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.

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.

Divorce and the Holidays

What a rough time for so many of us!  This particularly true if we are newly separated.  A wonderful colleague, Karen Bonnell, was recently on a local television show discussing the challenges parents face during this time.  It is well worth watching, as Karen gives us, in five minutes, a set of very helpful suggestions.  I’d like to highlight a couple of them and add a few thoughts of my own.  HOlidays.2

Probably the most important bit of advice is take care of yourself.  The holidays are such a sad and challenging time for the newly separated.  Even if this is the 2nd, 3rd or even 5th holiday after your transition out of the family you once had, you may find yourself dipping into (in Karen’s words) a “River of Grief.”  Of course, this is especially true if you are not spending time with your little ones.  It is a particularly important time not to be alone.  Let your friends take care of you.  Find your family in those who love you – even if you aren’t feeling so lovable right about now.   Even if you aren’t going to be with your children on Christmas, know that they are going to beHolidays.1 excited to have their own Christmas with you, some time after December 25th and the best thing for a kid other than having Christmas, is having two  Christmases.  Hannukah, of course, gives you the chance to spend a few of the 8 nights with them.  While it is often too easy during this time to ruminate on the losses and sadness, it will serve you and your kids to be able to find the warmth,  friendship and loving-kindness around you.  If your children know that you are okay, it will free them to enjoy their holiday  season.  Your kids will worry  about you if you aren’t happy.  For sure, they’ll know it.  Children have incredibly acute antennae  trained on  their parents’ sense of their own well-being.  If mom or dad aren’t happy, children will invest plenty of energy trying to  take care of  you.  Another interesting suggestion Karen made was that, if you are newly separated, it would be good for children if  you planned  to take a brief, clearly defined, period to celebrate the holiday together with your separated partner and them.  While,  over time, this  will not be something they will need (and you most likely will not want to subject yourself to the intensely mixed  feelings this will  engender), for the first time after separation, it may provide them with a sense of stability that will calm them.


The “Whuppin’ Stick”

I attended a Washington continuing legal education workshop recently to make sure I was keeping up in the newest developments in our family law.  One of the most interesting sections involved a panel of very seasoned practitioners who also perform “mediation” servicstick.whuppines, discussing the implications of a recent appellate court decision called Marriage of Rockwell.   The Appeals Court said, in passing, that in a marriage lasting 25 years or longer the court should seek to provide the two parties a roughly equal standard of living for the remainder of their lives.  Let’s just say that lawyers aren’t real pleased with this broad rule because it both turns long running standards on their head and imposes a blanket rule that doesn’t take into consideration important nuance.  (What if Husband and Wife get married when they are 20 and divorce at 45?  Does the higher earner owe maintenance to the other for the next 20 years?  Does this mean that the Wife’s inheritance from her parents (which is considered to be her separate property and usually awarded to her, alone, in almost any state) is now up for grabs, with her husband of 25 years getting half?  What if they are married 24 years?  22?)  Anyway, while the questions about the decision will continue, it is now on the books in Washington and the “mediator” panelists talked about how they would employ this new legal authority.  (Note that I place the term “mediator” in quotes because the process employed by lawyers is more of a “settlement conference” which is a one shot, usually all-day, ordeal in which the two people are separated and the “mediator” goes between conference rooms and tries to move the recalcitrant parties closer – and then to binding agreement by the end of the day.)  One panelists felt he was being clever when he referred to the “Rockwell whuppin’ stick” and another experienced “mediator” chimed in with reference to the use of this opinion as a “whuppin’ stick.”  (As in, “If the husband is being stubborn about spousal maintenance, I can use Rockwell as a whuppin’ stick and tell him that a court could order a much greater, outrageous, term of alimony under that case.”)

What really ate at me the next day was how each of these people saw their role of getting wounded, frightened, angry, defensive and all-around emotionally challenged people to come to agreements that will impact the rest of their lives by hitting them with a “whuppin’ stick.”  The absolute essential key to a solid, durable and effective agreement is that each person enter the agreement without undue resistance.  Each must understand and accept what he or she relinquishes in the agreement. Equally important, each must acknowledge (to themselves at least) what he or she gained from the agreement.  My strongest criticism of the conventional legal “mediation” is that at the end of the day, each person will generally feel emotionally and mentally drained with a very high degree of resentment and “woulda, shoulda coulda’s” the next morning.  This risk is certainly accentuated when the settlement conference official finds a new rule of law, however flawed and criticized, to use as a “whuppin’ stick” to bring people into line and move toward settlement.

