Divorce: Accepting Imperfect Solutions to Imperfect Problems

By Lenard Marlow

There are two ways that divorcing husbands and wives can employ the law. The first, which is
employed by divorce lawyers, is to use law as a weapon in a legal tug of war the object of which
is simply to get as much as you can and to give as little as you have to. The other, employed by
divorce mediators, is to use the law as a common framework that husbands and wives can look
to in their effort to conclude an agreement. To be sure, a divorce lawyer will not characterize the
undertaking in those terms. Rather, he will say that its purpose is to secure their legal rights and
conclude an agreement that is fair and equitable. Unfortunately, its effect will be to give them false
levels of expectation that will then be followed by equivalent levels of disappointment.
The purpose of this book is twofold. First, to help divorcing husbands and wives better understand
this so that they do not allow divorce lawyers to send them off on a fool’s errand going nowhere.
Second, to enable them to see and accept what a divorce lawyer’s window dressing is designed to
hide, namely, that it is not possible to find perfect solutions to imperfect problems. Contrary to what
divorce lawyers would have them believe, their divorce does not take place in a different world than
their marriage. It takes place in the same world, and that world is one of inevitable constraint and
human limitation.

• Language: English
• Publisher: Xlibris US
• Release date: Dec 6, 2021
• ISBN: 9781669801344

Lenard Marlow

A graduate of Colgate University and Columbia Law School, Lenard Marlow has spent most of his professional life working with divorcing husbands and wives, first as a divorce lawyer (he is a Fellow of the American Academy of Matrimonial Lawyers) and then, for more than thirty-five years, as a divorce mediator (he is a Past President of the New York State Council on Divorce Mediation). In addition to lecturing and putting on trainings throughout the United States, Europe and South America on the subject, he has written many books about divorce mediation, including The Two Roads To Divorce; Metaphors For Mediators, and Divorce Mediation: The Conflict Between Getting It Right and Getting It Done.

Book preview

Copyright © 2021 by Lenard Marlow.

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright owner.

Any people depicted in stock imagery provided by Getty Images are models, and such images are being used for illustrative purposes only.

Certain stock imagery © Getty Images.

Rev. date: 04/12/2022

Xlibris

844-714-8691

www.Xlibris.com

837245

To Sandra Welch-Farrell

and

Isabella Buzzi

A picture held us captive. And we could not get

outside it, for it lay in our language and language

seemed to repeat it to us inexorably.

Ludwig Wittgenstein

CONTENTS

Introduction

Part I

The Responsibility of Those Who Step Forward to Help Divorcing Husbands and Wives to Conclude an Agreement

Chapter 1 Our Stance When It Comes to The Decisions That Husbands and Wives Make in Their Marriage

Chapter 2 A Third Party’s Responsibility

Chapter 3 Our Stance When It Comes to The Decisions That Husbands and Wives Make in Their Divorce

Chapter 4 Looking To The Law

Part II

Getting It Right, Getting It Done

Chapter 5 The Two Goals

Chapter 6 One Size Fits All

Chapter 7 The Range of Possible Answers

Chapter 8 The Court’s Discretion

Chapter 9 The Two Choices

Chapter 10 Getting It Right

Part III

The Copernican Revolution In the Law

Chapter 11 Getting It Done

Chapter 12 For Whose Benefit

Part IV

Getting It Done, But Getting It Wrong

Chapter 13 Getting It Wrong

Chapter 14 One Cannot Expect Perfect Solutions To Imperfect Problems

Chapter 15 Revisiting The Question

Chapter 16 An Assumption of Risk An Assumption of Responsibility

Part V

Alexander The Great To The Rescue

Chapter 17 Getting It Done, Getting It Done Better

Chapter 18 Solving The Problem By Making It Go Away

INTRODUCTION

In a previous book of mine, Divorce Mediation: The Conflict Between Getting It Right and Getting It Done, I said that regardless of whether divorcing husbands and wives turned to divorce lawyers or to a divorce mediator, most observers would agree that there were two objectives that had to be satisfied. It was necessary to get it right and it was necessary to get it done. Moreover, as I acknowledged, there was an inevitable conflict when it came to those two goals. To hold out to get it right might mean never to get it done. To just get it done might mean to fail to get it right. It might even mean to get it wrong. The question this inevitably raised was a divorce mediator’s responsibility when he (or she) found himself faced with that conflict. My answer was that his responsibility was to get it done, provided only that the parties were not left with an agreement that was wrong.

There were no end of problems with that answer. The first and most obvious was that it didn’t address the critical question, namely, what it meant to get it right and what it meant to get it wrong. While those words sounded all well and good, they really didn’t say anything very helpful. And there were other problems as well, including whether a divorce mediator’s responsibility in that regard was the same or different than a divorce lawyer’s. After all, a divorce lawyer was faced with the same conflict. But the biggest problem was that the position I took in that book was not one that I really felt comfortable with. Nevertheless, since I had already taken exception to so much of the conventional wisdom in the field, I felt that I would be taking on too much were I to address all of the issues here as they deserved. It would also have made the book much longer than I wanted it to be. As a result, I postponed addressing those questions. The purpose of this book is to go back and attend to that unfinished business.

The underlying premise of this book will be that the supposed conflict between getting it right and getting it done is not a real one— one inherent in the undertaking. Rather, it is only an artificial one. More to the point, it is not one implicit in the undertaking itself—a husband’s and wife’s attempt to conclude an agreement incident to their divorce. It is only a function of the methodology employed by the two of them for that purpose. Thus, the purpose of employing a different methodology is not to resolve that conflict. Since it is only an artificial problem created by the methodology in question, employing a different methodology will cause it to go away. The burden of this book will be to support that conclusion.

