"Six in 10 women describe themselves as the primary breadwinners in their households, and 54% manage the family finances, according to the poll by Allianz Life Insurance Company of North America. Even so, 49% fear becoming a bag lady ..." This includes 27% of women earning more than $200,000 a year"and 43% of married women.
In an ordination sermon at my church today, Bishop James Magness, Bishop for the Armed Services, talked about C.S. Lewis's little book, The Great Divorce.He shared some amazing insights, some of which I couldn't discern through his accent. But it reminded me what an important book this is. Even if you're like me and you tend to avoid theological or philosphical authors even when they're very popular, perhaps especially when their real popularity is in some other area, you won't choke on this one: it's extremely short, and it's fiction, though full of truth.
What does this have to do with the kind of divorce I work with? Sorry, some divorces are not as bad as others, but I don't know of any that have been "great." And yet, on reflection, the most important thing about this book is also the most important thing about the path of divorce. The Great Divorce is about human beings making choices, choices that are bigger than life and death. And about even more people not making, and refusing even to recognize, choices.
In the greatest divorces, people learn, usually with difficulty, that they are responsible for making their own choices; they take counsel and time to see, as clearly as they are able, what the consequences would be for them and for others, and they take responsibility for their choices and the consequences. They do so in a way that respects their own needs and inherent value, and also those of the other family members and the professionals and institutions they work with. When they stand for their choices rather than avoiding them or pretending that someone else made them, they more often make choices that integrate with other people's choices and needs.
Some of my clients' best actions and decisions have been in Collaborative Divorce, but not all of them: in marital reconciliations, in conventional settlement negotiation, in mediation, and in litigation, both in victory and defeat, in resolving issues, and even sometimes in deciding to leave them unresolved and unpursued, clients can give a divorce lawyer glimpses of greatness.
Tammy Lenski on mediate.com has a great story illustrating the congnitive distortions that happen all the time in divorce negotiation and litigation, in communications between lawyers as well as between divorce clients. (Judges, too, are very prone to these cognitive errors.) For the entertaining story that'll help you remember it far better than this summary, go to her post. The point of the story is:
We make guesses to fill in blanks about things we don’t understand in the situation or the other person. We take prior conclusions about them and use those conclusions to feed our guesses and judgments, forgetting that conclusions are just opinion, not fact. If we already have a poor history with them, our stories tend to be tinged with darker tones. We tell our stories to ourselves and to others, forgetting after a while that only some part of what is relayed is what happened and that the rest is stuff we made up by way of explanation and self-protection. Our conflict stories can get us into trouble because we treat them like The Truth.
Less of this happens in collaborative divorces that are done by-the-book, with as much communication as possible happening in meetings where everyone in the case is together. Even in collaborative cases, once people start e-mailing between meetings, and communicating one-on-one, the "game of telephone" starts up and people fill in the blanks with guesses and assumptions.
A colleague asked for ideas about disadvantages of collaborative divorce, to prepare for a newspaper interview. Here's what came to mind:
1. In litigation, you can use the timing and immense stress and fear of impending trials to get people to sign settlements they never would agree to if they actually had time to consider them.
2. In litigation, if you have deeper pockets or more outside support, you can often get everything you want by making the enemy deplete his war chest very early in the process, beginning with pendente lite hearings, depositions, discovery requests, discovery disputes and enforcement, pendente lite order enforcement, etc., until he's completely out of money and has to unconditionally surrender.
It's a lot harder to do that in collaborative because (a) it doesn't cost anywhere near as much as litigation, and (b) when resources are unequal there's usually an agreement on how to pay both clients' costs.
Neither of those bothers me, but you could call them drawbacks of the collaborative process.
3. Conversely, one thing that DOES bother me about collaborative, is, what if one spouse uses up their entire war chest in a collaboration that fails, while the other spouse doesn't? True, that is just as much of a problem, or more, in litigation or conventional divorce negotiation, but it still can be a challenge and you need to be thinking about how to prevent it in each collaborative case. Common ways to address it are having the costs of the process paid from marital assets or from the earning spouse's income, or dividing some of the family's undisputed assets early in the process.
"When Same-Sex Marriages End in Divorce" - NYTimes.com (7/2/11) points out several real problems that are sure to come up in many cases as people in gay marriages, civil unions and domestic partnerships move to states that do not recognize any of those institutions. Because of residency requirements for divorce, people may end up with no state that can divorce them. Heterosexual spouses already end up in this situation temporarily, when neither has lived in a state long enough to have residency, which can take up to a year.
And when you can't file for divorce, you can't get alimony, property division, or injunctions against transferring property or spending. As Andrew M. Koppelman of Northwestern University School of Law, author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines,” puts it: “Somebody who lives in Massachusetts can empty the safe-deposit box, empty the bank account and go to Houston and say, 'Ha, ha, ha, you can’t come after me here'."
Also, people who have built up property together for years before being able to marry could find, when they divorce, that state laws do not protect people's pre-marital economic investments in each other the way they do with married economic live.
The Times article has lots of well-grounded speculation about how this chaos could ultimatele advance the cause of gay marriage, but no solutions for the real people involved.
The obvious, though incomplete, solution, especially for the pre-marriage investment problem, is more prenups and postnups. These can say exactly what happens to everything in a divorce or when one spouse dies; or they can be limited to particular property or other topics.
And they include choice-of-law clauses -- the only way to have another state follow any of the laws of the state where you married.
States that reject same-sex marriage will still often refuse to honor same-sex prenups and postnups, but probably not as much, and not as uniformly. There are already states whose courts have allowed same-sex divorces even though same-sex marriages cannot be formed there.
There are also the legal safeguards that couples have been using for many years now "without benefit of clergy" -- contracts and forms of property-holding that do not mention marriage or even domestic partnership; or just trying to make sure that each person has roughly equal, or at least liveable, amounts of assets or income in his or her own name.
A couple other things the article did not point out, which likewise are far from complete solutions to the problem but are good to know --
-- Annulments are available in states that do not recognize gay marriages - simply on the grounds that the marriage is same-sex and therefore absolutely void. However,states cannot make property or alimony orders in marriages that are void -- unlike in marriage that are merely "voidable" on the grounds that one party was defrauded. In Virginia, for example, see Kleinfield v. Veruki, 7 Va. App. 183, 190, 372 S.E.2d 407 (1988), and Shoustari v. Zamani, 39 Va. App. 517, 574 S.E.2d 314 (2002).
-- Child custody, child support, and domestic violence protection are available everywhere regardless of marital status; although there can be controversies about whether a gay non-birth parent has legal standing as a parent. One well known case on this was Virginia's Miller-Jenkins, a series of cases which were all decided in favor of gay rights, but not on any kind of gay-rights grounds: they strictly followed the laws on interstate jurisdiction over child custody, which meant that Virginia could not undo a Vermont custody order or interfere with Vermont's exclusive jurisdiction over the case.