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| Winter/summer divorce By: Sam Margulies, Ph.D, Esq. Marriages between an older man and a younger woman frequently end in divorce because the couple is unable to negotiate a critical change in the relationship. Such marriages are often based on an implicit contract in which the wife achieves rapid economic and professional advancement by marrying a successful and wealthier man while the husband gets an adoring and submissive wife who accepts his domination. This works only until the wife matures and demands a more equal relationship. This demand is often experienced by the husband as a breach of their contract and a betrayal of the marital agreement. An inability on his part to renegotiate the relationship is generally a precursor to divorce. This article explores the psychodynamics of such relationships as well as the counseling and legal issues raised by these divorces. As do most couples, Bill and Erica began with an intense love affair. At age 43, Bill was at the height of his career, acknowledged by many to be the best general surgeon in town. His marriage had ended in divorce two years earlier, and he had a 14-year-old son who lived with his mother. He was regarded as the most eligible bachelor around and was a desired guest at parties because of his charm and wit. When they met, Erica was 24 and two years out of college. She was executive assistant to the CEO of the hospital and ambitious about her career in hospital administration. Pretty and vivacious, she was also precocious, quite confident and self-possessed for one so young. Erica had seen Bill around the hospital and at committee meetings attended by her boss and by Bill, who was chairman of his department. Then, at a Christmas party given by her boss, the two danced together for most of the evenings, and the love affair was on. Erica was flattered by the attention of the sophisticated and handsome older man. He asked her many questions about her work and offered to introduce her to people who would push her career. She also enjoyed being wined and dined in a manner that neither she nor the younger men in her life could afford. Bill was flattered by her adoring attention and enjoyed the envious looks when he arrived at a party with this beautiful young woman on his arm. The courtship lasted about eight months, after which Bill proposed marriage. Erica quickly accepted. Fifteen years later this couple called me for help in mediating their divorce. The call came from Erica, who told me that it was she who wanted the divorce and that Bill had reluctantly agreed to mediation as the least damaging way to go about it. The story that emerged over the next few weeks was similar to others I had heard. The early years of the marriage had been wonderful for both. They had bought a house in the nicest section of town and decorated it with great flair. Erica’s career had blossomed with the help of Bill’s mentoring, and within three years, she was the vice administrator of the hospital, a signal accomplishment for someone still in her thirties. The couple had two children, ages ten and seven. Most people regarded Bill and Erica as an ideal happily married couple and were shocked when the word spread that they were getting divorced. The problems had begun about eight years into the marriage. In their early years together Erica had been generally willing to defer to Bill’s wishes about how things should be handled. Bill was a perfectionist and was used to having things done his way. Erica respected Bill’s superior experience and wanted to please him. But by the time she was in her early thirties, things were beginning to chafe. When Erica went to work, she was a senior executive. People listened to her advice, and her subordinates did as she instructed. She was known as an innovative administrator and was asked to serve on many committees and on the boards of other organizations. But when she went home, she clearly was a subordinate. Bill was used to being the boss and was unwilling to share the power. He made all of the decisions about how the couple would manage their money, and he insisted on keeping Erica on a short financial leash because he believed she was a spendthrift. His domination also extended to other areas. They vacationed where he wanted to go and socialized with people he liked. Bill felt that many of the people Erica liked were too far left politically, and he criticized her for her fuzzy-minded bleeding-heart politics. Although Erica had accepted Bill’s domination in earlier years because she was young and inexperienced, she began to resent his refusal to acknowledge that she was now a mature adult and a seasoned veteran of life. She wanted a more equal partnership. But when she challenged Bill, she met angry resistance. He told her not to get such big ideas, and claimed that her success in the hospital administration was largely the result of his intervention on her behalf and his mentoring. His refusal to acknowledge her own accomplishments left her seething. This kind of exchange continued over the next few years. Erica continued to advance professionally. She was elected to a high position in a national association and received the plaudits of her peers. But her relationship with Bill became more distant as time passed, and Erica increasingly sought companionship and fulfillment outside the marriage. Thirteen years into the marriage, Erica, at 36, was at her peak. Bill, at 56, was beginning to feel the competition from younger colleagues and was increasingly irritated by the changes occurring in the field of medicine. Problems in his joints degraded his performance in golf and tennis and made him feel grumpy from time to time. He began to think about slowing down a bit. Meanwhile, Erica was being sought by some very large hospitals in a city about an hour from where they lived. As matters between them continued to stagnate, Erica, concerned that the marriage was not thriving, asked Bill to go into counseling. He refused, saying there was nothing wrong that some shrink could improve. Erica pleaded with him to change his mind, but he was adamant. About the same time, Erica was becoming friendly with a doctor at her hospital who had become a great admirer of hers. When she went by herself to speak at a medical convention, he happened to be there, and the two spent some very pleasant time together. As that relationship developed, Erica realized how starved she felt for approval and companionship and decided that she deserved more than she was getting at home. Finally, two weeks after their dreary, unenthusiastic 15th anniversary, she told Bill she wanted a divorce. Bill, thunderstruck, asked her to reconsider. But now it was Erica who was adamant. Two months later, they were in my office to mediate their divorce settlement. Over the past 20 years I have mediated the divorces of at least 40 couples in which the husband was 15 or more years older than the wife. Although the age difference between the spouses cannot itself be blamed for the divorce, one pattern I have observed is quite remarkable: in every single case it was the wife who was initiating the divorce. This in itself is very interesting, because in any population we would expect the husband to be the initiator in half or slightly less than half the divorces. The second interesting thing here is the most common reason wives give for leaving their husbands: the failure or inability of the husband to accord the wife the deference and equality due a partner by contemporary standards. The increasing disaffection felt by the wife as she matures and asserts herself as an equal adult appears to be the primary dynamic that eventually produces the breakup. In this article I explore the implicit contract between the younger woman and the older man as they decide to marry and how that contract changes over time. The winter/summer marriage In Western society there is a well developed norm that inclines most people to marry spouses who are similar in age. Thus most spouses are less than ten years apart in age, and for logical reasons. Values change with generations, and people of similar age tend to share tastes in music and culture that change dramatically over time. People of similar age tend to have common positions with respect to having children—younger people have not had them and want to; older people have had them and do not want more. Age peers tend to be at similar stages of career and emotional development and have similar energy levels. The marriage of people of similar age is so common place that when we see a marriage between people more than 15 years apart in age, the deviation from the norm raises interesting questions about the particular needs of the spouses that are served by this atypical pairing. The contract To understand how the divorce develops, we need to look first at the expectations that shape the relationship between the older man and the younger woman. It appears that there is frequently an implicit contract in which he gets certain advantages and she gets others that neither would get with an age peer. Such advantages must be compelling to overcome the obvious disadvantages that accompany such marriages. From the woman’s perspective there is a clear disadvantage in marrying a man likely to die when she is still in her prime years. From the man’s perspective are the disadvantages that arise from not having a companion with the same depth of experience and seasoning an age peer would have. And for both are the social complications of finding other couples with whom to socialize and with whom all are comfortable with the differences in age and perspective. From the husband’s viewpoint the advantages of having a younger wife are both physical and emotional. The young woman is an emotional feather in the man’s cap, a reminder that he is still sexy enough to attract a pretty young woman. Men, more than woman, are aroused visually, so the young woman—sleek, wrinkle free, cellulite free—is clearly a trophy. But more important, and key to the contract, is the implicit domination that arises from his greater knowledge, experience, mastery and economic resources. The one aspect of relationships that is clearly lacking here is equality. For the man there is a subtly elegant aspect to this. With a wife who is a true peer, modern marriage requires the husband to wrestle continuously with the assertiveness associated with marital equality. For the older husband, although equality may be acknowledged as a value, the ability to prevail in a disagreement arises from the superior authority and power that come with greater experience and resources. Invariably the older husband has more money, more expertise, and more mastery. Indeed, those are the very things that make him so attractive to his younger wife. It is not necessary that she have a submissive personality. Submission results from his having superior resources and is at the very heart of the bargain between the two. So what does the younger woman get in exchange? Her primary gain is status and economic security. In every one of the older man/younger woman divorces I have seen, the husband was a successful professional, executive, or business man. There was not a single case in which the woman was in a stronger economic or organizational position than the man. All the men were successful. In some cases the man is powerful within industry were the woman is seeking to rise. She is a new resident; he is a successful surgeon. He is a CEO; she is an assistant vice president. She is an aspiring novelist; he is a successful publishing executive. For many such couples, the mentoring provided by the man is key to the rapid professional success of the woman. In other cases, when the two are not in the same industry where his influence can open doors for her, the husband’s superior knowledge and sophistication about business or professional life can be the basis for valuable advice and introductions to other people that can enhance the wife’s career. The promotion of the wife’s career is only one of the possible economic advantages. The most important, perhaps, is the wealth and spending power the man brings to the relationship. For the younger woman it is not necessary to live through the typical economic struggles that would come with having an age peer as a mate. Saving for a down payment, anticipating the next raise, or scrimping on a vacation become unnecessary, because the older husband has accumulated capital and an income to support a higher level of consumption than she could afford with a mate her