also cases where there may have not been as obvious abuse or coercive control within the marriage or within the relationship, but we see more of an increase in those behaviors after litigation begins. And what really makes litigation abuse different than the stress that just comes from family court and divorce and custody is that litigation abuse has that same pattern of the continual push for creating feelings of feeling trapped, feeling stuck, feeling not believed.

And so we see things like false filings, we see false allegations and not false allegations where there's true concern and it's true advocacy and ends up not being something that needs to be addressed. These are things like filing for sole custody when there's no real good reason to file for sole custody or submitting private pictures or videos under the guise of it being evidence as a way to humiliate or embarrass the other party. Those kinds of things that have nothing to do with truly advocating for yourself and your children or your family. It kind of takes that step forward to create fear and concern, confusion, distress.

And from some of the things that you've mentioned, I can see where there would be opportunities where an attorney could be unwittingly used as a tool in this litigation abuse. For example, someone says, I don't know that someone's having an affair or that they have a drug addiction or they come to me with those kind of complaints. Typically as an attorney, we believe our clients are bringing us the truth and we do some vetting, but I mean we don't just dismiss them out of turn when they come to us with these concerns about the other side. And so I can see where an attorney could be utilized to perpetuate the discovery and the invasive maneuvers to get evidence of conduct that we've been told exist, whether it does or not.

Yes, absolutely. And so I think lawyers can really be helpful in that process by slowing down a little bit. So if you have a client that's bringing complaint after complaint after complaint and it seems like the complaints keep morphing, the original concern is now shifted into 15 different other things, they pausing and looking at where is this coming from? What's prompting these shifts and concern? Is there anything to really grounded in reality? Sometimes in these situations, even if it's not intentional false claims, I think clients sometimes can get really overwhelmed the other side's out to get you. And so there's that piece of looking for or being kind of feeling more suspicious than you might be in a more collaborative process. And so really being intentional about slowing down and looking at full context versus just those individual accusations that are being made or being brought up throughout a case.

And so, and this would be both for attorneys or party. So if you're a party in litigation and you're starting to feel like that your spouse or your significant other former significant other is misusing the litigation process, what should they be looking for? What should they do if they're starting to question it?

So I think looking for patterns and I think one of the best ways to really see if there is a pattern there is to document and not necessarily document because it's going to be presented in court, but just something to really anchor yourself to see is this something that's happening over and over and over again looking at what is the context, what is the situation, what is the impact that it's having on you, and then what are the consequences of that? Oftentimes you'll see some of these situations lead to an individual having to go into court more, so they're missing work, they're being fired from jobs, they're financially being impacted by repeated filings. So those kinds of things and tracking that so that you can sit down with your attorney and be able to present, okay, here's what I think is going on here is the information, the kind of things that I've been noticing so that they can help you look at that further and decide whether it's an avenue to explore.

So really communicating with your attorney the impact that the filings are having and questioning the legitimacy or what would the person asking, what is the other attorney hoping to gain or hoping to learn from this behavior? What is a legitimately end result that you see? And really ask those questions, make sure your attorney is asking those questions. Going back to where you were talking about the abusive marriages and abusive relationships being about making people feel unsafe or tied or trapped in a situation, it seemed like it's a way of extending it to go, you're not even safe with an attorney, you're not even safe within the court process. I can still control your life even though you're not living. You think you're away from me, but you're still not safe. Your attorney can't do anything to stop me. The judge can't do anything to stop me.

That's actually commonly referred to as institutional betrayal. So there's this belief for a lot of people who have experienced abuse in a marriage or in a relationship that once they finally have the courage to leave that relationship and they're seeking support through the court that it's going to be there to help. And while it certainly is there to help, a lot of times there's the misunderstanding or there's not quite that full piece of knowing that there is a piece of judicial neutrality and that piece of having to follow the rules and what the courts is expecting. And I think that can be very unexpected for somebody who expects the court system to protect them

To work,

Yes to work. And so there's oftentimes that expectation and they feel further violated. So they go in going, oh, finally going to be bleed and finally going to be helped and there's going to be stop to this. And it just feels like it keeps continuing with every motion that's filed with every hearing that happens, that can definitely further that feeling of betrayal. And then when you mix that in with things like distress being misunderstood, there's a lot of research that talks about the way family court responds to men and women in different ways with different presentations. And so in situations where men are being impacted with litigation abuse or there's elements of course and control in their relationships, they're oftentimes not believed at all because men can't be victims of domestic violence, which is nothing can be farther from the truth. Despite a lot of early research really focusing on women, I am really missing that there's just as much research now. This is that men can also be abused in their relationships for women seen as overemotional and irrational. And so if you're having a hard time presenting yourself in a way that seems kind of balanced and appropriate for the forum of court, it can be really hard to be taken seriously.

