Tuesday, August 21 , 2018, 11:56 am | Overcast with Haze 70º


Brian Burke: About Your Divorce (Letter 33)

Dividing the 'Stuff' isn't as easy as it may seem at the outset of separation

Dear Pinky and Spike:

As promised, I’m using this letter to describe more ways in which Phase 2 of the third stage of the Model of Grief can play out in divorce. Phase 2 typically appears during the second year of physical separation.

The couple have gone through Stage I (shock and denial), Stage II (anger and rage) and Phase 1 of Stage III (“quasi-bargaining”). During Phase 1 of quasi-bargaining, they have experienced going “around in circles,” and they have probably questioned their mediator’s competency; however, what’s most important is their completion of three subconscious tasks: (a) creating a non-intimate style of communication; (b) finding an “arm’s distance” way of doing business with each other, and (c) becoming more and more realistic about what a settlement in their mutual best interest looks like. And that’s when the Big Stall comes.

How smoothly can the couple divide what lawyers call “tangible personality”? In other words — the Stuff. The wedding presents, silver, china, furniture, artwork, collectibles, family photos, books and even CDs. Each of these items carries with it an emotional charge that restimulates the experience of loss. Couples will often attempt to divide Stuff at the outset of the case, because it’s “Just Stuff.” It rarely works, and the experience of failure can tie right into Stage II anger and rage. Yes, there can be fireworks over the possession of “Stuff.”

Here are some examples of my experience involving Stuff:

» 1. At the conclusion of one trial, the court, worn out by the parties’ contentiousness and tired of the lawyers, instructed them to divide the personality on their own. That effort stalled when Susan picked two Hummel figurines — the first was two children and the other was a bird in flight — and started to tell the story of how they were acquired on a trip through Germany. Irwin joined in and for a few moments they seemed to have found peace with each other.

That lasted until Susan said, “Dividing these is easy. I’ll keep the children and Irwin gets the bird.” It wasn’t a great joke, but the lawyers gave it a chuckle. Irwin didn’t think she was the least bit funny. During separation he had accused her of alienating the children from him and, to him, her little joke was a declaration of the legitimacy of past behavior and a promise of its continuation in the future.

Under the circumstances, I don’t think Irwin’s response was unpredictable, though it was not the response of a person who had disengaged from the conflict inherent in the process.

Susan was a sly person. I don’t know if she intended or anticipated the impact of her words; it’s possible that their effect had been calculated. This exchange, however, was predictable according to anyone who had watched them interact in the past. She characterized Irwin’s reaction and personality as “overreacting,” “inappropriate” and “childish.” She cut off the exchange with one of the closers that fighting spouses favor: “You know what, Irvin? It’s always about you, isn’t it? It is always about you.” With that statement, their battle over Stuff (themselves and their loss) picked up right where it left off.

» 2. At the end of extended negotiations, one wife demanded (and the husband agreed) that he should buy her an expensive (and rare) European car — one of only a handful here in the United States. Immediately after the settlement was reached, the husband went to the dealership and purchased it for himself instead!

» 3. The following incident happened after what I thought was a premature settlement. It was compelled by the other lawyer’s stated belief that “the best way to settle a case is to get it ready for trial.” (It’s also a very good way for a lawyer to make a lot of money, providing clients with services that are ultimately both unnecessary and destructive.)

Intense negotiations had taken place at the courthouse. The issues were not particularly difficult, but the feelings of the parties were. It had been a marriage of nearly 50 years, and Fred’s decision to divorce came as a devastating surprise to Selma. Once the lawyers reached a settlement, a judge was available so we could put it “on the record.”

The other lawyer started the “recital” and at some point said, “All items of tangible personal property in Selma’s possession are distributed to her as her sole and separate property and all items in Fred’s possession are distributed to him as his sole and separate property.” At this point, Fred was pulling my sleeve — always a bad sign — and asked: “What about my decorations and Scout sash?”

I didn’t know what he was talking about, but I had been doing this work long enough to know that if he didn’t get his say, no matter how late in the game, his dissatisfaction (residual anger from Stage II) would be directed at me. I’d rather evoke the court’s anger. That’s what happened when I interrupted the proceedings to say that my client appeared to have an urgent communication for me. After expressing his displeasure and pointing out how late it was, the judge gave me a minute to speak with my client, with the further mandate to “make it quick.”

It took Fred less than a minute to tell me what he wanted; I decided that he should have the opportunity to explain himself — and this last-minute request — directly to the court. So Fred said, “Your honor, all the merit badges earned to be an Eagle Scout are sewn onto a sash that’s in the house about to be awarded to Selma. Next to the sash are the medals I was awarded while in the Army. I’d like to get back the sash and my medals before they become Selma’s property.”

The judge replied, “The deal as described to me is that the Stuff in her possession is hers and what’s in your possession is yours. If you haven’t accepted that, you don’t have a deal. I’ll go home and you can start your negotiations from scratch. Or, if this agreement is accepted, perhaps your former spouse will give those items to you out of the goodness of her heart — but, of course, she doesn’t have to.”

Fred said, “I don’t want to negotiate anymore.”

“Fine. Now sit down and let Mr. X finish putting this agreement on the record so we can put the case to bed and go home.”

On the way out of the courthouse, Fred said to Selma, “Are you going to give me my sash and medals? You have no use for them.”

Selma replied, “You heard what the judge said. What’s in my house is mine, and that’s how it’s going to stay.”

Fred said, “As soon as the judge said ‘out of the goodness of her heart,’ I knew it was hopeless.”

That parting shot didn’t make the follow-up meeting to sign the official documents any easier. We began with an ex agenda item raised by Selma’s lawyer. It was a cemetery plot that hadn’t been awarded to either party because they forgot they owned it. The other attorney had records to show that the plot had been purchased at a very low price in the 1960s. He said Selma was willing to purchase Fred’s half interest for an amount that Fred couldn’t say no to — a price so high that I knew something was up.

I thought this may be the opportunity for Fred to retrieve his medals and Scout sash, but he had already given up on both. Now he had a chance at something more valuable to him at that time — vengeance.

Fred said, “I think the judge would say we will continue to own the plots together unless we want to start negotiations from scratch. I’m going to leave it like it is. I might even want to use half of that plot for myself.”

Selma looked like she might swoon when she eked-out, “… but that’s where Mother’s buried.”

I don’t know what happened to that cemetery plot — or to Selma, Fred or Selma’s mom.

. . .

While it is highly unlikely that either of you are reading anything I write, others found the description of “quasi-bargaining” to be useful, amusing or both — and it’s interesting for me to remember these stories. So I’m going to tell some more of them. Next week it will be the Story of the Orange Sofa, which is the basis for the Rule of the Orange Sofa.

. . .

If there is one point to these letters, it’s that you can face the various emotional challenges that will inevitably occur during a divorce and use them to become a “better person.” I’ve been reading Middlemarch, which is loaded with one deep and interesting psychological insight after another. George Eliot comes close to condensing everything I have to say in these letters with a six-word clause.

Toward the end of the story the sanctimonious banker, Nicholas Bulstrode, is publicly disgraced and shown to be a thief, liar and overall fraud concerned with nothing other than his own desires. While they never liked Bulstrode, the other characters are fond of and admire his wife Harriet, who is the last to learn of her husband’s misdeeds before and during their long marriage. She seeks solitude.

She decides to stay with her flawed and humiliated husband. She changes out of her fine clothing and dresses in simple black. Then she makes a conscious and deliberate decision about how she will live out the next phase of her life:

“I will mourn and not reproach.”


— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail .(JavaScript must be enabled to view this email address).

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