Monday, July 16 , 2018, 2:15 pm | Fair 72º


Brian Burke: About Your Divorce (Letter 145) — Whose divorce is this? Is it his ‘brother’s’?

Oblique Strategy #39 — Are you re-enacting someone else’s divorce?

During the course of mediating an Ordinary Divorce, there will be detours and even stalls.

These are the surface manifestations of the work the couple is doing “under the surface” on at least three tasks that must be completed before the case reaches the point of being “ripe for settlement.”

The three tasks are:

1. Creating a new, non-intimate language

2. Creating a way to do business with each other as independent individuals

3. Becoming increasingly realistic about the form and content of a settlement in the best mutual interests of the parties and their families

Sometimes people get stuck for other reasons and the mediator will attempt to diagnose what’s going wrong.

Once the problem is identified, the couple will take care of it themselves, although there are instances in which a mediator’s curative intervention can be effective with little or no risk to the parties.

For someone going through a divorce, the question “Whose divorce is this?” can, at first glance, seem preposterous.

The answer might be, “It’s mine and I know it’s mine because I’m so miserable.”

It should be a good answer, but the influence of others on the miserable divorce is worth checking out.

The pernicious intrusion of third parties into a divorce could be subtle, it could be pervasive — or it could be both. Here is a composite narrative (stripped of identifying information as usual) that illustrates the point:

Ann and Alex were married for 15 years. He’s a physician working for the county and she’s a high school teacher.

They are both very bright. The divorce is by mutual consent.

There is nothing complicated about the division of property and there are no legal issues. There are no children.

They both understand the nature of grief and how it is probably affecting them, and they both say they want to conclude the case.

Yet they are unable to divide by two for themselves, and they are unable to seriously consider proposals generated by the lawyers.

Generally, I don’t like the dynamics of four-party meetings where conflict is involved. It is too easy to fall into opposing teams.

But for this couple, the breakthrough came at the very beginning of just such a meeting.

Without an agreement or invitation to start the meeting, Ann took over and demonstrated why the personal and family context of a case will have a crucial effect on how the law will or can operate.

She began: “I need to say some things I’ve been thinking about for several weeks. I need to say them to you, Alex, even though it will make you angry, and I need to say them to your lawyer because I doubt that you have told her about them.”

Ann then took in the three of us to signal that we were all part of her intended audience.

“Alex and I married during his last year of medical school. I was teaching high school and enjoyed my work. I’d never say I 'put Alex through medical school' or his internship or residency, because I don’t feel that way, and I didn’t think I was ever making a sacrifice. I was earning enough for us to live on and residents and interns get stipends and even a salary, which, for us, was extra money.

"When Alex passed his boards, he wanted to work for the county. We talked about the fact that he’d make significantly less money than his colleagues in private practice, but that was okay with him because he 'didn’t want the pressure' and wanted to 'enjoy life while we can.'

"I’ve been approached on several occasions to leave teaching for an administrative position and the financial rewards that change would bring. My first preference is to teach, but I would become an administrator if that’s what I had to do to achieve some kind of financial security.

"Alex was emphatically opposed to my giving up teaching, and this was when the subject of his mother’s money came up for the first time — about three years into our marriage.

“According to Alex, his widowed mother is very rich. She’s in her late 80s, and her health is compromised. Alex expects to inherit enough money from his mother to make it possible for him to live a life of luxury without having to work — though he insists that he will work whether it’s necessary or not.

“I understand why the law doesn’t recognize an 'expectation of an inheritance' as a part of a divorce. I understand why whatever money Alex inherits from his mother is entirely his, whether we are married or not.

"Both Alex and I agree that we each need this divorce, and that neither of us is to blame for the fact that our marriage no longer nurtures either one of us. But here’s the deal. After 15 years of relatively high living, there is virtually nothing to divide.

"Yes, absolutely, I received the 'benefit' of the expenditure. But I would have said 'no' to every trip, to every car, to every piece of jewelry, and to every other extravagance if I had an equal vote, and if frugality was necessary to our ongoing financial security.

“I feel that we spent 15 years living Alex’s lifestyle and at the end of the road he’ll still be rich, and I’m starting at ground zero — grateful that I have the same job I had at the beginning. I have no legal entitlement to anything from you, Alex; I get that.

"Until now I’ve been too proud to ask or to complain. But damn it, I’ve expected you to recognize my predicament, to take some responsibility for it, and to somehow try to make it right, not according to the ‘law,’ but from your heart. You are a good man, a decent man — not a divorce lawyer.”

She stopped. And there was a poignant moment during which it seemed as though Alex had been brought to a new level of awareness and could empathize with her situation.