That would make sense. And you've worked with a lot of the clients that are going through this, so what would you tell attorneys would be something that could help a person who is from an abusive relationship help them navigate this legal process with feeling a little bit more secure and protected?

Anytime we can increase a person's sources of support, that's going to have a huge benefit. So encouraging your clients to spend time with friends, join support groups, be social, be connected. Those are going to be things that are going to help reduce the impact kind of act as a buffer so to speak. There's also pieces of things like rehearsing or role-playing, what it will be like to be in court or what a hearing, what to expect in a hearing to take away some of the nervousness that naturally comes with going into an environment that you're unfamiliar with and not sure what to expect in situations that are really severe. If there's the opportunity to use for court hearings, it gives that physical space. There's not the waiting outside to be called in and not kind of having to face each other. That can really be a helpful thing and provide an additional layer of safety for clients.

And I wonder if even just going to watch other hearings.

Definitely, yeah, definitely being able to see what that process looks like anytime. Also that there's a connection with a really good therapist, a balancing act, right? Because as therapists, we really want to push our clients, but we also want to support them and we want to validate their experiences. And so it's that sweet spot of saying, yeah, this is scary, but not adding onto that fear. And so working with a therapist to be able to talk through that, to be able to talk through what to expect anytime that you've got a therapist that's willing to support an attorney and supporting a client can also be helpful because there's things that we don't know that you guys definitely know and we can kind of work together to help a client with specifics of coping skills and things to get them through those challenging situations.

So for me, there's a little disconnect. I started practicing before. One thing I feel that I see more with the clients is there's a lot of communication we're doing with clients now that is not face-to-face and it's not on the phone, which was the only way we could do it in the beginning. And there's a lot of communication that is coming through email and through written modes, and I'm wondering if someone has been living through the coercive control and now they're starting to feel abused by the litigation, whether it meets any kind of definition or not, but they're feeling abused, do you think that more face-to-face communication or in-person communication is more helpful?

I think so. We lose a lot of nonverbals that are so critical in helping us understand what another person is saying. I think oftentimes as well, you'll get either an individual who has these experiences could be very withdrawn and very, the fight or flight response is something kind of everybody's aware of. There's also freeze and fawn, and so you'll get somebody who freezes. You'll get kind of more of that fawning, yes, yes, whatever you say kind of permissiveness. And you'll also get the other extreme where somebody may be a little more direct and they're taking back their power. They've made this decision to leave and they're very strong in that. And so being able to sit with a client, you'll be able to pick up on those things a little more clearly and be able to use those nonverbals to help inform maybe additional questions that you could ask to help get an understanding of, okay, well where is this advocacy and kind of, no, I'm going to fight for myself. Where's that coming from? What's underneath that? And also when you notice a client shutting down, what's that about? Where's that coming from? There's a lot of times where people think the experiences that they've had are normal or no big deal, and so oftentimes that minimization of experiences can keep clients from speaking up and talking about the extent of the things they've experienced in a relationship that may help attorneys identify abusive patterns as they move through the system.

I know myself just from representing people sometimes I've been working with somebody for a very long time before I start seeing a pattern that they hadn't recognized or I've seen something where I suddenly start looking the text messages between the parties and I'm like, this is not what I consider healthy communication even between people fighting that there's something very off about this communication. Have you spoken to a therapist? Is this normal? They're not describing the person as behaving like that. I start recognizing the patterns of their behavior, so it's not even been identified.

It hides. A lot of that behavior really hides and what seems like normal interaction. So it seems like a helpful gesture if you're out and about and you're not around somebody every day or you don't see the impact of those things long-term, handle the bills, don't worry quickly spiral into financial control or you really need to work on that. Seems like helpful feedback, but when you take into the context of everything you do is being criticized or belittled, eventually it adds up and can really change your perspective of yourself and what you're capable of doing. Again, further allows that control. It's very common for individuals to not see the dynamics and their relationship until it's very clearly pointed out.

