CHAPTER 1

9:05 – 10:05am

Our Clients’ Psychological Divorce Process

Joseph A. Shaub

Licensed Marriage and Family Therapist Attorney at Law

PowerPoint distributed at the program and also available for download in electronic format: 1. Divorce as a Psychological Process Electronic format only: 1. Some Observations about “Legal Divorce” from the Clients’ Perspective 2. Minding Our Marriages ~ A Vital Task for Attorneys ~

Electronic versions of these documents are available on the KCBA website: https://www.kcba.org/cle/EventDetails.aspx?Event=42913

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Divorce as a Divorce as a Psychological Psychological ProcessProcess

Counseling and Mediation Counseling and Mediation Office of Joseph ShaubOffice of Joseph Shaubwww.josephshaub.comwww.josephshaub.com10940 NE 3310940 NE 33rdrd Pl., Ste. 109Pl., Ste. 109Bellevue, WA 98004Bellevue, WA 98004(206) 587(206) 587--04170417joe@josephshaub.comjoe@josephshaub.com

American Academy of American Academy of Matrimonial LawyersMatrimonial LawyersStandards of ConductStandards of Conduct

““The Bounds of Advocacy”The Bounds of Advocacy”

The primary purpose of the Standards of The primary purpose of the Standards of Conduct is to provide guidance toConduct is to provide guidance toConduct is to provide guidance to Conduct is to provide guidance to matrimonial lawyers confronting moral matrimonial lawyers confronting moral and ethical problems; that is, to and ethical problems; that is, to establish establish bounds of advocacy. Existing codes bounds of advocacy. Existing codes often do not provide adequate guidance often do not provide adequate guidance to the matrimonial lawyer….to the matrimonial lawyer….

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….First, their emphasis on zealous ….First, their emphasis on zealous representation of individual clients in representation of individual clients in ppcriminal and some civil cases is not criminal and some civil cases is not always appropriate in family law always appropriate in family law matters….matters….

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…Unlike most other concluded disputes in …Unlike most other concluded disputes in which the parties may harbor substantial which the parties may harbor substantial p yp yanimosity without practical effect, the animosity without practical effect, the parties to matrimonial disputes may be parties to matrimonial disputes may be required to interact for years to come...required to interact for years to come...

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In many ways, matrimonial practice is In many ways, matrimonial practice is unique. Family disputes occur in a unique. Family disputes occur in a volatile and emotional atmosphere. It is volatile and emotional atmosphere. It is difficult for matrimonial lawyers to difficult for matrimonial lawyers to represent the interests of their clients represent the interests of their clients without addressing the interests of other without addressing the interests of other family family membersmembers….….

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AgendaAgenda

1.1. Distinguish “psychological” divorce from Distinguish “psychological” divorce from “legal” divorce and describe its elements“legal” divorce and describe its elements

Divorce as a Process Over TimeDivorce as a Process Over Time22 Th C i StTh C i St U h iU h i2.2. The Coming StormThe Coming Storm –– Unhappy marriages Unhappy marriages

and the shift to divorce.and the shift to divorce.3.3. The Storm Breaks The Storm Breaks –– The divorce process The divorce process

itselfitself4.4. Recovery and Adjustment Recovery and Adjustment –– The years that The years that

followfollow

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Bohannan’s Six StationsBohannan’s Six Stations

11. . Emotional DivorceEmotional Divorce

2. Legal Divorce2. Legal Divorce

3. Economic Divorce3. Economic Divorce

4. Co4. Co--parental Divorceparental Divorce

5. Community Divorce5. Community Divorce

6. Psychic Divorce6. Psychic Divorce

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Holmes and Rahe’sHolmes and Rahe’s“Social Readjustment Scale”“Social Readjustment Scale”

In what order would place these life events?In what order would place these life events?

MarriageMarriage Major illnessMajor illness

DivorceDivorce BankruptcyBankruptcyDivorceDivorce BankruptcyBankruptcy

ChristmasChristmas Death of spouse/childDeath of spouse/child

Marital SeparationMarital Separation

Detention in jail/prisonDetention in jail/prison

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Holmes and Holmes and Rahe’sRahe’s“Social Readjustment “Social Readjustment Scale”Scale”

Life EventLife Event Mean ValueMean ValueDeath of spouse/childDeath of spouse/child 100100DivorceDivorce 7373DivorceDivorce 7373Marital SeparationMarital Separation 6565Detention in jail/prisonDetention in jail/prison 6363Major illnessMajor illness 5353MarriageMarriage 5050BankruptcyBankruptcy 3939ChristmasChristmas 1212

99

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High Stress Results in High Stress Results in Idiosyncratic SymptomsIdiosyncratic Symptoms

What if past experience places What if past experience places a weight on our psyches that a weight on our psyches that make the current stressors even make the current stressors even harder to bear?harder to bear?

Personality DisordersPersonality DisordersExtremes of Brittleness and Extremes of Brittleness and RigidityRigidity

From The Intractable Client - Guidelines for Working With Personality Disorders in Family Law (35 Family & Conciliation Courts Review 351 (1997), Rhoda Feinberg and James Tom Greene note:

“A personality disorder is a clinical term used to describe people who are “locked in” for many years with certain exaggerated personality traits that interfere with all aspects of their functioning in life.”

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Bill Eddy’s High Conflict Bill Eddy’s High Conflict Personality DisordersPersonality Disorders

BorderlineBorderline –– Characterized by dramatic Characterized by dramatic mood shifts; chaotic relationships; mood shifts; chaotic relationships; ragefulragefuloutbursts; excruciating sense of inner outbursts; excruciating sense of inner emptinessemptiness

AntisocialAntisocial –– Characterized by refusal to Characterized by refusal to acknowledge societal norms; chronic acknowledge societal norms; chronic deceitfulness; lack of remorse or capacity deceitfulness; lack of remorse or capacity for empathy; consistent irresponsibility; for empathy; consistent irresponsibility;

Bill Eddy’s High Conflict Bill Eddy’s High Conflict Personality DisordersPersonality Disorders

NarcissisticNarcissistic –– Characterized by grandiose Characterized by grandiose sense of self importance; interpersonally sense of self importance; interpersonally exploitive; lacks empathy; has sense of exploitive; lacks empathy; has sense of entitlement and of being specialentitlement and of being special

HistrionicHistrionic –– Characterized by intense Characterized by intense need for attention; tends to be dramatic; need for attention; tends to be dramatic; can be seductive; considers relationships can be seductive; considers relationships to be more intimate than they actually are to be more intimate than they actually are

According to Eddy…..According to Eddy…..

Borderlines Borderlines –– Fear of Fear of AbandonmentAbandonment

AntisocialsAntisocials –– Fear of Fear of Being Being DominatedDominated

Narcissists Narcissists –– Fear of Fear of InferiorityInferiority

Histrionics Histrionics –– Fear of Fear of Being IgnoredBeing Ignored

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NarcissisticPersonality Disorder

NPD“I am the only worthwhile one

in the room”

Having a healthy sense Having a healthy sense of self confidenceof self confidence

THE DIVORCE PROCESSTHE DIVORCE PROCESSTHE DIVORCE PROCESSTHE DIVORCE PROCESS

The Common (and Doomed) The Common (and Doomed) Marital DanceMarital Dance

A B

A caused B

Aristotelian, Western, LegalCausality

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I did this I did that

Circular CausalityCircular Causality

I did this becauseYou did

that

I did that becauseYou did

this

H W

The Dance of the Pursuer The Dance of the Pursuer and Distancerand Distancer

Michelle Wiener Davis’ “Walk-Away Wife”

Marital DeadlockMarital Deadlock People in relationship will tend to People in relationship will tend to

function in a complementary function in a complementary fashionfashion

“You’re looking lovely tonight” “You’re looking lovely tonight” “Why THANK YOU!”“Why THANK YOU!”

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Complementary Complementary –– Its more Its more about about FITFIT

Overfunctioner vs. UnderfunctionerOverfunctioner vs. Underfunctioner Emotionally Expressive vs. ControlledEmotionally Expressive vs. Controlled Organized vs. DisorganizedOrganized vs. Disorganized Spontaneous vs. PlannedSpontaneous vs. Planned Live for the Present vs. Delay GratificationLive for the Present vs. Delay Gratification Reason vs. EmotionReason vs. Emotion Sociability vs. SolitudeSociability vs. Solitude Spend vs. SaveSpend vs. Save

Withdrawn Outgoing

Spends $

Strong family relation

DisengagedFrom family

Reacts stronglyemotionallyStrong &

Steady/Stoic

Him Her

Saves $Spends $

GottmanGottman -- Fighting is Not the Fighting is Not the ProblemProblem

Reciprocation of negative affect not indicative of troublednot indicative of troubled marriages – escalation is!

