What is Discovery and when is it necessary?

DiscoveryMost of my divorce practice is uncontested and amicable.  I help two consenting adults conduct the equivalent of a business transaction, so that both can move on with their lives and keep as much of their assets and dignity intact as possible.   In many of these cases the couple knows their own and each other’s financial situation.  They have a comfortable familiarity with who earns how much and where the money goes after it is earned.   They can both recite with confidence and accuracy the couple’s earning ability and expenses. Sometimes these are people with two jobs (or more); they might have debts or no debts; they might have one job, one mortgage; or several mortgages and a looming foreclosure.  The financial situation is not what dictates who knows what about their finances.  The people themselves are what determine their level of knowledge.

Spouses who go into a divorce with eyes wide open and all financial information already on the table are more comfortable negotiating with each other and mapping their individual futures.

But let’s face it between day-jobs, taking care of kids, and getting to and from work/school/chores/errands, there isn’t always time to stop and analyze your financial situation.  And, when times are tough and you’re trying to save your marriage, it might feel like it makes more sense to “forget it all,” and have a nice dinner date in a restaurant than to stay home and see if you can balance the checkbook.

It is perfectly human and understandable to get to the moment of meeting your divorce attorney and realizing that you cannot answer simple questions like, “How much debt do the two of you have?”  “How much equity is in your house?”  “If you were to move out, how much rent could you afford to pay?”

Luckily, there is a legal process available for those people who want to reach a fair agreement, but don’t feel well informed about the family money.  This process is called “Discovery.”

Discovery can be the undoing of an amicable divorce, or a useful tool in getting to the bottom line.  If both parties cooperate fully, they just bring all of their bank statements, credit and debit cards, retirement accounts, pay stubs, tax returns and mortgages to the table, giving each other, the mediator, the lawyers, or any financial advisors free reign.  It is then a somewhat black and white picture of who can afford how much and when.

Reluctant parties however, may find themselves faced with having to answer questions, called “Interrogatories” about their spending habits, such as when and where they shop, when and where they eat, when and where they vacation, and with whom, names and addresses of employers, bosses, business associates, and friends. They may also be ordered to hand over every pertinent document (“Requests for Production”) including credit card records, phone records, medical records, bank statements, contracts, stock options, golf club by-laws, family Wills and Trust documents and more.

Finally, and maybe the most invasive form of Discovery is the “Deposition,” in which a lawyer interrogates a witness (who might be one of the divorcing parties, or any of their friends, family, employers, work associates, or anyone else reasonably likely to know about the couple’s situation) in front of a court stenographer who captures every word the witness says and creates a written manuscript of the entire proceeding.

The more time lawyers spend seeking Discovery, the more money it costs the parties.  This might cause people to want to skip Discovery and get right to the negotiations.  But a divorce agreement written without a full and truthful accounting of all finances can end up costing everyone much more in the end.

What We Love:  Divorce is one of the few types of law in which the parties themselves can help control their legal bills just by being forthcoming with their own information.

– Sharon Oberst DeFala

Stay Positive and Determine Your Own Happiness

D-staypositiveI recently spent the day with a friend I have known for decades.  She lives a few states away and I was unable to help in her divorce, other than to cheer her on from the sidelines.  The husband was ruthless and my dear friend is still reeling, and doing her best to keep a stiff upper lip and any sense of humor and dignity she can salvage from the whole mess.  I respect her ability to see the big picture, to create a new life; and to keep getting up in the morning, putting one foot in front of the other, and moving herself forward.  As resilient as she has always been, this is a rough time for her.  I know she will make it through and come out stronger for the experience.  I just wish there were some short cut I could help her take.

So, I invited her to come spend a little time with my family.  She has always gotten along well with my husband, and she is an angel with my kids.  I thought having a relaxing family dinner with us might do her some good.  And, it might have.  She definitely appreciated a home-cooked meal and the luxury of letting someone else do the work.

She was able to spend just the right amount of time with all of us, too. Long enough to watch my kids move from cooperating with each other and their new toy devolve into an extended game of “gimme’ that!”  Long enough to be amazed by my thoughtful husband cooking us all a healthy dinner; and then immediately disappear into the television as soon as he was done eating.