And I think that would be the problem with litigation abuse is that because the adversary, there are just attorneys out there that are going to litigate the most adversarial manner that they can. That's the way they've been taught. That's what they believe true advocacy is. It may be the way their whole firm is structured and if there's a motion that can be filed, it's going to be filed. If there's a rock that is on their checklist, turnover going to, and that's just simply the way they practice law. It's uncomfortable for anybody, but it's the way that they do it. I feel like the issue here is more the impact on the party then the behaviors. So what should we as attorneys be looking for to sort of recognize that this litigation is having a different impact on our client or a more, not exaggerated, but a more enhanced impact on our client. What should we be looking for if we're worried somebody is starting to succumb to the litigation,

You start noticing differences in their responses and difficulty regulating the emotions around that. So seeing outbursts may not quite be the right word, but a more of an open display of reactivity. So whether it's anger or whether it's anxiety, fear with anxiety specifically, there are a lot of physiological symptoms that can show up and are really hard to hide. So that's kind shaking, that's noticing that their breathing rate is changing. Those kinds of where the next piece is looking for what's the hyper vigilance piece is kind of what I'm looking for. The anytime you're looking for something, that's the next thing that's going to go wrong, I'd be worried about all those different steps. A piece of that is expected when you're going through litigation, but there's an additional layer of that. It's maybe a little less about the litigation and more about what the other person is doing or how they're going to continue to have that impact.

Also withdrawal. So if your client just seems to fall off the map, they're not really responsive can happen I'm sure for lots of different reasons, but withdrawal is a common thing when someone's feeling very activated and attacked or there's that fear of response. Also looking for the wanting to give up really easily. So if you've had a client that came in and really wants to advocate and really has a strong belief that this is not good for their child or this is not good for their family, and all of a sudden they're like, okay, fine, I don't care. And it seems like a kind of total different direction from what they originally wanted. That may be an indication that they're responding to some coercive control.

In terms of the system that you talked about a little bit, and I'm just asking for your opinion about this because we often are trying in trying to choose whether or not we have people working through collaborative divorce or mediations or something outside the court system, typically we've worried about the fact that if the person didn't have the power and didn't have the strength to meet the other party on the same playing field, like a more level playing field, we used to feel like, well, litigation may be what we need because I'm not sure that the person is going to be able to participate and fight for themselves in mediation and things like that. As I've learned more about the litigation abuse, it's almost made me wonder if you aren't better off with some of those situations, keeping them out of this institutional area and getting them some other kinds of supports that they might need and just sort of avoiding that arena.

I think in general, anytime we can avoid family court, it's probably better. But definitely in the situations with coercive control, I think it definitely is a helpful thing. It takes away the space that an abuser can continue to abuse because it looks procedural. It looks like what they're supposed to be doing is supposed to be advocating for themselves, so it's much easier for those behaviors to hide. Another piece beyond trying to move it out of the courtroom as much as possible is that when it does have to go into the courtroom having the same judge whenever possible, because then you have the same person who's hearing these stories, they're going to be able to identify patterns and be a part of that. They'll be able to see that. It's also seems much more likely that things like accountability when orders aren't being filed or people aren't doing what they're supposed to do, the same judge is hearing. Again, it's a pattern. It's not a one-off thing. And so that can also help protect and minimize feeling of institutional betrayal. It can come up when you're expecting to be supported. You're expecting to be heard for the system to be able to help you, and it doesn't.

I have also found in some of the situations where I feel like litigation abuse is happening in really the hardest ways is I find that the person who wants to perpetuate and use the court system to do it, they usually divest themselves at the intermediator. They get rid of the attorney and then they're allowed to proceed per se because there's no requirement that you have an attorney. And so then they're also hiding under this guise, well, I don't know what I'm doing. And they're filing all of the time and they're doing things improperly and they're serving people and they're moving outside the space and they no longer have an attorney who's going like, well, I don't agree that we need this. I don't agree that we should file this. I don't think you have a very good case for this. The ones that are arguing, no, this isn't necessary, because they're the kind of attorneys that choose not to do something if they don't think it's ethical. Correct. And they do exist more so than the other type of attorney that just litigates I wrote. And then we don't even have that barrier. We don't have that protection anymore of the attorney to do that. Is it harder to deal with the pro se person that's perpetuating with abuse or is it easier for the person when they, because it's familiar.

I think for the individual,

For the attorneys, we hate it.