Escalation GridlockFour Horsemen

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The Four HorsemenThe Four Horsemen(of Relationship Apocalypse) (of Relationship Apocalypse)

Gottman’s Four Gottman’s Four HorsemenHorsemenCriticismCriticism

ContemptContemptContemptContempt

StonewallingStonewalling

DefensivenessDefensiveness

The Divorce DecisionThe Divorce Decision

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THE TRANSITION TO THE TRANSITION TO DIVORCEDIVORCEDIVORCEDIVORCE

Principle ResourcesPrinciple Resources

Judith Wallerstein E. Mavis Hetheringtton Abigail Trafford

Austin Sarat William Felstiner

Principle ResourcesPrinciple Resources

Judith Wallerstein E. Mavis Hetheringtton Abigail Trafford

Austin Sarat William Felstiner

Constance Ahrons

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Basic Dynamics ofBasic Dynamics ofThe Divorcing ProcessThe Divorcing Process

Almost never mutual Almost never mutual –– There is one who leavesThere is one who leaves

There is one who is leftThere is one who is left

For the one who leaves:For the one who leaves: Has already processed the end of the marriage Has already processed the end of the marriage

(Guilt and perhaps relief)(Guilt and perhaps relief)

For the one who is left:For the one who is left: Denial is shatteredDenial is shattered

Anger GriefAnger Grief

Attend to PacingAttend to Pacing

There will be a need to go slow enough There will be a need to go slow enough for the one who is left to catch up…andfor the one who is left to catch up…and

Fast enough so that the one who is Fast enough so that the one who is leaving to feel that we are getting leaving to feel that we are getting somewheresomewhere

Why it’s such a hard time

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It is a period without normsIt is a period without normsIt is a period without norms.It is a period without norms.

Why it’s such a hard time

It is a period without normsIt is a period without normsIt is a period without norms.It is a period without norms.

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Abigail Trafford’s Abigail Trafford’s Crazy TimeCrazy Time

The First Six Months After The First Six Months After Physical SeparationPhysical Separation

Abigail TraffordAbigail TraffordCrazy TimeCrazy Time

“There is nothing easy about divorce. “There is nothing easy about divorce. It is a It is a savage emotional journey. savage emotional journey. You don’t know You don’t know where it ends for a long time. You ricochet where it ends for a long time. You ricochet between the failure of the past and the between the failure of the past and the uncertainty of the future. You struggle to uncertainty of the future. You struggle to understand what went wrong with your understand what went wrong with your marriage, to apportion the blame and marriage, to apportion the blame and inventory your emotional resources.”inventory your emotional resources.”

Judith Judith WallersteinWallersteinThe Unexpected Legacy of DivorceThe Unexpected Legacy of Divorce

“Many people, including lawyers, judges, “Many people, including lawyers, judges, and mediators, don’t understand how and mediators, don’t understand how ,,often in divorce seemingly rational often in divorce seemingly rational complaints cloak powerful irrational complaints cloak powerful irrational feelings.”feelings.”

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Austin Austin SaratSarat & William & William FelstinerFelstinerDivorce Lawyers and Their ClientsDivorce Lawyers and Their Clients

“Lawyers attempt to draw rigid “Lawyers attempt to draw rigid boundaries demarcating the legal as the boundaries demarcating the legal as the domain of reason and instrumental logic domain of reason and instrumental logic and the social as the domain of emotion and the social as the domain of emotion and intuition…and intuition…

Attempting to distinguish the legal from Attempting to distinguish the legal from the social excludes much that is of the social excludes much that is of concern to clients.”concern to clients.”

Austin Austin SaratSarat & William & William FelstinerFelstinerDivorce Lawyers and Their ClientsDivorce Lawyers and Their Clients

“No“No--fault rules were meant to prevent parties fault rules were meant to prevent parties from using the legal process to tell stories of from using the legal process to tell stories of guilt and innocence; they were meant to alter guilt and innocence; they were meant to alter th ti th t di i ti ldth ti th t di i ti ldthe narratives that divorcing parties could the narratives that divorcing parties could construct as part of the divorce process….Even construct as part of the divorce process….Even in the era of noin the era of no--fault, divorcing parties come to fault, divorcing parties come to lawyers with a story to tell, a story of who did lawyers with a story to tell, a story of who did what to whom, a story of right and wrong, a what to whom, a story of right and wrong, a story of guilt and innocencestory of guilt and innocence.”.”

Austin Austin SaratSarat & William & William FelstinerFelstinerDivorce Lawyers and Their ClientsDivorce Lawyers and Their Clients

“While some clients have little to say about “While some clients have little to say about what occurred during the marriage, most of what occurred during the marriage, most of those we observed devote considerable time to those we observed devote considerable time to that activity generally on their own initiative andthat activity generally on their own initiative andthat activity, generally on their own initiative and that activity, generally on their own initiative and in the face of an unresponsive lawyer. In so in the face of an unresponsive lawyer. In so doing they stress personal and intentional doing they stress personal and intentional explanations of their spouse’s behavior and explanations of their spouse’s behavior and contest the boundaries and rules of relevance contest the boundaries and rules of relevance their lawyers seek to raise.”their lawyers seek to raise.”

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AFTER THE LEGAL DIVORCE AFTER THE LEGAL DIVORCE CONCLUDESCONCLUDES

Basic PremiseBasic Premise

Wedding Growing Marital

Distress

Divorce Post-Divorcei.e. The Next Chapter(s) of

One’s Life

The Divorce TransitionThe Divorce TransitionFrom Separation to “Freedom”From Separation to “Freedom”

John Haynes, Ph.DJohn Haynes, Ph.D. . -- 6 months 6 months -- 2 2 yearsyears

Abigail TraffordAbigail Trafford -- 2 years (most intense 2 years (most intense gg y (y (period is 6 months)period is 6 months)

WallersteinWallerstein & Kelly& Kelly -- 18 18 -- 24 months24 months

HetheringtonHetherington -- 24 months (the “crisis 24 months (the “crisis period)period)

Constance Constance AhronsAhrons -- 24 months24 months4545

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John Haynes John Haynes -- From From Attachment to DetachmentAttachment to Detachment

1.1. Couple can admit publically that they Couple can admit publically that they are divorcedare divorced

2.2. There is a clear physical separation from There is a clear physical separation from p y pp y pthe former partnerthe former partner

3.3. There is absolutely no sex with the There is absolutely no sex with the former partnerformer partner

4.4. The parties can discard joint belongingsThe parties can discard joint belongings

John Haynes John Haynes -- From From Attachment to DetachmentAttachment to Detachment

5.5. The parties can develop new romantic The parties can develop new romantic interestsinterests

6.6. The couple can form a new social The couple can form a new social ppnetworknetwork

7.7. The parties are changing their roles with The parties are changing their roles with their extheir ex--partnerpartner

John Hayne’s John Hayne’s “Redirection”“Redirection”

1. Gains mastery over things used to leave 1. Gains mastery over things used to leave to partnerto partner

2. No longer fantasizes about sex with ex2. No longer fantasizes about sex with ex--ggpartner.partner.

3. Can accept ex3. Can accept ex--spouse’s remarriage with spouse’s remarriage with a workable sense of being able to live a workable sense of being able to live with it.with it.

4. No longer bitter toward all the opposite 4. No longer bitter toward all the opposite sex.sex. 4848

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More “Redirection”More “Redirection”

5. Re5. Re--establishes normal sexual pattern.establishes normal sexual pattern.

6. No longer overreacts to “trigger” items 6. No longer overreacts to “trigger” items of the immediate postof the immediate post--divorce period.divorce period.pp pp

4949

…..Let’s look at the two principle longitudinal studies of divorce

Hetherington’s Virginia Hetherington’s Virginia Longitudinal Survey (Longitudinal Survey (VLS)VLS)

Launched in 1972 Launched in 1972 -- kids were 6 years oldkids were 6 years old

Originally intended to 72 preschool Originally intended to 72 preschool children and their families through children and their families through ggdivorce processdivorce process

Control of 72 kids from nonControl of 72 kids from non--divorcing divorcing famlies usedfamlies used

5151

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VLS (VLS (continued)continued) At At six yearssix years, increased study from 144 to 180 , increased study from 144 to 180

families divided equally among divorced, nonfamilies divided equally among divorced, non--divorced and divorced and stepstep--familiesfamilies

At At 11 years11 years, increased sample to 300 families , increased sample to 300 families and 600and 600 childrenchildrenand 600 and 600 childrenchildren

At At 20 years20 years, increased sample to 450 families , increased sample to 450 families and 900 and 900 childrenchildren

Data gathering involved: Interviews, Data gathering involved: Interviews, questionnaires, standardized tests, observation, questionnaires, standardized tests, observation, structured diary entries (3structured diary entries (3--days/week at 1/2 hour days/week at 1/2 hour intervals)intervals) 5252