Too often, I find that people going through heart ache can’t stand the thought of being around their so-called “normal” friends.  Some of the natural happiness and affection strike close to home, and it can be painful to get too close.  I understand that feeling, and I believe that every adult has experienced it, for one reason or another, at some time in their lives.  We have all been keenly aware of our own recent disappointments while wanting to be truly thrilled for someone else going through a moment of achievement.   It is not always an easy feat.

My friend, to her huge credit, seems to bear no ill will at all to the world around her. Genuine, generous, and just pleased to be around us, she was, as always, a true joy.  When the two of us had a little time together without my family, my friend, in her desire to support me in my good fortune asked, “Are you happily married?”

I had to laugh!  As much as my marriage is built by two equal partners working out of love and respect to make sure we both accomplish our goals, the truth is it is a heck of a lot of work!  Either one of us can do or say the dumbest thing and get on each other’s last nerve at any given moment without warning.  No one said it would be easy to raise kids and hold down jobs and balance everyone’s social lives, and decidedly it is not.  There are more days that it’s all worth it than not.  But there are definitely days, for any of us, in which it is hard to see the maze for the rats.

I think life is that ongoing desire to balance the mundane against our aspirations.  For as long as we have a partner who is on that particular team with us, we are fortunate, definitely.  But,  “happy?”  as in “happily ever after,” and rainbows sprout out the top of our heads? I should think not!

So, I answered honestly, I told her that I think anyone who claims that they are “happily married,” as simple as that, is either lying or is just not paying attention.   Of course there is happiness, but if it were only that – without the challenges, dilemmas, frustrations and eventual resolutions – could it really be called happiness?

Divorce is not the end of happiness, any more than marriage is the end of aggravation.  The point, I think, is to find the path that leads to the most happiness and the least aggravation.  Whether that is alone or not seems largely irrelevant.

What We Love:  Neither marriage nor divorce is what determines your happiness – you are.

– Sharon Oberst DeFala

When Lawyers Can’t Agree..

courthouse

One of my favorite trips to court is on a busy family docket day.  One reason is that it is fun, is I get to run into so many lawyers that I happen to know from the area, all dressed-up and looking clean and smelling nice.  Most lawyers are on their best behavior in a courthouse.  There are usually lots of smiles and handshakes all around.  No hard feelings, we are all colleagues when we stand in front of the bench – the great equalizer.  Another reason is that it can serve as a reminder to me and to my clients of how truly different their path to divorce is from many of the other cases we see around us.

I was asked to help out on a case recently. The lead attorney was on vacation, and my job was to go to court, meet opposing counsel, and pick a date for the next hearing.  I reviewed the file. There had been a hearing scheduled in mid-May, but our client would not be able to attend, because he was scheduled for spinal surgery the same day.  We had a doctor’s note in the file advising the client that he should expect to be incapacitated for 6 weeks following the surgery.

No judge is likely to order a hearing while a client is recovering from surgery. So, I knew that the continuance would be granted. It was just a question of comparing calendars with the opposing attorney and finding a mutually agreeable date.  Since the lawyer would not return my phone calls, and did not respond to a letter I sent looking for his dates, I figured he was just busy, and that we would be able to talk in the hallway at the courthouse.

The day of our hearing arrived. I went to court, saw all my lawyer friends, and found the attorney I needed, we can call him Attorney Ferdinand.  I showed him the letter, and asked if he would be available the first week of July.  To my shock, he responded by offering me two weeks – the beginning of June.  I pointed at the words on the page, thinking he might have missed them, 6 weeks, I showed him.  My client will be ready in 6 weeks.

“No,” Attorney Ferdinand said, “he just can’t work for 6 weeks. He can come to court.”

“Really?” I asked.  “What kind of work does the client do?”

“I don’t know,” he admitted.  “But if it is laparoscopic surgery…”

I looked at the paper again, wondering where it said laparoscopic.  I did not see any description of the type of surgery.  I asked Attorney Ferdinand to point it out to me.

“Oh, I don’t know what type of surgery it is, but if it were laparoscopic…”

So, to my shock, we wound up having to wait in the courthouse another 30 minutes until a judge could see us.  We stood before the Judge, who granted our continuance and told us to meet with the clerk to get a date.

Another hour passed before the clerk was able to meet with us.  He took one look at the doctor’s note, looked at the court’s busy docket, and gave us the date of September 15th.  Not the two weeks Attorney Ferdinand wanted, not the 6 weeks I had expected, but 5 months.  Plenty of time for my client to heal. . .   and for Attorney Ferdinand to cool his own heels.

