It has been some time since I actively wrote here, so I beg your indulgence with the length of this piece.
Recently, I was “on trial” in lovely DuPage County, Illinois in a case I took over as substitute counsel. For those of you not from, or located in, Chicago, it is the suburban county next door to Cook County. Of course, this was not a real trial, as instead, I spent three days in the courthouse settling the case, with the Judge half-heartedly threatening/cajoling the lawyers and parties with bold assertions that he would “gavel” the trial if we didn’t keep making progress. The fact the Judge was conducting an actual trial at the same time took the weight out of those admonitions, but the parties were well served by believing it was possible.
Given what little I have described so far, those of you who are divorce lawyers can all immediately infer much of what was going on there. When a divorce lawyer says that he or she is on trial, but is at the courthouse trying to finalize the case, we all know the kind of matter with which our colleague is dealing. We also can infer a fair bit about the parties involved.
In a robust estate with plenty of assets and income, in the end this case “blew up” over each of the following (at different points): four Chicago Bulls tickets, a Bar Mitzvah gift check, a Jet Ski, a set of maps, $700, various and sundry dental bills and several other picayune items besides. There was cursing, screaming, and gnashing of teeth - mostly from the parties, but occasionally from the lawyers, as we attempted to bring this case in on the landing pad of a settlement agreement. There were accusations of “financial rape” and many other instances of ribald conduct and florid communication. At several junctures, I pretended to be wholly outraged and stormed off in a faux-huff - purposely deploying a consciously ridiculous emotional "strategery" to try and move the case off the dime. One does these things in a pinch.
It seems almost farcical to report it all to you now. But for the parties involved, it was a crucible. As their 30 year marriage came to an end in the run-up before the holidays, everything that had come before came to a head. The dreams deferred, the insults and slights endured, the betrayals suffered, and the weight of three decades were all exposed in these three days.
There were also light(er) moments. Laughter and shared remembrances punctuated periods of sadness and regret. Private and intimate conversations were held in hushed tones between husband and wife in the small carrels off of the courtroom. We lawyers gave them a wide berth and the respect and privacy they deserved.
In these three days, I saw a lot of what my colleagues and I see all the time. I saw what I know from my own divorce experience.
The man and woman who divorced in that courthouse are both decent people. Neither of them was unstable or ill. Neither of them was a bad person or knowingly trying to actively stick it to the other. Outside of divorce, these are both educated and professional people. They are productive workers and competent parents. They probably look, act, and live a lot like you and me.
However, as they grappled with the reality rushing in on them, they did what a lot of people do — they retreated into a primal psychology and their old ways of dealing with each other. Fault lines between them that were once merely visible became horribly exposed again. But their humor, and the heart of their relationship and love, also showed just as vividly.
While this couple could not and did not remain legally married, it was quite clear to me that they remained very much engaged. What these people lacked (as do many others), in my view, was a way to process and navigate their formal dissolution of marriage status while still retaining what each of them so clearly seemed to want: not a total and complete break, not a complete whitewash of a life together - but something different. Perhaps it was something that even they themselves could not articulate.
Many of us (as lawyers or participants in divorce) seem to view marriage/divorce as a binary. Like an Of/Off switch. But it often isn’t. Very few human relationships really are.
Warren Zevon once famously sang, in “Searchin’ for a Heart” that love is something you can’t start like a car or stop with a gun. That notion kind of nails it - but in a good way (mostly and most of the time). Love and your relationship doesn’t necessarily end when you can no longer file a tax return as Married Filing Jointly.
We do a lot of disservice to ourselves, to our clients and to others when we buy in to and encourage the zero sum game of marriage and divorce - as though people can toggle so easily between In and Out. There are - to be certain - many bad marriages. There is abuse and addiction and mental illness that make many marriages very scary, violent, and disorienting terrains to inhabit. But there are many more marriages besides that are not marked with those scars. It is those marriages that I think of a lot and how we all could make it better for those people in divorce.
It would be, to my mind, a wonderful thing if the rich textures and complexities of our relationships could find greater understanding, support and expression in divorce.