Various Findings by Various Findings by HetheringtonHetherington

At the 1At the 1--year mark, second thoughts with year mark, second thoughts with at least one in 75% of couplesat least one in 75% of couples

At the 2At the 2--year mark 20% were still fightingyear mark 20% were still fightingy % g gy % g g

Women were bigger “grudge carriers” Women were bigger “grudge carriers” than menthan men

During 1st year, doctors visits tripled During 1st year, doctors visits tripled among women and doubled among menamong women and doubled among men

5353

More HetheringtonMore Hetherington

The closer men got to 1The closer men got to 1--year, more compromised year, more compromised were their immune systemswere their immune systems

The 7 suicide attempts in study were all by The 7 suicide attempts in study were all by women and all after casual sexual encounterwomen and all after casual sexual encounter

On average, women moved 4 times in first six On average, women moved 4 times in first six years… poor women moved 7 timesyears… poor women moved 7 times

At year 6, exAt year 6, ex--spouse relationship, so spouse relationship, so imporimpor--tanttantin first 2 years had faded dramaticallyin first 2 years had faded dramatically

5454

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Hetherington’s TypologyHetherington’s Typology

ENHANCERSENHANCERS Mostly femaleMostly female

20% of her sample20% of her samplepp

Grew more competent, well adjusted and Grew more competent, well adjusted and self fulfilledself fulfilled

Second time around, tended to “marry up” Second time around, tended to “marry up” and 2nd marriages were and 2nd marriages were ususallyususally successfulsuccessful

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Hetherington (Hetherington (continued)continued)

GOOD ENOUGHSGOOD ENOUGHS About 40% of sampleAbout 40% of sample

Divorce like a “speed bump” (caused a lotDivorce like a “speed bump” (caused a lotDivorce like a speed bump (caused a lot Divorce like a speed bump (caused a lot of tumult during, but failed to leave a of tumult during, but failed to leave a lasting lasting impressionimpression

SEEKERSSEEKERS Distinguished by a desire to remarryDistinguished by a desire to remarry

Usually MenUsually Men

LIBERTINESLIBERTINES –– Sought freedomSought freedom 5656

Hetherington (Hetherington (continued)continued)

COMPETENT LONERSCOMPETENT LONERS 10% of sample10% of sample

Didn’t need, or in most cases want, a partnerDidn’t need, or in most cases want, a partner, , p, , p

THE DEFEATEDTHE DEFEATED Succumbed to depression, substance abuse Succumbed to depression, substance abuse

and a sense of purposelessnessand a sense of purposelessness

Might rebuild their lives, but it was joylessMight rebuild their lives, but it was joyless

5757

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The Wallerstein StudyThe Wallerstein Study

Initiated in 1971 in Marin County with Joan Initiated in 1971 in Marin County with Joan Berlin KellyBerlin Kelly

Began with sample of 131 children and Began with sample of 131 children and adolescents from 60 recently separated adolescents from 60 recently separated y py pfamiliesfamilies

Initially, 53% were 8 years old or youngerInitially, 53% were 8 years old or younger All children and most parents were All children and most parents were

intensively interviewed (mostly by intensively interviewed (mostly by WallersteinWallerstein))

5858

WallersteinWallerstein ((continued)continued)

Interviews occurred at separation and 6Interviews occurred at separation and 6--months, 18months, 18--months, 5months, 5--years, 10years, 10--years years and 25and 25--years postyears post--separationseparation

Surviving the BreakupSurviving the Breakup, with Joan Kelly , with Joan Kelly was written after the 5was written after the 5--year followyear follow--upup

Unexpected LegacyUnexpected Legacy was written was written withoutwithoutKelly after 25Kelly after 25--year followyear follow--upup

5959

More Wallerstein FindingsMore Wallerstein Findings

The most common complaint from The most common complaint from children of divorce, “Nobody explained children of divorce, “Nobody explained what was going on or asked me what I what was going on or asked me what I wanted.”wanted.”

1/2 of children were involved as 1/2 of children were involved as adolescents in serious drug or alcohol adolescents in serious drug or alcohol abuseabuse

6060

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Constance Constance AhronsAhrons’ ’ TypologyTypology

Perfect PalsPerfect Pals

Collaborative ColleaguesCollaborative Colleagues

Angry AssociatesAngry Associates

Fiery FoesFiery Foes

Dissolved DuosDissolved Duos

Questions?

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SOME OBSERVATIONS ABOUT “LEGAL DIVORCE” FROM THE CLIENT’S PERSPECTIVE

“Every person I know who hates lawyers has been through a divorce”. It was an off-hand comment by a therapist friend of mine, but I couldn’t get it out of my head - because it reflects a deep, and broadly-held, frustration with the management of legal divorce and its practitioners among the legal lay-public. This wasn’t the first time I had heard these sentiments expressed. For the past few years, I have given a talk entitled “Family Law for the Mental Health Professional”. Its purpose is to educate therapists about law and demystify the process and its practitioners. In their feedback, these counselors have registered common criticisms of the legal profession. Often, they reflect a failure to understand our training, goals and ethical constraints. Yet, more frequently, they reveal the consequences of an “over-focus” by lawyers on a limited set of concerns, leaving other vital interests ignored or even damaged in the process. Once we “zoom out” and gain a broader view of divorce, it becomes easier for us to understand that we are only one part of a wildly complex set of interactions, concerns and decisions. Even the most experienced among us tend to lose this perspective. The comments from therapists and their clients can be distilled down to the following five observations. Perhaps they may serve to widen our perspective in assisting those we serve. 1. The Legal Divorce is Only a Very Limited Part of a Much Larger Process Lawyers see divorce as a problem which they are uniquely qualified to solve. We tend to treat it as an isolated “event.” While that may true for the attorney who obtains the decree and supporting orders, and then moves on to the next case, for each divorcing individual, it is a process. Divorce is a long climb back from despair and personal chaos. A study many years ago attempted to quantify the severity of various psychosocial stressors people experience in their lives, from devastating illness to speeding tickets. The researchers found that the greatest stressor was the death of a spouse or child. The second greatest was divorce. The remaining life events fell away sharply in their intensity. This is so because divorce involves a myriad of deep psychological anchors which are violently dragged up from their mooring. Is there a person who did not embrace some image or ideal of how they wanted their future partnership to look? The depth with which we touch each other in our intimate lives is a product of these very early dreams and the legal aspects of the dissolution (the dissolving) of these visions are but a blip on the screen (a most expensive blip to be sure, but a blip, nonetheless). Paul Bohannon identified “Six Stations of Divorce” and these include the emotional, legal, economic, coparental, community and psychic divorces (loosely arriving in that order).i When the lawyers have achieved their final judgments and move on to the next case, these people are locked together for years afterward. They still will be talking to their families and

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friends about their “ex”; they still will be able to push one another’s buttons; they will struggle with self-doubt (usually unexpressed), often descending into alcohol, work, sex, rage or other addictions; they will wonder if they are attractive, sexual or self-sufficient. In divorce, regardless of whether you leave or you are the one who is left - and most studies conclude that scarcely any divorce is a truly mutual decision - each person has their unique and difficult struggle. One person usually gives up on the marriage before the other. Bruce Fisher in his exceptional guide to post divorce recovery titled Rebuilding, calls the two roles the “Dumper” and the “Dumpee”. The Dumpee, of course, is left to bear the greater brunt of the emotional trauma brought on by the divorce. There is great, often tragic, pain. There is deep, often volcanic, rage. Observers of the process counsel that many years may pass before this person can move on (experience “divorce recovery”). The person who decides to leave is saddled with enormous, often debilitating, guilt. “I’m a terrible person.” “I have destroyed my family.” Of course, to get the Dumpee to appreciate the pain of the Dumper is one mammoth (and often futile) task. People approach this crisis with varying degrees of integrity. Yet, to automatically brand one person as a victim and the other as perpetrator is both misguided and destructive. Karen Somary and Robert Emery have noted that the grief experienced by the dumpee over the end of a marriage is similar to that experienced when a loved one dies suddenly. The grief of the dumper is similar to that experienced when a loved one dies after a prolonged illness. (“Emotional Anger and Grief in Divorce Mediation”, 8 Med. Q. 185 (1991). In Fisher’s divorce recovery classes, about half stated they were dumpees, a third state they were dumpers and the remaining sixth claimed that the decision was mutual. As Fisher notes, “Theoretically, there would be an equal number of dumpers and dumpees in society. However, in some situations, one person feels like a dumpee and the other person feels it was a mutual decision.” Fisher continues,

“The divorce process is different in many ways for dumpers and dumpees. My research with the Fisher Divorce Adjustment Scale indicates that dumpees experience more emotional pain at the point of separation, especially in the areas of letting go and anger. However, if dumpers’ pain could be measured while they were still in the love relationship, I am certain they would show more emotional pain than the dumpees. The dumpers began to let go before they left the relationship, so they have been able to back off from being lovers to being friends with the dumpees. The dumpee, however, is usually still deeply in love with the dumper when the relationship ends.”

