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Macmillan Childrens Publishing Group

If You're In My Office, It's Already Too Late

A Divorce Lawyer's Guide to Staying Together

James J. Sexton

Henry Holt and Co.


Chapter 1


If you’ve thought long and hard about what marriage means, congratulations: You’re different from many of my clients. (That may be one reason they’re not still married.) I’m forced by professional necessity to think deeply about marriage. I get to analyze it, though in its broken, Humpty-Dumpty-after-the-fall form, from so many angles—the psychological/emotional, the sexual, the financial, the parental, the practical/logistical. If we can stand back for a moment from an institution so rich with powerful associations—many very good, some not so good—it’s helpful to recognize that marriage is a technology. Like every technology, or tool, it solves certain problems, intentionally, and creates new problems, unintentionally.

What is the problem to which marriage is the solution? Take a minute to think about it. Or three. Is it the problem of being alone? Nope. You can find ways to not be alone without being married, nor does being married solve the problem of loneliness all the time, or for many people, even most of the time.

Does marriage solve the problem of being uncommitted to anyone? No; you can feel committed to people and not be married. You’re certainly committed to your children, your biological parents, your coworkers, your religious community, even your softball team (bonus points if it’s a softball team associated with your religious community).

What about the problem of not getting enough regular sex? Come on. Sex is everywhere. From Tinder to Grindr, it’s in the palm of our hands anytime we want it (no pun intended). And countless married people will tell you that marriage is not, in fact, the solution to the problem of not having a satisfying sex life. Rather, it’s often the primary cause. Being married doesn’t guarantee a regularly accessible, satisfying sex partner any more than living near a restaurant guarantees being well-fed.

No matter how much you love love, if you want to stay in a marriage or long-term commitment and, more important, if you want to keep it vital, you’re strongly advised to acknowledge that the relationship solves certain problems while causing others. What problems does it inadvertently create? Lots of people, including many of my clients, were or are reluctant even to ask this question. Or maybe they asked it but, confronted with the answer, failed to do anything about it.

This appeal to be clinical may seem jarring. After all, marriage is the triumph of faith over reason. That’s not just a divorce lawyer talking—I mean, look at the statistics: 56 percent of American marriages end in divorce. (The divorce rate for first marriages is a bit under 50 percent; with each subsequent marriage, the divorce rate increases, hence the over-50-percent total.) Let’s say another 5 percent hang on for the kids’ sake. (The percentage is considerably higher than that, but let’s say 5.) Say another 5 percent hold on for religious reasons. (Eternal damnation is a terrifying, powerful incentive!) Say 2 percent hang in just because the sex is still phenomenal, though nothing else is. We’re up to 68 percent of marriages that either end because of unhappiness or continue unhappily. Two in three. If I told you that when you walk out the door there’s a two in three chance you’ll get hit by a falling bowling ball, would you ever leave the house? Would you at least wear a helmet? In 2010, Toyota discovered a .003 percent failure rate on a vehicle they produced with certain brake pads; the company immediately recalled the vehicle as unsafe. So here’s an institution that fails roughly 70 percent of the time, yet remains a legal, wildly popular endeavor and multibillion-dollar-per-year industry, regardless of the massive financial and emotional costs of failure. As a divorce lawyer, you sometimes ask yourself, Is any married person happy? Is anyone happy in a committed, long-term, nonplatonic relationship? (Yes, they are. I don’t want you to think I believe it’s an enterprise doomed to fail from the start.) Given a divorce rate of 50-plus percent, meaning the two people strolling down the aisle are “more likely than not” (a legal term) to someday end up in a matrimonial law office, and given that divorce almost always causes profound harm to the parties and their infant issue (kids), one could reasonably argue that the act of getting married is legally negligent!

Okay, that’s depressing—but it’s the preamble. Now for the encouraging part. While divorcing parties are generally not inclined to work at making things better for their partner—often to their own detriment, too—those in decent marriages or relationships are motivated precisely to do so. Both parties can and probably will work toward improving and deepening the relationship, so long as they identify what needs improving and they carve a clear path to doing so. Because it’s better to stay in love, to stoke existing love, than to slowly fall out of love and try to find it again. The process is something that you control, and that the person you love controls. How great is that? My incredibly astute former office manager, Annmarie, believes that the marriage contract should be renegotiated every seven years. Agree with her or not, the idea shines a light on the need to stay conscious and motivated and excited, on a very regular basis, about this unbelievably important, consuming relationship to which you’re committed. I can’t count how many times I’ve heard some version of this sentiment from clients, particularly wives who were cheated on: “But I was perfectly happy with our miserable life!”

