Wednesday, June 25, 2008

A Kinder, Gentler Approach to Divorce

"Robin Williams and Wife to Seek Collaborative Divorce"
(Headline in Variety)

For better or worse, it usually takes a celebrity to get the general public to notice a particular issue or phenomenon. In the case of collaborative divorce, which has been around in some form for nearly twenty years, the ongoing Robin Williams divorce proceedings have transported the movement from the relative obscurity of law journals into the world of the tabloids. I think it will turn out to be a positive development.

Collaborative divorce is based on the premise that the litigation-based model is often counter-productive in divorce cases, especially cases involving children. Divorcing couples can spend tens of thousands of dollars---even hundreds of thousands of dollars---litigating issues that could have, and should have, been resolved with far less monetary and emotional cost. In addition to messed-up kids and damaged parent-child relationships, the residue of litigated divorce is usually bitterness and frustration. People out for blood never learn until the case is over that the courts can't give them blood.

In a collaborative divorce, the parties and their attorneys agree in writing at the outset of the case to freely disclose all pertinent financial information and other relevant facts; to jointly retain neutral experts (such as child psychologists) rather than "hired guns"; to conduct four-way settlement conferences in a civil and co-operative manner; and to refrain from litigating the case in court until or unless the collaborative process has totally broken down (at which point the original lawyers would withdraw, new attorneys would come in, and everyone would start from scratch).

Not every divorce lawyer is trained in collaborative techniques, and, indeed, some lawyers are opposed to the idea. A veteran litigation attorney may feel that litigation---with its relentless "discovery", its dueling experts, and its hard-hitting cross-examination---is necessary to get at the truth and produce a just result. I understand the thinking, but I don't buy it, at least not across the board. There's a proper place for both approaches. Even the most enthusiastic collaborative divorce lawyers recognize that some cases are unsuitable for the process, and probably need to be litigated. I'm talking about cases in which one person has habitually lied to or abused his spouse, concealed assets, engaged in mind games and power plays, tried to turn the kids against the other parent, or has otherwise acted in bad faith on a consistent basis.

But in cases in which the parties have at least some measure of goodwill towards each other and are genuinely concerned that the kids not be dragged into a lifelong psychodrama, collaborative divorce can be a realistic option.

Because I've discussed mediation in several previous blog articles, I should point out that there are similarities between mediation and collaborative divorce (mainly, an emphasis on resolving problems in a rational manner), but the two processes are not the same. A mediator is a neutral person; he or she can't offer legal advice or strategies to either spouse, and can't normally be a "hand-holder" for one spouse and not the other. A collaborative lawyer, despite the agreement not to litigate, is still a lawyer in every sense, with an ethical obligation to represent his or her client competently, to honor the attorney-client privelege, and all the rest. A client seeking a collaborative divorce needn't fear that it will be in any way a second-rate divorce.

If I were to get back into divorce work, I'd probably limit my practice to collaborative cases. Because the litigation model was the only model available when I started practicing in 1979, I learned it and I learned to accept its limitations. But I often thought that there must be a better way. Well, there is, and if you're seriously considering divorce you should seriously consider the benefits of collaboration.

(I want to thank Atty. Natalie Wright of Tucson, Arizona for helping to educate me about collaborative divorce. However, all opinions, examples, and recommendations expressed herein are my own).

Friday, June 20, 2008

Third Time a Charm? Maybe Not!

"The divorce rate in America is 41 percent for a first marriage, 60 percent for a second marriage, and 73 percent for a third marriage".
(From an article in Enrichment Journal)

The often-cited statistic that fifty percent of marriages end in divorce is somewhat misleading. It's actually lower than fifty percent for first marriages, and considerably higher for every marriage after that.

In a way, these percentages remind me of bar exam pass rates. A particular state may have, on average, an overall pass rate of 80 percent, but on closer analysis the pass rate might be 90 percent for first-time takers (i.e., people who have just graduated from law school), 75 percent for second-time takers, 60 percent for third-time takers, and as low as 5 percent for the relatively few people who have previously failed it ten times or more.