Whichever role one relates to, in the words of Abigail Trafford in Crazy Time, Harper Perennial (1992), divorce “is a savage emotional journey.” Her “crazy time” is described as follows:

“It starts when you separate and usually lasts about two years. It’s a time when your emotions take on a life of their own and you swing back and forth between

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wild euphoria and violent anger, ambivalence and deep depression, extreme timidity and rash actions. You are not yourself. Who are you? At times you don’t want to know. You think about going on a sex binge and fucking anything that moves. Or you lie very still in bed, your muscles tense, your breathing shallow, your imaginings as dark and lonely as the night.

Then at the height of Crazy Time, you may get a reprieve. You fall in love - a coup de foudre - and the block of lead in your chest miraculously melts; you can’t believe it, you laugh, you dance. You known it’s too soon, too much like jumping into a lifeboat that you know leaks and has no oars. but you smile, feeling so good after feeling so bad for so long. Therapists call this the search for the romantic solution. But it’s usually not a solution. You crash... Now you’re really scared.

There seems to be no end to this wild swinging back and forth. You can’t believe how bad your life is, how terrible you feel, how overwhelming daily tasks become, how frightened you are; about money, your health, your sanity. You can’t believe that life is worse now than when you broke up. You thought you were at the end of your rope then.

In all the feel-good rhetoric about divorce being a growth opportunity for the new super you, nobody tells you about Crazy Time. Yet this is usually the very painful transition period you have to go through before you can establish a new life for yourself. It’s equivalent to the mourning period after death and catastrophe.”

Trafford estimates that this period, lasting two years or more is at its most intense for about six months, right after physical separation. Constance Ahrons and Roy Rodgers, concurred, making the following observations in their study, Divorced Families - Meeting the Challenges of Divorce and Remarriage, Norton (1987):

“This early stage of separation plunges the individual into an intense state of emotional and social anomie - literally, normlessness. Old roles have disappeared, but new ones have not yet developed. Anomie comes in several forms. There may be no definition of a particular situation available. “How am I supposed to act or feel about this?” Or there may be competing or conflicting definitions of the situation which require the individual to make a choice. “Should I do (or feel) this or should I do (or feel) that?” Finally, the definition of the situation may be unclear. “What is happening? What is this all about?”

There are no clear-cut rules for the separating. Who moves out? How often should the partners continue to see each other? When should you tell family and friends? Should you tell your child’s teacher? Who should attend the school conference scheduled for next week? What about the season’s tickets for the concert series? These types of questions, seemingly trivial in our everyday life, plague the newly separated.

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Most frequently the situation poses itself before the individuals have had the opportunity to figure out their individual or collaborative answers. A mother may decide unilaterally to attend the school conference meeting alone; father may not even find out about the meeting until several days later. He may feel left out of his child’s life and react with anger at his wife for excluding him. This sequence of events could begin a long angry battle between spouses, as each tries to assert parental rights; or more positively, it could open a discussion in which the parents could make some mutual decisions about how they will handle this type of event in the future.

In addition to the lack of rules for behaving, this period is also characterized by highly ambivalent feelings. Much of the emotional distress found in the early phases of separation is caused by the continuing bonds of attachment between former spouses....The fact that one may choose to leave one’s mate does not negate the longing for the comfort of the other’s presence or their daily interactions. This comes as quite a surprise to many who fantasize only relief and positive feelings when their mate was finally gone. They are confused and upset when their feelings vacillate between love and hate, anger and sadness, euphoria and depression. In spite of strong negative emotions, the old habitual attachment persists. Absent spouses are “missed.” Partners feel “lonely.”...”

A point raised by Ahrons and Rodgers, and repeated by other authorities, is the felt need to overcome this ambivalence and attachment by pushing the other spouse away, for fear that any positive interaction will soften their resolve to terminate the marriage. This is entirely predictable during the early separation phase. As we can see, the separation crisis will bring on a whole range of conduct which might be easily interpreted by the other spouse as evidencing hostility and aggressiveness - a desire to harm and to diminish. What is actually being expressed in many cases is confusion, fear, grief and the deepest anxiety. Again, Ahrons and Rodgers provide valuable insight to the impact, for better or worse, of attorneys’ conduct.

A note needs to be made here about the impact of the legal system on the separation process. The separating spouses may interact with the legal system any time from preseparation through late separation. But when they do, it can alter the separation process considerably. Much will depend, however, on which attorney and which method of dispute resolution the separating spouses choose. Although nearly all states now have no-fault legislation, the process of reaching an agreement on financial and custody issues is still usually resolved in an adversarial process. When the adversarial process interacts with the other processes of separating, it can increase the distress by adding an additional stressor to an already burdened system. It can cause the separating partners to cease communicating with each other and to continue their negotiations through their lawyers. In high conflict relationships this may be beneficial and even speed up the separation process. In other cases it can be detrimental, creating even more anger and conflict than was already present in the system.”

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Noted divorce mediator and professor of conflict resolution, John Haynes, Ph.D. in his book, Divorce Mediation - A Practical Guide for Therapists and Counselors, Springer Publishing (1981) views the transition period in a somewhat similar fashion, moving through four phases: The Deliberation Phase; The Litigation Phase; The Transition Phase and the Redirection Phase - the latter two phases are worth noting for their specific procedural clues to when the post separation transition has culminated. TRANSITION (Occurs in the 6 month - 2 year period after separation) This period includes a time of "nuttiness". This period is rarely developmentally stable. The therapist/mediator needs to repeat ideas frequently. The transition period follows the physical separation. The therapist's goals during this period should be to assist the parties in developing an emotional divorce. A primary transition is from attachment to detachment. You know detachment is taking place when: 1. Clients can admit publicly that they are divorced. 2. There is a clear physical separation from the ex-partner. 3. There is absolutely no sex with the ex-partner. 4. The couple can discard joint belongings. 5. The parties can develop new romantic interests. 6. The couple can form a new social network. 7. The couple are changing their roles with the ex-partner. 8. The couple can complete unfinished business of issues in the marriage that

angered, hurt, or disappointed them, but which they were never able to express to the other person.

REDIRECTION This period is marked by different choices being made independently. Signs of Redirection include: 1. People begin by gaining mastery over things they historically disliked doing and

always left to the marriage partner. 2. The client no longer fantasizes about sex with the ex-partner on a regular basis. 3. The client can accept the former partner's remarriage with a workable sense of

being able to live with it. 4. The client can define him/herself as not only financially okay but also financially

secure. 5. The client is no longer bitter toward all of the opposite sex. 6. The client reestablishes a normal sexual pattern. 7. The client no longer overreacts to "trigger" items of the immediate post-divorce

period.

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Lawyers would be well-served by embracing the knowledge that the interests, values and concerns which they represent are only a very small part of the kaleidoscope of challenges which their clients face. They disregard these other elements - and the impact their work has upon them - at the peril of their clients’ long term best interests. 2. Divorce is a Hugely Stressful Life Transition – Different People Will Manage It in Different Ways In 1967, Thomas Holmes and Richard Rahe conducted a study involving over 5,000 medical patients, trying to determine the existence of a correlation between stress and illness. They hypothesized that the intensity of stressors would increase the likelihood of illness. They asked respondents to list various life stressors they had encountered and to rank them on a scale of 100. Their research became the foundation for what we understand today as the consequences of accumulated stress. Ranked as the most stressful event, with a score of 100 was Death of a Spouse (while death of a child was not ranked, it must be assumed that this would rank at the top as well). Second on this list is Divorce with an intensity value of 73. Next came marital separation at 65. Following these were Imprisonment (63); Major Illness or Injury (53); Dismissal from Work (47) and a myriad of other stressors. Divorce is likely the most stressful experience that our clients may ever experience – and we are often the most significant (if not sole) professional guiding them through this passage. 3. Lawyers are Educated and Trained to Make a Bad Situation Worse The legal divorce is extremely complex and the time has long-since passed when only the least qualified practitioners would become matrimonial attorneys, for want of another specialty that would have them. As a matter of purely legal analysis, the characterization and division of community estates which might consist of a successful start-up company; private disability insurance payments; stock options or intellectual property interests present the kind of challenges that lawyers can sink their teeth into. The analytical, negotiation and litigation skills required for the effective practice of family law are considerable. You’ve got to know something about running a successful business, taxation, real estate, property valuation and an array of other intellectually challenging areas. Yet, while this describes a vast array of knowledge and skills, it suffers from an over-focus and serious limitation of perspective. This is exacerbated by the very foundation of our professional lives - our legal education and training. We learn the law by studying the adversarial system through casebooks. The litigators among us are bred in a system in which winning is the highest value. You can settle, but it still had better be a “win.” Yet litigating divorce is like pouring gasoline on a fire. The divorce litigator fans the embers of distrust white hot by speaking in language of entitlement, locks their client into intransigence when they readily agree to castigate the other party and sows the seeds

