When Vanessa and I divorced four years ago, we both made a conscious effort not to fight. As divorce lawyers, on a daily basis, we each saw the carnage - financial, emotional and otherwise - that flows from engaging with divorce as combat. We saw that the fights our clients fought were only marginally related to the real issues involved for them. This election that we each made was both simple and yet profoundly hard. It was scary. It remains so, four years after the fact. Although we coparent quite well, although we spend time together as a family with our son, and although we get along very well - we do so, often, not because doing so is easy and effortless (though many times it is), but because it is ultimately good (and despite it sometimes being quite hard).
Although I have deliberately been absent from this space for almost three months, I felt moved, finally, to return here however briefly to comment. This is because I had a bit of a Jerry Maguire moment in Court a while back. As opposing counsel, a very good and able and respectable lawyer, made her pitch - I suddenly couldn’t take it. In the chambers of the Judge, with the sun beaming in through those floor to ceiling windows of the mid-century monstrosity that is the Cook County Courthouse (aka the Daley Center) - I felt my skin itch and my hair tingle. When it came to me, I did not engage in a Jesuitical refutation of my opponent’s points or attempt some hackneyed argument based on an equally hackneyed interpretation of “The Law” or the facts as I wanted to spin them - rather I let it go. I spoke honestly. Perhaps I spoke inartfully, but I did so emotionally and purely, and from a place we lawyers often do not want to go and usually do not access. I simply could not bear what I was hearing, in the context that I was hearing it.
It was a retort from within that I summoned, as a father, as a divorced man, as a person - just like any other - who has been around the block at least once. The funny thing is, it had impact. The Judge heard me and responded, not with recrimination, sanction or rejection - but with acceptance. Departing from previous opinions and rulings made before this occasion and before our involvement in the case, she engaged with me and my “argument” in a way that materially benefitted our client - but also in a way that laid a groundwork for us all getting to an actual robust and sensible resolution of some thorny issues for both parties just this week.
What is the point of this?
My point is only this - we rarely “lose” when we are human. Or put another way, in your own divorce, a client’s divorce, in your office, in negotiation or in life - when we tackle the elephant in the room, when we acknowledge the weaknesses, when we drop the masks, it is then that we open up this space to communicate with another person on a level that is deeper and more profound than when we trade claims and positions like volleys at the tennis net.
Don’t we all really want (deep down) to tell it like it is? Don’t we all instinctively resent the artificiality of so many parts of our lives? Who else chafes at Facebook and Instagram posts that we know on a fundamental level are so much aspiration and artifice? There is a reason why a book like “The Catcher in the Rye” continues to appeal to generations of teens and young adults. Holden Caulfield’s rage against the phoniness of his particular time and place is an angst we all have felt and many of us continue to bear consciously to varying degrees in adulthood.
We all have our view of what constitutes “fake” news. We all know the reality that we are pitched via media is, in fact, often only carefully stagecrafted surreality. We all know the dopamine hits of likes and the converse from the sound of crickets. We engage because we think we want to, we stay because we think we must. We do not show our lives as they are, but as carefully curated slices of life as we want it to be and to be seen by others. We all want to seem to be ok - even when we are not.
And for millennia, we have all grappled with the horror (and yet, wonder) of attempting being and of being ourselves. Or, at least, trying to be ourselves. A lot of the time, when we talk about things we don’t really talk about them. Whether it is in Court, on social media, in the coffee house, or on the couch. Conversely, many times when we seemingly don’t talk about things, we are really getting to the heart of the matter. To my mind, divorce is one of those things we don't talk about or "do" well. We formalistically talk in court about dog walker bills, school tuition, holidays and parenting time, alimony/maintenance and property. We also talk (too much) about arcane and mentally masturbatory interpretations of statutes and cases. But we often are saying nothing. Doing nothing. Accomplishing nothing. What we say publicly about divorce is even more opaque or deliberately incomplete.
However, when we dig deeper, and talk or think (as spouses and lawyers and judges) about betrayal, fear, control, regret, goals, hopes and dreams and pain - we are actually getting to where we need or ought to be. Some will say these things don’t matter - legally. We want to banish them from discussion -- and yet they will be (necessarily) the central point regardless of our attempts at obfuscation.
We run scared from calling out these things honestly as though they would bring forth some bogeyman from under the bed. But the most powerful closing argument I gave in a case was when I led with my own sense of fear: over my abilities, about positions in our case, about the court’s perception, etc. It was a risk taking exercise that exposed my own vulnerabilities and those of our case. But it resonated. I think it resonated because it was open. It dealt with what was real.
I have said before that the mechanics of almost any divorce case from a financial, custodial or logistical standpoint can be resolved in less than a week. The myopic focus on the details is the tail wagging the dog. I still hold to that assertion in most instances. It is, instead ,that messy suite of emotional and psychological variables that our clients come to us with (or that we have in our own lives) that make our cases take longer. And to be honest, sometimes we lawyers also get in the way with our own stuff and make it harder for the people we want to help.
For our part, Vanessa and myself resolved the black and white issues of our divorce relatively easily and quickly. The other parts are now, as they were then, less clear. More ambiguous. There are feelings and memories and emotions. We can label them “good” or “bad” - but they are really neither and yet also both. They are the material that remains when a marriage ends.
The challenge, for us all, is what we do when the music ends - whether it is the marriage or something else. What we do when placed on that immediate razor’s edge between cooperation and conciliation or litigation and recrimination - matters so much. It is there, in that time for choosing, that we really must summon our strength and for ourselves and our kids and those around us - to choose vulnerability. To take a leap of faith that is no greater than the one you took when you said “I do.” It is to take a chance on your ex-spouse or soon to be ex-spouse. It is to believe that while you will not remain married by law, you can remain human and decent and engaged in all other relevant regards.
This may seem a bridge too far to many of you. In some cases, it is or may be. There are always such instances. But in the main - it is far less impossible than you might think. It does take more than you might always feel comfortable with - but it is worth it.
As I enter my fourth year of divorce personally and another decade of divorce as a lawyer - I hope that you too can find value out of the ashes. That you too can choose something better than the blinkered list of options we think are available to us because it is all we see or are sold.
We should not run scared of having such hard conversations, doing such difficult things, and of getting into tough material. Fear can paralyze and yet it can catalyze. But it is only when we engage with it that we can manage it and tame it.
Yesterday, on Halloween, a lot of us dressed up as people we are not and yet in some ways we became the people we really are: funny, scary, silly or sexy. In some ways, that moment presented a more robust picture of the truth of us. Today, despite returning to our regular lives and workaday finery, we donned a different set of masks and costumes. A set that isn’t so substantively honest. It is the armor and restraint of external duty, responsibility and fear. It may appear more real and yet in so many ways it is also quite unreal.
The point really is that when we allow ourselves, as we did yesterday, that liberty to be and that freedom that comes when we are unmoored to certain conventional forms and fashions, we sometimes can get to something bigger and/or better. Something actually more real. And relevant.
So too can we do this in divorce. Or marriage. Or in Court. Or with almost anything or anywhere. And like with Halloween, we can see that facing the scary or fearful stuff isn’t so bad after all.
In Halloween, we give ourselves license to let go. It is a "free pass" we should allow more often. To both ourselves and to others. In doing so, and in facing the ghouls and ghosts that we know are not real, we gain a kind of resilience. It is this, and in and through this, that we realize that most of the monsters are only inside of our heads. When we demystify them and make friends with them, they lose their power and we gain back some of ours.
And that is what we need to face what happened, what remains, and what comes next.