own age. In one stroke she jumps an entire generation of economic advancement and achieves or exceeds her parents’ economic status. For her, life is easier than it would have been with an age peer. She gets instant security; he gets an adoring young woman who, if not actually submissive, at least tends to defer to his superior wisdom and experience. He plays mentor; she plays cheerleader. He gets sexual excitement and flattering reassurances of his youthful virility; she gets security and status. That’s the deal. And it works for about 10 or 15 years. The crisis The psychological premise of the marriage is the gentle but clear dominance enjoyed by the husband. Although his wife may be precocious for her age, she is nevertheless the younger and subordinate partner. IT is not necessary to foray into psychoanalytic speculations about incestuous longing s to observe a clear parental style in the relationship between husband and wife. The problem for the couple is that the contract, based on his maturity and her relative immaturity is unlikely to last as she grows up. The challenge to this relationship develops gradually as she matures and comes into her won in her thirties and forties. If she is in business or is a professional, this is the time that she “arrives.” She gets promoted, makes partner, or is awarded tenure. Her increasing status outside the home begins to grate against her relative lack of status within the marriage. For the younger wife who has chosen a more domestic life, there is a variation on theme. If she has had children, the early years have been devoted to raising them. The husband, a generation beyond, I unlikely to assume his full share of the drudgery associated with child rearing. With an age peer she would have had a better chance of insisting that he do his part, in the interest of fairness and equality. But the older husband takes the position that if he pays for domestic help, that is his contribution to diaper changing, babysitting and carpooling. Indeed, the older man, who often has children from a previous marriage, may regard his agreement to have children at all as a major concession to the wife. Nor is he particularly pleased about being tied down to the school schedules of the kids just when he has the time and resources to take long vacations. As she watches the younger fathers of her children’s playmates pitch in and do their share, it can become a source of accumulating resentment. Then, as her children get older, she may, like many mothers, begin to look outside the home for more stimulation. For some women it may be sports, clubs and volunteer work. For others it is the resumption or the beginning of careers. But, again, the contrast between recognition outside the home and the relative lack of recognition in the home becomes acute. The challenge to the husband comes just as he hits his middle or late fifties. For many men this is a period of difficult adjustment. For some there is the insecurity that comes from realizing they may have gone as afar as possible in the competitive race. They may feel the heat of younger competitors in the corporate or professional marketplace. They may experience the physical effects of aging—a slowing tennis game, bad knees, or an extra twenty pounds they just can’t lose. Just as he begins to feel vulnerable to the physical symptoms of aging and to professional competition, he feels betrayed when his long-deferential partner now demands that the contract be changed. She demands the very equality that their relationship lacked, and it is this demand that shakes their marriage. For the husband, and for the marriage, there are now two possible outcomes. The first is that the husband makes the necessary changes and negotiates a new relationship with his wife. He acknowledges her competence and maturity and begins to negotiate, collaborate and consult were he has hitherto dictated, however benevolently. Those who successfully navigate this transition may be rewarded with a revitalized relationship that develops a rich collaborative theme. But at the risk of sounding pessimistic, this is not the most likely outcome. The more likely outcome is resistance to change by a husband who sees non reason to change the contract. A willingness to change in the direction sought by the wife presupposes an empathy for her goals and sympathy with the values of equality and collaboration she seeks. But it was partly to avoid collaboration and equality that he married her in the first place. He is not likely to understand or sympathize with the values of her generation, and he is resentful that she seeks to change the agreement after years in which he delivered on his part of the bargain. The tension that results from this unresolved challenge to his authority now begins to erode the marriage. She begins to feel that only outside the relationship can she find gratification and acknowledgment. Her disappointment in his failure to change, coupled with his anger at her newfound independence and autonomy, results in ever-increasing distance between the spouses. His struggle to keep her subordinate and her struggle to assert her autonomy may play out over issues of sex, money, children, or social activities. It is only a matter of time until one, more likely the wife, is involved emotionally with a paramour. Divorce is now almost inevitable. Issues in counseling As the marriage begins to deteriorate, it is common for the couple to make one or more attempts at counseling. The timing of the counseling is critical. Counseling is more likely to be initiated by the wife. As in the case of Bill and Erica, she suggests counseling as a way to find a forum in which her desire for change in the marriage can be heard and resolved. Erica asked Bill to go into counseling. He refused. In my experience the refusal of a husband to go into counseling is invariably a death rattle for the marriage. When wives ask for counseling and husbands refuse, the wives give up and start thinking about divorce. Thus, when Erica announced she wanted a divorce, Bill suggested counseling in desperation. But it was too late. Ironically, men like Bill may fuel their resentment of their wives’ departures by complaining that the wives refused to work on the marriage. If the husband accedes to his wife’s initial request for counseling, the couple has a chance to save the marriage. The task is the renegotiation of the relationship. But this can be a difficult task for a marriage counselor, because the psychological needs that produced the original pairing need exploration. The husband is being asked to learn an entirely new way of relating to his wife—one that he went out of his way to avoid for many years. Whatever needs are served by unearned deference and subordination must be addressed by him if he is to be able to acknowledge her as an equal partner with even a modicum of grace. This will not be an easy transition. For the wife, less transition is necessary. The problem has been precipitated by the wife doing what she is supposed to do: grow up. Had the wife remained the deferential little girl all her life, serious pathology for her would have been likely, even though it might have left the marriage intact. But the wife needs to be sensitive to the difficulty the husband experiences when trying to renegotiate the terms of marriage. Although she insists that the relationship become one of equality, she needs to approach the process with patience and more than a little sense of humor. She must also do some soul searching about her own motives and needs. When she married her husband, she chose a parent-child relationship in lieu of equality. Often such relationships are characterized by a child’s idealization of the parent—an idealization that can give way to disillusionment as the child grows up and discovers that the godlike parent has feet of clay just like everyone else. In choosing an adult relationship wither husband, the wife must also forgo her farmer child-like simplistic view of her spouse and embrace him as a person who is equally entitled to defects and weaknesses. If she fails in this task, she ends up in the position of neither child nor adult, but rather a rebellious adolescent who demands adult equality while indulging in childlike illusions. A more interesting opportunity for counseling is presented when such couples are seen for premarital counseling. Here the counselor has an opportunity to raise the issues before the disillusionment of the couple makes success improbable. At a minimum, premarital counseling should alert both members of the couple to a problem that they do not feel at the moment but that is likely to manifest itself later in the marriage. Then, when the wife does seek change, perhaps her demand will not be defined by the husband as her breach of the implicit emotional contract. Of course, it would be preferable if counseling succeeded in getting the couple to take on the issue at the outset. But this may be resisted by a good deal of denial. If the husband-to-be were inclined to equality, he would more likely marry an age peer; and if equality were of great interest to the woman, she would also seek an age peer. For this couple the issue of equality within the marriage is not ripe. It is a land mine with a long delayed fuse. Issues for divorce The divorce that occurs in the older man/younger woman marriage is marked by several themes. As in the case of Bill and Erica, it is invariably the wife who initiates the divorce. Thus it is the husband who must cope with the feelings that typically affect the non-initiator of a divorce, including a sense of abandonment and rejection, acute anger, and an overwhelming sense of loss. The theme of the divorce becomes the reciprocal of the theme of the marriage. The husband often feels he has been betrayed by the woman he supported all those years. He believes, quite accurately, that he lived up to his part of the bargain, which was to provide security and status, whereas she has breached her implied covenant to provide adoring deference. Had he been able to validate her need for equality as she grew more mature, he could have saved the marriage. His inability to comprehend the issue that caused the divorce colors his perception of the divorce so that he is unable to take any responsibility for the breakup. His victimization causes him to be unwilling to accept any of the dislocation that comes with the divorce. He reasons that because she wants the divorce, she should sort out the problems on her own. If the husband assumes the posture of victim, the negotiation of an economic settlement is difficult for lawyers who represent the couple or for the mediator who attempts to facilitate a settlement. There is seldom a problem about parenting issues, as the husband is only too wiling to leave the parenting duties to the wife. Nor do we typically see much of a struggle over child support, because the husband usually has a substantial income. The exception here, however, may concern power struggles over control issues, such as whether the child attends private school and, if so, which one. But the struggles tend to focus on “luxury” items rather than basic support issues. The big struggle in these divorces is over equitable distribution of marital property and alimony. In general, most men who are the non-initiators in the divorce are very resentful when asked to pay alimony. They argue that the wife is leaving them against their wishes and that she should take care of herself. If the wife has achieved professional success and has a substantial income, alimony will not be an issue. But if her career is not high paying, or if she is just starting her career, alimony becomes a hot issue. The husband’s resentment is acute precisely because he sees her new independence as the cause of the divorce. She wants equality and independence but still wants him to support her. To him, this is too contradictory to accept. Finally, the husband’s age may be a complicating factor. If he is in his late fifties or into his sixties, retirement is usually on his mind. Whether alimony is to continue past his retirement or at what age he will retire become areas of potential controversy. Equitable distribution presents other problems. Because the husband was already established economically before the marriage, he brought most or all of the assets into the marriage. Most states today have equitable-distribution laws providing that property brought into the marriage is exempt if it has remained separate and has not been mingled with marital property. A large part of the husband’s