Wednesday, November 22 , 2017, 8:00 am | Fair 52º


Brian Burke: About Your Divorce (Letter 88) — Key to a Church, Opener to a Garage

Dear Pinky and Spike:

The key to a church and the opener to a garage

I ended the last session with Paul and Rose by explaining why they engaged in a public argument immediately after the conclusion of a particularly productive meeting with me. At this stage in their separation, they were talking about their apparent issues. Progress will be slow, or it will appear that nothing is being accomplished. This is because the real work is tacit. It’s going on below the surface and involves work on three tasks that must be substantially completed before the case is “ripe for settlement.”

The tasks are:

» To develop a non-intimate way of communicating with each other,

» To work out a non-intimate way of doing business with each other, and

» To develop increasingly realistic expectations for settlement.

It’s easy to explain these concepts in the abstract; however, when the couple is experiencing one thing — a lack of progress in resolving apparent issues — it’s difficult (and sometimes impossible) to convince them that what’s “really happening” is different from their subjective experience.

When Rose and Paul left my office I asked them to:

» Identify the other people in their lives with whom they could have an argument like the one they reported to me, and

» Figure out what caused the argument.

I asked Paul to think of a different and more satisfying way he could have dealt with the fact that a third party protector had come to Rose’s aid. Paul asked, “Instead of slithering away like a snake?” I agreed and he accepted this extra assignment.

Two premises I’ve emphasized in these letters are that every couple establishes their own timing and, because the process is essentially about grief, it will take far longer (18 to 36 months) than the resolution of a similar legal issue in a business context.

Before the next scheduled meeting I got a message from Paul asking for a two-week postponement, which he said was acceptable to Rose. As the date of that appointment approached, I got a message from Rose listing several reasons she wanted to delay our meeting for another three weeks. She assured me that the new date was acceptable to Paul.

Postponed mediation appointments are, in my experience, positive signs that the parties are each becoming attuned to their ability to work with the other. When they feel “off,” they reschedule with the confidence that at a future date they’ll have the sense of competence that feels adequate to the tasks before them.

These postponements also give me the opportunity to describe the way divorce mediation works by comparing it to something that seems completely different. Shortly after my last meeting with Paul and Rose, I took to my bed with a mild case of pneumonia. It was mild, but it was also exhausting. I needed four hours of sleep to recover from a half-hour of wakefulness. While awake I was so enervated that I couldn’t follow the plot in a sitcom; however, I had one thing I could attend to because it was of even less consequence than a television comedy.

One Key to One Church Door

My wife, Alice, and I spent Easter in the Bay Area with my brother, Bruce, and my sister-in-law, Julie. They are gracious and accomplished hosts and lead lives that are inclusive of lots of people they encounter in a wide variety of ways.

For them, Easter calls for a massive Easter egg hunt. They round up lots of children, who of course come with their parents. This year there were parents from both Crimea and from Ukraine — graduate students at Berkeley — which led to a conversation about the current and historic events of the region. I didn’t talk very much, but it was enough for Bruce to observe that I know nothing about the circumstances of the Crimean War except for what I had read in the endnotes to Flashman at the Charge. I considered that to be a compliment until he added that I had either misunderstood or forgotten what was in those endnotes.

He took the opportunity to impose upon me the first two volumes of A.W. Kinglake’s Invasion of the Crimea (1863). I read a couple of pages and agreed that the writing was clever, but I explained that I wouldn’t be reading about the causes of the Crimean War because I didn’t care. He insisted and I left with the books, which turned out to be just the thing to read if you have pneumonia.

As it turns out, the build-up to the Crimean War was remarkably similar to successful divorce mediation that turns disastrous because the participants deal with apparent issues, which they mistake for core issues. What follows is a very truncated version of what took place before the commencement of hostilities. There are no more details than necessary to draw an analogy between the cause of a significant Continental war and a simple divorce.

Crimea is a big peninsula that hangs into the Black Sea from the bottom of Ukraine. So far as I can tell, the cause of the Crimean War had little or nothing to do with Crimea. It was about: Palestine!

At the time, Palestine was ruled by the Sultan of the (Turkish) Ottoman Empire. Although he was a Muslim ruler of a Muslim empire, he consistently acknowledged and honored the rights of Christians to visit and worship at their holy places whether they were “Latin Christians” (Roman Catholics) or Eastern Orthodox Christians (mostly Greek and Russian Orthodox). Under a treaty between the Sultan and the King of France made in 1740, the French were given the right to hold the key to the Church of the Nativity in Bethlehem. Due to events subsequent to 1740 — such as the French Revolution and the secularization of the country — the Sultan, over time, gave Orthodox monks nominal control over the door to the church.

As a part of a plan to enlist the support of French Catholics, Emperor Napoleon III asserted his duty to protect Roman Catholics in Palestine under the treaty of 1740 and insisted on the return of control of the door to Latin monks. To show he meant business, he impressed the Sultan and the Czar of Russia with a show of force. The Sultan yielded to the demand.

In his spiritual capacity, Czar Nicholas I was the Protector of Orthodox Christians. In response to the derogation of the rights of Orthodox Christians in Palestine, he mobilized his Army as a show of force for the benefit of the Sultan and Napoleon III.

Some European diplomats, according to Kinglake, were “startled by the nature of the question … [and] inquired whether ... a key meant an instrument for opening a door” or “a symbol representing the power to keep some Christians out while allowing others to enter.” Diplomacy answered that the key was really a key — a key to open the door, “and it was not one that would be used to lock Orthodox Christians out."

There was no history of anyone locking anyone else out of the Church of the Nativity. No one suggested that anyone could or would be denied access to the Church (or any other Christian Shrine) in the future. Nevertheless, the possession of "The Key" by the Roman Catholics inspired Czar Nicholas of Russia to insist upon being recognized as the Protector of the religions rights of Orthodox Christians in Turkey, which could legitimize an invasion of Turkey if the Czar deemed it necessary to stop religious oppression. The Sultan hadn’t oppressed anyone, and he didn’t like the idea of giving the Czar of Russia the right to invade his country, so he said, "No."

One Opener to One Garage Door

More than 20 years ago I represented a highly respected member of our community during the course of his divorce. His wife's lawyer made a demand for a lot of documents my client had in his possession. His wife had an absolute right to inspect and copy every page, and this was something my client understood and accepted.

Nevertheless, told me that he intended to withhold delivery of the documents until his wife returned to him the "garage door opener."

"What?" I asked.

"When she left, she took the garage door opener. She has no use for it, and she knows it annoys me to either leave the door open or open and close it by hand. So when she gives back the opener, I’ll turn over the documents. It's only fair."

I knew his wife's lawyer well. Her client had an absolute, unqualified, undeniable right to the documents. If I conditioned their delivery on the return of the garage door opener, it would be tantamount to a declaration of war. That's the way she'd see it, and I wouldn't blame her. So it was in the interest of neither party to connect the garage door opener to the production of documents.

In my business "fair" is the "f-word." My client was very smart, well-educated, charming and successful. He thought of himself (and he was thought of by others) as a fair, decent and honorable man. It was likely that during the course of his adult life his idea of what was “fair” had never been challenged.

If he was to avoid an expensive and senseless — stupid, really — fight, he had to see his circumstances from a new perspective, and part of my job was to help him do it. But I was in the position of having to deliver what Kinglake refers to as "a painful lecture from an honest friend,” which is rarely well received.

The next installment will answer the questions:

"Was the Crimean War over possession of a key to a church door that was never used to lock anyone out?"

"Did the divorce case end up in a courtroom at 1100 Anacapa St. over possession of a garage door opener?"

Your friend,

— 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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