Doing Damage in Divorce — The Rising Tide That Scuttles All Ships

JFK once said a “rising tide lifts all boats.” JFK didn’t actually hatch that phrase. It was borrowed by him, via Ted Sorenson, from an east coast chamber of commerce that first deployed the aphorism. Nonetheless, it is a pithy locution and an appealing statement that most of us can endorse in almost any setting (particularly in the abstract). Typically, the slogan is deployed relative to economic matters, but the applications of that notion to divorce are something we might also consider.

Many times Clients say to us Lawyers some variation on the following: “he’s winning,” “we aren’t winning,” “she needs to lose something,” “that’s not a ‘win’” or “I’m losing.” So much of it is all a kind of game-style talk. Wins and losses, ups and downs. One would almost think divorce was a midterm election or the World Cup. Of course, our adversarial system feeds this aberrant sensibility regarding the dismantling of a marriage. We start with a Plaintiff and Defendant (or Petitioner and Respondent). Two sides. Doe v. Doe. Immediate opposition from go.First, Mr. and Mrs. Doe lawyer up. Each side gets their lawyer. Many clients who don’t know better immediately opt for the meanest dog in the junkyard. And they think, as FDR is reputed to have said of Somoza, “he may be a son of a bitch, but he’s our son of a bitch.”

Divorce lawyers are, like almost all other lawyers, paid advocates for their clients and they take what are called “positions.” And the use of the word “position” in divorce specifically is interesting. A position, per the dictionary, can be: a point or area occupied, a market commitment (as in a security or commodity), a relative place, standing or situation, and/or a point of view adopted and held. But if we really zoom out and stop thinking like lawyers and advocates and people engaged in an opposition-style exercise, taking a position in divorce is kind of an odd thing, at least in the way we tend to do it most of the time. People in the real world don’t often really have or take positions that often. They have interests and goals, drives and desires.

But, in the litigation context, everyone has a “position” because they have to — because the law is involved and it necessarily compels that we take one. And so, we stake a claim for guideline child support and a 50/50 division of property. Or we throw down an anchor for 60/40 on property and permanent maintenance. We may draw a line in the sand at 55/45 on property and a deviation from guidelines on support. We do the same thing with child-related issues (which is even more unseemly than the Moroccan bazaar approach we take with money matters).

This is not altogether sensible practically speaking, though it makes sense within the internal logic of the law.But what we actually have in a divorce are just two people going through life. These two people own things (houses, businesses, art and “stuff”). One or both of these people make money (from working and/or off of the things they own, received via inheritance or were gifted). Perhaps these people also have a child. They are no longer going to be legally married to each other. As such, the law has to characterize and then allocate their “stuff” and make other decisions if they can’t do it for themselves.And it is that “if” that matters so much. People really ought to be able to do it for themselves, right? But many cannot or will not or do not know how. I get it and there is no judgment attached. Some people have a spouse that doesn’t want to be reasonable and some people are the unreasonable spouse themselves.

And so, rather than do what should come naturally to us all, regular people go and hire lawyers to appear before a judge and argue about it all — their private lives.Otherwise reasonable people, outside the context of their own divorce, pay lawyers hundreds of dollars an hour to argue about silver settings, chifforobes, homes and cars and stock and other material possessions. All of these items get funneled onto what we lawyers call the “Balance Sheet.” There are rows for accounts and properties and assets. There are columns for characterization and value. The material possessions of the spouses are reflected in pristine form on this spreadsheet. And we lawyers move the numbers around on this balance sheet to reflect our desired outcome, to depict the “position” we have taken for our client.

You see, when clients hire lawyers for divorce litigation, they have ceded their natural authority, autonomy and right to self-determination on all of these matters and much more besides. Let me repeat — when people don’t solve matters for themselves, they have handed over all power, control and freedom to third parties. And they have opted-in to being bound by the particular laws of the place they live. And in opting-in to those laws, they further bind themselves to the written and unwritten rules of the game whether they like it or not. BUT — no one is actually required to do it this way.

The law doesn’t much care if you give everything to him or ask nothing from her (except on child matters, which we will come to shortly). You can flip a coin, throw a dart, or do almost any darn thing you want to when it comes to your property and your “stuff.” You can also decide what, if anything, one of you will or will not pay to the other in terms of alimony or maintenance. You can make it all up for yourselves — and often in creative ways that the law cannot provide you. When people ask “what does the law say I am entitled to?” — the appropriate answer, I think, is not to immediately cite the relevant statute. Rather, it is to first state that the law “says” you can do almost anything you want if you both can agree. But if you can’t do that, then the law will probably do X, Y or Z.