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of prolonged bitterness by failing to inquire what the other side needs in order to accept the resolution and work with their former spouse in the coming years. The lawyer is trained to look at the other person’s position critically, in an effort to undercut the adversary’s argument - to prevail. The mistakes by the other party - their foolishness, vindictiveness, acting out through confusion or fear - brings on your judgment. He or she is a “jerk” or “crazy”. You write incendiary letters to satisfy your angry client. You’re tough, because, after all, you are a lawyer, not a therapist. Then, when the rawest of wounds are inflicted, you make sure your client has a therapist to handle the fallout and you move on to the next case. U.C.L.A. law professor and legal ethicist Carrie Menkel-Meadow expressed a broadly felt concern for this attitude when she wrote,

“...I wish to confront - the way our legal system asks us to wage war, without seeing the person on the other side. For lawyer’s work, like soldier’s work, has been justified by its role morality. We permit these specific actors to engage in behaviors that we would ordinarily condemn because their roles, performed within a morally defensible situation, war or litigation, require it. We might examine how the imagery of war, scarcity, and zero-sum assumptions is also the imagery of our legal system..

Beyond the complaints and debates about the treatment opposing lawyers afford each other and each others’ clients is the deeper problem of trying to understand what the actors on the other side are trying to accomplish with their lawsuits or legal matter as an expression of their humanity...[I]n litigation, finding out what the other side really wants, as opposed to making general assumptions about the other side, could facilitate more effective dispute resolution, as well as transaction planning.”ii

Janet Johnston and Viven Roseby, in their masterful study of high conflict divorce, In the Name of the Child (1997) had these observations to make from the vantage of mental health professionals who treat the children of divorce:

The traditional adversarial court system has long been criticized for the polarization of parties’ positions and the escalation of family conflict. The institutionalized polemics between attorneys, the established procedures for fact finding and assembling evidence, and the costly, cumbersome, and often lengthy procedures involved in custody litigation appear to fashion the ideal social environment for escalating divisiveness and blaming between parents. Attorneys in particular have long been implicated for contributing to rather than resolving disputes, because of their advocacy role within an adversarial judicial system. Advising their clients not to talk to the other spouse, making extreme demands to increase the bargaining advantage, and filing motions that characterize the other parent in a negative light are all typical examples.

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While the provision requiring “zealous representation” has been stricken from the Canons of Ethics, the attitude born of law school education and professional training cannot be so easily eliminated. However, no other professional trait causes more damage to clients or greater alienation from those in the attorney’s personal orbit. 4. Judges Do Not Dispense Justice This is true - to the chagrin and disappointment of the judges themselves. The so called “litigation explosion” which has reached down into every trial court in the country was describe this way by Chicago Law School Professor Mary Ann Glendon in her recent book, A Nation Under Lawyers:

“While ambitious judicial review was enjoying an Indian Summer in the nation’s high courts, the daily work of every federal and state judge in the land was being transformed by a changing and rapidly expanding caseload. By the 1980s, the situation had reached crisis proportions. Some court systems were in gridlock. The causes included the increasing resort to litigation by previously court-shy businesses; the war on drugs; the green light the courts had given to rights-based claims; a host of other new-judge-made and statutory causes of action; the creation of new crimes; and mass tort actions such as the asbestos and Dalkon shield litigation...Today’s judges are so busy that, as one federal district judge has remarked, even Learned Hand could no longer be Learned Hand.”iii

Against this backdrop, we are faced with clients who want “justice.” They want their story heard. They want vindication. In, perhaps, the best available discussion of the practice of family law - Austin Sarat and William Felstiner’s Divorce Lawyers and Their Clients - Power & Meaning in the Legal Process- the authors observe that,

“Even in the era of no-fault, divorcing parties come to lawyers with a story to tell, a story of who did what to whom, a story of right and wrong, a story of guilt and innocence.”iv

The truth, of course, is that virtually no client will achieve this judicial imprimatur. They want to tell their story, however they probably will never be sworn as a witness (unless it is at their deposition - certainly not a forum for them to tell their story in its most favorable light). They want the judge to see that they are right - but seldom will the court make a decision based upon only one party’s view of the marriage and its end. Stephen Adams was for many years one of the pre-eminent family law educators in California (and, perhaps, the country). He lectured a hall-full of divorce lawyers one day years ago about the practicalities of running a matrimonial practice. He told how he instructed his clients to go down to court a week before their hearing was scheduled to “get comfortable with the courtroom”. What he intended was that each person, their sense of righteousness and hunger for vindication gripped tightly as they entered the courthouse, would watch the judge “slash,

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burn and plunder” the litigants’ positions, deny them any opportunity to speak, and make unfathomable decisions. This is how “justice” is experienced by today’s family law litigant - particularly in this age of no-fault. They will not get their “day in court” and they often will not believe justice has been done. As Sarat and Felstiner also observed, lawyers often describe the legal process as plagued by the very absence of order and fairness that clients thought they would get from a judge. As they note,

“Lawyers attempt to draw rigid boundaries demarcating the legal as the domain of reason and instrumental logic and the social as the domain of emotion and intuition. Attempting to distinguish the legal from the social excludes much that is of concern to clients...As lawyers describe the legal process itself, a process in which personal idiosyncracy is as important as rules and reason, in which confusion and disorder are as prevalent as clarity and order, in which the search for advantage overcomes the impulse toward fairness, the factors claimed by the ideology of separate spheres to be outside the law seem quite vividly alive on the inside...For clients, this is a difficult and disappointing message. They come to the divorce lawyer’s office believing in the efficacy of rights in the legal system only to encounter a process that not only is “inconsistent,” but cannot be counted on to protect fundamental rights or deal in a principled way with the important matters that come before it.”v

Thus, while the reality may be debatable, judges are certainly not perceived by the parties to a divorce, as dispensing reasoned justice, crushing their most fondly-held expectations. 5. Each Party in a Divorce Thinks They Got Screwed and Their Spouse Didn’t A fundamental psychological defense when we are under a great deal of stress is projection. Philip Guerin, Jr. and his associates in their excellent work, The Evaluation and Treatment of Marital Conflict describe projection in this way,

“In reaction to emotional pain or upset, we all have an automatic emotional reflex that places the cause of that pain or upset outside ourselves. The more intense this projection becomes, the more it produces an experience of victimization and a tendency to hold others responsible for the way we feel and act. It demands that others change, instead of allowing us to take responsibility for our own behavior and emotional reactions. The opposite of projection is self-focus, the ability to see one’s own part in an emotional process.”vi

It is here that the adversarial training and orientation of lawyers is most apt to cause trouble. It is axiomatic that the greater an individual’s level of anxiety, the more intense will be their defensive responses. A characteristically distrustful person will bloom full-on paranoid under intense stress. A dependent personality will dissolve into non-functionality as the legal divorce gears up. The natural tendency to project when angry will just explode during divorce.

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Speaking with lawyers; paying lawyers; negotiating the loss of possessions; being deposed; going to court - all of which comprise the daily task of lawyers - spike a litigant’s anxiety. If the attorney joins with his/her client in round condemnation of the other party, then they have permitted themselves to become exploited as an instrument of the client’s projection. Yet, woe be to the lawyer who dares to suggest that the opposing party feels that they got a bad deal, or feels screwed by the process. Thus, the very information which must be imparted to a divorce litigant, in order to normalize their experience and get them to move on, is withheld by the attorneys, fearing a massive crisis in confidence by their client. 6. Client Maintenance and Control Are Competing Goals - Your Client Feels Whip-Sawed Divorce litigants often get decidedly mixed messages from their attorneys. It is no wonder that many come away from the process feeling used. In its simplest terms, the lawyer tells the client how good their case is in order to cement the relationship and then tells them what’s wrong with the case in order to move the client toward settlement. In reality, this practice can be quite subtle, and this subtlety leads to the justification or denial of the practice itself. This tension was well-described by Craig McEwen and colleagues in a 1994 article in Law and Society Review entitled, “Lawyers, Mediation and the Management of Divorce Practice”,

“[A]ttorneys must constantly demonstrate their identification with a client’s interests and needs. Lawyers thus may build client trust by accepting and supporting a client’s world-view. At the same time, however, lawyers must try to act as objective and skeptical advisors. The skeptic’s role often means telling clients things they do not want to hear and urging compromise, thus placing in jeopardy the clients’ trust in them as vigorous allies”.vii

The language which prevails at the outset of a case is replete with references to entitlement. Knowing that there are many practitioners who would gladly offer their services in the community, a lawyer does not want to dishearten the potential client by highlighting the weaknesses of the case. Sarat and Felstiner made the following observation,

