NOTE: Originally Posted in April, 2018 proximate to the anniversary of the Good Friday Agreement in Northern Ireland
Tomorrow, I am traveling to Washington, D.C. for a hearing, and next week, I am on trial in two very contentious cases. I had not intended to write anything here for a few days – but this morning I came across a piece in the BBC that got me thinking. The article reminded me that this month marks the 20th anniversary of the Good Friday Agreement – the amazing work of compromise and diplomacy that helped bring relative peace to Northern Ireland. I guess with all of that, I have politics, procedure and process on my mind – but it made me think about something relevant to divorce too.
It is remarkable that a set of circumstances that was for so long as fraught, violent and complex as the status of Northern Ireland could have reached a point – two decades in – where a fairly workable and sustainable peace has taken hold. The reasons for that are very interesting and worth considering in somewhere other than a divorce-related blog. What is worth considering here, and what is on my mind with multiple hearings and trials looming, is how and why peace takes hold for divorcing spouses. What makes their peace process possible? How can it be sustained? Why do certain processes fail? Why do some never begin?
Many people comment to us – “well, sure you two can do it because you’re both divorce lawyers.” Or, we hear, “neither of you is crazy.” Or we are told, “you’re not angry/bitter/etc.” Or we hear….
And yes, we are divorce lawyers. I am primarily a matrimonial trial lawyer. I litigate cases. I put on trials and hearings and go to Court. A lot. I am fairly good at what I do and I have no problem doing it. From my end, I certainly did not choose peace in my own divorce because of a fear of trial and court and the process. And my ex-wife could equally say the same thing. As for craziness and anger/bitterness/etc – let me tell you – that’s a rabbit hole it does not pay for anyone to go down. We all have issues and if you have had a marriage and kids and lived life – things happen. At some point down the road, we will talk more about some of those things relative to us – but rest assured – our own temperaments and circumstances certainly did not compel a path of peace; and frankly, peace was not always assumed or assured.
Rather, both of us made a choice. That choice was to focus on a shared interest – our son. My issues and her issues are not his issues. Far too often, people use divorce as a proxy war.
The fights about the kids, the retirement, the condo, the support or the gas grill are really fights about other things. In what universe do sane people pay lawyers over $400 per hour to fight over a frozen beverage machine and tchotchkes? In what world does it make sense to spend $50,000+ on experts and professionals to litigate whether parenting time will be 40% or 50% of the calendar year.
We fight for our clients about Christmas, President’s Day, using the beach house, who pays for the gardener (and the dog walker, the nanny, the camps, the dentist….), who gets to keep the collectible doll houses, who gets the originals of the family photos. We fight (because they choose to fight) about everything. And yet – we fight about nothing. Because what we are really doing is fighting about something else.
Almost all of these battles are ostensibly about one thing but are truly just about something else. That something is deeper and bigger than most of us care to admit. We are fighting with our feelings mostly. And our spouse’s too. Fear, pain, suffering, regret, anger, bitterness, betrayal. We think about fairness and justice and what is “right” and “wrong.” The actual issues are relatively easy to resolve abstractly and on paper. These issues get sucked into a maelstrom, however, of our own making.
Now, there are REAL fights that probably do need to be fought. There is physical and emotional abuse out there. I am not talking about that. There are malignant narcissists. I am not talking about them. There are chiselers, grifters, bunko artists and film-flam men out there. I am also not talking about them. I AM talking about the vast majority of people. Regular people – like you (hopefully) and your spouse (hopefully).
Even very damaged, angry and high-conflict people can choose peace and most people ultimately do. Trials are not the norm. Most people settle their case. But most people go through far more than they need to and in ways they do not need to in order to get there. In fact, the real tribulation is not the trial. It is a kind of theatrical afterthought. The real gory business, from my perspective, is all the drama and time and cost that happens in the months (indeed, many times – years) prior to the big event.
To synthesize this all, in light of my earlier posting about the consequences of action, I think we end up back in Northern Ireland – with the process. I think we end up coming to the ineluctable conclusion that most people will benefit from a divorce process that is designed, implemented and managed around an understanding of the following: (a) people need time and the means to work through their “stuff,” (b) we all need to be mindful of what is really going on and why; versus just looking at what the apparent issues seem to be, (c) we need to understand that the process is often the substance or will materially effect the substance, (d) divorce cases yield frequent and constant challenges because the parties and their kids are living life during the process (unlike a case where the event happened only in the past and is now being addressed), and (e) there are often very big and unforeseen consequences to the actions (even seemingly small ones) we take as lawyers or parties in a divorce.
Former Congressman John Dingell once stated, “[i]f I let you write the substance and you let me write the procedure, I’ll screw you every time.” There’s some wisdom in there for all of us to consider – from a different perspective.
Process. Procedure. These things aren’t always sexy. They are not always easy. But they matter more than we think. Let us commit to think more about the process and the procedure in divorce. If people are provided the tools to create the space for resolution (near term, long term and ongoing) based on both individual and shared goals, with an opportunity to be heard and an operationally sound mechanism for problem-solving — then compromise can take hold.
By my lights, there is not a single and always applicable answer. I am not an evangelist for mediation, collaborative law or any other “system.” And what worked for us (which was none of the foregoing) may not work for you. Every situation is unique. But with mindfulness and commitment and time at the table – I do believe that ALMOST every case can find its own answer. There is no impossible.
Originally published at www.exesandallies.com