Supporting Divorce Recovery

Writer, Abigail Trafford once said that divorce is “a savage emotional” journey.  Trafford is but one of the scores of people who have studLicking.woundsied the “divorce recovery process” over the past two decades.  Noted researchers like Judith Wallerstein and Mavis Hetherington as well as leading divorce mediators like John Haynes all agree that the period of “divorce recovery” is about 24 months.  This means that, if allowed to move through the expected steps from separation through a sense of “being okay” and free of the psychologically intense and depressing forces of divorce, most people will take about two years to complete that process.  However that caries with it a big “if.”

If people are allowed to proceed through the process of divorce and not gouge additional psychic wounds in each other in the process, most people will be through the journey in two years.  (That, by the way, doesn’t mean that they will be miserable for two years.  Most divorce experts say that the acutely painful passage occurs in the first six months.)  However, here’s my biggest beef with conventional divorce litigation.  It has been my experience (time and time again – seen throughout the 25 years I’ve been doing this work – first as a lawyer and now as a mediator and counselor) that the conventional divorce process does inflict avoidable damage on both people.  The shame of it is that these poor folks have to devote psychic energy to licking the wounds that are gouged by the divorce process. This leaves them with fewer internal resources to manage the natural progression of divorce recovery.  It will prolong the period of intense distress beyond the normal six months and stretch the entire divorce recovery process out to beyond the natural 24 months.

Divorce hurts.  It is the most stressful experience that many will ever undergo in their lives.  The process of stabilizing a new sense of self; managing the intense emotions and solving a myriad of practical challenges are daunting.  My advice: Find professionals who will help you make good decisions and support you in the tasks of this life transition who will not contribute to prolonging the pain.

The Moment I Knew

doneRecently, Huffington Post put a slideshow on their “Divorce” page that was very enlightening.  They asked readers to respond with “the moment I knew my marriage was over.”  There are over 150 responses in  that slide show and, boy, do they range far and wide!  Yet they do tend to fall into a discrete number of set categories.

One category is the “I just woke up one morning and knew.”  That’s a hard one to work with, as I often liken the decision that the relationship is over to a campfire (appropriate image for the Northwest).  At the end of the night, after staring at a brilliant, dancing flame hovering over intense, glowing embers, we turn in – and upon awakening, sometimes the logs are still there, charred, but partly intact.  If you lift one up you may see a bit of life that, if blown upon intensely enough, will start to smoke and a flame may emerge.  However, other times, it may have rained overnight and in the morning, we emerge from our tent to find a dead fire.  No amount of effort will revive anything.  The fire is simply……gone.  That’s like the woman who responded, “when I took my wedding ring off and couldn’t bring myself to put it back on.”

There’s another category which Dr. Sue Johnson, the founder of Emotionally Focused Couples Therapy calls, “relationship traumas.”  Infidelity is, of course, a leading (and searing) relationship trauma.  It is difficult, but by no means impossible, to heal from this, but that’s another story for another day (post).  There are others, however.  Some people responded that they were facing a health crisis and their spouse was unresponsive or disappeared.  An example is, “The moment I knew was when I went into the hospital for emergency surgery and nearly died.  I was in the hospital for 6 days.  He didn’t visit once.  I got no calls and all of two texts.  People I barely knew at least called.”  Others describe an incredibly demeaning statement or attitude, like the one respondent who said, “”when I was picked for a prestigious conference in NY – he didn’t congratulate – asked who would watch the kids.”  Others relate statements made by their partner that just floor them, like one who replied, “When he said he’d divorce me if I went to console my best friend (who is like a sister) after the passing of her mother.”  For sure, these are all blows and there’s a lot of healing that needs to be done if the marriage can overcome the trauma of one spouse’s sense of utter abandonment at a moment of deepest need.  Yet, when I read these kinds of posts, I don’t automatically think, “Well that marriage is over!”  Actually, that’s the way I found myself responding to many of these posts.  Many of the wounds that people describe are sharp and deep and they absolutely need to be talked about.  Honest remorse and forgiveness are necessary and entirely possible, but, again, I don’t think people are able to do this on their own – or for that matter in an office of a couples counselor who acts as an umpire and decides who is right and who is wrong.  It’s really fascinating and heart-full work.  That’s why I love it so.

