Psychology Today Blogs - Divorce for Grownups

Some Thoughts on Blame in Divorce

Sam Margulies — Tue, 01 Jul 2008 11:40:51 -0700

Despite the fact that most states have passed no fault divorce laws, fault and blame continue to play a large role in the ways that divorces develop. As I have noted before on this blog very few divorces ever go to trial in which a judge makes the decisions and even has the opportunity to apply marital misconduct as a factor in the judgment. And even in the one percent of cases that do go to trial few states even permit a judge to use fault as a criteria in deciding custody or distribution of property. A few states permit the judge to consider marital misconduct in awarding alimony but most judges are reluctant to do so. And because almost 99% of cases are resolved by negotiated settlement, issues of fault play a negligible role at best in negotiations.

So from a practical perspective, who is at fault for the demise of the marriage is of practically no importance in shaping the outcome of divorces. If fault plays such a small part in the outcomes why does it loom so large in the interplay of the couple during the divorce? There are several reasons I have observed over the years. When misfortune strikes most of us want to know why. Illness, hurricanes and other natural disasters are obviously no-one's fault and simply have to be endured without whatever satisfaction comes from having someone to blame. But the failures of human relationships are much more complex.

Divorce is about the failure of a relationship in which at least one partner but usually both are disappointed in the behavior of the other. He turned out to be lazy and never earned a good living. She was a profligate spender and always kept them mired in debt. He was insensitive to her feelings and left her feeling emotionally lonely. She was slovenly and kept the house like a pig sty or she gained fifty pounds and ceased to be sexually attractive to him. The list is endless and over thirty years I have heard many hundreds of such complaints. Usually, there is some element of accuracy in each of the complaints. She did run up the credit cards. He did have less ambition that most other men. She did gain fifty pounds. But none of these things by themselves caused the divorce. Couples who have mastered dispute resolution techniques can often solve their problems.

With communication, support and empathy she might have been induced to lose the added weight. With sufficient support and understanding he might have been induced to understand why his lack of drive was holding him back. With adequate credit counseling and support she could have learned to budget. So few of the "blame" reasons people offer for the divorce are, by themselves, an adequate explanation for the failure of the marriage. Most divorces are the product of a hundred small wounds, sins of omission and commission and failure to care for and feed the relationship. Marriages don't end suddenly; they erode over time. Nevertheless, it is common for people to seize on one or two actions or character flaws of their mates in explaining the divorce.

What purposes are served when they do this? First, few people are prepared to accept responsibility for their own contributions to the failure of the marriage. It is easier and more comfortable if the failure was caused by him rather than me. I can minimize my own guilt by explaining the divorce in terms of the other's defects and I can explain the divorce to others more comfortably by showing how it was all her fault and that no reasonable person could be expected to live with such a harridan. It is generally easier to garner sympathy from friends and family that way. When was the last time you heard someone say, "I think most of the blame for the divorce is mine because I was too selfish to pay attention to her when she needed me." Or have you ever heard anyone say, "I stopped paying attention to him when the children were born. I expected him to support me but I really didn't meet any of his needs when he came home exhausted from work." A second and related reason for such self serving denial is that it helps justify your demands that the other suffer a disproportionate amount of the inevitable dislocation of divorce. Ultimately, divorce is about change and for all but the wealthy that change generally requires a lot of belt tightening.If the divorce is his fault why should I suffer? Let him live on less and let me and the children continue our lives unchanged. If the divorce is caused by her and she wants to leave me let her move out of the house and let me continue my life unchanged. Although such arguments seldom convince the other, they frequently serve as a justification to fight for more than your share. And of course the adversary legal system is constructed to exploit precisely this type of faulty reasoning. If he won't agree to my terms we'll let the judge decide.

Of course the judge seldom gets to decide but few clients know that. I have long referred to divorce mediation as "divorce for grownups." Good mediators don't let clients dwell for very long on whose fault caused the divorce. They refocus the couple on the future and try to help them share scarce resources in a fashion that best serves all family members. The clients who have the most trouble in mediation are those who can't accept responsibility and can only reside in a world in which they are right and others are wrong. They are condemned to bad divorces and poor post-divorce adjustment.

Divorce Settlements are Very Predicatable

Sam Margulies — Tue, 10 Jun 2008 11:17:09 -0700

When couples divorce there are three primary issues that must be resolved before the court will grant a divorce: custody of the minor children, support issues including alimony and child support and the division of marital property. Most people start by seeking the advice of a lawyer to find out what are their "rights." They want to know what the law says they get in each of these areas. More specifically, they want to know what the judge would do if the case goes to trial and all these issues are decided by the judge. "Will I get custody?" "Will he have to pay me alimony and how much will he pay?" "How much child support do I get?" "How much of the property do I receive?"

How confused they are when they leave the lawyer's office will largely depend on the style of the lawyer in answering the questions. One possibility is that the lawyer answers all the questions on the assumption that the case will be tried and the judge will decide. Here the lawyer tells the client about the law. In the matter of custody the judge will inquire about what custody arrangement will be "in the best interests of the children." So the outcome will depend on how the judge will perceive the evidence presented. The lawyer may, for example, tell the client that because she is the mother, is psychologically closer to the child and has a work schedule that leaves her more available for the children, she will probably be awarded primary custody. He may also tell her that because of the large disparity of the income between her and her husband, she will probably get alimony and will describe the many criteria the law requires the judge to apply. But the lawyer cannot tell her how much alimony she will get or how long she will get it because it is up to the judge and we can't tell what the judge will do.

