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 does 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.