property may indeed be exempt. This gives rise to a demand by the wife for more than half of the marital property because, she argues, he has so much more than she does. This in itself may infuriate the husband. But the bigger problem concerns those assets that started out as the husband’s but have been mingled. For example, in the case of Bill and Erica, Bill owned a house before the marriage. When they married, this house was sold, and the money was used for a new and bigger home bought in both names. The marital home, not withstanding that Bill provided the down payment, was now a marital asset. Although Bill may argue that he should recover his down payment before the appreciation is divided, it is not a forgone conclusion that eh will get his way. The judge is not obliged to trace Bill’s original investment. If the marriage was a long one, there is a strong argument for a 50/50 division of any assets that are marital. Equal division of assets assumes symbolic importance in these divorces. For the wife, the reason she is leaving the marriage is lack of equality. When the husband argues that she is not entitled to an equal share of the marital assets because he contributed more, the wife hears this as a reprise of the marital theme in which she was not acknowledged as an equal. Equal division thus becomes a hot emotional issue. Conclusion Undoubtedly there are couples with wide age differences who would report a high level of marital satisfaction. Some have renegotiated the relationship to successfully accommodate the wife’s maturity. Others have survived because the wife never asserted her independence—either because she felt no need to do so, or because she felt no need to do so, or because she was too intimidated by her husband to try. But it appears that winter/summer marriages are more vulnerable to marital dissatisfaction 10-20 years into the marriage. it also would appear that they are at a significantly greater risk of divorce than marriages between age peers. | ||||
| Back to top | The psychology of prenuptial agreements
By: Sam Margulies, Ph.D, Esq. Although prenuptial agreements appear to be growing in popularity, the use of such an agreement does not augur well for a marriage. Almost invariably the agreement is sought by the economically stronger party in order to render himself financially invulnerable in the event of a divorce or to ensure that the spouse receives nothing in the event that he dies. Such motivation usually masks underlying troubles in the relationship involving issues of power, trust and sharing. Most emotionally legitimate issues are provided for by existing divorce law and the desire to be invulnerable notwithstanding prevailing law suggests problems potentially fatal to the marriage. With ever greater numbers of divorced people getting remarried, lawyers are receiving more requests to draft prenuptial agreements that spell out what happens if the marriage ends in divorce or death. Textbooks and formbooks have proliferated, as have continuing-education courses for lawyers who want to master the technical details of protecting their clients who are about to marry. What have not been studied or taught, however, are the emotional implications of a prenuptial agreement and the emotional consequences that often arise form the way the prenuptial agreement is negotiated. I was recently consulted by a woman who came to see me three weeks before she was going to marry the man she had been living with for two years. Ann was previously married and had two children. Bill, the prospective groom, had also been married previously and had two children by that marriage. Ann and Bill had been living together for two years, during which time he had been supporting her. At his request she was not employed because he preferred her to be a fulltime homemaker. Bill had his own business. He also anticipated a significant inheritance from his father. He felt burned by his last divorce and wanted to protect his assets in the event his marriage to Ann did not work out. He was also feeling pressure from his father who wanted reassurance that Bill’s inheritance would not enrich Ann if the marriage failed. Bill had discussed his concern with Ann and she had agreed that if the marriage ended in divorce, he should be able to keep the property he had brought into the marriage. Under New Jersey law that provides for equitable distribution of marital property upon divorce, Bill could have kept his property separate and easily retained it in a divorce even without a prenuptial agreement. But because both he and his father were anxious, he went to his father’s lawyer to obtain a prenuptial agreement. Now the problems began. Lawyers are trained to advocate the interests of the client. They are inclined to define those interests in terms of technical rights and obligations rather than a broader sense of the client’s emotional welfare. Bill’s lawyer was a junior partner in a firm and had the eager-beaver enthusiasm of a new lawyer. Bill could have achieved his aims by doing nothing, because if you bring property into the marriage and keep it separate, it never becomes marital property. But after consultation with his lawyer, he wanted to go further. He wanted to protect any increase in value of his separate property as well. Again, the law provided that Bill could keep the property inherited from his father as his exclusive property. Under the law, if an asset is exempt from distribution because it was inherited or acquired before the marriage, increases in the value of that asset are also exempt if the result if the increases are the result of market forces. Let’s say you own 100 shares of IBM before you get married. After the marriage IBM goes from $100 a share to $200 a share. The increase in value is still separate property and not subject to distribution. The problem that worried Bill was the increase in value of an asset as the result of active forces. If Bill’s business was worth $300,000 on the day of marriage, and during the marriage, by virtue of creativity and hard work, Bill built the business so that it was worth $700,000 the increase in value that is the product of his active endeavors would be subject to equitable distribution. This does not mean that Ann would automatically be entitled to half. Equitable distribution does not mandate equal division of marital assets. It simply means that Ann, who at Bill’s request was forgoing a career to be a homemaker, would be entitled to part of the value his energy had created. This was the entitlement Bill wanted to eliminate in the agreement, and had his lawyer limited the agreement to this objective, Bill might have been able to sell Ann on the idea. But the lawyer decided to protect all of Bill’s possible interests by drafting an agreement much broader in scope. First, the agreement provided that all separate property of any kind and from any source would remain the separate property of the party who brought it into the marriage. (Ann had no assets.) This clause gave Bill no protection he did not already have. His pre-owned property, as well as any future inheritance, was already protected as a matter of law. Then the agreement provided that any increase in the value of the property, whether from passive market forces or from the active energies of the parties, would also remain separate property. Further, the agreement provided that any property acquired by either party from any source would remain the separate property of the party who acquired it. This second provision was ambitious. Assets acquired by either party after the marriage begins are marital property unless acquired by inheritance or gift. Specifically, any income earned during the marriage is marital property. But the clause drafted by Bill’s lawyer excluded from distribution any assets acquired during the marriage. Because Bill was the only income earner, everything he earned would remain his, and Ann would be entitled to nothing. Then Bill’s lawyer turned to the subject of alimony. If the parties were married for a while and then divorced, Ann, who was totally dependent on Bill, would have been entitled to alimony. So the prenuptial contained a clause in which Ann waived her right to receive alimony. If the couple divorced after 20 years because Bill had taken up with his young secretary, Ann, according to the agreement, would get absolutely nothing. Then, to add insult to injury, Bill’s lawyer added a clause to eliminate Ann’s right to part of Bill’s estate if he died. Bill was now protected dead or alive. Ann, in either case, would be entitled to nothing. What the lawyer did not anticipate was that the prenuptial agreement would also be interpreted as Bill’s emotional message to Ann. Even though it went beyond Bill’s original intention, Ann was unable to distinguish between the message implicit in the agreement and what Bill said he intended. The practical effect of the agreement was to render her powerless within the marriage she would have absolutely no recourse—Bill could throw her out at any time for any reason and not give her a dime. Ann was devastated. Then she became furious. A friend referred her to me to review the agreement, and I could only confirm her worst fears. I advised her to talk to Bill, but I told her that if he held firm to this proposal, she needed to reconsider the marriage. Bill apparently had a difficult time that night with Ann, because I received a worried call the next day from Bill’s lawyer. She said she had never intended for all those clauses to stay but had put them in to have bargaining chips when Ann’s lawyer reviewed the agreement. The possibility that her strategy could destroy the marriage before it began had not occurred to her. She asked me to respond in writing, indicating what changes I wanted. I obliged by sending a letter proposing that nearly every clause be stricken. A week later I received a second draft restoring alimony but keeping everything else in place. When I told Ann, she became hysterical. She said Bill had promised that all the offending paragraphs would be removed, but they remained. She said things were very tense between them, as she had told him she would not sign the agreement, and if they had to call off the wedding, so be it. In a subsequent phone call, she said Bill had told her that his lawyer insisted on these clauses and he could not overrule his lawyer. I suggested that perhaps he needed to consult another lawyer. For the next week I spoke with Ann at least three times a day. She and Bill were in total disarray and very angry. I also spoke with Bill’s lawyer at least once a day and each day succeeded in chipping away at the draft. Finally, two days before the Sunday on which they were to be married, we worked out the agreement. All of Ann’s rights under the law had been restored. The agreement did little more than restate what the law already provided. Bill had his “agreement,” but whatever advantage he thought he had gained was largely illusion. In exchange, his relationship with Ann had been injured. How bad was the injury? Only time will tell. But the romantic cocoon that had surrounded the upcoming wedding had been shattered by the acrimonious negotiations and by the threats made by each in the week before the marriage to call it off if the other did not submit. In this case I fault Bill’s lawyer for carelessly endangering the marriage of her client. By going beyond the original intention of her client, Bill’s lawyer unwittingly introduced an emotional agenda she neither recognized nor understood because she could relate only to technical issues. To the extent that she acknowledged a danger, she left it to the advocacy of her adversary to restore some semblance of fairness. Because she saw her role as narrowly protecting the interests of her client, she relied on an adversary system that does not recognize the fragility of human relationships. Although better lawyering on her part might have reduced the danger, the real problem rests with the very nature of prenuptial agreements and the adversary context in which they arise. The negotiation paradox A lawyer asked to negotiate a prenuptial agreement on behalf of a client is caught between two conflicting sets of needs. First is the conventional objective of the lawyer-advocate to obtain the best possible deal for the client. Second is the interest of the client in maintaining and enhancing the relationship with the fiancé(e). This second concern is not often served by the tactics that typify conventional negotiation. In a conventional business negotiation the lawyer endeavors to obtain the