I think for the individuals on the receiving end who's dealing with the other side, being pro se, it's much more intimidating. The person who you are fearing or the person who has harmed you in the past or is harming you presently is the one actively doing this now we don't have an attorney as a middle person to feel like there's a little bit of space there. Also, the use of the excuse of, I'm not an attorney so I don't know what I'm doing. I think at some point has to be taken off the table. It would be inappropriate to misuse the court system whether or not if you're operating pro se, imagine there's the expectation that you continue to follow the rules of the court, whether you're an attorney or not, if you've made that choice. And so accountability in those situations is huge. Making sure that there are sanctions or that for filings that lead to hearings that waste the person's time and prevents them from working or impacts childcare, creates an additional legal bill for them.

If the person who's pro se they've just lost some time. But for the person who is continuing to work with an attorney and is being impacted by this, it's not just the stress, it's also the life impact or financial impact. It also, it plays a role and research in this area is continuing to develop. You'll see a lot of case studies where people are talking about their experiences of litigation abuse, and this is not just one hearing. These are things where you see it for years, it's over and over and over again and they are desperate for it to stop. But the option of, okay, throw your hands up and you're really concerned about your children, and that's not really an option for a lot of people, but it creates significant financial hardship. It impacts their ability to progress in their career, it impacts their ability to go on with their life.

And those are difficult cases. Those are in my office. I call 'em the lifers and they're the people I've represented from. They come to me, they have toddlers and I'm representing them still in some continued type of litigation. Their children are in high school or going on, and it is exhausting for everybody involved, but certainly for the family, it becomes just part of their routine.

I think oftentimes too, there is the absence of consideration of the impact of those children. Their parents are in constant conflict, they're in constant litigation, and that's not good for a kid. And so kind of growing up in a environment where your family or your parents are always fighting with each other is pretty similar to a bad marriage where kids are being exposed to parents fighting all the time. And so really in those situations, the argument of litigation abuse, it's not just impacting the parents that are involved but also extends and kind of trickles down to children as well.

What would be something, and I don't know that any judges would be watching it, but when we're talking about institutional failures, what is it that judges can do that can help protect parties in this situation?

Education is huge, right? The more we know, the more we're aware of it, the easier it is to know what we're looking for. I think anytime that there's the repeated filings or things that don't make sense holding boundaries, and so whether that's sanctions or, I saw one case where it was very extreme, I'm assuming, but the person wasn't allowed to file anything anymore. And if they were going to file something, the judge had to review it before it was even allowed to go to the other person's attorney. And so those kinds of situations have happened. There have been those boundaries drawn, and I think they're really appropriate in situations where there's true litigation abuse. I think consultation is also something that's not used as often as it could be, at least in the areas where I've been involved in practice. So if there's a judge who thinks they're seeing this and consulting and bringing people in who are aware and do have that background and understanding coercive control, domestic violence, litigation, abuse to help just look at it an extra set of eyes from different fields like psychology has a lot to offer the legal field to be able to help identify these things.

Well, I certainly appreciate it as a practicing attorney, and I know my clients benefited when they can afford it or have access to it. It's always worse when they don't. But for anybody that would like to talk to you more about it, your email will be on the show notes from this episode where people could reach out to get more information directly from you. I know this is a continuing field. You are licensed in both. You have a practice where you also help coach, coach is the wrong word. You oversee young therapists as they're developing.

Yes, yes. I have a practice that I work with actually in Jacksonville, North Carolina. So we do a lot of work with military families, which is a population I very much like working with. So yes, lots of coaching and lots of supporting there. It's fun to watch the field continue to grow and develop and see the next group move forward.

Well, I think it'd be great. So if somebody is listening to this and they're not sure that their own therapist is aware of the phenomenon or their own attorney is aware of the phenomenon, hopefully they'll reach out to you and you can keep a surprise. But thank you for taking the time today to come and talk about this, because I know it was sort of eye wake and it woke me up a little bit to try to look and really analyze the motives behind some of the filings in some of the cases I'm involved in, and to sort of look at them a little differently than just like, oh, here we go again. And so I really appreciate it and I thank you for taking the time to do this today.

Absolutely. Thanks for having

Me. So there you have it. Another neighborhood of Splitsville explored. There's still so much to learn here, so I hope you'll tune in to the next episode. While Splitsville is not a fun place to be, thankfully, it is full of helpful people, valuable resources and sound advice. If you know where to look, see you next time.

The insights and views presented in Welcome to Splitsville are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning into this podcast constitute an attorney-client relationship of any kind. If you are ready for compassionate and reliable legal guidance on your journey, contact Leigh Sellers and her team at www.touchstonefamilylaw.com.