So, the family savings got depleted by $1000 and instead of the 6 weeks both clients could live with, his client had to wait an additional 3 and a half months.

Well, not really. I wrote a letter that afternoon making a reasonable suggestion to my client.  He showed it to his wife. She told her lawyer to agree to it rather than wait 5 months, and the hearing never happened.

I will never really know Attorney Ferdinand’s motivation that day, but I do not think that his client benefitted from him taking such a hard line.

What We Love:  Sometimes lawyers (or their clients) make no sense, but the court frequently gets it right, anyway.

– Sharon Oberst DeFala

What are the Differences Between Divorce, Legal Separation, and Just Being Separated?

Screen Shot 2013-10-03 at 7.53.42 AMA legal term for divorce is “Dissolution of Marriage,” meaning that once the marriage is dissolved, it ceases to exist.  Once a couple divorces, they are each single and unmarried. They are then free to come and go as they wish, marry someone else, or not, and have control of their own adult lives.

Once a marriage is dissolved, the parties no longer have an inferred right to each other’s property.  If a couple purchases a house together as husband and wife, they do so with “rights of survivorship” unless they specify otherwise.  This means that if the husband dies while they still own the house, then the whole house belongs to the wife.  However, a divorced couple, even if the parties purchased the house together and continue to cohabitate in it; are presumed to own as tenants-in-common unless they specify otherwise.  So, if the ex-husband dies while they still own the house, his half goes to his heirs, and the ex-wife is only entitled to her share of the house, usually one half.  This might mean that the ex-husband’s heirs can request a court to force her out of the house.

Until a couple is legally divorced by a court order, they are still deemed as married within the eyes of the law.  Rights which attach at marriage, such as the above presumption of survivorship, automatic rights to an inheritance, vesting rights to social security payments, and others of that sort continue to apply.  Separated people who marry someone else are committing the crime of bigamy.  It does not matter if a couple is separated within their own house or across continents until the marriage is dissolved they are married in the eyes of the law.

The idea of a “Legal Separation” serves as a hybrid between the two.  In the states that allow for legal separation, it is a way of creating some ground rules between the couple as to how they will live separately from each other.  The couple typically goes through a similar proceeding in the court system of filing papers and putting the court on notice of their intent to legally separate.  In states where a couple must show grounds for divorce they may also be asked to show grounds for the separation.  If there is a statutory waiting period for divorce, it is usually the same (or close) for legal separation.  At the end of the waiting period the couple goes to court and a judge enters orders which will serve as the rules for the legal separation.  Such orders could include spousal support (akin to alimony), custody, child support and visitation schedules, and a distribution of assets and debts.

The Legal Separation thereby provides some of the benefit of divorce, such as the structure of a ruling on how things will go, as opposed to the nebulous quality of two people just separating and seeing where things will end up.  At the same time, it preserves some of the implied benefits of marriage, such as estate and property matters.

A Legal Separation may end one of three ways:  the death of either party, converting the separation into a divorce, or reconciliation.  Converting a legal separation into a divorce tends to be less complicated than starting a divorce from the beginning, since you already have record with the court.  Reconciling after Legal Separation is usually as simple as filing a form with the court, and the marriage resumes as if uninterrupted.  If either of the parties passes away during a Legal Separation (or a physical separation) the surviving partner is presumed to have all of the same rights as any other spouse would have in that situation.

What We Love:  Many states’ marital laws are designed to help individuals find the solutions that work best for them.  Sometimes a separation is all people need.

– Sharon Oberst DeFala

Day of Divorce Situations

distanceIs it a good idea to go out with your ex-spouse during the first hour you are exes?  I have two stories – one in favor and one against.  See which situation is most similar to your own before you decide.

Kris and John divorced with no kids, no debts, a good profit on their house, and a few nice retirement funds. As they say in baseball, “no harm, no foul.”  Everyone was in agreement that they were ready to move on and that they would remain life-long friends.  John was ready to begin his new  life with a single mom he had recently met, and Kris was deciding whether to move in with her boyfriend.

The divorce process was smooth and amicable.  Each of the parties took their opportunities to be generous with each other.   No harsh words were spoken in my office either when all three of us or any two of us were working together.  We mediated and negotiated throughout the statutory waiting period, and were ready to go forward on the first available court date.