“Throughout their meetings with their lawyers, clients keep the question of marriage failure very much alive in their minds. They talk about the marriage in terms of guilt (their spouse’s) and innocence (their own)...Even though law reform makes such questions legally irrelevant and gives lawyers an excuse to ignore or evade client characterizations, clients continue to think in fault terms and to attribute blame to their spouse...They contest the boundaries of law and seek to open it up to a broader range of concerns...Lawyers resist by avoiding discussion of who did what to whom during the marriage...(They) join with, and validate, the clients’ vocabulary of blame only when necessary to reassure

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wavering clients of the correctness of their decision to secure a divorce.”viii Then, as the case progresses (and the fees are billed) the weakness of the client’s position presses more and more to the forefront. Their enthusiasm is encouraged by the attorney’s advice to wane and as Sarat and Felstiner note,

“A costly, slow, and painful process might be justifiable if it were fair, reliably protected important individual rights, or responded to important human concerns. Law talk is, however, full of doubts about whether the legal process even aims at meeting those goals.”ix

Small wonder that the client emerges from the process feeling emotionally shredded. Conclusion “Zealous advocacy” has been stripped from our canon of ethics. The ADR movement is gaining more adherents. Advocates of “unbundling” of legal services are currying greater interest among us. There is a dawning understanding that the injuries inflicted by the litigation process, and the vaunted “adversarial system of justice”, outweigh their benefits - especially in the eyes of the lay public, whom we serve. While these limitations are most painfully experienced by our divorcing clients, they are felt in virtually every area of legal specialization. It’s time we responded and fundamentally reconsidered our role in helping our clients resolve the, often painful, conflicts in which their lives are periodically enmeshed. i Kaslow, F., “The Psychological Dimension of Divorce Mediation,” in Divorce Mediation, Theory and Practice (Folberg, J. and Milne, Ann, eds.), 1988, Guilford Press. ii Is Altruism Possible in Lawyering?, 8 Ga.St.U. Law Review, 385 (1992) iii Glendon, M.A., A Nation Under Lawyers - How the Crisis in the Legal Profession is Transforming American Society, Harvard U. Press, 1994, p. 143. iv Sarat, A. and Felstiner, W., Divorce Lawyers and Their Clients - Power & Meaning in the Legal Process, Oxford U. Press, 1995, p. 27. v Sarat and Felstiner, id., p. 93. vi Guerin, P, Fay, L., Burden, S. and Kautto, J.G., The Evaluation and Treatment of Marital Conflict - A Four Stage Approach, Basic Books, 1987, p. 129. vii McEwen, C, Maiman, R. and Mather, L., Lawyers, Mediation, and the Management of Divorce Practice, 28 Law & Society Rev., 149. viii Sarat and Felstiner, supra, note 5, p. 137. ix Sarat and Felstiner, id., p. 105.

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MINDING OUR MARRIAGES ~ A VITAL TASK FOR ATTORNEYS ~

Did you hear the one about the 2,000 hour biller/rainmaker/bar leader? He died. Seriously. Well, let’s just say he died a heck of a lot sooner than he might have otherwise - and not because of some generalized concern about the wages of unrelenting stress but rather because, before he died, his marriage died. Social scientist, Linda Waite’s recently published The Case for Marriage summarizes the volume of research that reveals the not-so-obvious benefits of marriage. Waite and others note that:

• Marriage increases longevity. In one study, nine of ten married men alive at age 48 will live to 65; while only six of ten comparable non-married men will.

• Having a spouse lowers a cancer patient’s risk of dying from the disease as much as being in an age category 10 years younger.

• While heart disease lowers a man’s life expectancy by six years, being unmarried lowers his life expectancy by ten years.

• Single men are 20 times more likely and single women 10 times more likely not to have had sex even once in the past year than married people.

• A recent 13 year study revealed that woman in good marriages were less likely to develop the risk factors associated with cardiovascular diseases than other middle-aged women.

• Another study published in the American Journal of Sociology found that 88% of married men lived to the age of 65, while only 63% of never-married men do. The benefits for women are clearly present, though not as dramatic, with 91% of married women reaching 65 and 81% of the never married making it there.

I want to discuss the natural pressures that the successful practice of law places on marriage, what challenges lawyers face in effective personal dispute resolution and what we can do about it. TAKING MY TIME The highly committed professional who is focused on becoming an expert in his/her field, developing a book of business and becoming an equity partner must give to this quest a vital commodity in life - time. Those familiar with the “work/life balance” debate, coursing like successive waves over our profession during the past 20 years, will know the competing arguments. Advocates of greater balance will find their positions eloquently mirrored in such websites as The Project for Attorney Retention maintained by Hastings Law School

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(www.pardc.org) or www.jdbliss.com, a blog promoting work/life balance created by Joshua Fuchter a former bankruptcy lawyer and partner at Kaye Scholer. Countering the balance promoters are what I will call the “Realists.” I have a friend who plays this game with fortune cookies. For a good laugh, she suggests completing every fortune you read with the phrase, “in bed.” It certainly livens up: “You will gain recognition soon,” or “Your present plans are going to succeed.” In like manner, the Realists will preface every response to the work/life balance folks with “Get real...“ To them, the balance advocates miss the point. Lawyers are service providers and clients really aren’t concerned about their personal lives. As noted on the site www.morepartnerincome.com , “The success of any “service” business or profession is measured by its service to others. Client interest comes before self-interest. That is why we call it a “service.” The legal profession recognizes the service aspect in spades, charging you with the professional obligation to honor, at your own expense if necessary, the paramount interest of the client.” One fellow on the site www.whataboutclients.com called work/life balance a “dumb ass issue.” (Don’t you hate the way some lawyers throw Latin around?) It has wisely been stated that an indication of something’s importance to you is how much time you spend attending to it. I recall telling a colleague recently that I wished I could go into a time warp at around 3:00 in the afternoon, get about 4 hours’ more stuff done and then return to 3:00. Perhaps that will be our reality in 200 years and we will look back on this time as an era of inhumanly pinched schedules, barbaric cancer cures and cats-as-pets rather than leaders of the free world.i Yet that era is not upon us and an hour spent here is irretrievably stolen from there - and time is the oxygen of marriage. Starve a marriage of time, and it will slowly suffocate, whither and die. This is the primary Law of Relationships which has been intoned by leading experts in the field. It is deceptively simple. We can talk about “communication,” “conflict resolution skills” or “healing” from infidelity or other betrayals of trust and, while surely important, these aren’t going to matter if the relationship is deprived of its oxygen. Ask any lawyer, “What are you most likely to take for granted, your career or your marriage?” Now, what’s your guess about the responses you would receive? Marriage is the most taken for granted significant relationship in our lives. This is particularly true with “Generation Y’s” who find the challenge and rewards of the intense work environment particularly stimulating and seductive. A couple of months ago, the Christian Science Monitor ran a story about “extreme professions.” If you’re conjuring up a guy in a pinstripe suit shooting his snowboard into the blue off a ledge somewhere, well....you’re close. The story cites a recent Harvard Business Review analysis by Sylvia Ann Hewlett entitled, “Extreme Jobs: The Dangerous Allure of the 70 Hour Work Week.” Hewlett notes that two-thirds of high-earning American professionals say they love their jobs. In our present culture, we have come to romanticize this lifestyle. As she observes, "There's something deep in our culture right now which really admires over-the-top pressure, over-the-top performance, over-the-top pay packages.” The CSM article quotes New York cultural critic Catherine Ornstein who says, “We're not just in an age of extreme work, we're in an age of extreme culture." Ornstein pointed to the popularity of extreme sports,