But my purpose in writing this book goes much beyond that. The central premise of divorce mediation is that, as in their marriage, so too in their divorce, it is the parties themselves who should not only make all of the important decisions in their lives but also the ones who should be the judge of those decisions. The critics of divorce mediation take exception to this. They argue that, regardless of whether the parties turn to divorce mediation or to an adversarial divorce proceeding, the ultimate agreement concluded by them must be judged by a higher, independent yardstick, one that will determine whether it is fair and equitable. But they go further. They insist that the yardstick that the two of them must employ to make that judgment must be the one provided by the law.

The additional burden of this book will be to demonstrate that there is absolutely no basis for the suggestion that judging the parties’ agreement by the yardstick provided by the law will leave them with an agreement that is fair and equitable, whatever that means, More importantly, it will be to demonstrate that insisting that their agreement must measure up to such a yardstick is not only to subject the decisions that they make in their divorce to a standard that we never insisted on when it came to the decisions that they made in their marriage but also to violate the value system that we have always subscribed to when it came to the decisions that the two of them made in their lives.

PART I

The Responsibility of Those Who Step Forward to Help Divorcing Husbands and Wives to Conclude an Agreement

CHAPTER 1

OUR STANCE WHEN IT COMES TO THE DECISIONS THAT HUSBANDS AND WIVES MAKE IN THEIR MARRIAGE

Our concern here, of course, is directed at the decisions that husbands and wives will make incident to their divorce. More specifically, it is as to the responsibility that others, whether they be divorce lawyers, a divorce mediator or friends and relatives, who have participated in that decision making process, may have to them. In other words, our concern does not include the decisions that the parties made in their marriage on their own. After all, what obligation could third parties who were not involved have when it came to those decision? None.

Why, then, am I raising the question of the decisions that the two of them made in their marriage? Because the central premise of my understanding of divorce mediation and, therefore, of this book, is that, as in their marriage, so too in their divorce, it is the parties themselves who should not only make all of the important decisions in their lives but also the ones who should be the judge of those decisions.

But the fact that we were not involved in the decisions that husbands and wives made in their marriage didn’t mean that we did not make judgments when it came to their decisions. On the contrary, collectively, as members of society, if we felt that their decisions or actions breached what we refer to as minimal societal standards, we most certainly did. In other words, though we subscribed to the belief that the parties should be free to make the decisions in their lives on their own, there were limits to what we, as members of society, placed on that unfettered freedom.

That raises what I will argue is the critical question. What value system did we subscribe to in their marriage in deciding when we would leave those decisions completely up to the parties themselves and when we would not? In that regard, I am going to suggest that the values that we generally subscribed to in their marriage were the following:

1. Just as there is not only one way to paint a picture, so, too, there is not only one way to lead a life. Similarly, the balance in the relationship between people, particularly the intimate one involved in marriage, is not the same for everyone. On the contrary, it is different in every case. Most important, we believe that each couple should be free to chart their own course and, in doing that, determine their own balance and seek their own level.

2. Marching to a different drummer is not necessarily a lapse in appropriate conduct; it may only be a difference in style. Thus, while there will always be the tendency to sanctify a particular style, whether our own or the then dominant one, by invoking moral or scientific justifications, that inclination should be held in check by the knowledge that one day’s wisdom (for example, spare the rod and spoil the child) may become the next day’s indictable offense; that what was yesterday’s ideal (a woman’s place is in the home) can be viewed today as institutionalized inequality.

3. Outside agencies, whether they be the state, social welfare agencies, or would-be do-gooders, are poor instruments for regulating the delicate relationship (balance) that other people’s lives, individually and collectively, represent. This is all the more so since, in most instances, all that these outside agencies will do is come in, make their judgments, and then leave.

4. While we may not wish to admit it, there is no guarantee that our intervention will improve the situation. We do not even know that it may not make things worse. It is this understanding, and the necessarily humility that it engenders, that restrains every competent therapist from intruding where he has not been invited. Thus, while the strategies that others have employed in their lives may have brought them more pain than pleasure, unless that pain is so great that they have come seeking our help, we mind our own business and leave well enough alone.

5. To tell others how to direct their lives presupposes that we are experts when it comes to this. However, and at least if we are honest with ourselves, there are few if any among us who can claim to have so mastered the art of living, let alone control the forces that impinge on our destinies, that we can presume to tell others how they should lead their lives.

6. While we may deny it, the truth is that we often intrude in other people’s lives for our own benefit as well as theirs. Because they are not etched in stone tablets, our own adaptive styles (what we refer to as our values) are not as fixed or secure as we would like to believe. As a result, they are always in need of validation and reinforcement, and subject to being called into question, most particularly by the competing values of others. Since there is no better way to convince ourselves than to convert others, we are natural proselytizers. And when gentle persuasion does not prove to be sufficient, we do not hesitate to rally God and country to our side and, if necessary, march in with sword in hand.

Finally, and perhaps most importantly, we do not wish to live in a world where committees of vigilantes go around knocking on other people’s doors to make inquiry, and pass judgment, on how they are conducting their lives. At least we do not want to live in such a world when we are reminded that it may be our door that gets the knocking. That being the case, we make compromise with life, and accept the fact that if we are to avoid some of life’s imperfections, we will have to be willing to accept some of its others.

As I said, these are the values that we subscribed to in their marriage that caused us to accept the decisions that the two of them made. However, before we go further, it is necessary to say one last thing. Moreover, it is critical.

When it came to the decisions that husbands and wives made in their marriage, we did not hold up a yardstick against which to judge them, accepting them when they measured up and rejecting them when they did not. Except in those very