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.

Law – The “Betrayed Profession”

lawyer.4I recently came across a lengthy article I wrote about 20 years ago dealing with the stresses of law practice at the end of the 20th Century.  It was packed with quotes from both lawyers and law professors describing how legal education, and later the practice itself, have been leeched of their humanity.  I had recalled that lawyer and diplomat Sol Linowitz had made some powerful statements in his book The Betrayed Profession and sure enough I found them in my paper. While written more than 20 years ago, he and former Yale Law School Dean Anthony Kronman identified a pervasive and enduring problem with the practice of law in the late 20th and early 21st Centuries.

In describing law as it was practiced in the middle of the last century, Linowitz comments,

“The satisfaction of practicing law were in the knowledge that others depended upon your judgment and loyalty and your abilities and that at the end of the day you knew that you had, in fact helped your client.  In my generation, we thought of the law as a helping profession, not a continuation of war by other means.”

Kronman chimed in with these comments in his book The Lost Lawyer – Failing Ideals of the Legal Profession:

“This crisis (of morale among lawyers) has been brought about by the demise of an older set of values that until quite recently played a vital role in defining aspirations of American lawyers.  At the very center of these values was the belief that the outstanding lawyer – the one who serves as a model for the rest – is not simply an accomplished technician but a person of prudence or practical wisdom as well.  It is, of course, rewarding to become technically proficient in the law.  But earlier generations of American lawyers conceived their highest goal to be the attainment of a wisdom that lies beyond technique – a wisdom about human beings and their tangled affairs that anyone who wishes to provide real deliberative counsel must possess.”

Much of this has been reconfirmed in an exhaustive study of lawyers and well-being recently concluded by Florida State Law Professor Lawrence Krieger and Kenneth Sheldon.  They found that there is very little correlation between happiness and salary, prestige of law firm or law school or the other achievements which law students and attorneys strive so vigilantly toward.  Rather, it is the degree of personal autonomy and the congruence of one’s professional life and personal values that show the highest correlation to well-being.

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.

Lawyers’ Stress

A recent article in the Louisville Courier-Journal discusses a disturbingupward trend in attorney suicides.  This is not an altogether new concern.  More than 25 years ago, Dr. Andy Benjamin and his colleagues identified legal education and the resulting culture that has been created as leading to serious mental distress among attorneys, as reflected in much higher than normal rates of substance abuse and depression.  There are many causes for this, generally unacknowledged, problem.  Perhaps the greatest is that it is unacknowledged.  Lawyers are trained from the inception of their education, and are probably self-selected as well, to eschew emotion at the expense of reason.  I recall at the beginning of law school we would exalt the ARM (the Average Reasonable Man).  No greater disdain exists than that heaped by lawyers upon anything that is “touchy feely.”  No wonder that lawyers (who are human beings, after all – with active limbic systems that generate the normal amount of fear, caution, anger and grief over loss) will erect concrete mental defenses against acknowledging  their fear, caution, anger and grief….well, not anger.  That emotion gets a pass.  It’s easy to protect oneself against appearing vulnerable with the expression of anger.  When we are forced to protect ourselves from judgment – which is leveled at our natural thoughts and feelings – life can become exhausting and alienating.  I see this even among my colleagues in the collaborative law community.  These are a group of lawyers (and other professionals) who are striving to make the experience of law healing, rather than damaging, for those who encounter it.  Yet these lawyers, too, avoid disclosure of personal doubt, worry, sadness or fear.  These precise feelings that are universal and which can form the real basis of a bonded community are dismissed as inappropriate within this professional world.  More’s the pity.