What are Your Real “Interests” When You Divorce?

Lawyers are habituated to getting to the bottom line.  Extraneous details are disregarded as dross and distraction.  Of course, typical of the breed, the average lawyer will look to monetary outcome as the overriding measure of this bottom line.  In personal injury cases, for example, it is all about the amount of settlement or verdict (if settlement is not achieved).  This “monetization” of outcome is repeated in just about every kind of legal dispute.  This focus applies, to often devastating effect, in the family law arena, as well.  To be sure, there are lots of financidepressedteenal elements in a divorce resolution, each of which a person can get more of, or less of.  How much alimony will be paid?  Working husband wants to pay only $750, while long-unemployed wife says she needs $2,000.  Perhaps the people have agreed that the wife will be awarded the family home.  Predictably, she will obtain an appraisal which marks its value at $400,000 and her disputing spouse will counter with his $650,000 appraisal.  In Washington state, where community property is divided in a “fair and equitable,” rather than equal manner, the person who has little current earning capacity will push for 60% of the joint property while the employed spouse will seek a 50/50 division and inch up slowly to agreeing to 51%, then 52%, etc.

Family lawyer are inured to the notion that a client’s interests are financial – and while that is a huge part of any divorce client’s concerns, it is by no means an exclusive, or even primary interest.

It has long been recognized that the one overriding variable which will predict a child’s well-being after their parents’ divorce is the degree to which that child is shielded from parental conflict.   Bear in mind, this is not about parents choosing not to scream at each other in front of the child – that behavior is never justified.  Nor is any negative statement about the other parent to, or in front of, the children.  Yet a more common, and far subtler harm can be inflicted if the parents fight like warriors over a divorce settlement so that “he won’t win this time, like he always did” or “she won’t get away with this.”  The battle of wills in even a moderately difficult divorce, in which two adults struggle with the urges and needs of a younger psyche – as if the other person is more a parent than another vulnerable adult, when coupled with the fear attending almost every severing of this intimate bond, will often lock people into a miasma of pain and resentment, which simply cannot be hidden from the children.  Be they adorable 5 year olds or teenagers struggling to find their identity, any set-up in which loving Dad will be experienced as a betrayal of Mom and loving Mom will cause pain to Dad sets up an intolerable conflict of loyalties for children who almost always love each parent deeply and desperately.  Children will almost always crack under the strain.

I often wonder how a parent, who dug their heels in for that extra $30,000, would respond to this question, after seeing their beloved child succumb to depression or alcohol/drug abuse or premature sexuality or behavior problems in school or poor grades: “If you could pay $30,000 to someone right now who could make your child okay again, would you do it?”

That’s why framing interests of divorcing people in terms of dollars or minutes of residential time with a child misses the biggest, non-monetary, interest of them all.  We need to keep that in mind as lawyers and the divorcing, proceed down this shattered, and shattering, path.

On Vulnerability, Safety and Cats

catFirst, let me be clear, I am a dog person.  I am allergic to cats and never understood them.  I tip my cap to the feline fans.  Why do I mention this?  Read on and you will understand.

So much can be gained through the safety engendered by personal disclosure.  It is undeniable that when we get to know another person, we are less likely to succumb to stereotypes and projections of what is going on inside of them.  In his excellent book, The Five Dysfunctions of a Team, Patrick Lencioni notes that the first step towards establishing a cohesive team is the establishment of trust.  He tells us that the barrier to this trust is the need to appear invulnerable.  The solution: Display some vulnerability.  How to do this?

Well, in the work-world an abundance of vulnerability is unwise and unnecessary.  Yet, even such seemingly bland disclosures as where one grew up and their number of siblings can be a low-risk and valuable instrument of bonding.  I recently was privileged to run a retreat for a local collaborative group and that simple “share” opened the door to later, much more significant personal disclosures about the relationships within the group.  In Emotionally Focused Couples Therapy, the real breakthroughs of connection come when enough safety has been created as a platform, allowing the individuals to open up long withheld (often even from themselves) yearnings and vulnerabilities.  These, of course will go quite a bit deeper than those aforesaid workplace disclosures.

