When is Divorce the Right Decision?

As a collaborative divorce lawyer, I generally extoll the virtues of avoiding divorce.  But, a film documentary has reminded me that to everything there is indeed a season, and a time to every purpose under Heaven.  

51 Birch Street tells a powerful story.  It is the story of a husband and wife that stayed married for 53 years, raised three kids, and seemed happy, but ultimately may have benefited from a divorce. 

After her death, Filmmaker Doug Block discovered that his mother lived most of her marriage resenting his father, and may well have preferred to have not been married at all. 

Further, shortly after his wife of 53 years died, Block’s father married his long lost former secretary.

That left Block to wonder whether his father had been in love with his secretary for decades, and whether his mother knew it.  

The film raises many questions.  One that sticks with me is when is it better to be divorced than to live life in misery, or pining for the person you truly love?  

I watch many of my clients struggle with these questions as they go through the divorce process.  Unfortunately, I can’t answer that question for them.  But, 51 Birch Street will serve as a reminder to me that there may be many right answers to these questions.  

The Soul Mate Myth?

Many authors and theorists have proposed that the idea of a “soul mate” is a basis for our high divorce rate. 

The summary of this argument is that if you believe that your soul mate is out there, then you believe that marriage will work if you just find the right person. 

Thus, if marriage gets hard, then you married the wrong person.   

In short, believing in a soul mate is believing that marriage is about the other person's personality, not our own efforts.  Or, so the argument goes.

Timothy and Kathy Keller argue against the soul mate idea in their recent book, The Meaning of Marriage. The following excerpt succinctly makes their point:

 You never marry the right person

The Bible explains why the quest for compatibility seems to be so impossible. As a pastor I have spoken to thousands of couples, some working on marriage-seeking, some working on marriage-sustaining and some working on marriage-saving. I’ve heard them say over and over, “Love shouldn’t be this hard, it should come naturally.” In response I always say something like: “Why believe that? Would someone who wants to play professional baseball say, ‘It shouldn’t be so hard to hit a fastball’? Would someone who wants to write the greatest American novel of her generation say, ‘It shouldn’t be hard to create believable characters and compelling narrative’?” The understandable retort is: “But this is not baseball or literature. This is love. Love should just come naturally if two people are compatible, if they are truly soul-mates. “

The Christian answer to this is that no two people are compatible. Duke University Ethics professor Stanley Hauerwas has famously made this point:

Destructive to marriage is the self-fulfillment ethic that assumes marriage and the family are primarily institutions of personal fulfillment, necessary for us to become "whole" and happy. The assumption is that there is someone just right for us to marry and that if we look closely enough we will find the right person. This moral assumption overlooks a crucial aspect to marriage. It fails to appreciate the fact that we always marry the wrong person.

We never know whom we marry; we just think we do. Or even if we first marry the right person, just give it a while and he or she will change. For marriage, being [the enormous thing it is] means we are not the same person after we have entered it. The primary challenge of marriage is learning how to love and care for the stranger to whom you find yourself married.

Their point is made from a Christian perspective.  But, the point stands regardless of religious or spiritual issues:  “The primary challenge of marriage is learning how to love and care for the stranger to whom you find yourself married.”

Food for thought for those married or wanting to be married.  I certainly see the soul mate belief echoed in many clients and their spouses.  

I don't know whether the soul mate belief contributes to our divorce rate, and we may never know for sure.  But, I do think some serious consideration of the issue helps immunize a marriage from divorce.

Immunizing Your Marriage Against Divorce

In my experience, differing and unmet expectations are often the genesis for divorces.

Typically, tension develops because the husband and wife entered the marriage with unspoken but differing expectations about the issues they will confront after the wedding.

Those differing expectations can create conflict.  Unresolved conflict creates rifts in marriages.  Rifts create divorces.

One way to immunize your marriage against divorce is to learn to resolve conflict effectively.  That is something that typically takes time to learn and very few people possess that skill on the day they are married. 

Another great way to help immunize your marriage against divorce is to identify and address your differing expectations before the wedding.

How do you do this?  Pre-marital counseling is a great tool for identifying potential future conflicts. 

But, if pre-marital counseling is not your cup of tea, there are tremendous benefits to simply having a conversation with your future spouse about some typical issues that I have seen come up in marriages that end in divorce, such as:

- Who will work and how much will they work?  What kind of work/life balance do you expect the other person to maintain?

- How much money do you expect to make as a couple?

Ÿ - What kind of lifestyle do you each expect?

- Will one of you will stay home if you have kids?

- Do you want kids?  How many?

Ÿ - Do you prefer to be financially conservative (lots of saving, low risk moves) or more daring (lower savings, higher risk moves)?

- What kind of parenting styles do you anticipate?

- What are appropriate discipline techniques for your family?

- Where will you spend holidays and who else will be there?

- How involved will your in-laws and extended families be in your lives?