most economically advantageous deal possible and to get the most benefit at the least cost. If the issue is the distribution of risk, the best deal means shifting more if not all of the risk to the other side. In pursuit of the best deal, the skilled negotiator uses a panoply of skills and strategy to keep the other side guessing about the deal she will ultimately accept. This may involve bluffing, intimidation, and any other ruse that will move results in the direction of one’s client’s interests. Each negotiator may use the threat of killing the deal in order to move the other side in the desired direction. But in a prenuptial negotiation the threat of killing the deal by calling off the marriage is damaging to the relationship. In fact, most of the tactics used by the lawyers may damage the relationship. Modern students of negotiation like to distinguish between positional bargaining and what is called interest-based or “principled” bargaining. In positional bargaining it is common to make initial demands for more than is ultimately sought and then to gradually make concessions until a middle ground is reached. Such tactics are common, for example, in personal-injury lawsuits, in which the only issue is how much money the defendant will pay the plaintiff. Positional bargaining is most appropriate when there is no continuing relationship and only a single issue is in dispute. By contrast, interest-based bargaining engages both sides in a mutual pursuit of solutions to common problems. Conceptually, this type of negotiation attempts to convert conflicts to problems and to engage in problem solving rather than in a struggle of contending wills. Most lawyers utilize both approaches, depending on the nature of the conflict and the personality style of the lawyer. Some lawyers define themselves as “dealmakers” and continually look for amicable solutions to common problems. Other lawyers adopt the stance of the hard-boiled tough guy who takes demanding positions and makes small concessions only after protracted negotiations. Still other lawyers use a combination of the strategies, depending on how they perceive the style of the other lawyer. For the lawyer negotiating the prenuptial agreement, either approach can backfire. The lawyer must keep in mind the desire of the client to get married to the one he loves without alienating her. It is difficult if not impossible to take a negotiating position interpreted as an emotional proposition as well. Each member of the couple is likely to hold the other responsible for the statements of the other’s lawyer. Positional bargaining requires the lawyer to seek more than is ultimately desired. That was the strategy of Bill’s lawyer when she proposed an agreement that would have stripped Ann of every possible spousal right Ann was unable to distinguish between the negotiating position taken by Bill’s lawyer and the emotional position taken by Bill. For her, Bill’s lawyer became Bill’s emotional surrogate. Ann took the content of the proposal as Bill’s unwillingness to take care of her. As a consequence, she became very angry at Bill, and the relationship was threatened. When both lawyers play this “game,” the emotional impact is doubled, as each client becomes increasingly angry at the extreme positions taken by the other. Such tactics can quickly destroy the trust between the parties. A couple determined to have a prenuptial agreement has a better chance of surviving the process if each party chooses a lawyer whose negotiating style is one of deal making and problem solving. But even interest-based bargaining does not eliminate the emotional pitfalls of the process. The very definition of the problems to be solved by the agreement requires that the would-be spouses fully articulate the protection sought by the agreement. Prenuptial agreements are usually sought by one member of the couple rather than both. Bill wanted to protect himself from Ann in the event of divorce. Even if Bill had avoided the positional tactics of his own lawyer, he still had to explain to Ann why he felt the need to protect himself. In the best of circumstances it is difficult for a fiancée to accept that her husband-to-be is legitimately threatened by her. Why, after all, would Bill not want to share his fortune with her? Why, if she was to stay home and attend to the couple’s domestic needs, should she not share in the increase in the value of Bill’s business during the marriage? Is her contribution to the marriage less valuable than his? Although interest-based negotiation avoids the unnecessary damage of positional bargaining, it nevertheless must bring the couple face to face with the fact that one of them has serious reservations about his/her commitment to the other. That is the ultimate negotiation dilemma facing the lawyers for the parties. What’s wrong with prenuptial agreements? The problem with prenuptial agreements is that they invariably reflect emotional problems in the relationship that will adversely affect the marriage. The perceived need for the prenuptial agreement suggests that the couple will have problems with issues of family interference, trust, sharing, power or intimacy. Although lawyers define prenuptial agreements as concerning technical problems they must also be understood as emotional propositions about the marriage. That is, when we get past the technical terms about separate property or after-acquired property, the real underlying issues are problems with trust, sharing or power, because the effect of the prenuptial agreement is to render the stronger partner invulnerable to the weaker partner in the event the marriage fails. By blunting or avoiding the consequences of divorce law, the prenuptial agreement changes the balance of power by enhancing the power of the already more powerful partner. Family interference Prenuptial agreements are sometimes instigated not by one of the partners but by the parents or children of on of the partners. The most common use of prenuptial agreements used to be to protect heirs when older people remarried. One or both of the older and established couple have children who could lose part of an inheritance by virtue of the common-law right of a surviving spouse to receive part of the deceased spouse’s estate. A prenuptial agreement is drafted in which each spouse waives the right to inherit from the other. Sometimes it is the expressed concern of the adult children of one of the partners that precipitates the request for an agreement. “I don’t need this, but my children are nervous.” Reasons such as these are offered to show that it is only external factors that impel the prenuptial agreement, not a lack of commitment on the part of the fiancé(e). But these reasons nevertheless may spell trouble in that they suggest difficulty in putting the spouse first and serious competition from the family of origin. In the case of the older couple in which one seeks to protect his/her estate, the inability of one of the partners to tell his children to mind their own business suggests later interference by the children. When older parents remarry, grown children often worry that if the older parent dies the estate will go to the new spouse rather than the children. In some cases the children express a suspicion that the parent’s new spouse has motives other than love for pursuing the marriage. “She is only marrying you for your money” is the stuff of bad novels and soap operas. “If she only wants you for companionship, let her prove it by signing a prenuptial agreement.” Thus the prenuptial agreement is presented as a test of whether the new spouse really is motivated by love or by money. It is an unfair test that almost requires the other to sign the agreement as a demonstration of good will. If the spouse to be disinherited has enough assets of his/her own, such an agreement will have little practical effect. But if the disinherited spouse has insufficient assets to maintain herself comfortably after the death of the other, the consequences of the agreement may be cruel. Most states provide for the intestate right of succession of a spouse. This means that in the event of the death of a spouse, the surviving spouse is entitled automatically to part, usually a third, of the deceased spouse’s estate. This right of the surviving spouse cannot be defeated by a will that leaves less than the intestate entitlement to him or her. But the surviving spouse is not entitled to more than the intestate portion unless the deceased explicitly so provides in his/her will. Therefore it is not necessary to have a prenuptial agreement to ensure that the children can receive a substantial portion of the parent’s estate. The only purpose of the agreement is to make it possible to eliminate entirely the spouses claim to even a part of the estate. But what does that say about the mutual dedication to the marriage? if the wealthier spouse becomes ill, should the other refuse to spend years providing necessary care? The prenuptial agreement in this case may suggest a lack of mutual commitment. A second example of family interference arises when the wealthy parents of a younger person insist that their son or daughter have a prenuptial agreement to protect an inheritance or an interest in a family business. The one seeking the agreement may also take refuge in the excuse that “it’s not my idea, but my parents are insisting that we sign an agreement.” Here the agreement suggests a young person not yet emotionally emancipated from his/her parents and not ready for marriage. Such an agreement predicts later interference by the parents or, worse, a spouse so dependent on parental largesse that he or she is not ready for independent life. Either problem is a precursor to major trouble later in the marriage. Anticipating divorce while getting married Although establishing what happens when one spouse dies is the traditional purpose of prenuptial agreements, the most frequent purpose today is to establish in advance what will happen in the event of a divorce. Such a concern is not unrealistic, given a divorce rate of 50% overall and closer to 60% for second marriages and marriages among the “X” generation. One stands a better chance of winning in Las Vegas than avoiding divorce throughout a life time. So it is not unreasonable that some people will try to reduce the risks of divorce by deciding certain issues in advance. After all, negotiating about the forthcoming marriage has occurred in traditional societies for thousands of years. Arranged marriages have been commonplace throughout history and have usually been the subject of intense negotiations by the familial representatives of the would-be spouses. What is new in the modern prenuptial negotiation is an attempt to negotiate an unromantic contract of a relationship in the face of modern notions of romantic love. Although romantic love defies precise definition, the images associated with the concept include continuing dedication and passion, unlimited commitment, complete trust, exclusivity and intimate friendship. Romantic love suggests loving with abandon, risking all, and a complete sharing of two lives. What it does not contemplate is holding back, limited commitment, separation of interests, and a refusal to risk or share. Yet these are precisely the objectives of the prenuptial agreement. The premises of prenuptial negotiations are logically contradictory to the premises of modern marriage. The premise of marriage is permanence—till death do us part. The premise of the prenuptial agreement is impermanence—till the judge do us part. The premise of marriage is unlimited commitment; the premise of the prenuptial agreement is contingent commitment—as long as we feel like it. The premise of marriage is sharing and a merger of interests; the premise of a prenuptial agreement is a separation of interests. The premise of marriage is mutual vulnerability and equal power; the premise of the prenuptial agreement is unequal vulnerability and unequal power. The premise of a marriage is a merger; the premise of a prenuptial agreement is a strategic alliance. It is this set of contradictions that makes the negotiation of prenuptial agreements so hazardous to the relationship. This type of agreement is invariable sought by the economically stronger of the two parties, seeking to protect his/her (most often his) assets if the marriage fails. On occasion one sees a prenuptial agreement between two economic equals who have mutual concerns about sharing money that they seek to resolve by formally stating their financial expectations of each other. But the