Some months ago the New York Times ran a story about a study by psychologist Arthur Aron, which held that “sustained, escalating, reciprocal, personal self-disclosure” deepened relationships.  In order to demonstrate the power of this hypothesis, Aron crated 36 questions which he said were guaranteed to jump-start the deepening of intimacy in any relationship.  They are in three clusters, each diving a bit deeper than the one before.  Cluster 1 Questions include: Would you like to be famous?  In what way? and Before making a telephone call, do you ever rehearse what you are going to say?  Why?  Cluster 2 Questions include: What is your most treasured memory?  and  How do you feel about your relationship with your mother?  Cluster 3 Questions include: Complete this sentence: “I wish I had someone with whom I could share ______” and What, if anything, is too serious to be joked about?   Here is the article and those 36 questions.

Now AS FOR CATS.  Clearly, this does not work only for human relationships as you can clearly see in this YouTube video.

Peace on Earth, Goodwill to All

When I was a kid (back in the 50’s and 60’s) the United States was a more unabashedly Christian country.  Christmas was universally celebrated and “Merry Christmas” was on almost everybody’s lips.  Nobody was saying “Happy Holidays” in an effort to be all inclusive.  As a Jewish kid,xmastree2 I’ve got to say, I wasn’t particularly offended or confused by the emphasis.  I was in a kids’ choir and loved singing those gorgeous carols.  The lights were magical!

I particularly loved the general good feeling that shone through the holiday – probably best reflected in the conversion of Ebenezer Scrooge in Dickens’ A Christmas Carol.  The magic of that time was all about open-heartedness,  kindness and gratitude.  Santa was most definitely a bonus and I was, indeed, one of those acculturated Jewish kids who believed in the jolly old man whose elves made toys for kids somewhere in the North Pole.  I recently reviewed the many Jewish holidays to see if any one of them so explicitly trumpets goodwill to all men in quite the same way and was unable to find one.  The many holidays honor parts of our history, the seasons, the beginning of the annual cycle of reading the Torah and, of course the High Holy Days in which we are urged to look deep inside and cleanse our souls, seek forgiveness and turn the page for a coming year.  One theme for almost all Jewish holidays I heard from a friend a few years ago, which is perfect, goes, “They tried to kill us, we survived, let’s eat!”  Hanukkah is a very minor Jewish holiday and commemorates a time, more than 2,000 years ago in which the Jewish people were at risk of being absorbed into a hostile dominant culture.  A band of rebels were able to wrest away their people’s freedom.  It’s pretty much the same theme as the more major celebrations of Purim and Passover.  Somehow, American Jews long ago converted this into a more significant celebration so their kids didn’t have to feel left out in all the Christmas gift-giving…but Hanukkah is not Christmas.

I think of the “Holidays” as bounded by Thanksgiving and Christmas – both times when we gather with those we love (and who love us) and breathe in the warmth of care and community.  For those of us who feel isolated and adrift during this time, my hope and prayer for you is that you can, step-by-step, heal, renew or create the bonds that may allow you to experience that care in the years ahead.  My hope is also that you find some way to give to others during this time.  You will enter the tide of humanity whose spirits join in loving-kindness and there is no better gift you can be given.  There are volunteer opportunities here.

My wish for anyone reading this is that your world is blessed with the comfort of another’s  loving heart, that you treat yourself and those around you with the gentleness reserved for a baby (which this holiday is about) and hatred, fear and violence be banished from our lives.