- How will you share the chores of the household?  Will you share them at all?  If not, who is going to do them?

- How clean do you expect your house to be on a regular basis? 

- What kinds of things do you expect to be able to spend money on?

- Who will handle the family finances?  

- Will the family follow a budget? 

- Do you believe in having debt, or are you debt averse?

All of these issues and more can be sources of friction in a marriage if not addressed early on.  Every couple has their own points of conflict.

I have found that many people make assumptions about their future spouse’s feelings on these topics; only to later find out they were wrong.  There’s an old saying about what happens when you “assume”, and it holds true in marriage as well.  Don’t assume what your future spouse thinks about something; find out.

Identifying and discussing these issues early on may not be comfortable. But those conversations will help prevent future conflict and therefore immunize your marriage against divorce down the road.  And that is a truly worthy goal.

Opportunity Costs in Divorce

One issue that people frequently ignore in their divorce is opportunity cost. 

Opportunity cost is defined by my computer as “the loss of potential gain from other alternatives when one alternative is chosen.”

That’s a fancy way of saying that when you are doing one thing you are giving up the potential benefits of another.   It means that if you go west, then you give up whatever good things you would have found by going north, south or east.

So, what does that have to do with divorce? 

In divorce, people make choices from the day someone says that they want out until the divorce, and frequently far past that point.  They make choices about what to do with their energy, peace of mind, money, kids and stuff. The choose how to behave towards the soon to be ex-spouse.

In most cases, clients give some thought to the impact of their choice; i.e. “when I do this, the result will be ‘x’.” They think about the effect that will be brought about by their decision. 

What they generally fail to consider is the how that compares to the other possible decisions that they could make.  That is, they spend a lot of time thinking about what they’ll find if they go one direction, but very little time thinking about what they give up by not going another. 

For instance, when people choose to use an adversarial process for their divorce, they don’t give much thought to the benefits of non-adversarial processes that they are giving up.  They see what they hope to gain by duking it out, but they fail to see what the have given up. 

In many cases, people fail to see that choosing to fight about something is also a choice to forgo the peace of mind, free time or money that they could enjoy if they were to choose another way to handle their divorce. 

I frequently ask clients to consider what they could do with their time, energy and money if they resolved their case quickly and did not have to deal with their divorce anymore.  That gets them to think about the opportunity costs of the decision they are considering. 

Sometimes, it makes sense to continue the tough work of negotiation or a court battle.  But, that decision should only be made once the client considers the opportunity cost of that decision.

If you are considering a divorce, you may want to spend some time considering what you would do with the time, money, peace of mind and energy you can save by choosing to resolve your case through collaborative divorce, mediation or other non-adversarial processes.  

Empathic Communication Crucial to Negotiation

Perhaps the most crucial foundational skill of productive negotiation and communication is the ability to empathize with the other person.  Empathic communication (also known as “Non-violent communication”) is the cornerstone of the collaborative divorce process and interest based mediation. 

But, in the world of adversarial, positional and leverage based legal negotiations, this is a foreign concept.  Even today, in the vast majority of legal negotiations, the goal is not to understand the other party, but to “win”.  Period.  This seems to be especially true in divorce, custody, alimony, equitable distribution and other family law related cases.

The legal profession as a whole is simply behind the times in negotiation skills and processes. 

The business world has understood the importance of understanding and empathy between parties to a negotiation for decades.

As early as 1989, Stephen R. Covey, in his bestselling book The Seven Habits of Highly Effective People named empathic interest based communication as one of the seven habits.  Covey calls the habit “Seek First to Understand, Then To Be Understood.”

This book has been widely read and applied to the business world for over 20 years. 

Here’s what Covey has to say about empathy: 

“When I say empathic listening, I mean listening with the intent to understand.  I mean seeking first to understand, to really understand.  It’s an entirely different paradigm.”

“Empathic listening gets inside another person’s frame of reference.  You look out through it, you see the world the way they see the world, you understand their paradigm, you understand how they feel.”

“Empathy is not sympathy.  The essence of empathic listening is not that you agree with someone; it’s that you fully, deeply, understand that person, emotionally as well as intellectually.”

“Empathic listening is so powerful because it give you accurate data to work with.” 

“Next to physical survival, the greatest need of a human being is…to be understood, to be affirmed, to be validated, to be appreciated.”

“When you listen with empathy to another person, you give that person psychological air.  And after that vital need is met, you can then focus on influencing or problem solving.”

From a negotiation standpoint, the bottom line points are:

1. That seeing the situation from the other party’s point of reference is crucial.
2. That you do not have to agree with the viewpoint, just understand it.
3. That empathic listening produces accurate data for the negotiation.
4. You cannot influence the other person or problem solve until you have sought to understand the other party. 

Whether you are involved in a business negotiation or a divorce negotiation, understanding the crucial role that empathic communication plays in the conversation will be the foundation to finding an intelligent, durable and mutually beneficial resolution.