How Do You Know?
OLIVER ROSE: I think you owe me a solid reason. I worked my ass off for you and the kids to have a nice life, and you owe me a reason that makes sense. I want to hear it.
BARBARA ROSE: Because. When I watch you eat, when I see you asleep, when I look at you lately, I just want to smash your face in.
—THE WAR OF THE ROSES
It is not always so cut-and-dried. A woman I’ll call Lisa phoned my office asking if she could come in for a preliminary consultation. It happens all the time. A relationship has gone sour in a big way, and even though the person has not yet said the word “divorce” or even the word “separation” aloud, he or she nonetheless wonders if it might be a good idea get some guidance on what’s what.
I certainly understand the impulse. For one thing, I’ve been in those exact same shoes: pretty sure this wasn’t working out but not yet really at the point of calling it quits. And for a lot of people, a first meeting with a lawyer—no pressure, nothing to sign—is an integral part of the process. There’s something about sitting face-to-face with an attorney in an office that enables people to come to grips with the very idea of divorce—or to reconsider the idea. Like a number of my colleagues—not all—I offer that preliminary consultation for free. I’ll ask a few questions, deliver what I call my Family Law 101 lecture, and let the prospective client size me up as well.
That’s just what happened with Lisa. As do so many of the people who ask for a preliminary consultation, Lisa began by saying how strange it felt to be sitting in a divorce lawyer’s office at all. It was “surreal,” she said—“unbelievable” to be in this situation and to be actually uttering the word “divorce.” It just didn’t fit with the way she thought about herself and her life. Then she talked a little about her husband, her children, and her circumstances. I told her some facts about financial settlements and custody agreements under California law. We shook hands, she said she still wasn’t sure she was ready to go forward, and she left.
A year later, Lisa scheduled another appointment. We talked about what had changed in a year—very little—and I answered some more questions about finances and custody. Lisa sighed and said she still wasn’t sure she was ready, and again we shook hands before she left.
Once a year for the next three years—a total of five years in all—Lisa came into my office to reiterate her story and listen to me reiterate my Family Law 101 lecture. By year three, we were hugging good-bye, and in year four, we showed each other photos of our children. Finally, in year five, Lisa said she was ready to dissolve her marriage, retained the firm, and asked me to begin proceedings.
Five years from the preliminary consultation to the decision to separate may be a record for my law office, but it is not a particularly long time for a marriage to unravel. The rarity is the sudden epiphany or single turning point showing you with dramatic clarity that your marriage is over, although that does happen. Most relationships hover on a precipice for years before one party or the other finally decides it is time to jump, and coming to the decision isn’t easy. The expectations you assumed when you entered into the relationship and the responsibilities you have as a partner in the life and family the two of you have created loom large. You’re aware that any and every action you take can have a ripple effect on those expectations and responsibilities—and on other people—and you want to tread carefully. You are right to do so.
First, Get Some Counseling
BERNARD: Joan, let me ask you something. All that work I did at the end of our marriage, making dinners, cleaning up, being more attentive. It never was going to make a difference, was it? You were leaving no matter what.…
JOAN: You never made a dinner.
BERNARD: I made burgers that time you had pneumonia.
—THE SQUID AND THE WHALE
People get married because they fall in love. They get divorced, however, for one of three reasons.
One reason—and it is perhaps the most compelling driver of divorce—is unacceptable behavior on the part of one or the other partner. Abuse—physical or psychological—tops the list, but excessive or out-of-control drinking, drugs, gambling, serial or random adultery, or resorting to prostitutes all qualify.
One caveat here: People can and do change their behavior. As the affected but powerless spouse, you may be able to spur your badly behaving spouse to do just that. I know of a number of instances where ultimatums have been issued—e.g., “Either you go to rehab or I am out”—and the situations have been resolved and the marriages saved. The key is to be particularly clear-eyed in facing the reality of your partner’s behavior. How many chances has he or she squandered? What is the real likelihood of a change this time? How far are you willing to go to help? What line can’t you cross? But once you’re sure in your mind about the answers to these questions, it can be well worth it to try again to save the relationship.
The second major reason for divorce is the proverbial inability to communicate; you just don’t get each other anymore. Except for exchanging logistical details about who has to pick up whom from soccer practice and when the dry cleaning is supposed to be ready, you no longer even have much to say to each other. There are no more of those deep, endless conversations that used to keep you up til two in the morning; now when you converse, you find you’re talking past each other.