It would be salutary if we could create a better way of navigating for ourselves, as participants ,and for our clients, as lawyers, the maelstrom of emotions that comes in divorce without making it seem that divorce is a form of fatal disease. We still seem to see, writ large in our cultural depictions, only (or mostly) the negative, the confrontational, the adversarial and the oppositional depictions of divorce. But this is not where the majority of people are. It is not where Vanessa and I were, or where these people in that courthouse were.
During this period of show-trial/settlement, the parties who I discussed above both dined together. They spent time together. They also traded vicious barbs and cruel comments. To some, their behavior would seem inconsistent if not schizophrenic. To me, as a divorce lawyer and a divorced person, it seemed altogether normal. It seemed real. It was life as it is lived, not as it is depicted or conceived. Perhaps they won't write a blog together, but they also did not need (or want) what our system provided to them.
I have some good friends and colleagues both in my firm and outside of it who are very talented at utilizing alternative dispute resolution in divorce. This can take the form of collaborative law, mediation and other non-litigation approaches to divorce. These folks do very good work and they expend a great deal of effort, time and energy in making divorce less damaging. I salute them and their efforts. But I can only muster two cheers on this front. Not out of any fault from such lawyers, but because even these approaches - to my mind - are still often lacking something.
As both a divorce lawyer and a divorced person, I would like to see more of us all learning how to be ok with the often frustrating ambiguity, complexity, and confusion that comes with divorce. Life and love and relationships - with or without kids - is a choppy sea. Rather than feeding into the worst of us, I would like to see more of us doing more, more often, to encourage the best of us. To accept that something is not just either/or -- that it also can be but/and.
We lawyers often hide behind the cloak of advocacy, especially if we are litigators. We often reject any higher duty beyond representing our "client" in Court. We proclaim that we are lawyers not therapists. We don't "do" feelings. We state that our only responsibility is to act within the confines of our various Codes and Rules. But, I think this is a shabby cop out. I know I have been guilty of it myself too often. I think divorcing people often engage in similar cop outs - not out of malice, but often out of ease in the moment. It is hard to simultaneously hold in your heart feelings of rage and love.
I also think that alternative forms of divorce resolution still manage to enable and reify the binary of married/divorce too often. Surely, many divorcing people want to be divorced (legally and in all other ways) from their spouse. Many do not want any connection after divorce - even for the sake of the children. But many are actually deeply conflicted and yet they see only two options: Coke or Pepsi, Hertz or Avis, Married or Divorced. And sometimes, these people want and/or need something else.
This afternoon, as I sign off, I am thinking of the Husband and Wife from above. I hope the best for them. As I do for you. Vanessa and I spent the earlier part of today with Felix in a service project delivering Thanksgiving meals to folks who were going through some tough circumstances. It was a powerful experience to witness our son, blessed and fortunate to have so much in life, giving back for the simple sake of giving. In a way, the experience of giving unconditionally in this way reminded me a lot of the giving we do (or should) in divorce and in coparenting.
Often times, even in contentious cases, when the "Prove Up" of the final judgment happens, you see something. You often see parties sitting together, or you may see them hugging. You sometimes see them drive back together. You sometimes see them laugh. You see the parties give a form of thanks to one another - even when they will not engage again.
And in other relationships, in a lot of cases, they don't always die. Like the old soldiers extolled by McArthur - they sometimes fade away. Other times, maybe they change form - like substances moving from a solid to a liquid to a gas. But they often remain - changed but still present. We have a hard time, it seems, holding in our heads that people can no longer be legally married and no longer romantically or intimately involved - but still remain intrinsically connected (via shared children, via a shared history and /or via a long time friendship). Those relationships are hard to maintain and aren't easy. But when motivated by your shared love of your child and your respect for each other - the giving that is required to make such post-divorce relationships work is more than worth it when you the results in your child's eyes.
This is why I happen to believe that we need to work on a both new nomenclature or lexicon for people that captures where they are. We should reject the black/white depictions that lead us all to wear blinkers relative to what is possible. We also need to work creatively to fashion processes inside and outside of court that can reflect that reality of such people. Divorce brings with it, still, an overwhelming degree of guilt and shame.
Part of the problem in this regard is that we treat divorce, still, like a disease. But it is not. We can all recall when cancer was the Big C and our parents and elders didn't want to talk about it or admit to it. Thankfully, those days are passing. But divorce still bears that blot of not-so-hidden shame for too many. Out of that sense of shame - coupled with feelings of regret and betrayal and anger - the divorce often devolves. And many of the things we lawyers do in that process only feed those flames.
