• Brendan

Best Supporting Spouse in a Long-Term Marriage: Oscar Season and Seeking the Elusive in Divorce

This weekend, the 93rd annual Academy Awards, aka the Oscars, will take place. In addition to this event of cinematic tribute, each year we we celebrate the Tony Awards, the SAG Awards, the Golden Globes, the Cannes Film Festival and more. There are also the Emmy Awards and the Grammy Awards. In other fora, there are the Nobel, Pulitzer, and Booker Prizes, and in sport we have the ESPYs, the Heisman, and the Cy Young Award, among others. From youth, each of us is used to the ritual of bestowing and receiving awards. My son’s room, and now a good portion of the basement, is full of ribbons, plaques, trophies, commendations, and certificates. As a former thespian myself, I will admit to having once or twice, even as a young adult, let my mind wander to fantasies of future glories and speeches and trophies — to no less an extent than when I was child dreaming of batting with bases loaded in the final out of the final inning of the final game of the World Series. We are without a doubt a striving people, we humans. We love our awards. A bit of that is ok. The impulse toward recognition can be a catalyst for creation and even self-discipline, and much else besides.

Oddly, or perhaps not, as participants within it, we can even approach divorce with an award show mindset. Although no court bestows an award for Best Supporting Spouse in a Long-Term Marriage — many people speak, think or behave as if this is or could be a thing. We lawyers often hear of the years our clients have spent deferring dreams, postponing advancement, taking care of the household, and rearing children. We learn of the decades of toil and labor. We observe in retrospect the indignities endured and the accumulated slights.

The fights. The silences. The betrayals. All of it is very much real. And all of it deserves our compassion and great empathy.

Many times, much of it may be relevant for the client’s case. Within the various statutory rubrics for divorce, contributions (monetary and otherwise) are often explicit factors for the division of property or for the award of maintenance/alimony. But the “awards” that many of our clients seek, deep down, are beyond that which is compensable in dollars — and they constitute something that the court can never provide, and therefore we lawyers can never obtain.

In divorce, quite often, people seek a reckoning of sorts. A weighing of historical matters. A retrospective analysis. A postmortem. A blue ribbon commission on what happened. It is an impulse toward receiving validation or vindication. The clients seek to either reclaim or be restored. And these things they seek, although elusive, are natural to want. The clients feel they have suffered or been wronged. And many times they have been. But there are very few states where “fault” is explicitly made a factor in divorce and therefore a matter for direct evidence. But while we can write fault out of the statute books, we cannot write it out of our minds, hearts or souls. From my perspective, it is a salutary thing on many levels that the rigors of fault have been legal relaxed or erased, but in doing so, we should have a profound appreciation of the fact that its eradication wholly ignores human nature and has yielded its own set of second-order effects in divorce.

This is necessary, by my lights, because we are not (and perhaps never will be) any less a fault finding, blaming, shaming and guilt ascribing people than we were when a certain Galilean man is reputed to have warned against casting the first stone. These attributes we seem imprinted with are, quite possibly, intrinsic to our humanity in ways we do not and may not ever fully understand. If one doubts the continued instinct toward these impulses, an evening to two spent on social media or watching and reading the news should disabuse one of the notion. Despite our amazing feats of scientific and technological progress, our human progress has been less remarkable. And because we do not provide a robust proxy for “justice” in divorce — for example, in the form of compensatory or punitive damages as found in a tort case — the dissatisfaction persists. I am not at all suggesting that such damages are at all wise or warranted as a matter of policy, but am only observing that proxies for restoration are not alien in the law and they serve a kind of purpose, however imperfectly.

When fault was banished from legislative legitimacy and the lexicon of divorce, it simply went underground. Like any banned substance, practice, idea or movement — from drugs to prostitution to insurgency and insurrection, people will inevitably find a way to do something they really want to do. Fault continues to drive divorce, but because it is not verbalized and has no legitimate outlet, it presents itself as many suppressed or repressed matters do. Fault comes forth unconsciously in litigation. It finds a host and latches on to what is available to feed it. It may drive positions on matters large and small. Noting this also does not mean that fault should be restored. It does mean it should be accounted for in how we approach divorce as participants.

Although I am a divorce lawyer by vocation, I am also a divorcé. What I am expressing here in infused with observations as a practitioner, but it is grounded in experience at a personal level. In two prior pieces recently, I attempted to begin to unpack the self-and-other deluding “masks” we all wear and how it can impact our divorces, and also the nature of mimetic desire, as expressed by Girardian theory. The two pieces fit, or I hope they do, together and also with this writing. Given what Rene Girard posited was a fundamentally imitative drive within people (read the piece to get the full gist), and given our additional tendency toward self-protection that can become self-delusion, it makes sense that we would also seek the emotional award (lower case “A”) as an object of divorce.

We see our spouse, often, as “winning.” We lawyers hear that “she is getting what she wants” and “he is taking me to the cleaners.” Many times, these statements are made before anything of real substance has even occurred. It is a horse-race statement of immediacy that comes from, as I explored in the Girard piece, a natural impulse within a triangular process. Wife has, or is perceived to have, thing X. Thing X can be money, children, property, the upper hand, the superior position, sympathy, information, status, etc. Husband desires X (and much else he doesn’t realize). The conflict that inevitably arises is the triangular and reciprocal dance between the holder of the thing and the seeker of the thing, relative to the thing.

