“That sure describes our situation,” Brenda said. “I’ve been thinking about divorce for at least three years.” She had hoped that as Thomas’s start-up company became more established, he would have more time for family life. But instead Thomas became busier, and Brenda grew lonelier. Now that she had survived the “blowup,” she said, she was elated to be freed from the marriage. “I’m eager to get on with my life. I just want the legal stuff to be over.”
“And Thomas?” I asked.
“He was shocked,” she said. “Devastated. I think he still is. He’s angry and he blames me.”
“The person who is left behind is often very angry,” I said. “Thomas may not yet be ready to let go.” I added that although the law may characterize a divorce as “no-fault,” emotional logic doesn’t work in no-fault terms. When a marriage fails, spouses often feel the need to assign blame. Sometimes they blame themselves, but more often they blame each other. And even judges aren’t immune to the temptation to blame one spouse or the other.
As we talked further, Brenda said a big source of anxiety for her was the economic divorce. She had worked before having children, earning $75,000 a year as a marketing executive for a Boston department store. But even then, Thomas had out-earned her, making $120,000 a year and establishing himself as a rising star in the company. So it had made sense for him to be the primary earner. He now earned $225,000. “Once Amanda was born, our ‘deal’ was that Thomas would bring in the money and I would raise the children and run the household, at least until they were in high school. Thomas should continue to honor that deal.”
Brenda had loved being a full-time mother but hadn’t realized how financially vulnerable it would make her. She had no income of her own. Someday she wanted to resume a career in marketing, but only when the children were older—not now. It would be five years before her younger child was in high school. Besides, her earning potential now was not what it used to be. The last ten years of her résumé would now read “homemaker.” She had done nothing to maintain her skills, other than attend an occasional seminar. While she hated the thought of being financially dependent on Thomas, especially now that their relationship had become so hostile, she strongly believed it was best for the children if she stayed home until the youngest entered high school. Maybe then she would go back to school to get an MBA, she said, if she could afford it.
“Thomas holds all the high cards financially,” she said. “I’m thinking about the children. I don’t want them to suffer from the divorce, and that means maintaining a certain standard of living.” Her voice rose. “Doesn’t he realize that being stingy with me leaves the kids worse off, too?”
“It’s a very difficult situation,” I agreed. Privately I doubted that Brenda had accepted the full significance of the economic divorce, which can be a disaster for all but the richest and poorest couples. When two households must be supported instead of one, both spouses typically suffer a marked drop in their standard of living. That would be true of the Thomkinses, despite Thomas’s salary. If Brenda truly wanted to maintain her standard of living, she would probably have to return to work sooner rather than later. But it wasn’t my job to tell her that; her lawyer would have to address that with her.
On the other hand, Thomas didn’t hold all the high cards, and I thought it was appropriate to point that out.
“Even if you and Thomas can’t agree on these financial issues, he doesn’t get to do whatever he wants,” I told her. “There are laws that protect you to some degree. Your new lawyer can help you assess what a court would be likely to do in this state if you and Thomas can’t agree. These predictions of what would happen in court obviously influence the divorce negotiations. I call this ‘bargaining in the shadow of the law.’ ”4
As we talked, Brenda quickly grasped how the four divorces were interrelated. Thomas’s strong emotional response to the spousal divorce seemed to be driving much of his behavior, just as Brenda’s anxieties in the financial realm were driving hers. Thomas’s outrage seemed to be affecting the economic divorce, in which he was withholding financial support from Brenda, and perhaps also the parental divorce, in which he was demanding an equal parenting role for the first time in their marriage. All three of these dimensions were affecting the legal divorce, in which each side was making aggressive and unrealistic demands.
I told Brenda that the right lawyers can be indispensable in a divorce and the wrong lawyers can make it a lot worse. Even if the spouses are not on speaking terms, two lawyers with problem-solving attitudes can work out arrangements that serve both spouses’ long-term interests and increase the likelihood that the parents can “do business” together afterward.
Brenda wasn’t buying it. “Look,” she said, “we’re fighting over money and time with the children. Those are finite. More money for Thomas means less for me. The more time the kids spend with Thomas, the less they spend with me. Thomas’s lawyer, Glen Palmieri, is a shark. I need a lawyer who can outmaneuver him or I’ll end up with nothing.”
She was right, of course, that money and time raise distributive issues. That’s what makes it so easy for the zero-sum gremlin to creep in and sandbag these discussions. But I told her I didn’t view the situation in such zero-sum terms. She and Thomas had some common interests: keeping the children healthy and happy, minimizing lawyers’ fees, and even encouraging Brenda’s financial independence. “There may be more ways to create value than you or Thomas realize at the moment. Your lawyer may be able to come up with creative arrangements that take advantage of tax benefits, for example, or create a visitation schedule that’s better for both of you.”
Brenda still looked skeptical.