most frequent use of prenuptial agreements occurs when one partner, typically male, is significantly wealthier and has much higher income than the other. If the marriage fails, the law provides that economic issues such as alimony and distribution of property must be negotiated to resolution or tried before a judge who decides who gets what. An elaborate body of law has developed in an attempt, however clumsy, to do justice at the end of a marriage. Notwithstanding the expensive and inefficient procedures that have evolved to manage divorces, divorce law provides a framework to prevent one spouse from depriving the other of his/her fair share of the fruits of the marriage. If one spouse as a matter of implicit or explicit agreement, remained at home to provide for the domestic needs of the couple, thereby never developing an independent income, it might be grossly unfair to tell her that she is now required to fend for herself. Alimony is the institution that has been developed to remedy such injustice. For example, returning to Bill and Ann, ask what would happen if they divorced after 15 years. Assume that Ann had remained a homemaker at Bill’s request and Bill had continued to earn a good living. Without a prenuptial agreement, in most states Ann would be entitled to alimony from Bill, and if Bill earned enough, the alimony would be high enough that Ann could maintain a lifestyle roughly similar to that which the couple had enjoyed during their marriage. Similarly, the law has evolved the concept of equitable distribution to provide for a fair distribution of the couple’s property when the marriage ends. Equitable distribution stands for the proposition that marriage is both an economic and an emotional partnership and that each partner is entitled to take some of the capital developed during the life of the partnership. Thus Ann would be entitled to a share of whatever property had been accumulated during the marriage. Although the property Bill owned before the marriage would be excluded from distribution, money earned by Bill during the marriage and investments resulting from those earnings would be marital property. But had Ann signed Bill’s proposed prenuptial agreement, she would have waived her right to receive alimony as well as a distributive share of anything earned by Bill during the marriage. Now consider two alternative scenarios. It is 15 years into the marriage, and Bill and Ann are having one of their low periods when each is disaffected with the other. With no prenuptial agreement, Ann has recourse if Bill decides he wants to end the marriage. He will have to support her, and some of the property acquired during the marriage will be distributed to Ann. With his prenuptial agreement in place, however, Bill can dump Ann with impunity. Ann has no recourse and ends up broke. Now, here is the question. Knowing this, how must each act during the marriage? With his prenuptial agreement in place, at least the one that his lawyer originally drafted, Bill can do whatever he likes, while Ann must be careful to appease Bill. If they have a disagreement—if they are at odds for some time—it is Ann who must pursue peace, because it is she who bears the consequences of the failure of marriage. The agreement proposed by Bill solidifies the superior power that arises from his stronger economic position and lets Ann know that she is dependent forever on his good will. Power and prenuptial agreements Ultimately, prenuptial agreements such as Bill’s proposed agreement are about power and are invariably desired by the more powerful partner for the sole purpose of protecting that power from erosion. Although the reason advanced for the prenuptial agreement is usually a desire to avoid the complications and acrimony of divorce, the way acrimony is avoided is to preordain a one-sided outcome. The motive behind the prenuptial agreement is the desire of the stronger party to shift the risk of marital failure to the other. The desire for a prenuptial agreement should signal the weaker party that her fiancée has trouble with issues of sharing and intimacy. The very core of intimacy is a mutual vulnerability that promotes unguarded communication. The objective of the prenuptial agreement is to render one spouse economically invulnerable to the other—an invulnerability that must inevitably spill over into non-economic issues as well. If Ann must appease Bill when they have differences, for fear of being broke if the marriage fails, intimacy suffers. If Bill knows that he always has the upper hand, he has no need to compromise when things get rough between him and Ann. Intimacy requires equality, and equality is not promoted by prenuptial agreements. The implications with respect to issues of intimacy are particularly cogent in view of the increasing expectations of intimacy that are part of contemporary marriage. Separate property A central issue of prenuptial agreements is the treatment of the separate property of the spouses. There are two important issues here that both bear on the issue of sharing. The first is the preservation of property owned by one of the spouses before marriage. Generally, if one spouse owns property before the marriage and keeps that property separate during the marriage, it never becomes marital property and would continue to belong to its original owner at divorce. You own a diamond before you marry; you get divorced; the diamond is still your property. The problem for those who worry about divorce arises when pre-owned property somehow gets mingled with marital property or is enhanced in value by the efforts of one of the spouses. Although increases in value of the pre-owned property caused by passive market forces such as inflation or fluctuation in the market are not marital, increases in value caused by the active effort of the spouses are marital. For example, the husband owns a house before the marriage. After the marriage, the parties fix up the house, with the wife participating in the design and redecoration. Moreover, marital income is used to make the mortgage payments and gradually reduce the mortgage balance. Here, the increase in value is marital property and would have to be appraised and distributed at divorce. Another example is the business or professional practice owned by a spouse before the marriage. During the marriage the owner spouse—in our case the husband—continues to build the business so that upon divorce it is worth more than it was on the day the couple married. Again, the increase in value is subject to equitable distribution and will have to be appraised and negotiated as a part of the divorce. It is to avoid this struggle that many business owners and professionals seek a prenuptial agreement providing that any such increase in the value of the pre-owned business remain separate property upon the divorce. In many cases the concern is to avoid not simply the ownership claim of the spouse but the complicated and expensive valuation process that occurs during divorce litigation. Although this goal may seem reasonable on its face, it is not without emotional pitfalls. In long marriages, the non-employed spouse has no opportunity to generate capital of her own. Or, even if she is employed, the business owning or professional spouse has more capital-generating capacity by virtue of the business or professional practice. Exempting the increase in value of the business is experienced as a refusal to share in the good fortunes of the marriage. it also may engender a counterprotectivness on the part of the weaker spouse, who now becomes reluctant to share her own good fortune. Although this provision might be seen as fair if the marriage is short-lived, its continuation into a long marriage can generate an acute sense of injustice. The more radical clause in some prenuptial agreements is one that entirely excludes all after-acquired property. Such clauses provide that any property acquired by either spouse from any source whatsoever will be the exclusive property of the acquiring spouse. Here is an explicit proposition that there will be no sharing of any property during the marriage and that either spouse remains dependant on his/her own resources. The emotional messages of separate-property clauses involve propositions about how the couple will deal with sharing and control. If you keep your property separate, you do not have to consult about its disposition. You can do whatever you want without reference to the needs of the other spouse. Why do you feel that you need to formalize that power? Do you not respect your spouse’s judgment? Do you not want your spouse to know about your economic affairs? Are you worried that your spouse will take advantage of you if you share such information? Are you worried that you might have to share your fortune with your spouse? Whatever the reason why you want to keep your property separate, it suggests an emotional departure from trust and a willingness to share with your partner. If you do not want your partner to share economically, do you nevertheless expect your spouse to share emotionally? In the gender politics of marriage there is often an exchange in which the husband brings greater economic resources to the marriage while the wife brings greater emotional resources. Women not infrequently provide more of the emotional energy in the relationship. If a husband is to keep his economic resources separate, is the wife to keep her emotional resources separate as well? If this is to be the case, what is the purpose of the marriage? The sharing of economic resources is integral to sharing a life. It is central to sharing risk of loss as well as good fortune. There is a very fine distinction, if any, between holding back economically and just holding back. Conclusion Contracts are attempts to codify the reciprocal rights and obligations of human relationships. The simpler the relationship, the simpler the contract. A contract for the purchase of a car is simple and straightforward: I pay you the money and you deliver the car. The contract can elaborate all sorts of contingencies such as what happens if the car doesn’t work properly. It can elaborate all sorts of limitations on warranties and can look like a complex document. But the essence of the relationship is simple because all parties know what to expect. The relationship affected by a prenuptial agreement is anything but simple. Although marriage has elements of economic exchange, it is essentially an emotional compact between two people who are not likely to have the same expectations. Each brings his/her emotional baggage, aspirations, dreams and fantasies. Each is affected in different ways by ever-shifting social and cultural expectations of marriage. To draft a contract that truly captures the common expectations of each is simply beyond the skill of the legal community. The strategies and tactics learned by lawyers for negotiating contracts about the purchase of corporations or automobiles or real estate are generally dysfunctional when applied to marriage. Although lawyers may be proficient in drafting language that specifies what economic consequences would follow death or divorce, they are notoriously ineffective in anticipating the emotional consequences of their work. The most common application of prenuptial agreements appears to be the legal reinforcing of unequal power in the relationship. When prenuptial agreements are used in this manner, they almost invariably mean trouble for the marriage. | |||
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and the Psychology of Divorce By: Sam Margulies, Ph.D, J.D. and Anya Luchow, Ph.D. The adversary legal system has frequently been criticized by the mental health professions as poorly designed to meet the psychological needs of families. This article explores why that criticism is true. Successful adjustment to divorce by couples and their children requires the completion of critical psychological and practical tasks early in the divorce. In particular, the noninitiating spouse must come to terms with the fact of divorce and control the intense emotions that accompany the decision to divorce. The norms and values of the legal system and the perceptions and behaviors of the lawyers interfere with completion of the psychological tasks and retard adaptation. Mediation is viewed as an appropriate model for supporting the completion of successful divorce. Divorce is simultaneously a legal process
and a psychological process. Although much has been written
about each of the two, how the two processes interact is not