So that you don’t think my work has totally jaded me: I’m a romantic. Don’t laugh. I get misty-eyed at weddings, every time, during the ceremony and the toasts. (I don’t bother to dissuade those sitting next to me who assume I’m tearing up at the prospect of future business.) How do you not get choked up looking at the two of them up there, as public and operatic as can be, staring at each other unbroken for so long? The moment the bride appears, I always look to the groom, whom almost no one is watching. This is (supposedly) the first instant he’s seeing her in her wedding gown. At that moment, he’s more in love with her than anyone is in love with anyone else in that big room. Every wedding I go to, I want so badly for it to work for those two.

Whenever I help to facilitate the demise of an especially long-standing marriage, there’s a moment, usually right before the final dissolution, when I am overcome by a desperate urge to see the wedding album. I want to climb up to their attic or open their closet, dig out the album in its cardboard box in the corner, dust it off, and make my way slowly through its pages. I want to see my client and their ex when they were completely in love and nothing mattered but each other. When the idea of “grounds” and “alienation of affection” and “interlocutory order” and “grandparent visitation” and “community property” and “irretrievable breakdown” and a litany of depressing Latin terms would have been laughable, unimaginable, so “Not us!” When the parties’ “infant issue” or “the child of the marriage” (as I call them in written pleadings) was just yellow-highlighted possibilities in a book of baby names. I want to see the faces of the newlyweds on that day, one image after another, in mutual bliss. (Maybe I want it so badly, have always wanted it so badly, because as kids, my sister and I were forbidden to look at our parents’ wedding album: If we did, Dad, a former pilot in Vietnam, would start to cry, because so many of the groomsmen and other young men in the photos, buddies from the Naval Academy who also became pilots in Vietnam, were dead.)

I want to see that album because inside so many bad marriages is something good and hopeful that, at one time, was absolutely salvageable.

I’ll be candid: I’m secretly a pretty sensitive soul. I love puppies. I adore my kids. I love courtship and holding hands and music and sunsets and Russian poetry. Dammit, I’ve seen Love Actually fifteen times. I love love.

I do not, however, believe in fairy tales.

I don’t believe in a false sense of security, or in adult make-believe, or in lives as they’re portrayed on social media. Honesty and candor are critical for healthy outcomes, relationships, and lives. That shouldn’t be a shocking revelation.

Sadly, most of my clients didn’t get the memo.

* * *

Marriage is a technology.

When you got married, or if and when you think about getting married, did you or will you think about what you expect to get out of it? Did you ask yourself, “What is the purpose of marrying this person?” Yes, you’re crazy about her or him, and love love love being in their presence … What roles, specifically, will you play in this person’s life, and they in yours? What do you get in exchange for doing this?

What’s the job description of marriage?

Marriage is tricky; any long-lasting relationship between two partners is tricky; maintaining romantic love can be tricky. I have learned, over and over, that marriages and other committed relationships fail for two fundamental reasons.

1. You don’t know what you want.

2. You can’t express what you want.

End of story.

No, not end of story. It gets more microscopic. The roots of relationship failure are many. You’re dishonest with yourself. You’re dishonest with your partner. Expectations are out of whack. There’s passivity or lack of appreciation. The dynamic between what one wants, needs, and feels entitled to is strained, strange, and ever-changing. The list of specific possible problems is long, but most of them fall into the two broad categories above.

Over my years doing what I do, I have made just these sorts of diagnoses about clients after I’ve heard the intimate details of their story, their ex-to-be’s story, and the state of their disunion. But except in rare situations, I never dispense to them my pearls of relationship wisdom, such as they are. It’s not because I’m in the business of dissolving marriages rather than fixing them. Nor is it because if I succeeded at the latter, I’d put myself out of business.

I say nothing because if I did, it would be a complete waste of my time and theirs.

By the time a person sets foot in a divorce lawyer’s office, the marriage is beyond repair. By that point, one or both parties are so invested in the conflict that it’s too much to back out of. In all my years, not once have I talked a client out of divorcing, or felt that she or he wanted to be talked out of it. Circumstances may delay the visit: Individuals who would otherwise hurtle toward divorce are slowed from initiating the process for all sorts of reasons, from economic recession (“We’ll lose the house if we split now—the bank is our common enemy”1) to holiday season (things fall relatively quiet in my office between Thanksgiving and New Year’s; then, the week of January 2, visits to divorce law offices spike, as unhappy, resolution-fueled spouses are seemingly shot from a cannon) to the children’s alleged best interest (one client of mine made her appointment after waiting patiently until the very day her youngest turned eighteen). Once they walk through that door, though, it’s over. If they hesitate in hiring me, it’s not because they’re having second thoughts about the marriage: They’re tire-kickers, just deciding if I’m the right attorney for them or if someone else might be better.

Now, I do dispense advice, constantly, that’s useful to my clients in their broken situation. I’m there to help architect or sculpt the next stage of his or her life. (My clientele is equally split between women and men.) Their conflict is the clay; together we must mold it into a future that’s optimal—psychologically, professionally, financially, emotionally, and residentially. How do we make that happen? What are the logistics, concessions, and stipulations? What will strengthen my client’s resolve as quickly as possible, allowing them to work toward their own happiness? To arrive there, it’s my job to help bury what’s dead, not to convince the client that the marriage still has a beating heart.