The third reason people split up is that they grow apart. It happens—period. You get older, and your interests and goals change. Or one of you falls in love with someone else. Or you both do. Or you simply fall out of love with each other and do not want to be together as a couple anymore.
In all three cases, before you say the word “divorce” aloud, it is important that you make the effort to go to couples counseling first. After all, coming together was a major step; so is splitting apart, and the feelings you once had for each other should not be set aside lightly. If there’s still something there—if there’s enough there—don’t you owe it to yourself, not to mention to each other, to see if you can salvage and revive it? If there’s a chance of that, counseling is likely to find it, and once it has been identified, you can decide if it’s worth pursuing.
When my significant other and I were going through a difficult time, we found ourselves arguing loudly, frequently, and ineffectually. He got so aggravated so much of the time that he would literally pivot on his heel and walk out of the room. (Yes, I have that effect on people.) What infuriated him was what he saw as my tendency to treat every argument as a courtroom battle and to turn into, basically, the prosecutor.
A few sessions of therapy were immediately helpful: He could not leave—that’s simply not allowed in counseling—and I was checked each time I started to litigate our issues. Once we were both talking like normal people and listening to each other, we worked it out.
The idea in counseling is to sit down with an unbiased third party to whom you both can express grievances in the presence of the other. That unbiased third party might be a qualified Marriage-Family-Child counselor (MFCC) or a psychiatrist or a psychologist or a social worker or the clergyperson of your choice. You meet in a room containing just the three of you, with no distractions, and with time enough for both of you to have your say.
Sometimes, just the act of venting is helpful. Counseling provides a safe haven for precisely that kind of free-ranging release: You can say things in the therapist’s office, with the therapist present, that would be incendiary or hurtful in your living room. And often when you let ’er rip, you get all sorts of things off your chest and out of the way. I have known couples who realized it was time to quit therapy when the issues they were venting about were down to minor matters—in one case, her distaste for the way he had “decorated” his man cave and his annoyance that she had signed up for yet another evening course at the local college. That couple figured that “if this is what we’re venting about, we must be okay,” and they sure didn’t need to pay a therapist to adjudicate those low-level issues. They stayed together and routinely turned to a therapist when the high-level issues threatened to get out of hand again.
It is the safe-haven aspect of counseling and the presence of the third party that make it so effective and important. Both ensure that each of you can be heard, and qualified couples counselors know what to do with what they hear. They can help you cut through the resentments that have built up and find a renewed civility with each other—useful whether you end up dissolving your relationship or not. They can also pinpoint suggestions and recommend tools that open a valve through which you may be reminded of why you got together in the first place. In a great many cases, it’s a matter of finding ways to spark a sex life that has become routine, infrequent, and unfulfilling. There are counselors for that, too, and such renewal is often enough to move you to a reconciliation.
There is even a case to be made that any couple that can afford the luxury of counseling should indulge in it. Just as you go to the gym regularly to keep your body fit, regular couples counseling can keep your relationship fit as well.
But for couples in difficulty or on the brink, counseling is essential. What you must understand about it is that it can be hard work. The operating motto for counseling, however, is that if a relationship can work, you should work for it. Things may never be as fresh and rosy as they were when you first came together—that kind of passionate excitement does fade—but you did marry each other, and maybe it was meant to be. If so, counseling can help you rediscover the reasons.
Couples counseling gets many couples back together. But not all, and not always. For your own sake and that of your children, however, I recommend it—I almost insist on it—as the first step for anyone unhappy in a relationship. The truth is, however, that the great preponderance of prospective clients who come to my office for a preliminary consultation have gone the couples-counseling route already—and in their case, it has failed. They’ve made the attempt and exhausted the possibilities—in fact, the counseling may have helped clarify their thinking—and they are ready now to dissolve their relationship and move on.
As a part of this soul-searching, indulge me in something. Make a list of at least five things your spouse or your marriage holds you back from—things that you would really like to be doing. Items on the list can be as simple as sleeping with others, working out more, or spending more time with friends, or as complex as getting a degree, finally seeing April in Paris, or learning ancient Greek. Put the list aside; we’ll get back to it in chapter 15.