Although getting married a second or third time is obviously different from taking a bar exam multiple times, there are at least two common elements that might explain the rising failure rates: inadequate preparation and psychological pressures. Most people taking the bar exam for the first time devote several months of their lives to studying for it, on essentially a full-time basis, often beginning even prior to law school graduation. A person who fails the exam the first time not only has to figure out what he did wrong, but also has to find the time to keep studying. Because the bar exam is given only twice a year, the typical second or third-time taker has to get some kind of job to support himself until he passes, which usually means less time to study. In addition, once a person has failed, he starts losing confidence in himself. A vicious cycle is created, with future failures an ever-more-likely result.

I think something similar happens after divorce. Not every divorced person gets remarried, but a large percentage of those who do will settle for the first person who comes into their life afterward. This is particularly true of men---men often being notoriously incapable of living on their own---but it happens with women, too.

At a book-signing event just last night, I spoke with a woman who has been married four times. From what she told me about her current marriage, it seems only a matter of time before she will have been divorced four times, as well. Although she was good-looking, in-shape, articulate, intelligent, and fun, I detected a certain lack of confidence in her. Because marriage itself is seemingly part of her comfort zone, she has probably rushed into new marriages without having taken the time to figure out what went wrong the last time. She has probably chosen husbands not so much because they're desirable, but because they're simply available.

My guess is that she'll be married a fifth time someday, but I sincerely hope that she'll be choosier next time. To do that, though, she'll have to look hard inside herself and decide once and for all what she wants out of marriage and out of life. Because she's only about 45, she should have plenty of time to enjoy the kind of life that she deserves, what I call in my book an "authentic" life.

Statistics, of course, can't predict what will actually happen in any individual case. The person who takes the bar exam for the fifteenth time may pass it with flying colors. The person who gets married a seventh time may find her true love and live happily ever after. But although long odds don't rule out a win, they should give you pause before you place a bet. A divorce rate of 73 percent or higher calls out for caution, reflection, and a high degree of self-awareness.

Wednesday, June 11, 2008

Gay Divorce? Good Luck!

"The [Massachusetts gay marriage] statute does not confer subject-matter jurisdiction upon the Family Court of Rhode Island."
(Chambers v. Ormiston, 935 A.2d 956, 963 (R.I., 2007))

Gay marriage has, of course, been very much in the news for some time now. Inevitably, gay divorce issues are now arising, not just in Massachusetts (still the only state to permit gay marriages) but also in many states that explicitly prohibit gay marriages.

Thousands of gay couples have gotten married in Massachusetts over the past few years. Many of those who were not originally Massachusetts residents returned to their home states after the wedding ceremony. If California winds up permitting gay marriages (which it will shortly, unless a November referendum overturns the court decision legalizing them), many thousands more gay couples will marry there but will make their homes elsewhere. Unfortunately for them, if things go wrong in their marriages they're probably not going to be allowed to get divorced anytime soon in their home states.

A heterosexual person can normally file for divorce in any state in which he or she lives, regardless of where the marriage ceremony took place. A couple could, for example, get married in Minnesota, move to Arizona, and then split up, with the wife remaining in Arizona and the husband moving to California. At that point, the wife could file for divorce in Arizona or the husband could file in California. Neither party would have to return to Minnesota to file for divorce.

According to the Rhode Island Supreme Court, however, unless that state passes a gay marriage statute, its courts cannot grant divorces to gay residents who were married in Massachusetts or any other state permitting gay marriages. The case I quoted from involves a lesbian couple who had gotten married in Massachusetts, but then immediately returned to Rhode Island. Although they could have gotten a divorce in Rhode Island if they were a heterosexual couple, one or the other of them will have to establish residency in Massachusetts (or, maybe in the future, California) if a divorce is ever going to be granted. Massachusetts has a one-year residency requirement for filing for divorce (one of the longest in the nation), so a potential divorce litigant would have to severely disrupt his or her life for an extended time just to meet the minimum filing requirements.

