• Brendan

Starting Where You Are - Part I

We do not come to anything in adulthood with a blank canvas. Instead, we come to everything as individuals with complicated backgrounds, genetic predispositions, specific experiences and unique dispositions. Because of this unavoidable reality, our ability to easily participate in the kind of divorce experience we ideally would prefer is necessarily limited and imperfect. In other words, we all have "our stuff" that will inevitably cause us to get in our own way (just as it does with our friends, family, diets, and finances). Moreover, our ability to fashion a more ideal divorce is subject, yet further, to other things beyond our control: the law, the money we have at our disposal, and of course - our spouse (and his/her own background, experiences and dispositions).

From that starting point, we struggle greatly as we begin down the road of divorce. We don't exactly know everything we want or want to have happen - but we do know we don't want to recreate "Kramer vs. Kramer" - and we profess (honestly), to all who will listen, a desire for peace, speed, and fairness.

Needing assistance, we go to lawyers who know this type of work. We often come to them bitter, confused, and angry. Maybe we are ashamed, guilty and afraid. We hope these lawyers will help us. We've heard and seen so many bad divorce stories from friends and family. We've watched, listened to or read so much in our culture that depicts a harsh and combative struggle as inevitable. If we have children, we worry about them most of all (hopefully). We wonder how much it all will cost and when it all will be over.

Unfortunately, there is a big problem. US. The reasons why we don't stick to diets, get furious on social media, spend too much money on Amazon, procrastinate at work, drink too much on the weekends, and fail to save enough money -- i.e., our ingrained ways of habitually thinking, acting, responding, resolving, and speaking - provide the primary roadblock to a more positive resolution.

That is hard medicine to take for the person who just got told their marriage is over or learned of a great betrayal. How can the "victim" be to "blame"? How is that fair or just? But as we will explore in future posts, the buck really does stop (for the most part) with you. Just as your spouse's buck stops with him or her. The inability to grapple with that tough but true fact will render any divorce process more difficult, painful, costly and damaging.

Another "problem" is that, against that background, most lawyers (including myself) are either not able or equipped to deal with the primary issues operating in a divorce - that suite of complex emotional and psychological issues, grievances and betrayals that brings the couple (as individuals) to the point of rupture in their relationship. Many of us do manage to make our away through these issues for clients in an arm-chair psychology sort of fashion. But we are trained in the law - not clinical therapy. Our own professional biases, norms and dispositions - get in our way too. Don't count on us ever getting past that.

Moreover, the "law" itself is wholly unequipped (and mostly unwilling) to address those "soft" issues at all. In the American legal system, the default model for divorce cases is necessarily adversarial in its structure. There is a Petitioner and Respondent (or Plaintiff and Defendant). Each spouse works with a lawyer of their own to advance or defend claims, make or defeat arguments, and obtain a particular financial and child-related result. The Court then makes decisions (to the extent the spouses don't do so for themselves) by reference to a statute or code that instructs it on what to do and how. This entire drama all plays out like a well scripted piece of kabuki theatre that is sensible to us as attorneys but that operates in ways most clients don't understand and cannot accept easily.

In the end, Judges in divorce do not exist to conduct a historical audit of the ebbs and flows of the marriage, they do not call moral/ethical balls and strikes, and they do not reward or sanction any party for non-financial (or non-child-related) slights, abuses, or misdeeds. There is no real premium for good behavior and no real sanction for poor behavior during the marriage. Even where "fault" is considered.

And so - your lawyer, in this particular system, is not and can never be your White Knight striding into court to obtain either absolution or vindication or justice. We divorce lawyers really "only" do the following -- obtain awards or allocations of: child support, alimony/maintenance, "custody" and "visitation" rights regarding children (and sometimes pets too), and property/debt. End of story.

At this point - what is one to do then? It all sounds unjust. Sterile. Clinical. Formulaic. Expensive in time and cost.

It is at this point that some partisans of divorce will trumpet mediation, collaborative law and other forms of alternative dispute resolution. These (mostly) well-intended people believe that the non-adversarial divorce process will be better, cheaper, more peaceful. They will explain the ways in which the process can be more gentle, private and provide professional support for the psychological and emotional components involved. In many instances, such processes can be significantly better than litigation. But there are unique shortcomings with alternative dispute processes in divorce as well; and, there are many circumstances and cases that do not suggest themselves well to these processes. Future posts will explore these in more detail.

As my initial post, I simply wanted to begin by exploring the actual terrain of what I perceive to be primarily at work in divorce; and to suggest - as we move forward - that from my personal and professional perspective -- no panacea for a "good divorce" exists and none will be offered here. Sorry, I wish I could sell that snake oil.

You cannot find the good divorce through litigators or mediators. You cannot find it in fast-take "listicles" on social media. You cannot find it in just giving up and rolling over and you cannot find it in fighting like hell. You certainly won't find it here or from me. You will not find it, by my lights, in anything other than taking total, complete and radical self-ownership - a thing only you can do. You don't start on a blank canvas - but you have the tools (or can acquire them) to make the process better than it could be or at least "less bad" than it would be if you did nothing at all.

The work that is required in this regard is not insignificant. And the work will be unique for each person and in each circumstance. There are no silver bullets or magic cures. Being informed of the law and your "rights" is necessary but not sufficient. Choosing a mechanism for the process that works for where you are is similarly necessary but not nearly enough.

If there are any guideposts at all, they would be: (1) take serious, deep and transparent personal responsibility for your role in everything that occurred (and follow what flows from that) and (2) consider foremost any children - the principle of harm mitigation should be preeminent.

While divorce marks the end of a marriage, it is not the end of a family for a child (or even for you - but that's for another day).

Regards - Former Mr./Dad

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