New Year’s Day, and the resolutions are as numerous as the hangovers. Lots of people resolve to lose ten pounds. One of my clients resolved to shed a hundred and sixty pounds—her husband. A lot of people feel a similar impulse.
It is why January is such a big month for divorce lawyers. People emerge from the holiday season swearing that come hell or high water, they are not going to spend another Thanksgiving/Christmas/Chanukah/Kwanzaa/you-name-it with their in-laws. They are not going to go through another overpriced family vacation during which they have to put on a good front for the sake of the children who see right through it and are surly and undisciplined anyway. Another connubial New Year’s Eve kiss, trying to feel party-ish and hopeful while contemplating yet another year in a relationship that has ceased to be fulfilling or make either of you happy, is just one kiss too many. My office is flooded with phone calls on January 2: A lot of unhappy wives and husbands figure that if they start now, they can have a new life by the time the holidays roll around again.
And a funny thing happens. Once people you know start to get divorced, you think about it, too. It’s why divorces come in clusters within prescribed communities. One person in the women’s book club announces she is splitting from her husband, and before you know it, two more have done the same. Or somebody in the lunch crowd at the office gets divorced and has to spend lunch hour at his lawyer’s, and pretty soon a couple of other folks have followed suit. It’s almost as if divorce were catching. More likely, once one person in your circle does it, you see that it is possible—specifically, that it’s possible for someone like yourself. It’s not so “surreal,” as Lisa felt at first, after all. Then the discontent that has been festering in you comes to the surface, and making a change, frightening as it is, becomes something you feel you can do, too. You just feel the time has come.
How do you know it’s time to end your marriage? There’s a simple answer to that question. It’s time to dissolve a relationship when the pain or oppression of being in it exceeds the fear or anxiety of being on your own. Unfortunately, no one and nothing on this earth can tell you when you’ve reached that tipping point. Not your best friend, not your accountant or lawyer, not your mother, not a Cosmopolitan magazine quiz or a checklist or, heaven knows, a book can decide this for you. What this book can do, however, is tell you some things you should not leave out of your consideration when you are toting up both the pain of staying and the fear of going and weighing the one against the other to decide if it’s your time to move forward.
Sometimes, to be sure, life gives you an unmistakable sign. A client of mine returned from shopping at the mall to find her husband on the receiving end of a blow job from their nanny while the couple’s four-year-old twins napped in the next room. She said that once the initial shock had worn off, she considered the incident her get-out-of-jail-free card.
State of the Law
The fear of being on your own is the fear of the unknown, and you can eliminate some of it at your computer or by heading to the nearest library. Family law is a matter of state jurisdiction in the United States, and you will want to find out some basics about the law in your state—specifically, the laws concerning your children and those concerning finances.
But perhaps the first thing you need to find out is how your state deals with the issue of fault. No-fault divorce, premised on the idea that both partners assume equal blame for the failure of the marriage, is now enshrined in the family law books of all fifty states. In many of the fifty, however, spouses can choose to proceed on either a fault-based or no-fault basis, and the choice will often depend on how the no-fault concept is applied in your particular state. In my home state of California, for example, no-fault is almost an absolute. This means that a judge asked to rule on, say, the division of community property will not even consider complaints about a spouse’s serial adultery or lengthy, drug-induced absences from the family home. It is all just an even-steven split down the middle. In New York, by contrast, such factors may be brought forward in a hearing over equitable distribution of assets even if the divorce is by mutual consent.
The laws regarding a couple’s date of separation also differ from state to state. What must you do to ensure that you are legally separated? Does this stop the clock on the length of time you will pay or receive support? How about accruing joint income? If you believe you are separated and have communicated this to your spouse, can he or she dispute the separation? How must your behavior match your intent? These are all valid queries and not so simple to answer without specifics.
You should also find out if yours is a community property state or an equitable distribution state. Most states are the latter, which means that the property you acquired as a couple during your marriage will be divided between you upon your divorce based on a number of “equitable factors”—namely, the length of the marriage and the relative value of the financial contribution each of you made, including the value of being a homemaker.
