Yesterday, once again, I left the courthouse beaming with pride at what my clients have accomplished. We sat in the courtroom most of the morning waiting until the judge could take our uncontested divorce action. We waited through status conferences in which people fought over what date they would exchange financial information. We sat through case management updates in which lawyers bickered with each other over how much information was necessary, and when the confidentiality agreements would be signed.
Not my clients. They were in court on the day that their mandatory waiting period expired, and they were there with a generous and humane agreement. The Judge was so shocked by how well my clients got along, and the civil nature of their agreement that he said this to the husband, “I have been on the bench for 40 years, and I have never seen anything like this before.”
We happen to live in a “No Fault” state, which means that there is an absolute right to divorce, and no one has to allege, or prove, the grounds for the divorce. There are states in which a judge is not supposed to approve a divorce until one of the spouses proves that the other did something egregious – abandonment, mental cruelty, and adultery are common allegations in those matters. There is a higher tendency for long-term damage between the parties after one accuses the other of such behaviors, especially in a court of law. The No Fault divorce is couched in terms of “irretrievable breakdown,” a nice, passive voice concept in which no one is to blame.
The point of a No Fault divorce is to grant every person the absolute right to get a divorce. If there is an issue of abandonment, or infidelity, or abuse, it might be too embarrassing for the innocent spouse to tell anyone about it. By making reason and fault irrelevant, people are free to assume it was something as simple as having grown apart.
Being anchored to each other by an unwieldy housing market, my clients are among so many of the recently divorced who need to continue co-habiting as roommates post-divorce. They understand that they will be housemates for the foreseeable future. We worked for a lot of hours together to envision how that could work while still also giving each of them their unique and separate lives.
The agreement was tricky to create and painstaking to write. I knew a judge would not be comfortable signing something so unusual. I wanted it to be accurate to their lives, reliable as a road map for the future and supportable under the laws of our state.
I felt confident that I had accomplished all of these goals when the judge sat reading it, looked up from the bench, and began by commenting that plenty of people who stay married do not get along as well. Finally, despite the state’s intentional disinterest in the answer, the judge looked at the wife on the witness stand and asked her point-blank, “Why are you getting divorced?”
She simply explained that they no longer function as a couple, which satisfied the judge. He granted their divorce, and wished them both the best of luck. Personally, I feel like this is a couple that makes their own luck. I hope that someday a generous and balanced divorce agreement will be the norm, and not something that makes a judge stop and scratch his head.
What We Love: Divorce does not need to define the parties. The parties need to define their divorce.