Monthly Archives: April 2014

The Shadow of the Law and The Culture of the Marriage

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Our goal, in any negotiation of terms of a divorce, is (in the words of a valued colleague) to arrive at a Durable Agreement.  What docontractes that mean to you?  In my view, it is an agreement that each person feels comfortable signing and comfortable with the next morning – six months later and five years later.  There are no big regrets or resentments; no “if only’s” or “why didn’t I’s…”  The agreement is understood completely – those things which I am conceding, I accept, and those things which  I am receiving, I acknowledge.  In my experience every Durable Marital Settlement Agreement should be consistent with two things: The Shadow of the Law and The Culture of the Marriage.

The Shadow of the Law is a great phrase I first came across in a seminal article about divorce mediation by Robert Mnookin and Lewis Kornhauser.   It is impossible to arrive at a durable agreement in a legal process without some basic understanding of the legal principles that are applied to the conflict.  Each state has its own set of laws which pertain to divorce – how marital property is defined and divided;  whether there will be alimony and, if so, how much and for how long; what standards are applied in making the residential decisions in parenting and how to determine the financial elements of raising children (in the child support decision).  These rules, which are found in the written laws, or statutes, which are passed by the state legislatures (usually more than 100 years ago and selectively amended since) and the interpretive decisions by the appellate courts,  reflect the public policy and values of each state.  Understanding the “shadow of the law” is not to understand what a judge would decide (because as any lawyer will tell you, this is often impossible to divine beyond a broad range of possibilities – and even then, judges have been known to issue rulings that are far beyond the predictions of the lawyers arguing their case).  It is to appreciate the policies and the principles that underlie these rules.  However, if an agreement is based on “the law,” alone, then it will be flawed.  This is because the individuals must also take into account “the culture of the marriage.”

The Culture of the Marriage is simply, what the people talked about between themselves.  What they wanted for themselves and the other person.  People enter the divorce process after a long relationship (even if it has been only two years – but usually it is far longer) with the attendant intertwining of life histories and dreams – joys and disappointments.  There were understandings that people had which were discussed and assumed.  Sometimes these understandings are not 100% consistent with what “the law” provides or what a court might decide, but they are consistent with what these people have discussed and believe is right for them.  Yet, again, an agreement based solely on “the culture of the marriage” will be flawed, because it does not take into consideration the principles of the larger culture of the community in which these people live.

Thus, any durable agreement must reflect a balance between these two critical values – the societal values reflected in the law and the personal values reflected in the couple’s history and interactions.

Your Signature Strengths

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A few years ago Martin Seligman (former President of the American Psychological Association and developer of positive psychology, a significant force in the current mental health environment) and Christopher Peterson came up with this notion of Signature Strengths – those qualities we are nstrengthsaturally drawn to and which are considered to be positive (and have for millennia).  There are 24 of these and it is possible to visit a web site and go through a 30 minute test that will give you a sense of your top signature strengths.  You can access this test here (scroll down to the VIA Survey of Character Strengths).    Seligman describes these different strengths so well in his book Authentic Happiness.  In a more detailed discussion, Seligman and Peterson in their book Character Strengths and Virtues (a book I purchased out of an excess of enthusiasm only to decide that the tome was helpful, but did not merit it’s size or price) break the 24 strengths into Six Categories: Wisdom and Knowledge; Courage; Humanity; Justice; Temperance and Transcendence.  What I particularly appreciated about this material is similar to the value I find in Myers-Briggs psychological type.  Many of us struggle with the belief that there is something about our basic nature that is inadequate.  We aren’t smart enough, or clever enough, or spiritual, empathic, mentally tough, athletic or social enough.  These products of “programing” we received from parental figures who, themselves, struggled with their own sense of defect and want,  leave us with an inflated sense of what is missing in our character and an altogether limited idea of our own personal assets.   The most successful, content people in the world have holes in their character and the most confused have great, though unmined, character strengths.  Recognizing, and playing to, those strengths is a key to life satisfaction, as Seligman teaches.  He suggests that we seek out work that allows us to exercise these strengths and indulge in recreation that lets us express them.  Great advice in my book.  I invite you to take the test linked above and explore it’s benefits.