Only nine states are community property states. They are mostly in the West because the community property concept comes to us from Mexico and before that from Spain via the conquistadors. Under the community property rule, property acquired during the marriage is owned jointly by both spouses and is evenly divided in a divorce. The idea is that both partners contributed equally to the creation of the household or family, and each should therefore retain an equal portion.
The Nine Community Property States—Plus Alaska
Alaska is an opt-in community property state: Property is separate unless both parties opt for a community property agreement.
What about spousal maintenance or support? Whether you are asking for it or will be asked to pay it, you will want to know what your state says about it and whether it has a fixed formula for it. Be aware that the “facts” you read in the tabloids about this issue, the “information” you get at cocktail parties, and the “advice” you get from friends may contain holes you can drive a truck through and inaccuracies that can really mess with your mind. As an example, California has what is often referred to as the “ten-year rule.” Many think it means that if you have been married for ten years or more, the spousal support that is ordered will continue for life. What it actually means is that ten years is the benchmark indicator of a long-term marriage under California law. It is not a bright-line rule mandating indefinite spousal support. Rather, when a long-term marriage is dissolved, the court retains jurisdiction over spousal support, and it may choose not to provide a cutoff date for that support during the initial divorce proceeding. But the court can and will revisit the issue.
There are other key questions about spousal support, and before you proceed with dissolution, you would do well to know the answers for your state. For example, you will want to find out how spousal support is calculated in your state—namely, is it based on marital lifestyle or on the income of the higher-earning spouse? If both of you work, is the lesser-earning spouse nevertheless eligible for spousal support? What happens if there’s a change of circumstance? That is, suppose the higher-earning spouse loses or quits his or her job or retires completely; what effect will that changed circumstance have on the spousal support issue? Or what if the lower-earning party is just rejoining the workforce at the time you split up? What happens then?
Again, don’t trust your friends, married or divorced, to know the answers to these questions. If you cannot find the answers online, it may be time for a preliminary consultation with a divorce lawyer.
If you have kids, you should also find out the basics of child custody arrangements and child support. What do your state’s laws say about shared or joint custody and about how long child support must be supplied? Not surprisingly, anything having to do with kids tends to be the thorniest of issues in dissolving a marriage, certainly the most fraught and anxiety-producing, and often the most contentious. The more you can find out ahead of time about how child support is calculated in your state and, if possible, how the judges in your jurisdiction make the decisions they make on the subject, the better off you will be—and the better off your kids will be.
Here is a checklist of legal topics you would do well to check up on as you contemplate dissolving your marriage. Knowing the basics will throw a lot of light on that unknown you may be heading into up ahead.
The State of the Law in Your State: The Basics
Date of separation
Community property vs. equitable distribution
Spousal support (alimony)
Process period: how long from start to finish?
Testamentary provisions: should you change your will, adjust your trust
Can You Afford to Split Up?
It’s an important question. To be weighed against the psychological costs of remaining in the relationship are the financial costs of dissolving it. They can be substantial.
There are two categories of cost. One is the up-front cost of the proceedings: attorney’s fees and court costs. The other cost category is what you will have to pay or to live on as a result of the divorce. It is wise to try to get a handle on both—in a sense, to estimate a budget for your divorce—before you set it in motion.
Lawyers typically demand a retainer in advance; their hourly fees and other costs—copies, answering your questions over the phone, filing expenses—are taken out of this retainer until it is used up.
If both you and your partner earn incomes, you are likely to share the legal costs, with the higher-earning party probably contributing to the other’s fees. In some cases, who pays the legal costs is a matter for discussion, mediation, or a court ruling.
Yes, lawyer’s fees are high. I believe we are worth the training, expertise, and experience we bring to our clients’ cases. I will also say this: The less contentious the proceedings, the faster they will go, and since we are paid for our time, the less you will pay. If you and your spouse can agree ahead of time on such basics as custody and support, you can lower your legal fees significantly.
Remember: The more acrimony, argument, and angst, the more money your attorney makes. We profit from your inability to resolve issues. Think about that. Some family law attorneys are responsible about this fact; some are not. I often tell clients that I have a nice house, my kids’ private school tuition is paid, and I prefer not to make more money arguing about issues that can be easily solved.