Chances are, other states will follow the Rhode Island Supreme Court's reasoning if and when similar cases reach their highest courts. The United States Supreme Court will eventually get into the act, because Federal constitutional issues such as "equal protection" and "full faith and credit" will have to be addressed. But that could take years, and until then gay marriage partners will have to deal with a crazy-quilt of conflicting and confusing state laws. And I'm not even talking about "civil union" partners in places like Vermont, who have some, but not necessarily all, of the benefits of marriage (but, arguably, only in Vermont).

Interestingly enough, the same states that deny gays the right to get married or divorced can and do enforce custody, child support, and alimony orders issued in gay marriage or civil union cases by the Massachusetts or Vermont courts. Under the terms of the Uniform Child Custody Jurisdiction & Enforcement Act, the Uniform Interstate Family Support Act, and similar laws, court orders issued by a different state cannot be ignored simply because they arose out of a civil union or gay marriage.

The moral of all this? Gay couples need to be aware that gay marriage does not automatically equal gay equality in family law matters. But perhaps the commitment and courage required to live openly as a gay married couple might mean that divorce is a less likely outcome than it is with heterosexual couples. If that's true, it would be good news not just for for gay couples but for the rest of us as well. The last thing this society needs is a higher divorce rate.

Wednesday, June 4, 2008

Let Mom Do It Herself

"We are looking for a nice gentleman for our mother. She is 55, slim, good-looking, and full of life and energy.........."
(From a "Women Seeking Men" posting on

Because I write and lecture about post-divorce dating, I read a lot of personal ads. Many of them are bad, which in a way is good for me because the bad ones give me material to write about. In my book, I discuss various kinds of bad ads, such as ads that deliberately mislead, ads that say too little, ads that say too much, ads that are poorly written, and ads that are little more than wish-lists to Santa.

I also talk about ads that send unintended negative messages, an example of which is an ad that's written by a friend or relative, not by the person herself. (I say "herself" because in almost every example I've seen, the person in question is a woman, as are the friends and relatives).

I hate to criticize people who mean well and want the best for their mother, their best friend, or whoever, but people should write their own ads. If I were a single guy reading an ad placed by someone's daughters, my first thought would be why the mother didn't place it herself. Is she less than enthusiastic about the whole online dating idea? Does she even know what the daughters are doing on her behalf?

I might also wonder if she's capable of writing an ad. Is she like a modern-day version of the tongue-tied soldier in "Cyrano de Bergerac" who relies on the great Cyrano to put his thoughts into words? Or maybe she's computer-illiterate, which is no crime but is a distinct disadvantage if one is going to be carrying on e-mail correspondences or navigating a dating site.

And I'd also wonder who is actually going to receive my response: the daughters or the mother? Will the daughters be screening and evaluating the responses, before deciding which ones to forward to Mom? And then what? Will the daughters be looking over Mom's shoulder to make sure she follows up in a timely fashion? Unless Mom sounds like a one-in-a-million lady, the whole thing is way too much trouble.

Of all the prerequisites to writing a good personal ad, motivation is the most basic. If a person isn't sufficiently motivated to do it herself, you're not helping her by doing the work. In fact, by unwittingly turning off or scaring off most potential responders, you're ensuring that the project will fail. Your mother or friend may mistakenly think that it was her age or the qualities listed in the ad that were the turn-offs, when in reality the only turn-off was that the ad was written by someone else. She may become so discouraged that she never tests the online system again, which is hardly what anyone intended.

One corollary to the "do it yourself" rule is what I call the "describe yourself in your own words" rule. There must be a million personal ads out there that say, "My friends say I'm pretty" (or funny, or sexy, or whatever). People who write things like that are trying not to sound boastful or obnoxious, but unfortunately the message that's conveyed is that she doesn't truly believe what she's saying. She's saying, in effect, "I wouldn't necessarily call myself pretty, but I've heard my friends describe me as pretty, so maybe I am". This is not a positive message. Yes, it's possible to go overboard in one's self-description, but generally speaking a personal ad is not the place for undue modesty (as long as you're not deliberately distorting the truth).

As a young and brash Muhammad Ali once said to someone who accused him of excessive boasting: "It ain't braggin' if it's true". He was right. So, if it's true, say it as if you really believe it, and in your own words.