• Brendan

Coming in Hot: Finding the Landing Strip in Divorce

Some time ago, during trial, a perceptive and intelligent client who always remained the face of calm and reason, looked at me and asked “can we still bring the case onto the landing pad?” It was a good question and it reminded me of an inside joke that my ex-wife and I share to this day.

When we travel together (which we still do on coparenting vacations), we always kid with each other about the plane landing, saying: “we’re coming in hot” as the aircraft touches down onto the runway. And so it is the concept of the landing that I want to briefly explore here.

So many times in divorce, it can feel as if we, whether lawyers or clients, are flying in a massive jumbo jet that we are trying to put down on a dime-sized patch of landing pad. Figuratively, the controls feels heavy, the wind is choppy, and the runway is not going to be long enough. So what do we do when that feeling arises? How do we get the case to “land”? And what is it that permits some cases to make that touch down relatively well and some to skid off the runway?

By my lights, it is in large part staying in the oft-cited “zone” and taking things as they come. Every one of us, both lawyers and clients, have feelings. We get mad, irritable, impatient and positional. We can lose our cool and we can get lost in the weeds. We can become easily offended by this comment or outraged by that remark. Our passions all too readily can become the tail wagging the dog of prospective settlement.

To our eyes and ears, the other side appears to be changing the deal or negotiating in bad faith. New issues arise in the case and old issues seemingly settled, suddenly reappear. Nothing seems linear and everything seems chaotic. But we have to stay in it.

Too many people, lawyers AND clients, just throw up their hands. They walk away from the table. Certainly, there are times when you have to do that. Sometimes doing so is a tactic in order to return to the table. Sometimes doing it is substantively necessary because there is no hope for resolution. But in the main, staying at the table is vital. Even, or especially, when it becomes uncomfortable. We all have a tendency to avoid pain and discomfort of all kinds. But that innate tendency to escape the source of pain often causes us to make substantively suboptimal decisions.

Many times, this is expressed by the lawyer or client with statements like “let’s just try the case” or “it is easier just to try the case.” And in some ways, it IS easier to fight and go through the trial of the case. It is often easier to step away from hard conversations and difficult issues and just submit to the process of litigation. It certainly does not require the same form of interpersonal engagement. It does not demand the hard giving and tough taking of negotiation. But in many other ways, trial and all the comes with it is not easier in either the near or long terms.

The other truth is that, where children are involved, whether trial or settlement resolves the matter, the resolutions are tentative at best and never fully resolve things. With a child, it necessarily means some degree of engagement with the other parent (in some form) for many years. For many people, as it is for my ex-wife and myself, a divorce and coparenting relationship is itself a constant settlement of sorts. Repeated daily.

In my own experience of divorce at the personal level, I like to think that my former spouse and I communicate well. We share values and goals. But we disagree, often profoundly. Like the situation at the settlement table, however, we try to remain focused and engaged. We attempt to no fall into that easy pattern of “forget it!” — where people are then off to the races. We try to find the landing strip that we know exists on all of the issues that arise. And we inevitably do find it, over the course of the last six years. Sometimes finding it is hard. It often requires extraordinary patience. Sometimes it means diverting to a different course for landing. Other times it mandates circling the figurative airport until the runway becomes clear and visible. But it always means the two of us staying in the cockpit, hands on the controls, trying to arrive at a destination known as resolution.

Settlements can be harder than trial because making peace often is harder than waging war. It is easier to break things than to build them. Former Speaker of the House, Sam Rayburn, once commented that “any jackass can knock down a barn, but it takes a good carpenter to build one.” This is true in divorce as well. In divorce, remaining in the moment, residing non-judgmentally with your maelstrom of feelings, while maintaining clarity and focus are essential.

It takes a good set of nerves to fly and land a plane. It is normal to feel like Ted Striker in “Airplane!” — we can sense the sweat pouring off of us, flashing back to anime once before when we could not complete the mission or land the craft. That is ok.

In those times, we should take a breath. Or two. Or twenty. Splash a glass of water on our faces. And get back in it. When we feel fear, anger or impatience arise — we should pay attention it. It is a signal. The pain is telling us something we need to know. But the lesson from the signal is not to run, fight or flee. But to remain, in the moment. The next moment will inevitably come and if we have the patience to ride it out, that next moment will likely be better than the one that preceded it. Maybe it won’t be. But we will remain in all of those next moments until it does get better. Because it will.

I am a family law litigator and I try cases. But I also know that litigation is not simply the art of persuading a judge at some final cage match of trial advocacy. It can be that at times, but there is more to what we do than just engaging in that form of final battle. The real battle is within and is frequent. It exists within the lawyer and the client. We go through dozens or more of these “trials” every day in divorce. How do we handle this or how can we resolve that? Each experience tests us. Each one is an opportunity. We don’t have to land them all on that dime-sized patch. But we should do our best, when and where it is proper to try. It is worth it. Winning can be exciting. But the best “win” is the resolution that achieves the greatest possible result while also doing the least collateral damage. When we do that, then we have truly stuck the landing.

Safe travels to any of you navigating your own divorce process, may you find your own landing strip.

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