“I’m not asking you to compromise what is most important to you,” I persisted. “The two lawyers I’m recommending to you, Diana Cooper and Thomas Lee, can fight for you in court if necessary. But they’ll also be able to negotiate effectively with the other side for a solution that serves your interests better than going to court.” I spent a few minutes telling her a bit more about Cooper and Lee.
“I really appreciate this,” Brenda said quietly. “You’ve been enormously helpful.”
“Keep an open mind,” I urged her. “The overwhelming majority of divorce conflicts are ultimately settled through negotiation.”
I tell the rest of this story through the eyes of Diana Cooper. I didn’t see Brenda again, but she immediately hired Diana and asked her to consult informally with me periodically. I welcomed my talks with Diana because they gave me a chance to follow the case, commiserate with Diana, and help her think strategically about her next move. The case turned out to be more challenging than either of us expected.
Diana’s first call came within two weeks of my meeting Brenda. She thanked me for the referral and, after the usual pleasantries, brought me up to date.
“I like Brenda, but this case has the potential to be a real mess,” she said. “Thomas’s lawyer is playing hardball, and Brenda and her husband are at each other’s throats.”
Diana reported that her first meeting with Brenda had gone well. Diana found Brenda to be intelligent and determined. The catalyst for ending the marriage, Diana learned, was Thomas’s discovery that Brenda was having an affair with a neighbor, also recently divorced. When Thomas confronted her about his suspicions, Brenda first denied the relationship, then admitted it, then told him she no longer loved him and wanted a divorce. For the first time in their marriage, Thomas slapped her. She told him to get out of the house. He moved out that night, and Brenda filed for divorce shortly thereafter.
Diana, of course, probed as to whether physical abuse had been an issue in the marriage. “Not at all,” Brenda said, rather breezily. The slap had really been more of a push; nothing like it had never happened before or since, and Brenda really didn’t think Thomas posed a physical threat.
“Frankly,” Diana told me, “Brenda’s big concern was money. Her first lawyer had added the abuse claim because Thomas had taken the money f
rom their joint savings account. I told her that I thought I could do something about that, but I also suggested that a court wasn’t likely to give her as generous a financial package as she was hoping for. I’m not sure I got through to her, but we have plenty of time yet.”
Soon after that meeting, Diana said, she called Thomas’s lawyer and started to negotiate terms. The discussion was cordial and the two quickly made their first deal: if Thomas would account for the money he took out of the joint savings account, Brenda would drop the restraining order.
Diana then tried to negotiate an agreement on interim custody and support so the clients wouldn’t have to wait for a hearing. She proposed to maintain the status quo with respect to custody and give Brenda $7,500 a month for interim family support—“enough to allow her to keep things together.”5
I thought to myself, Diana is on target—she’s signaling to the other side that Brenda has a new lawyer who’s prepared to take a more collaborative tack.
Thomas’s lawyer had been noncommittal on the phone. Diana went on, “He promised he’d speak to Thomas and get back to me. But he never did. Instead, he served me with a seven-day notice of a court hearing on the interim custody and support issues.” Thomas was still demanding shared physical custody. Diana had promptly filed a counter-motion.6
A week later, the parties had appeared before Judge Goldstein.
“The good news,” Diana told me, “is that with regard to interim support, the judge gave us nearly as much as we asked for. That will give us some breathing room.”7
The custody issue, however, was more complicated.
In court, Diana made the standard argument in favor of awarding physical custody to Brenda. Brenda had always been the primary parent and the kids were doing well. Why disrupt their lives with such a radical change? Diana also pointed out that unless Thomas changed jobs he was going to have a hard time being a full-time parent two weeks a month.
But Thomas’s lawyer had a few surprises for her. First, he made a plausible argument in favor of shared physical custody. Thomas’s new apartment had room for the kids and wasn’t far from their school. Thomas had arranged for a nanny to be home when the kids got home from school. He was cutting down on business travel. Although he hadn’t spent much time with the children before the separation, he was very committed to them and deserved a chance now to play an equal role in their lives. He wanted the kids to live with him every other week.
At the last moment, Thomas’s lawyer also submitted an affidavit from Thomas that “really hurt us,” Diana said. Thomas alleged that the children had told him that Brenda’s new “love interest” had once spent the night at the house. Thomas further stated that this was confusing to the children and that he was concerned for their welfare.
Lawyers hate to learn things from the other side that they should have learned from their client. The news of the “overnight” had caught Diana off guard, and I could hear the frustration in her voice. “Of course I had told Brenda not to have any romantic partners in the house while the kids were home—not even for dinner, much less to spend the night! But she didn’t mention that she’d already had a sleepover. The judge asked her whether this was true and Brenda admitted it was so.”
Under Massachusetts law, the sexual morality of a spouse has no bearing on custody arrangements unless it can harm the children. Officially, the sole criterion for custody is the best interests of the children. But a lawyer can get the issue of new sexual relationships in “through the back door,” so to speak, by arguing that the other parent’s new partner is creating adjustment problems for the children, or that the parent is too distracted by the presence of the new love interest to give the children the attention they deserve. For that reason, courts often order both parents, on an interim basis, to keep new lovers out of the house (at least overnight) when the children are in residence. Judge Goldstein had issued such an order.