He didn’t say anything, but I got the sense that if he spoke, it would’ve sounded something like: "I’ve never thought about it that way. I’ve been thinking like a lawyer and about dividing in half and nothing else. You’re right and I’ve got do something to make right for you all the financial decisions I made during the marriage that were fine for me and terrible for you."

Instead his lawyer asked, “Are you saying that you want the marital settlement agreement to give you some part of the money Alex will someday, maybe inherit from his mother?”

One has to spend a lot of time with lawyers to make the discernment, but I could tell that Alex’s lawyer’s tone was only semi-sarcastic, which meant he wasn’t dismissing Ann completely “as a matter of law,” which is how a judge would put it.

Instead of the sympathetic response I anticipated from Alex, he said, “Oh, no.”

Ann asked, “What do you mean?”

Alex said, “My brother, I can’t tell my brother.”

Ann said again, “What do you mean?”

Alex said, “If I did something like that, my brother would find out. No matter what we do, my brother will find out. If he thinks I gave away my mother’s money before she was dead, that’s exactly what he’d tell her and the things he will say to me are beyond what I want to imagine.”

Ann said to me and to Alex’s lawyer: “Alex has one sibling, an older brother named Roy. Roy is the most opinionated, closed-minded, arrogant, self-righteous person I’ve ever encountered. And he’s mean. And frankly, Alex’s mom isn’t much better. I wouldn’t want to get on the wrong side of either of them.

"And Alex isn’t like them; he had a tough time in that family. His father was a good guy and the one who made all the money, but he’s dead.”

Alex added, “I feel kind of sick to my stomach. It’s like I’m 10 years old and I’m going to be in serious trouble with someone in the family — someone older, bigger and a lot meaner than I am. And I am going to be in trouble no matter what I do.”

Ann was persuaded by Alex’s assurance that if he didn’t give Roy a copy of the Judgment, Ron would get his own copy from the court. Then Ron would feel a duty to tell Alex how stupid he had been, and he would share the details of Alex’s divorce with their dear old mum.

● ● ●

Alex did sympathize with Ann, and he expected such a large inheritance that he was willing to share it with her — but not at the risk of his brother’s scorn.

At one point Ann said, “If Roy saw a divorce judgment that could be interpreted as you giving some of your mother’s money to me, he could talk her into leaving her entire estate to him with assurances that he’d dribble out your share in a way that would prevent you from giving it to strangers.” That was gruesome prospect.

● ● ●

Resolution took time and then it took even more time. Alex understood the problem when it was explained by Ann, and he was determined to do right by her.

No one needed to tell him the danger presented by his brother Roy and the passage of time merely confirmed that he could not challenge him.

Sometimes you’re the windshield and sometimes you’re the bug. In this case, Roy was the windshield and Alex was the bug.

This was a dilemma and the way to break a dilemma is to deny one of the horns and then proceed accordingly. Alex could deny Ann and feel bad about it for life, or he could defy his brother and be disinherited and possibly disowned by his mean family. He wouldn’t do either.

The ultimate resolution involved something no set of lawyers and no judge could pull off.

By themselves the parties came to terms with an agreement by which Alex kept a certain dollar value of the inheritance (e.g., $1 million) and gave Ann a percentage of the balance up to a certain amount (e.g., 25 percent up to $1 million).

Ann summarized the deal in her handwriting on the upper half of a sheet of lined binder paper. Alex wrote the same thing, by hand, on the lower half. They tore the sheet in half. Ann kept what Alex wrote in her wallet, and he kept what she wrote in his wallet.

Eventually, we got a Status Only Judgment of Dissolution, which made them single again while the court reserved judgment over their property. Alex disclaimed any interest in Ann’s retirement and she did the same for him.

They didn’t care about how much either account was worth. They both knew that what they called their “binder paper deal” was legally worthless.

Three years after the meeting and about a year after Alex’s mother’s death, Ann came in for a consultation. She didn’t know how much Alex inherited, and she hadn’t tried to find out.

She was about to remarry (another doctor), and she wasn’t as worried as she once was about her finances. Nevertheless, without a request or question on her part, Alex sent her a cashier’s check for $1 million. It came in the mail with a note saying, “All Square? Love, A.”

 She wanted to know if there was something else she needed to do. All I could think of was to suggest she say thank you, but I decided that was gratuitous advice, so I said, “No.”


This is a rich subject to which I’ll return in the future. In the meantime, start thinking about the next column, which will ask you to identify one idea, principle of life, attitude or heuristic you embraced before divorce and have discarded during divorce.

Oblique Strategy #40 — Identify a single idea or belief you held before divorce and have given up during the divorce.

— 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 [email protected]. Click here to read previous columns. The opinions expressed are his own.

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