Their court date came along with a surprise Spring-time snowstorm.  Heavy winter coats were pulled from the back of the closet as were the boots we thought we would not be seeing for a while.  Everyone got to court late because the roads were bad and poorly plowed.  People were less friendly than usual in the court house and the morning docket seemed to take forever with delays and confusion.  But the three of us sat together pleasantly enough in a corner, waiting our turn, and keeping company with each other as though we were passing the time at a cocktail party.

Once our matter was completed, and the judge declared John and Kris divorced, it seemed almost a shame to jump back on the highway and fight the traffic again, so we decided to tromp across the parking lot to a small coffee shop, where we ordered some warm beverages.  As the chatter continued, John started wondering aloud how long the weather would persist.  Kris and I would wonder, too, and then change the subject.  When it became apparent that John was much more concerned about the snow than we were, I finally asked him why.

He had tickets for an early morning flight to the Caribbean with his girlfriend and he hoped the airports would be running on time.

Needless to say, the mood suddenly changed considerably and we could not get out of there fast enough.

Jane, on the other hand, did not have a new person in her life, and did not know whether her husband Hal had met anyone yet, or not. They had been living apart for the final 18 months of their 5 year marriage and rarely kept in touch with each other.  They met alone at the courthouse on the day of their divorce – no lawyers, siblings, or “friends.”  It was mostly about signing papers and getting on with their respective days.

After the hearing, Hal asked Jane for a ride downtown where he had some business in City Hall.  She drove him and offered to wait until he was done so she could give him a ride home afterwards.  The whole trip took longer than expected, so it was lunch time by the time Hal got back to Jane’s car.

Almost as if they were still dating, she steered the car straight to their favorite pizza joint.  The two of them had a good meal, a couple of laughs about the good old days, and then a fraternal hug good-bye when Jane dropped Hal back on his doorstep two hours later.  It was another 6 months until they saw each other again, and then only accidentally.

What We Love:  Each situation is unique.  Wisdom might be as simple as knowing when to draw a boundary; and when to erase it.

– Sharon Oberst DeFala

Don’t Let Divorce Define You

NoFaultYesterday, 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.

Getting to the Negotiation Table

negotiatingTwo lawyers stood before a judge and argued whether financial affidavits should be exchanged by the 15th or the 30th of October.   They stood in a crowded courtroom and with straight faces told the judge that they were too far apart to decide which date the documents should be complete.  Neither of them made a cogent argument as to why one date mattered more than the other.  Luckily, the judge was able to have a sense of perspective and split the difference between them.   This case was billed as one hour.  15 minutes to drive to court; 30 minutes to wait their turn; 15 minutes to say their piece, get a ruling, and walk out of the courthouse; and fifteen minutes to drive back to the office.  One hour of billing for each lawyer.

The next case was called.  One lawyer stood up and asked for sanctions against another attorney for refusing to return phone calls.  This was a 45 minute bill:  time to and from court, plus the 15 minutes in front of the judge.

On the next case, 5 lawyers stood up — one for the wife, two for the husband, an attorney for the children, and a guardian-ad-litem — all unable to reach consensus as to when they should have a settlement conference.  If they can’t even find their own way to the table, I shudder to think how much they will argue once the judge finally orders them to sit down together.  This case was probably 2 hours of billing per lawyer:  30 minutes of travel; 30 minutes waiting for everyone to get there; half hour of bickering before they saw the judge; and the half hour it took for each to get a turn to speak on the record.

Every time two attorneys stand up to argue a motion they are both billing the same family for their time.   So, if one attorney costs $350/per hour; two are $700 per hour. And if it takes one lawyer one hour to drive to court, ask the judge for a ruling and leave.  It takes two lawyers all of that time, plus the time arguing their points to the judge.  One hour can quickly become two.  So, what could have cost a family $350 now costs $1400.

And that doesn’t even include the cases in which there are attorneys for the minor children, guardians ad litem, and expert witnesses.

The clients who are paying these attorneys likely each think that it is the others who are being unreasonable, certainly not their own lawyers.  Maybe the clients would prefer to pay their lawyers to stretch out the proceedings, rather than let their spouses have a single victory.  I can imagine a conversation between a lawyer and her client going something like this:

Attorney:  They want to see your financial affidavit by October 15th. Can you do it, or would you prefer I fight it?