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extreme parenting, and extreme reality shows. (“Extreme parenting”??? Sounds unhealthy - at least for the kid.) The practice of law fits neatly into this paradigm. William Doherty, Ph.D. is one of the deans of the American marital therapy/marital enrichment field. He is on faculty at University of Minnesota and his office overlooks the Mississippi River as it begins it’s journey to New Orleans. He often observes that a marriage is like a boat on that river. If you don’t pay attention to it, just let it sit there and take care of itself, that boat will end up drifting all the way to the Gulf of Mexico. While the winters may be less harsh, if you wanted to stay in Minneapolis, chances are you would be pretty unhappy. We tend to believe that we can put our marriages on automatic pilot and after years of benign neglect, we will be as bonded as we once had felt. Yet “use it or lose it” applies equally to marriage as it does to physical conditioning, athletic skills, health or mental acuity. In his book Take Back Your Marriage, Doherty comments at length about the many interests or needs that draw us away from our marriages. It’s not just work. Children are insatiable time stealers. Small wonder that marriages almost always experience a down time after the first child is born. I cannot count the number of people I have encountered in my work as a family lawyer and therapist who were wonderful parents but had become dreadfully disengaged spouses. Add to this deadly duo of career and children the added demands of personal recreational needs; church/synagogue/mosque involvement and other public responsibilities and the only thing you have to suggest that your marriage was ever high on the priority list is the wedding picture you may have in your office. So, how to counteract this seemingly inexorable disengagement? Doherty provides some guidance here. He speaks of the “intentional marriage,” and the need to consciously establish rituals for your marriage. For years, Doherty and his wife would set aside a half-hour after dinner just to sit together over tea and reconnect. He recommends not discussing “hot button” issues over which there is conflict. (If your relationship is at a point where you can’t spend a half-hour just talking without conflict arising, I strongly recommend you find a marital therapist.ii) The religiously-kept Saturday night date is another ritual couples have successfully employed. MAKING A CONNECTION Carving out time is, while critical to the health and longevity of a marriage, not sufficient. We lawyers are buffeted by many forces that will challenge our marriages. Not only are we driven to succeed in the public arena, on the very personal level, we may be ambivalent, at best, about “intimacy.” In her often humorous and always cautionary book Should You Marry a Lawyer, psychologist Fiona Travis, Ph.D. observed that:

“In session one day, a lawyer client of mine was discussing the frustrations of his marriage. Why, he wondered, was his wife always so upset? Finally, he shook his head, and said he would “probably need a blood transfusion to understand what this intimacy stuff is all about.” Some lawyers really don’t get it. They don’t understand that intimacy is the emotional connection - the glue, if you will - that is absolutely vital to a healthy marriage.”

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So, during these times together, get to know your partner better - their dreams, frustrations, plans and joys, both long term and immediate. Don’t get stuck in a rut, talking only about the kids. If you feel you are running out of things to talk about, pick up a copy of John Gottman’s The Seven Principles for Making Marriage Work and try some of the exercises in there. They are excellent. Doherty adds that, while intimacy is at the core of an abiding marital relationship, it is difficult in the “interdependent world of marriage (where) the stakes are higher, the anxiety is greater, the conflicts more intense, the heat of love and hate greater. It takes a lot of psychological maturity to keep your balance. When we fear losing our balance - ourselves, really - and when we have trouble trusting that our spouse will accept our innermost feelings, worries and hopes, then we clog up the well of intimate self disclosure. We may love deeply, and say so regularly, but we are afraid to share what is most personal.” When the “heat” is intense, we want to protect ourselves. We may withdraw personally - shut ourselves down emotionally and throw ourselves into work. Society supports this coping device. Our partners laud our productivity. Absence of overt hostility between spouses may lull our community of friends and family. If a rupture comes, everyone is shocked - “You seemed so good together!” No one saw how dead the marriage had felt for years. Nationally recognized marriage authority and best-selling author Michelle Weiner-Davis, MSW, describes a painfully common path to the end of a marriage. She calls it the “walkaway spouse.” As a divorce lawyer, I find the profile chilling in its accuracy. While usually this describes the woman in the marriage, because she is, as a general rule, the minder of the relationship, it may apply to men as well. The scenario begins with one spouse feeling that the other has drifted away (among other things, it may be into work). He/she needs more from the relationship and voices that need. It may come across as a request. More frequently, it is expressed as criticism. If the distant spouse responds positively and adjusts, the relationship remains solid. However, if the errant spouse retains their present course (the lawyer continues with his 60 + hour workweek), the complaints become more pointed and bitter. This drives our lawyer away further. One day, something shifts inside the “relationship minder.” He/she simply says, inside themselves, “I’m done.” Often, if it is the woman, she will say to herself, “I’m gone - but I’m going to wait until (I go back to school and get my degree) (our youngest is out of the house) (I find someone else) (I get a job) before I’m out the door.” Yet, with the internal decision, comes a kind of peace, and the desire to change the other spouse and heal the marriage dissolves. The complaining and criticism stop. Life seems more placid in the home. The lawyer thinks, “Wow, I don’t know what happened, but this is great! Life around home is good. The criticism has stopped. I like this!” So Mr. or Ms. Lawyer blithely waltzes through their 60 + hour workweek, comes home to relative peace and quiet, until one day, their partner says, “I’m gone.” Our lawyer, of course, will respond with something like, “WHAT???!!! How can that be? Things have been going so well lately.” Of course, all that really has been good is that the criticism has stopped.

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This moment marks a real crossroads in many marriages. The person who is being left, suddenly, for the first time, realizes that they are right on the cusp of losing something vital in their lives. They may go buy every self-help book they can get their hands on. They may go into therapy. They may actually (and legitimately) start to act differently. But by then, it’s often too late. The “leaver” has long ago left in his/her heart and what may have been an ember to be fanned back to life at one point is nothing but ash. It’s done. Marriages that fail aren’t happy one day and miserable the next. No one event marks a relationship’s transition from rewarding to troubled. Even the affair, which feels like a bomb has been dropped on the wedding cake, is a result of gradual estrangement by both people. The drifting apart may begin the first time we have a feeling we don’t want to share because the consequences may be unpleasant (withdrawal, anger, defensiveness) and we hold our tongue. The first withdrawal leads to the next and the next. Initial steps are almost imperceptible, but like a tiny wound we do not treat, it will fester and grow to something life threatening if we neglect it. However, even long term disengagement or seemingly intractable conflict does not mean that it’s time to throw in the towel and find somebody more compatible. That is one of the great fallacies of what Doherty terms the consumer marriage attitude. Doherty describes our drift over the past 20-30 years into a society which has begun to view marriage as a consumer commodity....the “I can do better” syndrome. It stems in part from the psychological individualism in our culture. When we are faced with the inevitable disappointments in our marriages we begin to ask, “Is this marriage meeting my needs?” or “Am I getting enough back for what I am putting into this marriage?” Doherty cites the attacks on marriage from a consumer culture which “tells us we never have enough of anything we want, that the new is always better than the old - unless something old becomes trendy again. It teaches us not to be loyal to anything or anyone that does not continue to meet our needs at the right price.” According to psychologists Amato and Booth, 70% of marriages that ended were low conflict relationships. Doherty notes the increasing number of people coming into his office in recent years seeking to end a marriage because, “The relationship wasn’t working for me anymore,” or “Our needs were just too different,” “I wasn’t happy,” “We just grew apart,” “I grew and he didn’t,” “I deserve more,” “My husband is a nice guy but boring,” “The relationship became stale.” The Consumer Marriage Quiz found in his book Take Back Your Marriage can be enlightening. How do you fare?

DOHERTY’S MARRIAGE QUIZ

1. I (often, sometimes, rarely) compare my spouse unfavorably to others. 2. In relation to our problems, I (often, sometimes, rarely) dwell on my

spouse’s deficiencies; not my own. 3. I (often, sometimes, rarely) concentrate on how my spouse is not meeting

my needs rather than how I am not meeting my spouse’s needs. 4. I (often, sometimes, rarely) keep score: I add up when I do good things or

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when I think my spouse does something bad. 5. I (often, sometimes, rarely) think that my spouse is getting a better deal in

this marriage than I am. 6. I (often, sometimes, rarely) focus on my spouse’s defects rather than on his

or her strengths. 7. I (often, sometimes, rarely) wonder if I should have held out for someone

better when I chose a mate.

8. When we have hard times, I (often, sometimes, rarely) ask myself whether the effort I am putting into this marriage is worth it.

Doherty suggests that if most of your answers are “sometimes,” ask yourself if things you “want” are disguising themselves as things you “need.” If three or more of your answers are “often” consumerism is a serious issue in your marriage. Like almost all sentiments which we believe will not be embraced by our partner, we tend to keep these thoughts of dissatisfaction to ourselves. However, their presence in our minds, as gatekeepers and filters to our experience, will begin the erosive process, from which Doherty comments that you can ruin any good marriage in two years. It has been a watchword for cognitive therapists that we adjust our reality to fit the preconceptions in our minds. If our partner is a disappointment, we will become very aware of every comment, every twitch, which confirms this belief. At the same time - and more nefarious - we dismiss, ignore and erase those behaviors which might conflict with our preconceptions. All of this takes place quietly and privately within the mind of one person. Often these ruminations churn inside the heads of each person in a couple separately. Both will become discouraged, convinced that there is no getting through the differences that cannot be bridged. We often circle back over the same differences and disagreements. We say to ourselves, “I don’t need this!” Once we get there, we feel we have an undeniable justification to withdraw from our marriage - and to look elsewhere. We may allow ourselves to drift into an “emotional affair,” or even further into a sexual liaison. However, Gottman made an interesting finding from his years of observing couples which casts a different light on these intractable disagreements. Gottman’s research suggests that fully 69% of the disagreements which arise between couples are simply not resolvable. These fundamental differences may express themselves around issues as diverse as together time vs. alone time; division of household chores; attitudes toward money; preferred sexual frequency or style; physical activity level; relations with in-laws; child rearing or spiritual practice. These differences are viewed by each person as a problem, but as marital therapist and author, Dan Wile notes, “When we marry, we marry a particular set of problems.” His point, of course, is that if we escape one set of problems, we will inevitably marry another set, and on and on. How many times have friends, or we, ourselves, left one relationship and gravitated to a person that seemed the exact opposite of the first in some critical and disturbing area, only to find that trait - or some other - nearly intolerable after the initial attraction wears off?