We all seem to want to be on the right side of history, largely as a society or culture and locally as a group of people. We also want it individually. We want to know we were one of the “good” guys. We want to ride out of town wearing the gold star, the white hat, and the crown of the champion. We want to have our names inscribed in the Book of Life with an A+ and we need to be seen as without fault or with less fault than the other person. The reasons for this (particularly in the West) re interesting and varied, I think, but beyond the scope of a simple take on divorce.

For present purposes, the real notion I seek to convey is only this: divorce is complicated by what we bring to it (often not conscious to us), how we approach it (often driven by what is not conscious to us), and what we ask of it (again, often not conscious to us). We clearly know that our dentists cannot fix our unhappiness. They can fix a chipped tooth and that may relieve of us embarrassment, pain or anxiety. This may provide some measure of temporary happiness. Our accountant cannot relieve our sadness. But she may find a way to reduce our tax burden and this can provide a short term burst of contentment. We cannot get certain things from people or systems. And in divorce, our lawyers can obtain financial results for us. They can obtain results on child-related matters. But they cannot obtain the thing we seek — the reckoning. Even with objectively good awards and outcomes, many clients still feel like they lost. They sense that something is incomplete or missing.

Relatedly, many clients want to take the stand and tell their story and express the fullness of their narrative reality. “If only the Judge could hear what I have to say…” We lawyers often are told this. But our system of adjudication does not permit it and does not recognize it, beyond the limited ways in which that testimony has relevance. The process of divorce simply does not allow for the outlet that clients need and want. At the end of the case, clients do not have their Award, despite having AN award.

This state of affairs is particularly present in litigated contexts. In mediation, collaborative law and other ADR approaches, the nature of those processes permits for greater discourse and narrative sharing. They are designed, to varying degrees, to accommodate much of what I have described above. This ability to incorporate ways to handle the difficult emotional material is part, but not all, of what makes them good and useful modalities for dispute resolution. That said, even within these processes, the impulses and instincts we have explored are rarely fully satisfied. This is so because there is no external bestowing of the Award from a hierarchical source.

Ultimately, there is no easy solution to any of this. Perhaps there is none. Or perhaps the only solution is for people to be able to recognize the issues involved and clearly identify them for what they are, thereby taking some of the sting out of them. Part of this phenomenon is, at root, the fact that we humans many times conceive of our lives as a grand narrative, almost like a film or play or novel. We create stories about Acts I, II and III. So we come to view the marriage as a kind of chapter — with a beginning, middle and end. And we seem to need to ascribe meaning to everything that occurred— particularly the bad stuff. We need to have that pain and the suffering, which were and/or are real, make sense. It all has to have a clear and concrete purpose. Or so we suppose.

This is why we sometimes talk about life after divorce as being a “new chapter.” For some, this conceptualization provides real comfort. And I support comfort for everyone wherever they can find it. But for many, the next chapter is not, or may not be, the glorious Act III redemption. It lands, like much of real life as opposed to cinematic life, with a soft thud. Or perhaps it lands in a way that does not seem to change much at all. So there is, perhaps, some other, smaller comfort, some of us can find in accepting that either: (a) there may be no sense to be made of any of it or (b) even if there is, we may never be able to find it. So then, in not looking for answers and awards, we may inadvertently find a different, more useful answer — equanimity. In not trying mightily to avoid our suffering by becoming attached to it and overly-identified with unpacking it, we actually have a means to escape it or lessen it. Pain will be ever present as mortal beings, but release from suffering or the full weight of suffering is possible. It is, really, about being realistic with the possible. Within Eastern thought, this general approach has a long-standing lineage. Buddhism, in particular, clarified the pain-suffering-attachment dynamic. Taoism spoke (and still speaks) eloquently to the concepts of wu wei (action-through-inaction/effortless action), naturalness and acceptance.

Like my clients going through it now, I know fully the roster of thoughts, feelings and sensations that come with divorce — the confusion, anger, regret, bewilderment and sorrow. Even in an amicable divorce, as mine was, the maelstrom of emotions can be overwhelming at times. And as a former spouse and fellow human — I know the tendency to seek out that elusive Award, whatever it is. I’m certainly no expert on life or relationships or much of anything really, but I do know myself and I do know how to closely observe and actively listen, as a lawyer and former performer. I gave up on acting a long time ago. Some times, I wonder about that choice. Most days, I do not. Instead of inhabiting other people’s lives or characters and conveying them, I learn the stories of real women and men and work with those as best I can. I wish I could skillfully direct clients to obtain that other Award they seek. I wish I could write their acceptance speeches with them. But I can’t and I won’t pretend that I can or that anyone can. What I can do, however, is occasionally shine a spotlight on things like this; and hopefully bring attention to the fact that we all can make things a little bit easier for ourselves when we bring them into the light of day, begin to see them for what they are, and accept them for what they are.

In the theatre, as in divorce, the stage is dark until the lights come up. While there will never be an award for time spent within a marriage as a spouse, understanding with clarity what compels us under the radar and appreciating without delusion the real world limitations of what any process can provide is critical to appropriately gaining greater self-awareness and also to adjusting one’s expectations of that process and what is reasonably achievable.

8 views0 comments