That does not mean that what I know about marriages and relationships is useless (hence … this book). For my clients, yeah, it’s too late. The timing of divorce is much like the timing of hospice care. Ever since I was a college undergraduate, I’ve volunteered to do hospice care. At first I did it because it was a great way to make a little money while mostly reading or sleeping; eventually, I recognized it as the single most bracing, perspective-giving, eye-opening activity a human being can engage in. When you provide hospice care, your first thought about a new patient is usually something like Okay, to start, you’re going to die. There’s nothing we can do about that. And unfortunately, it looks like you’re going to die pretty soon. If you had come in a month ago, we probably could have made the last thirty days a lot more pleasant and functional for you. But you’re here now and it’s good that you got here. Because starting right now, we can make things better for whatever time you’ve got left in this unfixable situation. Then it’s compassion and clear-headedness—getting to work providing company, medicine, ice chips, a laserlike focus on comfort and dignity, and so on.

Same with divorce: My first thought about many new clients is something like If you had come to me before your spouse served you with papers, or before you moved out of the house and into a new apartment, thus giving your spouse de facto custody of the kids and putting us behind the eight ball on any future custody claims, I could have helped more—but we’ll do the best we can. Then it’s compassion and clear-headedness—getting to work providing legal advice, financial advice, a laserlike focus on dignity and securing what my client needs. And though my client has a future, the marriage does not.

But this book isn’t trying to save those past saving. It’s for all those in good marriages/relationships, or reasonable ones, or at least not-terrible ones. For them, fortunately, it’s not too late.

More than half of marriages may end in divorce, but I suspect that the number of individuals in great, good, or okay marriages or partnerships far exceeds those in the ready-to-divorce-or-break-up category. And just like my divorcing clients and what awaits them, married couples and those in ongoing relationships want a good outcome and need a good process to get where they want to go. This book is about the process and the insights that can make a good thing—or a once good thing—better.

In handling so many finished marriages, maybe the number one thing I have learned is this: From the outside, no one knows anything about anyone. No one. Nothing. It doesn’t matter who’s giggling and holding hands or who’s arguing too loudly at Starbucks. It doesn’t matter who’s loaded (with money, I mean) or who always struggles to pay the bills. (My experience has taught me that money, like any tool or technology, is an improved means to an unimproved end: It offers real solutions to imaginary problems and imaginary solutions to real problems.) And you really, truly never know who’s sleeping around. (But why must it be that those who get caught by their spouses sending naked photos or videos of themselves to their lovers are never the ones you might enjoy seeing naked? My entire office is curious about that one.) And to anyone who believes that social media has made our lives and feelings more genuinely transparent to the outside world, ergo allegedly better, I respectfully disagree: The typical Facebook family vacation post or romantic getaway post is Grand Kabuki Theater, viral delusion, more concealing than revealing. Among my clients who are rabid Facebook users, and whose marital breakups may have been hastened by Facebook, there is zero correlation between how they look in their photos—happy or miserable, alone or nestled in the bosom of family, in Prague or at Disney World—leading to their appearance in my office. (You’ll see in Chapter 19 what I really think about how Facebook fucks with your happiness.)

Yet life and marriage and love are not totally unsolvable mysteries. In dissecting the circumstances and retracing the steps that culminate in a distressed woman or man sitting across the table from me in my conference room, sharing their heartbreak, anger, disappointment, confusion, and fear, I have come to understand a few strategies and refreshed viewpoints that might work for those who are still in love and working toward common goals, and which could be implemented for positive effect. I grant that certain individuals are simply bound to divorce or break up, no matter how much relationship insight they’re exposed to, and that some unions ought to be dissolved as quickly as humanly possible. But the great majority of the insights I have accumulated, I believe, have the potential to help those in marriages and relationships, from the strong ones to the less solid, to make their lives better, fuller, happier, more in their control. These behavior tactics may also improve closeness and connection in other relationships—with one’s kids, friends, other family members, even colleagues.

Yeah, I know: I’m no marriage counselor. Pitchers should stick to pitching, not hitting. Bald men don’t make persuasive hairbrush salesmen. What makes me think these insights could actually help?

I believe in utter candor and honesty. It’ll be for you to decide if any of this works, not for me to persuade you that it does. As Charles, the Hugh Grant character in Four Weddings and a Funeral, humbly states in his best-man toast to a new bride and groom, “I am, as ever, in bewildered awe of anyone who makes this kind of commitment.” Me too. And maybe, though my day job is to help bury the marriages and unions that didn’t work, I love the possibility of helping the ones that do work to get better.

Copyright © 2018 by James J. Sexton, Esq