well understood. Lawyers commonly argue that the legal system
is only neutral ground on which the divorcing parties fight
their battle. Moreover, the intensity of the fight and the
impact the fight has on the divorcing family are seen as the
product of the pathology of the parties unrelated to the nature
of the legal system. In other words, the legal system is regarded
as benign. It is seen as having little influence on the parties’
behavior and therefore as not liable when we assess the damage
done to families by protracted divorce-related struggle. Divorce and individual psychology For most people divorce is one of life’s most stressful experiences. For healthy personalities divorce is a severe challenge, and for personalities with significant pathology the stress of divorce can cause an emotional crisis. But not all people are equally stressed by divorce. To better understand the emotional crisis of divorce, it is useful to consider the distinction between the initiator and the noninitiator of the divorce, for it is the difference in the two roles that shapes the way the couple manages, or fails to manage, the divorce. The decision to divorce is rarely mutual. That is, it is infrequent that both spouses awake the same morning and conclude that the marriage is over. More commonly, one spouse, after lengthy rumination and often after a long period of marital discord, concludes that he/she can no longer tolerate the painful marriage and should seek a divorce. The initiator has a psychological advantage over the noninitiator. Although the initiator may experience bouts of acute ambivalence and guilt, he/she has usually had the opportunity to mourn the relationship, develop alternatives, or at least the image of alternatives, and, generally, try on the role of the divorced person. It is not uncommon to find that the initiators, long before telling their spouses that they want to divorce, have begun to develop separate social lives, have begun revamping careers, and in some cases have found another person who provides intimacy and emotional support. For most initiators divorce represents a substantial improvement in their lives. This fact has an important bearing on the ability to adapt to the challenges of divorce, because it provides important motivation to make the myriad adjustments divorce requires. The noninitiator is in an inferior psychological position. Some noninitiators have been aware of the problems of the marriage for a long time and have a realistic understanding of the situation. For these spouses the decision of the initiator is not particularly surprising and, though a cause of sadness, may also be a source of relief. But other noninitiators are completely surprised by the revelation that the other spouse wants to leave the marriage. Some are even surprised that the other spouse is unhappy in the marriage. These noninitiators often have the hardest time in divorce because events begin to move before they have ever begun to get ready. For the noninitiator who really does not want the marriage to end, the divorce is experienced from the beginning as a general nightmare. These spouses feel betrayed and abandoned. They are alternately enraged and panicked and often feel a deep sense of humiliation and rejection. They frequently plead with the other to relent and reconcile. Even though they may have stonewalled emotionally for years, many of these noninitiating spouses will now offer to change, to go into long-rejected marital therapy, and generally to do anything that the other wants as a condition of reconciliation. Sometimes they are successful in inducing the other spouse to attempt a reconciliation. Most such attempts fail, because the relationship has been so badly damaged or because the other spouse, though trying to appease, really wants out. For the noninitiator, the divorce means only that life is going to get worse. The divorce is felt to cause only loss – of status, economic security, identity, contact with children, and place in the community. Because the noninitiator does not see how divorce will improve his/her life, the motivation to adapt is generally lacking. As we will discuss throughout this article, divorce causes and requires many changes for each individual and for the family. The essential difference between the initiator and noninitiator is that the former is motivated to accept change while the latter is not and, to the contrary, may be motivated to resist any change. For divorcing families, ability to change is almost completely predictive of ability to adapt well to the divorce. A legal system that retards change also inhibits healthy adaptation. Successful divorce Tasks of the individuals For both the initiator and noninitiator there are emotional tasks and practical tasks, and the two sets are closely interrelated. The initial task for both spouses is coping with and controlling the intense feelings that accompany divorce. Although it is necessary to acknowledge feelings, it is equally important that divorcing people avoid the paralysis that can come with the complex and turbid emotions of divorce. Guilt, anger, humiliation and fear are universal in divorce. Both spouses fear a loss of control as the divorce moves into the legal process. Both may feel socially isolated as friends distance themselves. One’s identity as wife, husband or parent may feel threatened. Many divorcing people experience secondary anxiety as their preoccupation with the divorce undermines their ability to concentrate at work or attend to their children’s needs at home. Despondency, depression and sadness are all commonplace. The primary psychological tasks are those associated with coping. Each individual needs to assume responsibility for him/herself and to marshal his/her personal resources. Isolation is addressed by reconnecting with others, seeking new friends and sources of support and reaffirming old relationships. Identity issues are addressed by learning new skills such as improved parenting by fathers and new career skills by mothers. None of these tasks can be performed if the person is still falling apart, hysterical, paralyzed, passive or immobilized. Also critical is a transition from a focus on the past to a focus on the future. Most couples battle over whose version of history is correct. Blaming and finding fault for the demise of the marriage and bitterness over past offenses and infidelities are all understandable, predictable and normal. Nevertheless, all of these slow transition and ultimately waste time. The adjustments that need to be made are rarely informed or served by the continuing debate over who did what to whom. As each partner shifts his/her focus forward blame for the past becomes irrelevant. It is in the future that problems will be solved. If each spouse concentrates his/her energy on defining the tasks that need to be done, such as solving and avoiding problems and mobilizing resources, then both spouses will quickly be engaged in adaptive behavior. Orientation to the future takes the attention off past hurts and puts it on oncoming tasks and goals. And because each spouse plays a much smaller role in the other’s future, the future is defined without constant reference to the other’s spouse deficiencies and defects. We find that emphasizing the future rather than the past reduces anger and recrimination and allows both spouses to move forward. The particular organization of tasks differs for initiators and noninitiators and for men and women. Adjustment to new circumstances is easier for the initiator than for the noninitiator, but timing may be a problem. Initiators want closure and may become impatient with a spouse who is not yet ready for closure. They want to work out the economic and child-related issues of the divorce so they can move on to new lives. When the initiator is able to wait patiently while the other spouse comes to terms with the divorce, the process can proceed relatively amicably. But when the initiator, impatient for resolution, threatens and cajoles the other spouse intense recrimination and litigation are almost inevitable. The initiator must also manager his/her guilt lest it make things worse. Because they feel guilty, initiators may try to cushion the blow by calling the divorce a "trial separation," holding out the possibility of reconciliation when, in fact, reconciliation is impossible. But leading the rejected spouse to believe that if he/she tries hard enough the initiator will relent invariably leads to more intense feelings of betrayal later on and delays the process of adjustment by the noninitiator. The noninitiator has more complex coping tasks than the initiator. The greatest danger for this spouse is sinking into a posture of victimization that focuses his/her energy on recriminations against the initiator, who is now defined as the villain. Victim/villain explanations give the noninitiator a nonproductive view of the past because they emphasize vindication of past injuries and punishment of the "guilty party" rather than adjustment to a new set of needs. It is at this point that the victimized spouse is primed to find a lawyer to "rescue" him/her from the deprecations of the other spouse. In addition to precipitating litigation, the vindictiveness of the noninitiating spouse will now enrage the initiator, cauterize one’s progress and lock the entire family in limbo for the duration of the litigation. Accordingly, we regard the avoidance of this syndrome as perhaps the most important task for the noninitiating spouse. The noninitiator needs to accept the divorce as fact and take responsibility for an active role in reshaping his/her life. For many of these spouses, who regard the divorce as nothing but loss, the aftermath of the decision to divorce becomes an attempt at damage control by minimizing other losses. They try to hang on to the status quo even when this is impossible economically. For most families, divorce means a mandatory retrenchment of consumption level. Most families consume between 95% and 105% of net income living in one household. Creating a second household adds 30%-40% of the one-family expenses. This results in one of three options: massive deficit spending that soon consumes the family’s savings and creates economic disarray, the impoverishment of one of the two households, or the distribution of cutbacks across the entire family. This latter alternative is, ultimately, the only one consistent with a healthy adjustment to divorce. Anything that interferes with its prompt achievement is damaging to the family. Trying to maintain the status quo is almost always a losing battle. What this means is that the choices made (or defaulted) by the noninitiating spouse generally set the tone for the divorce. When the noninitiator stays in control the divorce can be an orderly process in which family members grieve but move on. When the noninitiator loses control the divorce becomes a destructive war of attrition. Tasks for men and for women Gender-specific tasks of divorce are associated with traditional gender roles of families. For men, adjustment to divorce requires that they assume new emotional responsibilities for themselves and their children. In most families women are still in charge of the family’s emotional life in that they are the ones who maintain the emotional structure within which men relate to their children. They play the dominant role in maintaining intimacy with and emotional connection to friends and family. For men, the major risk of divorce is emotional disconnection from their children and friends, and hence the risk of isolation. In particular, men need to broaden their parental skills and their emotional repertoire. It is not unusual to find newly separated fathers who have never before been responsible for their children for an entire weekend by themselves. Fathers need to expand their parenting skills lest they find their children slowly slipping away. In most cases it is still the father who moves from the home while the mother remains the primary residential caregiver for the children. The task of separating successfully is often a stumbling block for families. Men who are initiating the divorce tend to move out readily. But men who are noninitiators tend to cling to the house, arguing that if the wife wants the divorce, she can leave the husband behind with the children. Even men who have not played a major role in raising the children, and who are unlikely to play this primary role in the future, may cling to the house and the children as a way of holding on to the structure of their lives. There is reason to believe that it