How can you estimate what the divorce will do to your household finances? Without knowing precisely how much you will have to pay or how much you will be awarded in support, that is difficult to calculate, but you can estimate it. Start with your monthly net salary or wages and any income you may receive above that. Based on your library or online research, add what you think your spousal support payments will be, or subtract what you expect the support payments to cost you. Ditto for monthly child support. Add it up, then subtract what you think you’ll have to pay in income tax. The result is at least a guesstimate of what you’ll have to work with.
Out of this, you’ll need to pay all your estimated expenses. Tally them up. You’ll have household expenses, including mortgage or rent, utilities, food and clothing for all of you. Health care expenses are relentless—either for insurance or for doctor visits and medicines, or both. If you have a car, you’ll need to pay operating and maintenance costs; don’t forget insurance. Kids in school? Even in public schools, there are all sorts of costs for supplies, field trips, and events.
You should also think about your tax liability once you are filing as a head of household and no longer as married, filing jointly. Spousal support is taxable for the receiving spouse, tax-deductible for the payer. It usually works exactly the opposite with child support; the receiving spouse pays no tax on child support income, and the payments are not tax-deductible for the paying spouse.
And what if you add it all up and decide that you simply cannot afford to divorce? I have seen it happen. Are you then “condemned,” as some of our parents were, to staying together indefinitely in what is likely to be increasing misery? Because the whole thrust of this book is that no one has to do that ever again, the answer is an emphatic no!
It is up to you. Pay each other the courtesy of complete honesty and realize that you are in this together, and that your choice is (a) to put up with it and deaden your soul, seeking solace in philandering and/or drinking yourself into a stupor to avoid going home, or (b) to figure out a way that you can both have a better life while being legally and financially tied to each other.
It is in your hands, and it is within your power. All you have to do is think a little bit differently, risk being unorthodox, and be absolutely clear about what you do and do not want.
I am one lawyer who is glad to sit down with a couple and draw up an agreement for changing their lives while living under the same roof. Such an agreement is fairly common for couples who intend to divorce but who, for one reason or another, can’t manage to separate physically just yet—more on this in chapter 4. It works also for couples who just cannot divorce but who are no longer willing to “stay together,” and I’ve worked with a number of clients to give legal validity to the modus operandi that works for them. Typically, such a plan will specify the living arrangements and determine how finances will be shared, and it will prescribe emotional and physical boundaries as needed. It might lay out a schedule—who is responsible for the kids on which days, or who has access to which rooms, or the computer, or the TV on which nights.
At the same time, you both might want to lay out a plan that would make it possible to revisit the dissolution issue in a stated amount of time—a year, say, or three years, or five. Such a plan might detail how to share your earnings so that you save or raise enough money to go through with a divorce; it might assign work or fund-raising responsibilities to each partner. The point is that there are ways to change a marriage you cannot afford to dissolve, and they are limited only by your imagination and by your willingness to take charge. Dissolving a relationship, whatever form it takes, is your process. The more substantially you involve yourself in it, the better your lives will be.
The Right Time to Dissolve Your Marriage
Assuming you believe you can afford to dissolve your marriage, when is the right time to do so? Notice I say “the right time,” not “a good time.” There is really no good time to get divorced, but given your situation, and given whatever stage of life your kids are at, and given your state’s laws and the legal options available to you, there is some relatively better moment to go through this, and that’s what we’ll call the right time for you.
There is an exception to this, of course, and that’s in the case of unacceptable behavior. Certainly if there is physical abuse, but also in the case of a spouse acting irresponsibly—unrestrained drinking, or use of illegal drugs, or gambling away the kids’ college fund at the blackjack tables—just get out, especially if you have children. But failing such an exigency, it is a good idea to pick your moment.
It is not an easy calculation. The ideal moment is before things have gotten so bad that civility has been lost, and while there is still sufficient time for the process to play out amicably and well—and for you to create a new life. Finding that moment will depend on a few factors.
You want to dissolve this relationship before you’ve gone past some irrevocable turn in the road—e.g., before you feel really suffocated or before it gets ugly or before you do something you’ll regret. Remember that you did once love this person, and you do not want to get to a point where you hate him or her. True, he has never, ever learned to put the toilet seat down, or she is congenitally incapable of capping the toothpaste, but you do not want to find yourself staring at the sleeping frame of your spouse or partner and contemplating suffocation by pillow. You also don’t want to get so frustrated and distressed that you simply take your kids and a suitcase and flee mindlessly, thereby possibly harming your chances for the kind of adult, amicable dissolution of this marriage that you and your family deserve.