Part of me wondered whether Brenda wanted to have her cake and eat it, too—significant financial support from Thomas and the freedom to enjoy her new partner.
What did the judge decide on interim custody?
Diana sighed. “He didn’t decide. For now, Brenda still has the kids most of the time. But Thomas’s request for shared custody is still alive. The judge ordered that a guardian ad litem be appointed to investigate how the kids are doing and to report to the judge in ninety days.”
In court proceedings that affect the interests of children, a court can appoint a guardian ad litem (“GAL”) to advise the court on what arrangements best serve the children’s interests. In custody disputes, the GAL is a court-approved mental health professional or lawyer who meets with the children, interviews both parents (and sometimes teachers and neighbors), writes a report, and makes a recommendation to the judge. These reports are taken very seriously by the judge and can significantly influence the outcome.
“I told Brenda,” Diana went on, “that the odds are still good that she will ultimately get sole physical custody, but there’s no guarantee. What she has in her favor is that she has been and continues to be the primary parent. The kids are still spending over eighty percent of their time with her. The status quo counts for a lot.”
“What do you make of Thomas’s demand for shared custody?” I asked. “Do you think he’s serious?”
“At first I thought they were using the custody demands purely as bargaining leverage,” she responded. “But I’m no longer sure that’s all there is to it. I think it also has to do with Brenda’s affair. My guess is that Thomas is humiliated by these events and afraid that this new man might jeopardize his relationship with his children. When Thomas testified at the hearing, he came across as a man who genuinely loved his kids and was afraid of losing them in the divorce. He was totally believable.”
“And Brenda? How is she handling all of this?” I asked.
“She’s immovable,” Diana said. “She won’t give an inch on the money issues, and she insists on sole physical custody. She thinks it’s best for the kids, and, frankly, I think her identity is a bit at stake as well.”
As I listened to Diana, I thought about how much the legal and social framework for divorce has changed in the last thirty-five years. Divorce used to be comparatively rare, and married women with children typically stayed at home. But since the 1950s, married women with children have entered the workforce in unprecedented numbers. At the same time, the divorce rate has risen and divorce law has been transformed. Between 1969 and 1985, the “no-fault” revolution swept all fifty states. Now in nearly every state, either spouse can unilaterally dissolve a marriage. I reflected that Brenda’s situation seemed to straddle all of these eras: she and Thomas had a very traditional economic and parenting arrangement, but with regard to her personal relationships, she was a liberated woman.
A second set of revolutionary changes has been the removal of gender role stereotypes from divorce law. In the old days, Thomas would not have had a chance at getting any sort of custody. Before 1970, family law reflected and reinforced a traditional division of labor between husbands and wives: the custody standards explicitly favored mothers, and child support and alimony standards reflected the assumption that fathers were the primary wage earners.
Those assumptions are now gone. Custody of children is no longer awarded reflexively to the mother. Instead the judge has to decide, on a case-by-case basis, what is in the child’s best interest. In the last twenty years, there have also been radical departures from the traditional notion that one parent should have custody and the other visiting rights. Many states now authorize—and some encourage—shared custody arrangements in which both parents retain responsibility for the children after the divorce.
There are two aspects to this. One is shared legal custody, in which both parents have identical rights to make decisions about the child’s medical care, education, and religious upbringing—even if the child lives with only parent. Shared physical custody, by contrast, empowers both parents to have some da
y-to-day responsibility for the child’s care. This approach is based on the notion that, even after divorce, the parents should have roughly equivalent roles—or at least that the child should be spending a significant amount of time residing with each parent.
“What’s the story in Massachusetts? How do courts actually handle shared custody?” I asked Diana.
In nearly every case, Diana said, the courts grant shared legal custody unless one parent is somehow found to be “unfit.” Diana thought Brenda’s first lawyer had been unnecessarily provocative in asking for sole legal custody—not to mention seeking a restraining order against Thomas.
A significant minority of cases involve shared physical custody as well,8 and Massachusetts law generally encourages continuing contact with both divorcing parents. I said that a shared physical custody arrangement—at least one with the children alternating weeks with Mom and Dad—sounded like a terrible idea in a case like this, where the parents were fighting. Shared physical custody requires a good deal of coordination. It makes sense only when parents can do business together, at least with regard to the kids.
“That’s one of my best arguments for Brenda having primary physical custody!” Diana exclaimed. In fact, she said, when parents are locked in serious conflict, some judges refuse to award shared physical custody and guardians ad litem typically recommend against it.
Nonetheless, given all these conflicting policy goals, and broad judicial discretion, it was hard to predict with certainty what a court would do in the Thomkins case. What seemed clear to both Diana and me was that Brenda and Thomas were better off making their own custodial arrangements than leaving it up to a judge.
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