Ambivalent Attachment – In Childhood and Marriage

Back in the 1970s, Mary Ainsworth conducted what may be the most important psychological study ever.  It was the Strange Situation Stuambivalentdy and this link describes it clearly.  Basically, Ainsworth and her associates observed mothers and babies in the first year of their lives and then brought them into her lab where a room was set up for them – a chair for mom and toys on the floor for baby.  There were a few steps to the procedure, but basically, mom would leave the room and then return.  Ainsworth noted the reactions of the babies when mom left and when she returned.  Those reactions varied, but could essentially be classified into three categories, each of which described the “attachment” bond that existed between mother and child.   The great majority of babies were “securely attached” and they responded with great distress when mom left the room, but were able to be comforted by her upon return.  A smaller group were termed “avoidantly attached” and these babies didn’t display outwardly any distress at mom’s exit and seemed to be engaged more with their toys than her, so it seemed like they hardly noticed when she came back in the door.  Another group of babies were “ambivalently attached” and they, by far, showed the greatest distress, both upon their mother’s leaving and upon her return.  When mom came back to the room, she could not calm her child.  The baby would lean into her for comfort and then arch away from her, crying intensely.  The child would kick at her and be very hard to comfort.  Observations of these ambivalently attached babies also reflected that when mom was sitting in the room, they were often preoccupied with her continuing presence, making sure periodically that she was there.

Ainsworth and her associates found there to be a connection between the highly activated, anxious and distressed behavior of these babies and the quality of parental care and “attunement” they had received at home.  More specifically, what they had observed in the previous year of spending hour upon hour in each parent’s home was that the “ambivalently attached” babies experienced very inconsistent attutnement.  Sometimes they would be lovingly cared for when distressed and other times ignored or even rebuked.

Now comes a New York Times article which describes numerous current studies that demonstrate that the same inconsistent care and connection in marriage results in ongoing baseline, high levels of anxiety and distress.  It turns out that inconsistent, trustable, love correlates to high blood pressure, lowered immunity and other indicia of a chronic keyed-up, insecure state.  What we find so painful as babies is the same thing that undermines our well-being as adults, as we relate to our primary care-giver – be it a parent or an adult intimate partner.

Thanksgiving

About 10 years ago, I wrote a column in the local King County Bar Journal about gratitude and well-being – directed (of course) at lawyers.  I happened upon it today as I was going over old files and thought I ought to post it.  I like its message and it certainly isn’t limited to lawyers:
Lincoln

GRATITUDE 

On October 3, 1863, our country was in the middle stages of a horrific civil war.  Unlike recent involvements in Afghanistan and Iraq, which touched families selectively, in that time, almost every family experienced the devastating loss of a young and vital life.  A hundred and fifty years ago, people weren’t talking about the costs of war in some theoretical sense – that crushing weight was shared universally throughout the entire society.

 And yet it was on that date, amidst this cultural trauma, which today we can scarcely imagine, that Abraham Lincoln issued of all things a “Thanksgiving Proclamation.”  He noted that, despite “a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed and harmony has prevailed everywhere except in the theater of military conflict.”  He went on to observe that the economy was still robust and the country was growing “notwithstanding the waste that has been made in the camp, the siege and battlefield,” and that “the country, rejoicing in the consciousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom.”

 Perhaps most remarkable about this proclamation is that it came from the pen of a man who was frequently crushed by depression during most of his adult life.  But then, Lincoln seemed to understand so much on a basic intuitive level – he’s not on the five dollar bill for nothing, after all.  He saw that relief from despair may be obtained through gratitude.

 Turning to our own special plight, while we lawyers certainly cannot indulge in the conceit that our experiences mirror those at Antietam or Falujah, many of us are challenged to our core on a daily basis by the demands of the work that we do and the environment we create.  Martin Seligman, Ph.D., professor of psychology at University of Pennsylvania and past-president of the A.P.A., has something to tell us about the causes of our professional unhappiness and the way out of it.