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It’s not that we have these differences and disagreements. It’s how we deal with them. We must be ever careful, not to succumb to a fantasy of the way marriage should be. These fantasies are almost always misleading and make us vulnerable to disappointment. Thus, if time together is the oxygen of marriage, conflict resolution skills are what keeps the body of our marriages in good shape. WE CAN WORK IT OUT Funny isn’t it? While lawyers are in the business of conflict resolution, we are often completely undone by our own personal conflicts. The truth is that attorneys are no more capable of handling painful personal conflict than anyone else. Again, Fiona Travis suggests that our professional training may impede our ability to operate well during interpersonal conflict. She notes the tension between the skills and values necessary for success as a lawyer and those needed for solid relationships.

Successful Lawyer Techniques

Successful Relationship Techniques

Win Compromise

Doubt Trust

Cross-examine Discuss

Avoid error Admit mistakes

Argue Concede

Attack vulnerability Accept fallibility in self and others

Think for others Respect partner’s opinions and ideas

Deny weakness Allow for vulnerability

Among the many helpful axioms from the mental health field is the observation that we all have our idiosyncratic ways of responding to stress. When we are feeling secure, these “symptoms” may be happily dormant. Yet, when we experience heightened stress, we may become depressed, reactively angry or particularly controlling. We may respond to stress with workaholic behavior. Some may “space out” and become barely functional. When lawyers are under stress, we may very likely resort to attack/defend behavior. This tendency, coupled with the complete dominance of our intellect over our gut or heart can exacerbate the behaviors described above. Again, lawyers are burdened with an occupational fallacy when engaged in interpersonal conflict. We believe that there is a solution. This assumption is embedded in the legal rationale

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supporting no-fault divorce: “irreconcilable differences.” Yet, as Gottman. would suggest, marriage is full of irreconcilable differences. Returning to Dan Wile, when we are faced with these uncomfortable feelings that are all-too-human (like envy, loneliness, doubt) we have three choices. We can be adversarial, avoidant or we can confide. Because we have such difficulty with the vulnerability we feel in confiding these feelings, we almost always take the less productive adversarial or avoidant path. With the adversarial path, we will attack our partner. Let’s say you’re are working your brains off and you finally have time to be home, but your partner has scheduled something you don’t want to do. You want to spend some down time with him/her but they have wanted to get together with this other couple you haven’t seen for a long time. Your “leading edge feeling” may be disappointment because you wanted to spend the time alone with you partner or even a bit of annoyance, or even a fear, that decisions were being made for you. Whatever it may be, in the adversarial approach, you may say something like, “Here I’ve been working my self to the bone and in the rare time we have, you go and take control without even asking me (a modification on the “You’re a control freak” accusation) or “What’s wrong with just having time where we don’t do anything?” Of course the response is all too predictable. The defensiveness will rise immediately, with something like, “I don’t see you making any plans for us,” and before long you’re off to the races. With the avoidant path, you have made the decision that it’s really not worth the fight, so you simply withdraw. This is the well known, “What’s wrong?”--- “Nothing.” scenario. This may be embellished with, “There’s something wrong, tell me.”--- “No, I’m just tired....(from working so much).” Whatever the script, the avoidant stance provides extremely fertile soil for those personal thoughts of “I don’t know how much more of this I can take,” or “I could be happier with someone else.” When we withdraw and make our own private conclusions about our relationship and our spouse, we have set the stage for problems. Wile, though one of the most insightful observers of marital patterns of communication/ interaction, is not the only voice in the field. A related approach is familiar to all schools of marital interaction and is generally referred to as the pursuer/distancer interaction, or “dance,” best described by Philip Guerin, Ph.D. Guerin describes the common dilemma faced by couples in which one partner seeks more interaction time and moves forward, while the other seeks less interactive time and moves away. The so-called “distancer” will often move toward something outside of the marriage. Work, of course, is an excellent, socially sanctioned, target for this withdrawing activity. As Guerin describes the dance, the wife (women tend to be the pursuers in the relationship, though this is certainly not uniform) will seek more relationship time. The husband will thwart this effort. The pursuer will at some point cease her movement toward the other and the husband will sense this change of climate in the marriage. He may ask, “What’s wrong?” and get the standard “Nothing” in response. Nonetheless that query is a palpable move by the “distancer” toward his partner. Heartened, the “pursuer” will then attempt to engage her partner who may comply for a short period. Yet too much closeness will make him uneasy and he will again move back, sparking another iteration of this cycle. The serious problem arises when partners are unable to break through this habitual pattern of interaction and achieve real intimacy. The back-and-forth may go on repeatedly until the “pursuer,” feeling drained and demeaned from

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being the person continually reaching out to be close only to be “rejected,” stops responding positively to the “distancer’s” query of “What’s wrong.” Instead, she will remain emotionally disengaged and, rather than move toward the “distancer” as before, she will attack and her bitterness at what she has experienced as rejection will bubble over and out. On the other end of the spectrum are the more volatile couples who seem to exhaust themselves through their constant conflicts. This pattern, according to Gottman, brings a marriage to a state of crisis fairly early on - while the estranged marriages tend to see their dead relationship as a problem after a longer period of time, often exceeding 20 years. With the volatiles, conflict is not avoided, but rather joined with gusto. The problem is that neither person has the skill to accomplish what they want - presumably to get your partner to have some empathy with your point of view - so the anger only results in an escalation of feelings. This is followed by an almost universal physiological sensation of feeling “flooded.” We all can experience this under the right set of circumstances. Our heart rate shoots up and we have the experienced of being emotionally overwhelmed, making a thoughtful response virtually impossible. Research confirms that men get emotionally flooded more easily than women, and in this state of arousal, any chance of listening and understanding, much less accepting or empathizing with, the other’s views is literally impossible. At this point, the person needs to disengage and soothe themselves so that they can actually be capable of thinking again. Without this escape, they will either escalate further, which in all cases is counterproductive and at times dangerous, or they will shut down entirely. This is what Gottman calls “stonewalling,” identified as one of the four most corrosive behaviors experienced by married couples.iii To repeat a point made earlier, many attorneys (who are professional conflict resolvers) paradoxically - and poignantly - find interpersonal conflict resolution skills rather foreign. When under stress we tend to work things out with rational argument. We see difficulties as problems to solve and get frustrated if our partner doesn’t want a solution but, rather, needs to convey something from deep inside. The disconnect will cause us to withdraw and shut down. The ongoing frustration with a relationship that seems to be more and more attenuated - with a domestic environment that is not a place of comfort and renewal, but a battleground or wasteland - will lead one or both partners to conclude that divorce is the only option. A recent study by the Institute for American Values, entitled Does Divorce Make People Happy? - Findings from a Study of Unhappy Marriages may give these folks pause, however. The study examined spouses who rated their marriages “unhappy” and followed these individuals over a period of five years. The results are eye-popping. The vast majority of divorces (74%) happened to adults who had been happily married five years previously. Further, unhappily married adults who divorced or separated were no happier, on average, than unhappily married adults who stayed married. Divorce did not reduce symptoms of depression for unhappily married adults, or raise their self-esteem, or increase their sense of mastery, on average than unhappy spouses who stayed married. Finally, two out of three unhappily married adults who avoided divorce or separation ended up happily married five years later.

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CONCLUSION Divorce is a personal tragedy. It is a disaster for children. The statistics - reminding us that over 50% of first marriages and over 65% of second marriages end in divorce - are by this time old news. I challenge anyone in a medium-sized or larger firm to think of a colleague who plummeted through the rabbit hole of divorce and consider their bottom line productivity. By the same token, those of us mired in what feel like a soul-sapping marriage may feel their focus and resilience suffer. Yet if there is one lesson which rises from the works cited here, it is that a good marriage - one in which there is trust, honest exchange, marital friendship and freedom to be different - supports us in all our efforts. We are more grounded. We are happier. We are better at virtually anything we do. We will certainly be better lawyers. i Caveat, I am a dog person. I make this comment only to reach out to the other side of the aisle ii National research reveals that, on average, couple seek out martial therapy 6 years after they detect serious marital difficulties. iii The other three of Gottman’s “Four Horsemen” are Criticism, Defensiveness and Contempt, with the latter being the most damaging. See Gottman’s Seven Principles book for an excellent discussion of these.