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Friday, January 18 , 2019, 10:24 am | Fair 60º


Brian Burke: About Your Divorce (Letter 99) — Cooties and the Toxic Brainwash

Dear Pinky and Spike:

Cooties the toxic brainwash.

While recording what I’ve learned from my clients about divorce during the last 30 years of practice, my first priority was to describe the way clients are abused by the divorce industry. I refer to it as the Ugly Divorce Book. You can get the gist from this sentence:

A fee agreement compensating the lawyer (and her partners, associates, assistants and clerical staff) by multiplying the number of hours they record by “standard rate(s),” creates a potential economic conflict of interest between the lawyer and the client that’s usually greater than the potential conflict of interest between the client and his/her spouse.

The second book will be longer and almost entirely positive. First, however, it needs a chapter to explain how and why I’ve been able to largely avoid Toxic Divorces for more than 20 years, and that I had little or no advice or information of use to people involved in a Toxic Divorce. I expected to do it in one chapter, which would take no more than two weeks to write. Two weeks turned into nearly three months and the single chapter turned into three. The work was dreadful, distressing and depressing.

After nearly three months, my wife, Alice, observed that what I was doing had taken a toll on me and I, in turn, was taking a toll on her.

I focused on three cases. Two were real (Marriage of Broderick and Marriage of Swithin) and one was fictional (Gone Girl). I had no professional and no personal involvement with any of these cases. In the last letter (No. 98), I said that while immerged in these lives I may have become depressed and was, at the very least, dysthymic. My subjective condition caused the content of these letters to drift to Stage IV (Depression) of the Kübler-Ross grief model.

                                                                        •        •

This letter was going to use one or two accounts from popular culture to show what it looks like when “hope” causes or permits a person to come out of a bad depression. But given the time and energy spent to learn more about Toxic Divorce, I am going to harvest and publish the “lessons learned,” which usurped all the space available for this letter. “Escape from depression via hope!” should appear just before Christmas.

My research into these three ugly divorces took longer — and took more out of me — than I expected, and it catalyzed six insights. (The list includes links to drafts of two White Papers that will remain posted for the next two weeks. Comments are invited.)

» 1. It was possible to differentiate the terms “Toxic Divorce” and “Ordinary Divorce” with qualitative comparisons. [White Paper I Toxic Divorce: Who cares? Who should care?]

» 2. “Toxic Divorces” are qualitatively different from “Ordinary Divorces.” During an extended client consultation, the client’s personal narrative usually gives me the information I need to assess the probable toxicity of the case. I was able to write an Inventory of 20 questions that elicits the same information directly.

It was possible to work out an algorithm that evaluates the responses to the Inventory questions and provides consistent predictions about the probability that the case is Toxic. [For a beta version of the Inventory, click here. It’s free and comments are invited. See also, White Paper II Toxic Divorce: Identifying the Toxic Divorce – Inventory.]

» 3. We know that these cases represent less than 5 percent of the divorcing population and that they have a vastly disproportionate influence on the development of law, whether it is decisional law from the appellate courts or statutory law from the legislatures. We also know that these cases exhaust nearly all (90 percent) of the judicial resources available to the entire divorcing population.

» 4. When third parties intermeddle — both in good faith and in bad faith — in Toxic Divorces at least two things will happen: (a) The intruder’s action will have an unintended and unexpected effect, and (b) The intruder — especially the one trying to help — will get psychologically blamed.

For example: In an effort to help and support their child, Wife’s parents provide funds for her to pay lawyers to “really stand up for her.” Let’s say the infusion of money comes 18 months post-separation. By this time, the parties have worked though Stage II Anger, or the emotional experience has peaked and is falling toward its conclusion. [Click here for the Yale Bereavement Study chart as modified for divorce.] The money will be used to refill her existing attorney’s war chest or to fill a war chest for a new lawyer. The unintended consequence is that the lawyers will “earn” the fees in reach, the case will heat up because of their activity, and progress toward resolution will slip backwards. This is probably not what the parents had in mind. This is the unintended effect on the case.

From the Husband’s perspective, Wife’s parents are no longer “supporting” their child. They have become participants in the case and they have taken sides against Husband who is the father of their grandchildren. Husband will ensure that his children know his version of the story, told in a way that undermines their future relationship with their mother’s parents. The unexpected psychological effect is that wife’s parents are vilified. Husband will hold them responsible for some of the future ugliness as will their grandchildren if Husband is clever in the way he delivers his story to them.

In other words, Toxic Divorces generate cooties to which the parties have grown somewhat immune. Professionals are paid to compensate for their exposure to them. Third parties attract the Cooties and they will get you.

» 5. By avoiding Toxic Divorces and focusing on Ordinary Divorces for so many years my perspective is unusual, unorthodox and unconventional. I’ve spent most of my professional life seeking an understanding of what happens in Ordinary Divorce. The explanations I entertain don’t have to take into account Toxic Divorce, which will skew and dominate any explanation unless they are deliberately excluded. Of the hundreds of books published on divorce during the last thirty years, a small minority focuses on the Ordinary Divorce. The Good Divorce is one of them; it was written by Constance Aarons, a good and reliable academic researcher.

» 6. When I understood the incidental benefit of studying Ordinary Divorce to the exclusion of Toxic Divorce, I could appreciate the significance of what was obvious. What do the media describe when reporting on the subject of divorce? The cases described on the covers of magazines and tabloids at the market or drugstore are Toxic, as are those reported on television, discussed online and gossiped about “over the back fence.” Why? It’s because they are interesting.

Consider: Frank and Sarah divided all their stuff in two. The kids spend time with each parent and both the parents and the children are experimenting with different arrangements to see which works out best for all involved. Frank and Sarah have been angry and now they are sad. They are reluctant to talk about “their divorce” with friends because they see it as “their divorce” and no one’s business but their own. Similarly, Frank and Sarah don’t want to talk about their friends’ divorces because it’s private — and they think their friends should keep it private. Where’s the story?

The Divorce Discourse — both public and private — is “informed” by Toxic Divorces, which creates expectations of similarities between two disparate sets. These expectations can, and often do, become reality, especially when promoted by divorce lawyers acting well within the Rules of Professional Conduct by expecting and being prepared for the worst.

Divorce is a big event. For most of us, there are few “Self”-defining events — such as births, deaths and major occurrences outside our control. Divorce is both Self-defining and life defining. It has an immediate effect on the nuclear family undergoing the reorganization and a ripple effect on nearly everyone with a connection to that family.

For us as a culture there is a gross misconception about the nature of life- and Self-defining events, which then becomes a self-fulfilling prophecy that enriches the Divorce Industry and interferes and corrupts the natural process. I fear that such interference — especially at the hands of professionals who have been trusted and paid to help their clients — reduces the likelihood that the client will complete the process as a “better person” (a term only the client can define) than s/he was at the outset.

We are the objects of mass “brainwashing.” That’s a particularly strong term, so I’ll explicitly strip it of its sinister connotation and any suggestion of conspiracy. Now the term is used to describe a situation in which the media and our own behavior have confused us about the nature of a serious life event, which needs to be well understood to promote a positive outcome.

I don’t think anything can be done to stop the “washing” or to change the shampoo. So what can be done?

The brainwashing can be followed with a brain-rinsing. It’s a do-it-yourself job I’ll explain in the next letter.

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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