Rather than working with this exhilarating flexibility and freedom that self-determination affords, many people nonetheless will hand over their economic lives to lawyers and judges and the rules we all have to play by once you enter into our “matrix.” And once you have entered this world of ours, the divorce statutes control you. And the rules of the court system control you. The norms of our way of doing things control you. You give over your financial life and the lives of your children to a process and to a civil servant who will make the calls in your stead.

Before you were getting a divorce, you probably didn’t let strangers do such things. I know very few people who ever let a stranger decide how much they could spend on vacations, clothes or housing during their marriage. The married couple figured it out themselves. Maybe it was controlled, determined or influenced predominately by one spouse (and maybe that is part of why the divorce is happening), but it happened nonetheless. Bills were paid, investments were made, and the beat went on.You also (I am fairly certain) didn’t let a stranger tell you: when you or your spouse could see your children, where you could go with your children, or what your children could or couldn’t do.

But now, because you have not been able to decide these matters between your spouse and yourself, we lawyers are here to make your case. And the Judge will call the balls and strikes of it all according to their best sense and in light of the laws they must apply.And it is here that we return to the notion of the tide and the boat. In divorce, too often, the rising tide that could or should lift all boats becomes a tidal wave that scuttles all ships. By my lights, a “good” divorce is one where each side takes full ownership and each side lets the other “win” voluntarily (if we want to stick with game talk). What I mean to say is that a divorce can reflect (albeit imperfectly) the notion of the rising tide if it is approached with thoughtfulness and care.

It is a good thing to make concessions and be reasonable and fair. It is not a sign of weakness to make peace. And making peace isn’t about singing kumbaya and getting out the patchouli oil. It is simply choosing to not add fuel to an already burning fire. There is enough pain in divorce just on an emotional level.The process of divorce, when played out in the matrix, exacts a toll both financially, in terms of legal and expert fees, but also emotionally, psychologically, spiritually and physically. After 6 months or 6 years, when a case ends — the estate of the spouses will have been depleted by some amount (often a significant one). The rift between the spouses will likely have widened or will have hardened into a bitter stalemate. What did that process really do for anyone? What did it add? What fruit did it bear?

In our lives, we all make compromises every day and in multiple ways. 9 out of 10 divorce cases will ultimately resolve themselves through some form of compromise as very few matters go to full trial. When we understand that almost every case will internally resolve itself at some point by virtue of negotiation, discussion and settlement — we should then think carefully about what we can do to improve our system — the “matrix” — to facilitate less collateral damage for people.I am not naive enough to think that all cases can be resolved via Mediation or Collaborative Law. Many people do not have the capacity for those processes. I am not Polyanna-ish enough to think that most people can sit down right away with a good mediator and be done in a day. Many colleagues will say: “they just need to get it out of their system” or “they need to fight a little bit.” I vehemently disagree on many levels with this churlish attitude, although there is some truth in it. I do think that many people starting a divorce are not “ready” to actually be divorced — and many of these people do not realize that for themselves.

I do think, in addition, that cases tend to track an organic timeline that is subjective to those involved. And I do think, further, that we must accept that a divorce is a winding up of matters on many levels — not all of them visible to us lawyers. In the end, however, I do not think combat is either necessary or advisable — unless you enjoy spending money loosely, have no care about doing damage, and view litigation as a kind of hobby.

The rising tide, in divorce, is not the Kennedy-esque version. It is most often a tide of regret, anger, sadness, suffering, betrayal, and fear. It can be dangerous when enabled and encouraged through fighting. It can, however, also elevate us if we learn to work with and ride the waves.When seen with clarity, working with what is really going on in a divorce case actually can lift all boats. This requires us as lawyers and you as clients, however, to be mindful that the primary material in divorce is emotional. Almost every battle fought is simply a proxy war in that emotional struggle. You can settle almost all substantive issues sensibly in a relatively short period of time. You cannot settle feelings so quickly.

And the real settlement in divorce is not the one on the spreadsheet or in the decree. It is the “soft” settlement. The settlement of years of emotional product that has passed its’ use-by-date. That is the true tide upon which the case rises and falls. Right now, our system is not well equipped to work with the ships sailing on THAT tide.I would encourage us all to think about how our system can become better at this, how we can navigate this for ourselves as parties in divorce, and how we lawyers can become better “captains” for our clients who sail on those waters.