Client:  I could do it by the 15th, but then they will win their motion.  I won’t turn it over until the 30th. Go to court!

Attorney:  You understand if both lawyers go to court for the 2 hours it will take us to get heard, at $250 per hour per lawyer, that’s $1000 for an argument you might not win.

Client:  I know, I know. It’s crazy, but I would rather spend our family’s assets on lawyers than hand in my discovery two weeks early.

It is likely more emotional than rational.  Maybe the client is tired of feeling bullied by the other spouse.  Maybe the client does not feel ready to be divorced and hopes that making each step take longer will give them more of a chance at reconciliation.

Sometimes it is the client who says,  “This is too crazy.  How do we get to the negotiating table?” Sometimes it is a lawyer who refuses to be petty and would rather just spend the billing time on substance instead of form.  Sometimes, this happens before the family runs out of money.  Too often, it does not.

What We Love: Sometimes it is the client, who says, “get me to the negotiating table.”

Crazy is a relative term, so is normal

crazyQuestion 1:  When is it, in the divorce process, that one parent finally gets to teach the other parent the right way of parenting?

Question 2:  When in the divorce process does a judge finally tell one parent that he or she must act more like the other parent?

Question 3:  How many months into the divorce process does the court give a ruling as to who is the better parent?

Question 4:  When do I get to stop dealing with my ex-spouse if we have children in common?

Answer to questions 1 – 3:  Never.

Answer to question 4:  Never, if you are lucky enough to live that long.

The truth of the matter is that there are no perfect parents.

The truth of the matter is that parents who do their best are the perfect parents for their own children.

For the most part, children benefit from the adults in their lives.  They might learn from one parent how to read, from another how to cook. A grandparent might be the person who gives a child his religious roots, or a good teacher might help a girl find her artistic abilities. Some parents have shorter or longer tempers.  There are neater and messier parents, generous and cheap, attentive and distracted.  Unless it rises to the level of negligence or abuse, unless an objective third party would place the child in foster care rather than let the parent continue to be involved, it is all within the scope of normal and acceptable.

If two parents cannot agree on a basic parenting profile – late vs. early bedtimes, nutritious vs. “fun” snacks, video games vs. crossword puzzles, etc. – while they are married, it is far less likely that they will agree on one as part of a divorce.  Post dissolution, Dad will parent the way he has always wanted to, without mom’s interference. And Mom will likewise let her true colors shine more than ever.  Matrimonial judges do not generally interfere with this dynamic.

Children will have their own preferences. They might like the fact that Dad always has dinner on the table at the same time, giving them a sense of stability, and they might think it is exciting that you never know where you are going to eat dinner when it is Mom’s turn.  Kids who feel more comfortable in a very organized house might take on the job of cleaning up when they are visiting the disheveled house, preparing them for adulthood.

As long as both parents are alive, they should both have strong binds with their kids, and eventually their grandchildren.  If what you truly want is your child’s best interest and long term happiness, then allowing the parents to be themselves, for as long as everyone is able, is the best gift you can give your children, and – someday, hopefully –  your grandchildren.

What We Love:  The nuttier your ex is, the more your kids will think you seem normal, if only by comparison.

Cohabitation After Divorce

twinbedsIn an ironic twist on the old wives tale that living together before marriage would lead to divorce, there seems to be a growing trend of post-dissolution cohabitation, or – divorce leading to more couples living together after marriage.  Until the economy is on more solid footing, sometimes it just makes fiscal sense to combine incomes and keep one larger home instead of two smaller ones.

Let’s face it – most divorcing couples begin by complaining that they are living together “as roommates,” anyway.  We frequently hear that the romance has gone out of the marriage and one of them has been sleeping on a couch or in a spare bedroom for months, sometimes years.  Instead of being life partners, divorce becomes appealing when spouses feel more like business partners.  Was the mortgage paid on time? Whose turn is it to pay for cleats? Did you buy yourself something frivolous with the end-of-year bonus?

When the person you live with is nothing more than the other half of your bookkeeping team, it can be difficult to feel generous, romantic, or fulfilled.  If that person was never meant as more than your rent-partner, there should be no hard feelings.   But, when that person vowed to love and honor you “ ’til death parts us,” an extra fifty dollars missing from the checkbook takes on a whole new meaning.