The 69%

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John Gottman is the pre-eminent researcher of intimate couples – both in conflict and getting along.  One of Gottman’s insights – and onedifferences I find of, perhaps, the greatest value – is this: Of all the couples he has studied – with those who separate after a brief time together to those who are together for 60 years (and through all those years others marvel at what a strong, enduring bond they display) – among all of these couples, roughly 69% of their conflicts are perpetual.  They will never be resolved.  Put another way, if each person is waiting for the other to just compromise (“If they’ll move a little toward me, I’ll move toward them.”) each will be continually disappointed, irritated and estranged.  It’s just not going to happen – for either person.  The areas of conflict  are myriad and examples provided by Gottman include differences in: Approach to finances; Preferred love-making style or frequency; Approach to child-rearing; Sociability; Relationship to extended family or in-laws; Emotional expressiveness; Work before play vs. Play before work; Neatness/Organization; Private time vs. Alone time; Punctuality; Activity level; Religious observance and Approach to conflict.

Think about it.  Of these differences (and others) about 69% will be there on the first day of the relationship and remain until the 60th year.  “Why, then, don’t all relationships blow apart?” you might ask.  Excellent question.  The couples who endure and thrive are those who are able understand and appreciate the underlying values that support the other’s approach.  Also, it is so important to understand that the other’s persistence in making their way through the world in their way is not a rejection of us or a statement that we are not important (after all they are probably feeling that they are not important to us because if they were, we would not be so upset about them being the way they are).  I have seen many people sigh with relief, and lower their shoulders in relaxation at the understanding that this difference is not a toxic and irredeemable flaw in their relationship, but, rather just something that comes with all connections between two different people and which is shared by long, long term relationships.

Personality Styles

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type.tabletype.tableMany of us are familiar with the Myers Briggs Type Indicator, a personality sorter that tells us if we tend toward Introversion or ExtrovMBTI.2ersion as a preference – whether we are likely to make decisions based upon the straightforward and logical Thinking function or the more subjective and personal values-based Feeling function – how we take in the world we experience,  as concrete and evidence reliant Sensors or future oriented and inspired Intuitive types – and finally if we prefer to affect our world in an organized, results-oriented Judging fashion or rather let our world affect us in the observant, keep-our-options-open Perceiving way.  These eight preferences result in 16 different Personality Types.   Scores of journal articles have been written about lawyers and the MBTI.  It is a standard part of many law school orientation programs.  I have presented this material in a number of law firms – to great effect and enjoyment.

Recently, I was introduced to an instrument which is similar to the MBTI, but is quicker to take, simpler to explain and enjoys almost all of the valuable insights to be gained by the lengthier instrument.  Its simplicity and brevity lends itself to a 2 hour lunchtime presentation.  The break-downs are quite simple.  We are sorted into Four basic preferences – each having its own way to prioritize information; communicate and make decisions.puzzle.4  We will usually have one style – or perhaps two – which dominate our approach to life and business tasks.  One of the great values of this material is that we can begin to understand that (1) there are other approaches which, (2) while different are valuable and which (3) exist in all environments, to one degree or another and (4) which, without some instruction and reflection will be impermeable to our efforts to connect and persuade.  These styles are characterized by colors, for ease.  Certainly the quick thinking, results oriented Directives will have some difficulty working with, and getting through to, the more easy-going, “take it as it comes, but make it entertaining Adaptives.  These latter folks may have some difficulty understanding the need of the Analyticals to get it right and find their difficulty in reaching conclusion frustrating.  That doesn’t even begin with the care these people take with their communication which can dismay the Supportive style, who finds the over-concern with precision to be antithetical to the higher value of empathic and interpersonally harmonious exchanges.  Different environments will find certain styles dominating.  Likely any law firm will see an abundance of Analyticals and Directives.   In fact, there may be such a predominance of these two styles, that the livelier Adaptives and more empathic Supportives may have difficulty understanding and expressing the value they provide.  It is the choice and challenge of every working system to find a way to harvest the kernels of skill and natural talents of every part.  The first, obvious, step is to be able to identify these difference and then to knit the fabric of our collective powers to make the overall organization energetic, effective, resilient and a place of belonging for all involved.

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