In or Out

As the New Year dawns there are those among us who are now facing the deepest question and ultimate personal challenge.  Do I stay in my relationship/marriage or do I leave?  The uncertainty is hugely destabilizing – but then, how can it not be, with so much on the line and no clear answer?  I want to share a conversation I had recently with a man seeking couples counseling to get out of his marriage (to get help breaking the news).  He was sure that he wanted out, but when he talked about the reasons he had come to this conclusion, I kept thinking to myself, “Wow!  I’ve worked successfully with couples to overcome that issue.”  I often tell couples I am counseling, who are in distress, that when people get swept up in their continuous cycle of conflict and frustration, if left to their own devices, they will probably blow apart.  I realized in the conversation that I feel pretty confident about helping distressed couples turn a corner to reconnect and deepen their bond.  So I asked him, “If I could tell you with complete confidence that if you worked on your marriage with me you could reconnect with your partner and have the kind of relationship you long for….would you want to do that with this person?”  I have asked that question before and sometimes I receive an answer along the lines of, “I’m excited about that….though doubtful.”  That’s something to work with…even if the person is very doubtful.  However, if you sleep on that notion and conclude that you don’t want to have that with this particular person, even if it can be achieved, that seems like a pretty telling answer.

In a way, it’s a “trust your gut” question.  I have written an earlier post about the divorce decision and viewing it as an impermeable barrier that, once you cross it, you really can’t return.  This is another view of the question from a different angle.  Asking yourself the question above may help you know.  I hope this is of some small help because I know the limbo of uncertainty is a dreadful place to be.

Walk Away Wife Syndrome

Michelle Wiener Davis is one of the stars of the psychotherapy circuit.  She has enjoyed a long, and well-regarded, career as a couples therapist.  Back in the early ’90’s she came up with an approach to salvaging frayed marriages, wrote a book called “Divorce Busting” and a cottage industry was born.   Among her excellent insights was the notion of the “walk away wife syndrome.”  I love it because it so accurately describes a dynamic I have seen in my office many times over the years.  It works like this:

A woman in a marriage or intimate relationship is feeling disconnected from her partner.  This distance is extremely lonely.  She will reach out to him, trying to get him to understand her distress.  He doesn’t get it, in her view.  Over time, she becomes frustrated and even a bit desperate.  This incredible, and legitimate, need she experiences may never be acknowledged and touched.  She may become more critical in her distress.  He just withdraws.

Then one day, it happens.  She decides she is done.  She says to herself, “I am leaving when ________________.”  Fill in the blank – “when I get a job”….”when the last child is out of the house”….”when I finish school.”  Sometimes it might be, “when I find another man.”  Once she has made that decision, though, she stops being so angry and frustrated…..because she….is…..done.  The criticism stops.  Things overtly are more peaceful around the house.  He, of course, thinks he has died and gone to heaven.  Friends as how his marriage is and he’ll say, “Great.”

Then the even she has waited for occurs.  And with that, she leaves.  He is shell-shocked.  “What happened?” he asks.  “How could this happen?  We were doing so well.”   As Weiner-Davis notes, this may be the first time he really, really gets the level of her desperation.  He understands what he needs to do.  However, usually it’s too late.  She has moved on emotionally.  She is done fire that represents her emotionally commitment to this relationship is extinguished.  It is over.  She has walked away.

The Curse of the Zealous Advocate

Back when, in the early part of the last century, lawyers’ Code of Ethics required “zealous advocacy” in support of a client’s cause.  This historical roots for this demand can be found in this excellent article in the American Bar Association’s Litigation magazine.   It is often said that such aggressive and intense commitment to one’s client’s interests, only, may have a place in the world of criminal defense (and a few other places) the world of divorce is a poor forum for this kind of “my client and no other” myopia.

Divorce in 40 Words

Recently, Huffington Post asked readers to tweet them one word for Divorce and then published the top 40 responses.  The list:

Pivotal; Painful; Torture; Heartbreaking (even though I initiated it); Rebirth; Freedom; Ex-marry; Destructive; Draining; Eye-opening; Sweet; Death; Overcomplicated; Hell; Option; Fate; Bittersweet; Blessing; Sobering; Brutal; Tragedy; Unending; Bye; Vengeful; Solution; Necessary; Expensive; Hard; Calm; Heartache; Amazing; Amputation; Numbing; Trying.

The best: Supercallifragalisticfreakinsuckadocious.

Words from lawyers and coaches (from their twitter names): Transition (from a divorce lawyer); Empowering (Twitter name: Gradual Wisdom); Endinning (Ending and a beginning) (from a divorce lawyer); Evolution (Twitter name: Divorce Party Gal):  Peace (Twitter name: Living Happily After).