And so the new arc of relationships might look something like: friends-lovers-roommates-spouses-lovers-roommates-friends.  With the time a couple spends as spouses representing the top of the curve.   We know the conversation that often progresses paramours from lovers to roommates, “We sleep at my place most nights anyway, why should we keep paying rent for two apartments?”  Maybe the converse conversation, on the other side of the marital peak is, “we never sleep together anyway, and you might as well just stay here instead of us paying two mortgages.”

One of the reasons those old wives gave for how living together could lead to more divorces was the theory that without a proper commitment at the beginning, the living arrangement would always be too casual. The door to the birdcage would always feel open, and therefore once that door closed, the commitment would suddenly feel false.  If post divorce behavior can serve as the mirror image to pre-marital behavior in this example, then maybe once the proverbial door is left permanently ajar, there is more reason to be careful and respectful inside the cage.

One of the double-edged swords of marriage is that it is where we can relax, let our hair down, and be most ourselves.  Unfortunately, sometimes the person we love the most gets the brunt of our unregulated selves.  Too often, the very behaviors we would never tolerate from, or foist upon, a mere roommate feels safe and comfortable with the people we should most cherish.  If that has happened, and the marriage is truly over, then maybe a step backwards – into the less comfortable and more polite behavior – is worth a try.  At least until your finances are a little more secure.

Only you know whether you can draw a clean line, though.   If a post-divorce cohabitation is still too hot (either with hatred, sex, or a combination of the two); maybe go crash on a friend’s couch until you can afford that second mortgage.

What We Love:  As long as you are willing to work together, divorce does not have to lead to bankruptcy. There are more options today than ever before.

The Importance of the Decision to Divorce

gandhi“Thanks Mom & Dad – You Just Ruined My Life.”

Would you rather: hear that sentence and know it is false? Or never hear that sentence, yet know it is true?

That is a choice parents face all the time. Whether it comes to allowing kids to attend certain parties or concerts, paying more for the label on a piece of clothing, or monitoring the amount and content of their screen time.  Parents know that just because their decisions are what is best for the child does not always mean the child sees it that way.

And so that’s how it is with the decision to divorce.  We all want what is best for our children.  Until recently societal mores in America dictated that what was best for children was a two-parent home, regardless of the dynamic between those two parents. What we have come to learn, as a culture is that children who grow up in a hostile environment are more likely to be hostile, depressed, or anti-social adults.

The reason that governments put divorce laws in place is not to encourage single-parent households, but to improve the quality of individual marriages.  It is in the best interest of our country for the people who live in it to raise their children in relatively happy, healthy households. If that can be accomplished with two parents in the house; that’s great.  But if the choice is between the number of people in a household and the mental health of the people in a household (quality vs. quantity), we have chosen mental health and well being as the more important factor.

Children, particularly adolescents and teenagers, are always looking for the most “normal” persona. The thing that allows them to feel the most “like everybody else.”   If they feel that having two parents living in their home makes them more likely to fit in with the crowd (like going to the party “everyone else is going to,” wearing the same clothes, or watching the same movies as “everybody else”), then the idea of a divorce may feel socially devastating to them.

So it is part of the job of responsible adults to decide in advance whether their children are better off being raised in the family that exists, or making changes that are designed to improve their children’s lives; even if those changes include some painful aspects.  Another part of that job is being conscious of how the children will perceive the decision.  One angry and tearful parent announcing that the family is now abandoned might leave a different impression than two calm adults laying out the future plans.

Two adults who can work together to formulate a divorce plan have a chance at keeping their children on an even keel during – and (more importantly) after – the divorce process.  No matter how hurt, annoyed, fed-up, or furious you may feel is not the child’s fault or domain.  Give that part to your therapist, family, or strangers on a bus.  Wait and tell your children what precise plans the two of you are making to maintain what is good and improve what is bad in everyone’s lives.

Examples include, “Daddy’s new apartment building has a pool and you can invite your friends there,” “We will both still be at every baseball game/dance recital/poetry reading,” “We both believe that things are going to get a lot calmer around here.”   Obviously, you can also explain the details of the parenting plan if you have one – weekly dinners and alternate weekends is a popular visitation structure.   Or, you can just promise to let them know as things develop.  “We don’t know the details yet, but as we do, we promise to tell you together,” frequently works well.

What We Love:  It is easy for a parent to know that your children deserve the best choices you can make.   It is trickier to know that it is true whether the kids like it or not.

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