 In his recent book, Authentic Happiness (despite the rather “sweet” title this is a powerful and rigorously researched work), Seligman first describes a number of the qualities of thought which are endemic to the practice of law that seem to make us prone to pessimism and unhappiness.  These observations are consistent with a wide array of research conducted over the years at U.W., Johns Hopkins and under the auspices of the A.B.A.  These have been touched upon in past columns and I won’t belabor them here.  If you are interested, I do recommend you to the “Work and Personal Satisfaction” chapter in Seligman’s book for a particularly trenchant discussion of the challenges faced by attorneys.  For the moment, let’s take as a given that lawyers experience a depressing downward pressure on their mood and life-outlook from their education, training and practice.  Now for a way out.

 Gratitude is not a habit of mind for lawyers – nor is it a habit of conduct.  Yet, Seligman’s research has revealed, quite clearly, that a deep sense of personal well-being comes with attendance to gratitude.  This is a two-step process.  The first is simple realization of those circumstances and people for which we are deeply grateful.  It is suggested from various sources, both spiritual and secular, that we would be well-served by taking a set time out of our routine to acknowledge to ourselves what and who we are grateful for – and not only the object, but the reason. 

 For example, I am blessed to have my eleven year old daughter in my life….because when I get home from dealing with the toxicity of conflict for a living, she’s there with our beautiful golden retriever and she is so beautifully open, intelligent and fresh.   I am invariably transported to a finer place and as I sit here right now and look at her picture on my desk, I feel myself relax. 

 We so often take our health and physical well-being for granted.  I remember a moment five years ago when I was on a ladder, arranging some boxes in the attic of our home when the ladder slipped out from under me and I fell flat on my back from ceiling height.  I should by all rights have been seriously injured – but all I got was a bruise on my arm.  I don’t know what force protected me that morning – perhaps it was God almighty;  maybe it was dumb luck –  but there’s not a week that goes by that I’m not grateful for my health and moments of good fortune such as that.

 As I write this, my wonderful wife is soon to be leaving for a two week trip to Italy with  her best pal.  I’m looking forward to being Mr. Mom for a while and having alone time with our girl, but I’m going to miss the warmth and sweetness of my baby’s loving company. 

 While all of these thoughts tend to lighten the load on a daily basis, there is one more powerful step which brings the power of gratitude home.  That is the expression of gratitude.

 I went through a period when I was lazy and didn’t express my gratitude to my life’s partner.  Over time a hard-to-pinpoint coolness developed inside of me. I actually was very aware that in my preoccupation with work and striving that I was failing in the fundamental task of expressing my gratitude for the love in my life.  When I finally “snapped out of it” and began to attend to these gifts, I swear it felt like the windows were thrown open to a stuffy room and warmth began to fill our home.  This warmth not only filled our environment, the actual practice of experiencing and expressing gratitude felt healing for me, internally.  Recently, the incessant stresses of this professional calling are less wearing.  Renewal is easier.

 So here’s a suggestion.  In three weeks, those of you who are fortunate to be sitting around a table on Thanksgiving with people who have touched you, express your gratitude – openly and unabashedly.  What the heck.  If you can’t get away with that kind of behavior on Thanksgiving, when can you?  Let each person who touches you know that you are grateful for their gifts. Describe those gifts, simply and clearly.  See how it makes you feel.  My bet is that you’ll think you just gave yourself an enormous holiday gift.

Leaving the Law

leavingWhen I was 29 years old I left the practice of law for a while.  I had lived for a time in Washington D.C. and decided that becoming a bartender was the way I could find work anywhere I wanted to live, so when I followed a woman I was involved with back to the Bay Area, I enrolled in the Golden Gate Bartending School.  I recall to this day with great fondness, old Mac McLaughlin hiking his chubby body onto a bar stool with the San Francisco Chronicle splayed out before him, ordering various cocktails which I made from liquor bottles filled with colored water.  I’d make my Manhattans and Mai Tai’s while Mac would keep up a constant banter, “So, Mr. Joe, what do you think of that People’s Temple thing, there?   That’s sweet vermouth you need…”  When I had my private practice for many years afterward, I hung my Diploma from Mac’s school along with my other sheepskin on the wall.