Relatedly, we often treat divorce (when we do not treat it like a disease) as combat and often in a very flippant and glib manner. The memes and themes of divorce parties, burning the wedding dress, and the media depictions of the bitter celebrity divorce are often amusing initially but they underscore the degree to which - because we want to stick our heads in the sand and pretend it away - we treat it like spectacle and farce hoping never to really grapple with it all. We lawyers, like medics or ER doctors, ourselves often develop a gallows humor and a self-protective cynicism that blinds us to the pain our clients are in.
Out of this all, it seems to me that we need to try and help people do one (or both) of two things: curate the artisan relationship that suits them where they are or unwind their relationship in a manner that is as preserving of respect, compassion and integrity as possible. And in both circumstances, doing so without shame and without animus.
Maybe - on a professional level - that means we don't divorce some of them in the end. Maybe it means we do divorce them but also work with them and other professionals (psychological, financial, etc) to fashion a new normal after their legal status as a couple changes. Maybe it means for some people that we still do what we have been doing for decades. There is no one-size-fits-all. But what we do now isn't enough a lot of the time and I think a lot of us know that.
Maybe this is all too much to ask. But I know in my heart and my head that while Mr. and Mrs. X might have divorced in DuPage County recently, and while they will both move forward independently, they also stayed very much together in other ways. I wish I knew a better way to help folks like that. I wish we all could think more about that ourselves when we go through divorce and that our media would begin to depict divorce with a greater degree of nuance, compassion and complexity.
Every time a new client comes in, they come bearing the burden not only of what is going on in their marriage, but they come to us quite raw, having marinated in decades of music, film, literature, theology and commentary regarding divorce that is often quite toxic (or at a minimum is incomplete). They often don't know how to express what they actually want because they often don't know internally what they want and/or don't have a benchmark to reference.
I hope that we can try to think about expanding the range of what is possible. There are a dozen meal choices at your local McDonald's. When you walk the aisle at your grocery, there are a similar number of options for bottled water. We are overloaded with options on almost every front: cars, clothes, food, and entertainment. Do we really only have one, two or three ways to get divorced? Is there really only the choice between being married or divorced? Or can people do something different? Can we find that spirit of Thanksgiving that we access each year and attempt to manifest it, however imperfectly, each day? Can we be grateful for what we had and open minded about we can still have?
It is 2018 and our understanding of many things has come a long way. Sadly, on the marriage/divorce front, our understanding is still mired in a "Kramer vs. Kramer"type of approach in many ways. And while we trumpet coparenting and we encourage mediation, as though these admittedly salutary things are the final answer, we still operate within the box of the binary too often.
What I am endorsing here is that we all think and talk more about these things. I certainly do not have the answer(s). But the problem is clear. We do not have enough visible options for people to have the lives and arrangements that suit them as they really are, instead of how they think it must be. We still refer cruelly to "intact families" as the gold standard, as though being the child of George and Martha from "Who's Afraid of Virginia Woolf?" were somehow preferable to being the child of cooperative divorced parents that make coparenting together work. It is clear we all have a long way to go in these matters.
But whatever form your own particular family takes - I hope this next week is a good one. I hope you and your kids have a Happy Thanksgiving. This year, I am once again grateful for my family - unorthodox as it is. Many people often say, "you guys don't really get a long as well as it seems, do you?" There is doubt. There is skepticism. There is judgment. And the truth is, we are like anyone else. We fight and argue. We also are just trying to do what is right for our son and for each of us. We are fumbling around trying to make it work like anyone else. Our thing may not be your thing. But it manages to work more often than it doesn't because it is what we have chosen and crafted with mindfulness and deliberation - and without buying into the narrative of the either/or divorce, the divorce as combat, the divorce as inevitably damaging.
In the end, we are all "searchin' for a heart" like that song says - some of us find it in unique ways, creative arrangements and in odd circumstances. For me, personally, I find it in the family that endures after it is "broken." And like Hemingway noted, it is stronger in those broken places. But it is the attempt on these fronts that matters. Here's to each of you on your own journey along the path, whatever it is and wherever it leads.