If and when you feel your irritation level grabbing you by the throat, or if you hear yourself vowing inwardly, “One more time, and I’ll throttle him/her,” it is time to cut your losses and put an end to the relationship.
You also want to do this at a point in your life when you will have enough time and energy and wherewithal to carve out a new life for yourself. Maybe you hope to meet someone you can share your life with again, and maybe you’d like to have more children. You don’t want to become so embittered or burned out that you will have no further interest in finding somebody else or will have lost the ability to respond if someone comes into your life.
Maybe you have had enough of being part of a couple and yearn to live independently. That will take some adjusting, and you probably want to get started on it sooner rather than later.
And of course you want to do this at a time that is best for your kids, if you have kids—best in terms of their state of mind and emotions, and best also in terms of navigating through the milestones of their lives. If your child is starring in the school play or putting together a project for the science fair—or both—you probably do not want to add any more pressures to the burden she or he is already carrying.
Of course, with kids as with adults, there is no good time for divorce. Your kid is going through a phase? Bad time to divorce. Going through puberty? Really bad time. On the other hand, what’s a good time? And of course, the current state of your marriage is also having an unwelcome impact on your kids. So as you weigh what’s good for your kids—or at least fair to them—in calculating the right time for you to begin divorce proceedings, you will need to juggle numerous considerations. At a minimum, your aim is to look for the least bad moment, or for a time when you will be best able to mitigate the repercussions your kids will experience.
A Demanding Process
The process you are about to go through asks a lot of both partners in the relationship. There’s little room for cutting corners. It is going to absorb a substantial amount of your time, so in calculating when to divorce, keep in mind that once you set the process in motion, you are going to be even more busy than usual for the duration of the proceedings.
The process is also emotionally draining. The reality of not being part of a couple is often more complex to deal with than you might have thought—even if it’s welcome. Suddenly sleeping alone, with no one around to take care of you in big and small ways, and no one there to talk to when you have something to say: It can be baffling at first, and it can feel lonely. The dissolution process also tends to dredge up all sorts of memories, good and bad, as well as resentment and discontentment you thought you buried long ago. It can stir guilt, sorrow, and a range of regrets. Bottom line: This is a profound change; don’t underestimate what it might take to go through it.
There are also physically demanding chores ahead. Moving, for one. If you’re the one leaving the joint home, you are almost certainly going from a bigger to a smaller space; it will be an adjustment. If you’re the one staying, you will now be living with half of what you were accustomed to: half the pictures on the walls, half the DVDs, half the plants. And of course, you’ll be living on half the money.
Through all this, you’ll be expected to participate fully in the legal process of dissolving your marriage. It can be a time-consuming, energy-sapping process, but, as this book cannot emphasize enough, it’s essential for your sake and that of your children that you be very present in the process, respond to its demands, and call the shots as best you can. It makes no sense to try to turn over all responsibility to your lawyer, who is in any case utterly dependent on what you provide: statements, records, data, the numbers, the narrative. It’s up to you to corral all this material and to fulfill your role as a player in the dissolution proceedings.
Is there an ideal time to divorce? If you’re the higher-earning spouse, and your income has seen no major upward spikes this year, and you haven’t been married that long, and there are no kids, then now may be an opportune moment to end this relationship and move on. By the same token, if you’re the lower-earning spouse in a comfortably well-off couple, and you’ve been married ten years, and you’re in your thirties, and the children are well along in school and have stalwart friendships and understanding teachers, and if it’s the end of the school year and summer vacation is about to start, then now may be a good time to begin the end of your marriage—especially if you want to be sure not to go through yet another holiday season like last year’s.
You know you’re ready to dissolve your relationship when the pain or oppression of being in it exceeds the fear or anxiety of being on your own. But to crystallize your thinking on the matter, be sure to do the following:
1. Seek counseling—together if you can, on your own if that doesn’t work.
2. Get information on the basics of divorce in your state: the fault issue, date of separation, community property or equitable distribution, alimony and child support, custody, the process, testamentary provisions.
3. Calculate your financial situation.
4. Figure out the timing that makes sense for all parties.
Copyright © 2013 by Laura A. Wasser