Upon my graduation from bartending school, I went looking for jobs and, predictably, experience counted for a lot in a fairly tight market.  I finally landed a job in a bar which was attached to an old, institutional Italian restaurant, “Bellini’s” on Telegraph Avenue right on the border of Oakland and Berkeley.  It was a pretty dicey area and a pretty dead bar, but on those few nights when we had a nice crowd in, the concentration required to keep all the orders straight was a Zen experience – hours passed by in seconds.  To this day, I cannot hear “I Will Survive,” by Gloria Gaynor or “Da Ya Think I’m Sexy” by Rod Stewart without being shot back to that dark, often empty, bar and the mindnumbing number of times the owner put those songs on the jukebox.

One Friday night, on a particularly busy night in the bar, the front door swung open and in walked a guy dressed in jeans, a sweater, and with his entire head covered in gauze.  Gloves covered his hands and when he sat down at my bar, the conversation level dropped to a whisper.  He pulled out a steno pad and pen and wrote, “A beer please.”  I asked if domestic was ok and he nodded his assent to that question and, also, whether he wanted a Bud.  He introduced himself as “Mickey” and wrote that he had experienced an allergic reaction to painting his apartment and couldn’t talk and his wife had told him to get out of the house and go to a bar after being cooped up at home too long.  I asked him how long he was going to look like The Mummy and he wrote “No Mummy Jokes!”  Mickey was a delight and his company brightened my night.  About an hour into his visit, he wrote me the question: “Where did you go to high school?”  When I told him, he asked if I knew a particular woman with whom I had gone to high school and law school.  Suspicion flooded my system as I looked into those eyes and asked, “Who the f*** are you?”  He shrugged, said he had to go to the bathroom and when he emerged, bandages unrolled, he turned out to be one of my dearest friends from law school who lived in Santa Barbara.  Steven Faulstich wanted to come see me as a bartender, but didn’t want me to know it was him, thus no voice and no face.  Definitely one of the greatest things anyone has ever done for me.

As the weeks went on, and I would say to patrons of this neighborhood bar that I was a lawyer, but had decided to try something else, these working class people looked at me in disbelief and even some disgust – finding it incomprehensible that I would take this incredible opportunity to be a lawyer and just piss it away.  It got me to thinking and, out of respect for these people as much as for any other reason, I returned to practice for another 8 years before I finally went back to school to earn my Masters in Marriage and Family Therapy.  Still, it took me another 10 years to fully disconnect from the practice, as I had great anxiety about what else I could do – having more experience in a field for which I was temperamentally ill-suited than for anything else.  Slowly, as I gained experience and confidence in my writing and therapeutic work, I was able to fully detach and have since enjoyed the happiest years of my life.

My experience is certainly not unique.  Now and again I read of others who have made this transition.  The most recent is a wonderful column by Bob Markowitz in the New York Times  entitled “Abandoning the Work I Hated.”  Enjoy – and for all you disaffected lawyers out there, take hope!

Life……Happens

When I meet with a couple for the first time there are a couple of things I want to understand about them from the outset – aside from what brinstormgs them to my office now.  The first element of any assessment is their interactive process.  How do these people relate?  Are they volatile (or exercising a lot of self control not to be volatile in my presence)?  How quickly does one or the other person become emotionally reactive and when that happens, what does their partner do in their own reaction?  Emotionally Focused Couples Therapists, in their early interactions with a couple in distress, are ever vigilant for indications of this particular pair’s cycle.  It’s at the heart of the healing work we do and it’s darn near guaranteed, that if a therapist can help a couple understand the process by which each becomes emotionally reactive to the other (and then is responded to with an equally emotional reaction) we have traveled leagues in the direction of creating safety and an emotionally calmer domestic environment.  But there’s yet another critical part of any assessment of a couple in distress.

