Oblique Strategy #11 — Does your case give other people cooties?

For the last two years I’ve felt a strong obligation to publicize the positive things I’ve learned — mostly from my clients — during 35 years as a divorce lawyer.

Before getting to the positive material, I responded to a pressing need to declaim the ways conventional divorce practice is driven by the financial interests of lawyers to the detriment of their clients and their clients’ families. The Bad Lawyer Book explains how this is done within the limits of (and in many ways encouraged by) the State Bar’s Rules of Professional Conduct.

Few divorce lawyers would agree with what I’ve written in the Bad Lawyer Book; that’s no surprise. But all divorce lawyers must acknowledge that a full court trial — at least in South Santa Barbara County — is a rare event, less than 5 percent of the divorcing population. [In the 1997-2003 Census, 11 out of 368 cases tried = 3.1 percent. In the Replication Study there was a single trial out of a random sample of 60 cases; 1/60 = 1.66 percent; see Santa Barbara Divorce Archive.]

I think nearly all divorce lawyers would also agree to the existence of cases particularly problematic, abnormal, vicious and/or unmanageable. (In any given year just one or two of these cases can account for most of a practice’s income.)

Twenty-five years ago I decided that these cases, which I refer to as “Toxic Divorces,” were:

» 1. Quantitatively less than 5 percent of the divorcing population;

» 2. Qualitatively different from the other 95 percent;

» 3. Not responsive to the few effective management interventions that work with the majority; and

» 4. Corrosive — corruptive, even — to the people involved in them.

I could almost always identify Toxic Divorces at or near the first contact and have been able — with rare exceptions — to avoid them for the last 25 years.

In retrospect, I realize that in our culture judges, lawyers, the Legislature and the general population (viz. you) understand “divorce” to involve the kinds of behavior typical of the Toxic minority and completely atypical of the remaining 95 percent. It is an instance of the tail wagging the dog. Attempts, both academic and casual, to understand what happens during divorce include the Toxic cases in the population of interest and this skews data so profoundly that it confounds attempts to isolate causes and their effects and there are either no conclusions or they are highly dubious.

In contrast, it is possible to discern causes and effects in the Ordinary population, which is >95 percent of the divorcing population.

Before publicizing the positive, I thought it was first necessary to identify and define Toxic Divorces and to make it clear that:

» 1. The population I’ve studied and learned from doesn’t include Toxic Divorces.

» 2. What I have to say isn’t addressed to and won’t help people involved in a Toxic Divorce.

» 3. I don’t know what, if anything, can help someone involved in a Toxic Divorce, with one possible exception, which is far outside the limits of this letter.

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I thought I could say I’ve avoided and know little about Toxic Divorces in a few words, with little effort. However, it took more than three months and the subject matter — cases on which I’d never worked involving people I’ve never met — made me sick and affected my entire household with a misery factor.

Much of the work went into an ALGORITHM(!) that took the form of an inventory that gave higher or lower weight to the answers to twenty questions. The strongest predictor for Toxicity was chemical addiction. Answers about the size of the marital estate and the complexity of the legal issues were not predictive of Toxicity. A free version of this algorithm will be available for the next two weeks at Toxic Algorithm.

Three of the cases used to demonstrate and exemplify Toxicity were:

» 1. Marriage of Broderick, which ended when Betty Broderick shot and killed her former husband and his new bride in their marital bed.

» 2. Tina Swithin’s account of her divorce in her unsettling book Divorcing a Narcissist: One Mom’s Battle.

» 3. Gillian Flynn’s Gone Girl, a deeply disturbing account of The Bad Divorce.

                                                                        •        •

If Toxic Divorces are so rare, why would anyone involved in an Ordinary Divorce benefit from knowing about Toxic Divorces and that his or her divorce isn’t one of them?

The answer is critical:

» If your case isn’t toxic, a time will come in the normal course of events when the case will become ripe for settlement.

» The grief inherent in the psychological process can lead to extreme emotional experiences. If the case isn’t Toxic the emotions are transient and self-limiting as is the behavior they inspire. No matter how bad it is, it’s normal and will have a beginning, middle and end.

» Humans recover from grief. The grief associated with Ordinary Divorce will be defining and will take far more time (18 to 36 months) than what is often (wrongly) believed to be the standard imposed or suggested by the court.

If your case is Toxic there isn’t a good or recognized way to end it. [Ask your lawyer to cap fees if the case can’t be concluded after a (long) period of time or to cap fees after you’ve paid a certain (very high) amount.] Your way out, if there is one, involves a radical change to your basic values and beliefs. For example, it is probable that yours is not a division of assets and income by two former partners but rather the attempt of one to escape from being held hostage by the other.

Anyone who intermeddles in a Toxic Divorce, no matter how sincere the intent and no matter how practical and useful the help offered, can expect to be negatively affected by one or more of the unintended and unpredictable consequences that are part of the chaos that typify these cases.

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So how can you identify a Toxic Divorce? There’s the Algorithm, but today’s Oblique Strategy goes right to the heart of the matter. I hadn’t uttered the word “Cootie” since the sixth grade, but it accounted for the way I felt after studying Toxic cases for three months. The cases gave me Cooties and “made” me feel dirty. Most people will have the same experience if they know how to identify it. If you are somehow involved in someone else’s divorce and you feel Cooties — get out of there!

If your own case gives you Cooties, it’s big trouble. This is a life-defining event and there is no reliable means for reaching a positive conclusion (or any conclusion for that matter). If you fear that you’ve become acclimated to your case’s Cooties, ask an honest observer if he/she can detect them.

Next column: Oblique Strategy #12 — Don’t call it a “tragedy” until the passage of at least five years.

— 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 info@burkefamilylaw.com. Click here to read previous columns. The opinions expressed are his own.