is this profile involving the noninitiating male that is most likely to develop into a custody battle. For women, the tasks of coping are generally more complex than for men. The noninitiating wife who has been unemployed but who now, because of the need for economic retrenchment, must seek employment has to overcome her own intense resistance to this dramatic change. Pressed economically, afraid for her children, often feeling humiliated and abandoned, she must manage even though she feels overwhelmed. For her, the practical task is reorganization, while the psychological task is avoiding despair, passivity, and a sense of victimization. She needs to comfort her children, manage a tight budget, obtain career counseling and prepare for a job hunt. All of these activities require that she mobilize her energy and maintain a sense of buoyancy she does not feel. But above all, she must embrace change not only as inevitable, but as something in which she takes a pro-active role. Family tasks Modern family-systems theory has redefined divorce. Rather than being the death of the family, divorce is now regarded as a reorganizing event for the family. Reorganization occurs in two stages. In the first stage the family separates into two households. The separation is initially disruptive, as children and adults alike must settle into new and strange patterns of living. Visitation schedules must be worked out. The many small annoyances of transporting children between two households must be mastered. But within six months to a year, new patterns of routine should emerge while everyone settles down. During this early stage a critical task is helping the children make peace with the new situation. Ideally, the divorce is explained to the children as the mutual and irrevocable decision of both parents. Almost universally, children resist the divorce and want their parents to stay together. If the noninitiator tells the children that he/she doesn’t want the divorce and that this is all the idea of the other parent, it directs the anger of the children at the initiating parent. If the noninitiating parent assumes the role of victim, the children may be recruited to comfort and protect that parent at the very time they themselves most need to be comforted and protected. Managing the needs of the children during this early stage is important because it will determine how well they do throughout the adjustment process. When they do not thrive, the problems that result – acting out, poor school performance, and depression – will in turn make their parents’ lives more difficult. When this occurs, maladjustment to divorce becomes a downward spiral, with the damage lasting for years. Reorganization into two households requires both emotional and economic readjustment. It is often necessary to cut spending on amenities such as recreation, domestic help, summer camp and restaurants. This can cause resentment and anger and needs to be handled diplomatically. It is vital that the children be kept out of the disputes and be told that their parents are in charge. Anything that detracts from the ability of the parents to maintain a united front is harmful to the children. The long-range tasks of reorganizing the family are related to the extended family ties that result when either parent or both parents develop new relationships or remarry. Even under the best of conditions this is difficult, because step-family issues are complex even in divorces in which adjustment develops well. But when the children are engaged in the battles of their parents, their ability to develop respectful relationships with the new prospective mates of their parents is diminished. It is true that the foundation of divorce in the second marriage is often laid during the divorce of the first marriage. Paradoxically, it is in the interest of each divorcing spouse that the children like and get along with the new spouse of the other parent. It gives each parent the ability to take time off from the children knowing that they are content in the other household. When the children engage in turmoil in the other parent’s household, it makes life more difficult for both households. For both individuals and families, the roots of successful adjustment are found in the ability to maintain control over intense emotions, focus on the future, and rapidly engage the necessity for change. It is precisely in the performance of these tasks that the adversary system has such an adverse impact. The nature of the adversary system The legal system in which divorces must be resolved is a unique culture unto itself. The norms, values and behaviors of that culture interact with the divorcing family system and individual personalities involved in the divorce. The product of that interaction is, generally, a heightened level of stress as well as a major collision between the myths believed by the divorcing couple and the realities that greet them when they arrive, after lengthy preparation, at the courtroom door. From a psychological viewpoint, the most significant characteristic of the legal system is the almost complete contradiction between what the system is designed to produce and what it actually produces. The adversary system is premised on a belief that zealous advocacy of countervailing viewpoints and positions produces some semblance of justice and truth when a trier-of-fact – judge or jury – finds the facts after hearing both sides. In this system, litigants engage in thorough investigation and preparation and then participate in a trial in which testimony, evidence and cross-examination tease the truth out of otherwise conflicting and contradictory versions of history and interpretations of law. Thus the trial as drama, as denouement, has captured the imagination of literature, movies and soap opera as the modern version of a passion play. Modern media treatment of trials has raised the public perception and expectation of trials as the place where God, in a black robe, vindicates the virtuous and punishes the wicked. The job of the lawyer is to win at trial. Accordingly, the divorce process is organized around winning, and defeating the other side. In reality, this image of trials is rarely played out in modern divorce. Here is the problem. Between 97% and 99% of all divorces are settled prior to trial. That is, prior to the case being submitted to a judge the lawyers negotiate a settlement. Generally, a settlement agreement -- a contract -- is drafted and signed. The terms of the contract govern the parties’ post-marital relationship to the children and marital assets. For the most part the role of the judge is reduced to rubber-stamping the negotiated agreement and dissolving the marriage. The settlement resolves all issues and all claims. Once negotiated, the settlement effectively ends the marriage and establishes the terms of the divorce. Although negotiated settlements are the overwhelming norm how litigants reach settlement is most important. Settlement requires cooperation. But the win/lose premise of litigation makes cooperation difficult, if not impossible. In a small number of cases -- no more than 5% -- the parties, either directly or through their lawyers, negotiate a settlement before any action is begun in the courts. It is only after the settlement is resolved that either one files a suit for divorce. Because all issue of support, property distribution and custody have already been resolved, the only relief sought by the suit for divorce is the dissolution of the marriage. The court is not asked to award custody, alimony, child support or property to either party because the parties have already resolved the matter. This is the simple, uncontested divorce. For the other 95% of divorces the process is not so simple. Here the divorce begins as a contested matter as one spouse sues the other for divorce. The other spouse answers the suit and may also file a counterclaim asserting his/her own claim for divorce. In such contested actions the court is asked to resolve the child-related and economic issues. Now the contest consists of convincing the court to rule favorably for one against the other, a contest that is waged by attempting to gather evidence buttressing one’s position and weakening the other’s. Here the future of the couple is determined by the decisions of the court rather than the decisions of the couple. Further, the event toward which this flurry of preparation is oriented is the trial, after which the court will decide the fate of all. It is for this litigation population, which is the bulk of all divorces, that a surprise is in store. For about 95% of this group will eventually settle, albeit many at the courtroom door with the trial about to begin. Part of the routine is the use of the impending trial to generate anxiety in the clients that causes them to make the concessions necessary to compromise and settle the case. Thus for most divorcing couples the legal process of divorce involves the strange experience of preparing for trial as a prelude to settling the case. The client becomes part of a crusade for victory, only to be told late in the game that compromise is required. Lawyers expect most cases to settle. Everyone involved except the clients assumes settlement. Very few divorce lawyers actually go to trial in more than a few cases a year. In fact, many experienced lawyers have never tried a case (although few tell that to their clients). Litigation followed by settlement is the norm. Indeed, it can be argued that trials are reserved for the "crazies" -- those couples of which at least one member is so obsessed, unreasonable or vengeful that even coercive measures fail to settle the case. Of course, we also have to allow for trials caused by one or both lawyers being so obsessed, unreasonable or vengeful that the case cannot be settled. Although the most common outcome of divorce litigation is a negotiated settlement, the adversary system imparts its own values to the process of adjusting or failing to adjust to divorce. There is ample reason to believe that much of the anger and disarray that accompany divorces are not so much a product of grief over the failed relationship as they are the result of what spouses perceive the other doing as part of the legal process. Four characteristics of the adversary process have important consequences for the feelings and behaviors of divorcing couples. Winning Organizing for trial Notwithstanding a settlement rate of about 98%, about 95% of divorces are organized around a preparation for trial. Discovery and pretrial motions are conducted with an eye toward maximizing one’s tactical advantage at trial. The objectives here include getting as much information from the other side while giving as little as possible. Where assets have to be valued, appraisers for each side get caught up in the cynical manipulation of facts in order to present the best possible case at trial. The intense advocacy of this process is consistent with the lawyer’s definition of good lawyering. But the consequences for the clients are important. The lessons learned by the clients during this process feed the pessimism with which each views the other’s motives as well as the other’s willingness to cooperate. Withheld information and exaggerated appraisals convince each that the other is dishonorable, likely to cheat, and not to be trusted. Anger intensifies, the sense of powerlessness becomes more acute, and any inclination to cooperate diminishes. The result is that the intense advocacy appropriate, perhaps, to the 2% of cases that are going to trial contaminates the other 98% that will eventually settle. Settlement becomes harder and is delayed. When settlements are finally hammered out, they are often the product of grudging concessions rather than affirmative agreements. This is why so many settlements -- about half -- break down within two years of the divorce and the clients return to court for further litigation. Central roles of lawyers A consequence of organizing the divorce to obtain a victory at trial is the centrality of the lawyers in the process. Clients become ever more dependent on the judgments made by their lawyers and less able to take initiative on their own. This introduces several problems. First, the psychological posture of clients in this relationship is one of passivity because they are so dependent on the lawyers. For many clients the daily phone call to their harried lawyer becomes a source of constant irritation and frustration. Because each client is so dependent on the attorney, whatever communication was left between