How is life treating them?

By this question, I mean, what sorts of natural stresses or traumas are they experiencing?  When life transmits a blow that would knock anyone off their feet, it is natural that this will contribute to the stress that two people will experience – and reflect in a wicked interactive cycle of fear and distress.  Pregnancy and birth of a first baby is one of those experiences.  “We never argued like this before little Mitzi came alone,” is not an uncommon cry in my office.  A couple who decided to marry only after they discovered their pregnancy is another example of a powerful life stressor.  (Life stressors can be thought of as a finger that plucks a guitar string, setting it to vibrating energetically.)  I have worked with a number of couples that found one partner, or both, moving to a new locality, away from their network of care and support.  The dislocation of such an experience will cause people to bounce around in some psychic earthquake that can register beyond Richter scale readings.  Illness or other challenges besetting a child, job loss or any other blow to people’s financial security, falling victim to a crime, deployment to and return from active military service, illness or disability of a parent – these and other thunderstorms that inundate people with worry and woe cannot help but set off the cycle of anxiety and painful interactions described here as a cycle.  Almost always, when people come into my office, they have their subjects that they are struggling over.  Yet to take that “10,000 foot view” of the problem, it is easy to see how a major life challenge has left people exposed, vulnerable and so easily subject to the interactive cycle of distress that reaches through the doors and windows of their home and infects their lives and renders them fearful and miserable.  It is always helpful to give ourselves a break and understand the impact of life as it …. happens.

When You Gotta Go to Court

I have long been a critic of the adversarial system of litigation in family law matters.  It is, in so many instances, an atrocious method of solving the problems litigator.1that beset an intimate couple as they dissolve this powerful, attachment-infused bond.  I still remember a case I had years ago when I was still representing people as a divorce lawyer.  I was working with the wife and the husband’s lawyer was a top level, high integrity, low stirring-the-pot guy.  We ended up settling the case after a full-day settlement conference and when it was over, my client had such contempt for her husband – she felt so ill-treated by him through the process, that I came away convinced that, even if the lawyers are solid and solution-focused, the process, itself, is hell on people’s psyches.  In the ensuing years, I have often felt enormous gratification helping a divorcing couple manage to resolve their legal issues while keeping the pain, anger and fear within manageable levels.  Mediation and collaborative law permit people who can work together with respect and some degree of empathy to arrive at an outcome that keeps their post-divorce relationship from diving into the pit of chaos and alienation that I so often see in the aftermath of almost every litigated divorce I have encountered.

That said, there are times you’ve just gotta go to court.

Presentation of a dispute to a judge or court commissioner may be the unavoidable choice one must make in order to establish boundaries.  Ultimately, the legal rules and decisions by a court…and the court orders that result, establish boundaries of behavior for the individuals involved.  This may be necessary when one or both people are unable to do this themselves.  One such circumstance arises when one divorcing party deeply objects to the divorce and is filled with such outrage and betrayal that efforts to reach agreement with that person on any but the most onerous and unrealistic terms are impossible.  Some people’s pain drives the couple into court so that the man or woman sitting on the high bench in robes must establish those boundaries.  I recently experienced a case such as this, in which the angry party’s lawyer enabled them in their hyperbolic sense of outrage, only to result in a brutally unfavorable court ruling for his client.  She was unable to acknowledge basic boundaries of behavior and insisted upon maintaining her righteous anger.  That anger cost her dearly, but she was constitutionally incapable of  managing her part of the conflict.  Another situation which will necessitate litigation is if one of the parties is struggling with a personality disorder, which is a “locked in,” very rigid manner of responding to stress which prevents that person from managing the anxiety and challenges of conflict.  These people need boundaries established and, usually, the court is the only instrument by which this can be accomplished.  Also, untreated substance abuse presents a significant challenge to the establishment of boundaries of behavior which will be respected.  In this minority of situations, you gotta go to court.