Why is Divorce So Hard & Expensive?

On Friday I did a lengthy interview with a law student tasked to interview me about my history as a “negotiator.” I never viewed myself in that way until he asked me. Then I realized that modern day lawyers spend most of their time negotiating. Duh? But there are times when a different approach of inquiry prompts different thinking on a topic.

I offered that family law negotiations are quite different than most legal transactions. I want to sell my house or business. You want to buy. There’s a touch of emotion but essentially these are objective negotiations with willing participants who are at liberty to declare “enough” and move on if terms can’t be reached.

Divorce and custody are different critters. We marry and bring children into this world imbued with optimism about the relationship and the goals. We are willing buyers in these transactions although we are often not as clear eyed as we would be if buying a car or a Domino’s franchise. When a marriage comes apart, for most the pain is far greater than any other transaction life offers with death of a family member being the only close equivalent.

I picked up a 2018 book by a divorce lawyer offering women a guide to smartly managing their divorces. The author reveals that she was a lawyer married to a lawyer who experienced the pain first hand when her 16 year relationship came apart. Ann Grant’s Divorce Hackers Guide to Untying the Knot re-visits her own experience but quickly moves on the the practicalities of dividing assets and children. I appreciate that this book was not intended to be Ms. Grant’s day in the confession box, but I also felt that the author sped past the emotional issues a bit too fast.

What I told the law student with whom I spoke was that divorce is a business transaction driven by emotion. Perhaps it shouldn’t be that way, but it is. Even in settings where the clients admit it wasn’t working, they often express outrage over the timing or the fact that the other spouse initiated the separation or divorce. If we prepared playbills for divorce proceedings each client wants to be cast in the role of “victim” even in a setting where that person had the affairs, never filed tax returns, quit a job, was fired for cause or did some other opprobrious thing. In many instances the other spouse is more outraged over the claim of victimhood than the actual demise of the marriage.

This leaves divorce lawyers in a bad place. We live in a no-fault world so this really is an economic transaction. But if we take the Mick Mulvaney approach and tell the client he/she needs to “Just get over it” we are likely to be dismissed for a substitute attorney who is more caring. And many attorneys are happy to become co-pilots in the adversarial cockpit with words of appeasement. “I can’t believe he left you for that bimbo” or “ She’s well educated and smart. Why didn’t she get a job rather than sitting at home claiming to parent full-time.”  Or, there is the lateral pass. “My lawyer says your lawyer is just churning this file.”

This is all performance. But underneath the surface is real pain. Despite a 50% divorce rate in America for first time marriages, we still say “I do” believing that marriage will be permanent. And even for relationships that produce kids without marriage, the parents don’t come in saying thinks like: “I picked him because I wanted a kid with blonde hair and green eyes” or “I had a kid with her because she was a national merit scholar.” What lawyers typically hear from the unmarried folks was that they expected a long term relationship but viewed the marriage thing as equivalent to a passport.

The other thing going on today is that separating parties don’t like each other much anymore but they won’t move on. The lawyers are now nagging their clients; asking what needs to be done to finish this. Parents of divorcing parties are often calling their son’s or daughter’s lawyers asking: “Why isn’t this divorce finished. Are you (Mr./Ms. Lawyer) dragging this out?”  Some of us from the olden times recall with fondness the scene from the 1989 film “War of the Roses.” How can you tell it’s over? Because his clothes are all over the front yard. Today, your neighbors may have been separating for two years but they’re still in the same house and still at the baseball practice on Sunday.

A lot of this has to do with impressions we have formed in childhood. Marriage should be forever. Kids come first. Men manage the money. Women manage the family. These shibboleths die hard. I have represented women who have run multi-million dollar businesses who are powerless at home. I have represented men who could lay off 500 employees without blinking an eye but who dissolve in anguish when they are told the children will be a day late for vacation because a child is sick. Women often buy into the narrative that despite a graduate degree and work history before children, their decade at home as primary caretaker makes them unemployable. The newest trend is the former 60 hour a week father professing that he now has to dial work back because “I need to be there for the kids.”

The reticense to grapple with what really happened to the relationship consumes untold professional fees and delays the process. People get lost in their own grief even though they often reveal that the separation has been a liberating event. But the business of “re-setting” life’s clock and looking forward to the next chapter is deferred again and again.

So, without benefit of any psychological training but 40+ years of experience here are questions you should answer in writing within 30 days of any separation or divorce filing.

What did I do right in the relationship? (always start positive)

What would my spouse say if I asked how I failed the relationship?

What parts of his/her narrative (right/wrong) should be given credit?

If we had kids or merged families, how did that affect our relationship for better or worse? What role did their needs play in the devolution of the relationship?

What role did parents or former spouses play in the devolution of our relationship?

If the marriage experienced issues with substance abuse, infidelity or financial mismanagement, did I play a part? And how would I change my approach to mitigate the risk these things might occur in my next relationship.

These are not easy questions and all merit more than a one or two sentence response. The considered response is probably worth lugging over the a therapist to discuss. We invest a lot in relationships and the loss of them causes some of the worst pain we can suffer. But failure is the leading motivation for change and success. Henry Ford said “Failure is the opportunity to begin again with more insight.” Or as Aerosmith put it: “Life’s a journey not a destination.”

When people separate the gears of life often slip into neutral or worse. Repair of those gears cost time and money. Divorce Hackers trying to untie the knot need to be savvy and practical. But they also need to meditate a bit on the road that led them to the end of a relationship and to “begin again with insight.” Not only will you save money and benefit personally from that experience. Your children will learn as well.