husband and wife soon withers, leaving each more frustrated with the other and with the entire system. The problems for clients are often exacerbated by the happenstance of bad "chemistry" between the lawyers. If the lawyers dislike each other, cooperation becomes even more unlikely, and the limbo for the clients becomes a nightmare as day-to-day problems cannot be solved because neither the lawyers nor the clients can agree to anything. For clients, communication through lawyers is frustrating and inefficient, but the clients are afraid of negotiating directly for fear of prejudicing their positions in court. Status quo pending trial Another characteristic of the adversary system is a tendency of the lawyers to freeze the status quo for fear that their position at trial will be weakened by what they regard as unilateral concessions. This means that during the time the family is awaiting trial, a period that can extend to years, none of the adaptive changes needed can occur. Two of the most common transitions that are delayed by this are the wife’s return to work and the husband’s move out of the marital home. Most lawyers advise men not to move from the marital home even when it is clear that the wife will be the primary residential parent for the children. Many lawyers feel that by keeping the husband in the house they maintain the pressure on the wife to make economic concessions. When women are the initiators, the reluctance of the husbands to move is invariably strong, and the encouragement of lawyers to stay makes the husband immovable. By fusing possession of the house with the possession of the children, this tactic often promotes custody fights that otherwise could have been avoided. The husband’s refusal to move often gives the wife an unacceptable choice between leaving without the children or staying in an impossibly hostile environment. She cannot leave with the children in many cases because the husband controls the money. Few lawyers are inclined to measure the psychological damage that results from this tactic against the hypothetical tactical gain they pursue by keeping the spouses together. Living together while the divorce battle is waged provides a perfect culture for the development of hate and despair. It produces such a corrosive atmosphere that both adults and children may become depressed because they are all unable to escape the daily bouts of rage. In states that have backlogs in court, this process can last one to four years. Tremendous opportunities for rebuilding lives are squandered as couples forgo the possibility of peaceful respite from the hostility and a beginning of the process of rebuilding. Little learning can occur. Very little cooperation around parenting tasks can be achieved; and neither spouse is able to get on with the construction of a new social life. Another lost opportunity involves advice by the wife’s lawyer that she wait until trial before seeking employment. For many middle-class women who have been homemakers, a return to work is a minimum requirement for economic survival. But it can take a year or more for a woman to get back into the economic system. It requires hard work to explore possibilities, develop a résumé, get job counseling, seek retraining and find a job. Many women are already at a disadvantage by having been out of the workforce for years, and they are only injured by further delay. But lawyers, afraid of losing an advantage when seeking support at trial, routinely tell their clients to refrain from seeking a job. Unhappily, this limbo is reinforced by the legal doctrine that applies to temporary court orders concerning money and children. The standard applied by most courts is the maintenance of the status quo. Legal culture abhors results in which a litigating party is prejudiced without a hearing. So the safest thing is to freeze the status quo until the judge can hear the case. Unfortunately, this often prejudices one side, because by maintaining the status quo the court inadvertently places tremendous pressure on whichever party can least tolerate the current situation. Support orders that maintain current expenditure levels in the face of a need for retrenchment can throw a family into complete economic disarray. The myth of being able to maintain the status quo often feeds the noninitiator’s fantasy that by doing nothing, he/she will be able to avoid any significant change. This only ensures greater disillusionment later on. Adaptation to divorce Successful adaptation to divorce by individuals and families is based on an assertive embrace of the need to change spending patterns and family roles. The faster the changes begin, the better the chances that the family will adjust. The adversary system of divorce interferes with and thwarts this transition at almost every point. Viewed as a learning system, litigation teaches and reinforces maladaptive behavior. It teaches passivity when action is needed. It teaches silence when communication is needed. It teaches stasis where change is required, and it promotes conservatism at a time when people must take risks. If we look once again at the psychological tasks of divorce, the relationship between the legal system and the psychological system becomes apparent. First, divorcing people need to control their anger and rage. The legal process does not mitigate anger; on the contrary, it introduces new sources of anger as it undermines whatever residue of goodwill the couple has left. Second, divorcing people need to take responsibility for the divorce as a means of assuming control of difficult decisions. Again, the adversary system thwarts this adaptive behavior by focusing the parties on fault and fostering an atmosphere of recrimination and blame. The orientation toward winning at trial induces fear of risk-taking precisely at the very time the parties need to take risks. Successful adaptation to divorce requires contra-instinctual acts by both spouses. The wife needs to encourage the father’s parenting in order to provide the children with security and herself with much-needed free time. She needs to venture into the workplace in search of increased income. The husband needs to separate quickly to provide everyone with peace as a way to create calm for both parents and children. All these things require risk. The adversary system sends the opposite message: do not concede anything even if it hurts you to hold on to the status quo. The adjustment of the noninitiator is the linchpin of the divorce. The faster this spouse accepts the divorce, the easier will be the settlement process. The more this spouse drags the greater will be the battle and resulting destruction. Lawyers, unfortunately, are not trained, or for the most part, inclined to understand the emotional process of divorce. Although few lawyers knowingly fan the flames, the posture of the advocate frequently has that effect. Clients who feel victimized expect sympathy and reinforcement from their lawyers and lawyers are programmed to see the world through the eyes of the client. Thus the client who believes he/she needs protection from the other spouse seeks and finds a lawyer to aggressively prosecute his/her case. This in turn leads to the portrayal of the other spouse as the villain and a demand that, as the villain, the other spouse bear the consequences of the divorce. The result is that the noninitiator’s fantasy that he/she can maintain the status quo is fed at least for a time. And during this period, this spouse, secure in the myth that the initiator will be made to pay, does not change or adapt but hunkers down in a state of paralysis. Mediation as alternative model One antidote to the toxicity of the adversary system is the use of mediation to help the couple negotiate the settlement. Mediation has emerged in the past decade as a fast-growing alternative expressly designed for the 98% of couples who will resolve their divorce through negotiated settlement. In the conventional divorce settlement is the by-product of preparation for trial notwithstanding that almost all cases settle. If we assume that the case will settle it makes little sense to prepare for trial. In mediation settlement is the explicit rather than the incidental objective. Mediation involves the use of a professional neutral who facilitates the negotiation of the agreement directly by the couple rather than by their lawyers. The role of lawyer is changed from that of surrogate to that of advisor or consultant. The mediator helps the parties define the issues, develop the relevant information, understand their choices, and negotiate the agreement. Along the way the parties consult their lawyers for information and advice that informs their deliberations. When experts such as accountants, appraisers, or mental health professionals are needed, the couple chooses one neutral expert rather than two adversary experts. It is a process of informed decision-making that leads to genuine agreement rather than concession. Although vigorously resisted by the organized bar, mediation has been enthusiastically embraced and promoted by the mental health community. It is attractive to mental health practitioners because, unlike the conventional adversary system, mediation provides an explicit model for adaptive behavior. First, mediation requires both divorcing parties to stay in control -- of their emotions and of the process of divorce. Face-to-face negotiation in the presence of a mediator instills a discipline that adversary proceedings do not. The mediator makes sure that each spouse has an opportunity to express his/her feelings and to be heard. But the dialogue is directed away from nonproductive arguments about the past, and blaming is actively discouraged. By providing a setting in which communication is safe, the mediator helps the parties avoid the despair that many divorcing couples feel when they cannot get even small problems solved with the other spouse. The communication process in mediation is entirely different from that in litigation. Lawyers discourage direct communication between clients; mediators require it. Mediation provides clients with a communication model and extensive practice in problem-solving that can establish a working relationship between the post-divorce parents. Because mediation is designed to achieve settlement, the emphasis is on reconciling the interests and needs of the parties rather than on vindicating their legal rights. Mediation is therefore pragmatic rather than abstract, a distinction that in practice helps to reduce anger. Mediation is generally much faster than lawyer-litigated and negotiated divorce because communication is so much more efficient. Using neutral experts not only speeds things up but also prevents the cynicism that results when adversary experts produce two distorted versions of the facts. On average, a garden-variety middle-class divorce is resolved in two to three months rather than two to three years. The cost of mediation can be as low as 10% of the cost of conventional divorce so families are spared the added stress of burdensome legal fees. Mediation is also more protective of the family. The mediator, as neutral, is much better positioned to intervene on behalf of the children than is either adversary lawyer and tends to have credibility with both parents. Hearing both sides of the story, the mediator is better able than two lawyers to sort out problems and promote cooperation. In short, mediation works because it is designed to promote adaptive behavior rather than maladaptive struggle. It calms where litigation excites; it emphasizes convergence of interests where litigation emphasizes divergence of rights. Divorcing spouses in mediation have no alternative but to face the need for change and to negotiate those changes without retreating into recrimination and blame. Mediation provides no place to hide from responsibility and strips away the myths that retard change. By keeping the parties active rather than passive mediation promotes responsibility and proactive change. Divorce has changed substantially in
the past 20 years. No-fault divorce is almost universal now,
with practically every state having adopted some version.
But the way people divorce has not yet changed sufficiently
to provide a vehicle for no-fault psychological divorce. It
is clear that conventional legal approaches to divorce are
not well suited to the psychological tasks of divorce. That
is why mediation is emerging as the appropriate vehicle for
modern divorce.
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| Sam Margulies, Ph.D., Esq. |