The same applies to property division. Most states are "Equitable distribution" states in which the judge is supposed to apply numerous criteria when distributing the marital property. But the application is so complex it is impossible to predict exactly how a particular judge will interpret the statute and case law. The second style is that of a lawyer who tells you the truth which is that almost 99% of all divorces are settled sometime prior to trial. That means that there is very little chance that your case will go to trial and that you will not appear before a judge who will decide the case.

Experienced lawyers predict very opposite outcomes if the case goes to trial. So the prognostications of the lawyers about what a judge would do at trial should be taken with several grains of salt. What the lawyers actually do is to fall back on what they believe are the settlement norms that apply in a particular state. The norms have very little to do with the statutes.

For example, because the equitable distribution laws are so complex most lawyers and most judges default by dividing the property equally between the spouses. In most states there is an operating presumption that property will be divided equally and the burden of persuasion is generally on the person who argues that he/she should get more than half. So in the great majority of cases the property is divided equally even though that is not what the law requires. Similar norms apply to support issues. All states are required to have minimum child support guidelines. So it is possible to look up the exact child support for people with any particular income. The child support may be completely inadequate in a particular state but there is a very high probability that the guidelines child support will be applied.

There are no similar guidelines for alimony but there are norms that most lawyers will apply. For example in the North Carolina county where I practice there appears to be an accepted norm that alimony will be paid for a period equal to half the duration of the marriage unless it is a very long marriage in which case it will be paid permanently.

There are also local norms that determine how much alimony will be paid depending on the income disparity between the parties with alimony ranging between 15% and 33% of the payer's gross income.

There is also a powerful norm that no man will be asked to pay more than half his income in alimony and child support. The important thing to note is that these settlement norms are not based on statutes and case law but on the conventional settlements reached over time by negotiating lawyers. The implications are important because so few lay people are aware of influence of such norms.

Ultimately what it means is that in most cases any experienced divorce lawyer can predict pretty closely what a settlement will look like for any particular couple before the case even gets started. And if most lawyers told their prospective clients the truth most divorces could be resolved in a few weeks because client expectations would be shaped by reality very early in the process. But unfortunately, most clients are allowed to believe that their cases will really go to trial and because of that it is necessary to spend large sums on legal fees to prepare for trials that will never happen.

Virtual Infidelity

Sam Margulies — Fri, 30 May 2008 07:25:17 -0700

Virtual Infidelity

Monogamy has long been a staple assumption of Western marriage and is deeply ingrained in the psyche of most Americans as a necessary requirement of successful marriage. In practically every state, adultery is grounds for divorce and in the Bible belt adultery can be used in court to punish the guilty spouse with required alimony or the total loss of alimony.

Although most people assume that it is men who are most likely to have affairs I have found in my practice that women are today as likely to engage in affairs as men. In thousands of divorces I have mediated I have only seen one divorce in which an affair ruined a perfectly good marriage. In most cases the affair occurred after a long period of marital erosion, in which a partner who is lonely, despairing and starved for affection and sex, seeks relief outside the marriage. But I have also seen an interesting new trend in divorces in which the actions by one spouse are viewed by the other as the equal of infidelity even though no sex has occurred.

There are two principle situations where this appears. In the first, one of the spouses develops an emotionally intimate relationship with some member of the opposite sex. Most typically it involves a colleague at work who has proved an enjoyable companion and empathetic listener. They may work on the same projects and are thrown together on long evenings at work or even business related travel. The married employee is not seeking an affair and fends off his own and her (or his) impulses to go to bed. But when the other spouse finds out the sense of betrayal can be as great as if sex had occurred.

In modern marriage intimacy has perhaps become the primary measure of the good marriage. Married partners, particularly but not exclusively women, expect partners to communicate feelings and to respond to the feelings of the other. In my experience the most common refrain of the initiating woman is that she is fed up with her husband's inability to communicate on an emotional level. It leaves her fe4eling lonely and isolated and feeling emotionally disconnected from her mate. That feeling is commonly accompanied by her gradual withdrawal from sex with her husband followed by his resentment and reciprocal withdrawal. That is probably the profile in fully half the divorces I see.

So when the spouse who yearns for intimacy that is not forthcoming, it is infuriating to discovers that he is engaging in that level of communication with another woman. As one married woman friend of mine said about her husband's affair, "I didn't mind so much that he slept with her. It was how much time he spent talking to her that drove me crazy."

The second recent trend in virtual infidelity involves the easy availability of pornography on the internet. Although many men viewed pornography when it was only available through other media, internet pornography has attracted millions of men who would otherwise not view these images. Some men view it occasionally while others become practically addicted. Some women regard this pastime as tasteless but essentially harmless. Some claim it makes them uncomfortable because they believe that their husbands compare them to the images on the internet and find them less attractive. And there are some who regard it as a form of illicit sex and regard it as a betrayal equal to any affair. It is no longer unusual for a husband's viewing internet pornography to be cited as the reason a woman is seeking a divorce. I am unaware of any state court rulings that found that these non sexual interactions were adulterous. But they are clearly having an effect on the psychological definition of infidelity.

The Psychology of Divorce

Sam Margulies — Thu, 22 May 2008 07:06:00 -0700

Divorce is both a legal process as well as a psychological process. The legal process is important but the psychological process and how it is played out by the couple largely determines the tone and the nature of the divorce. If the divorce begins badly it will end badly. And if it begins gentle there is a good chance that it will end amicable and constructive. The key is in understanding the emotional positions of the parties at the beginning, when one of the partners first states that he /she wants a divorce.

The most important psychodynamic of the divorce is the issue of mutuality and how it develops. In very few divorces do the two partners mutually decide on a divorce at the same time. Invariably, after some long period of reflection and consideration, one of the partners will decide that she can't take the discomfort of the marriage anymore and is determined to end the marriage. Such decisions are not made lightly or impulsively. I have found that it is not unusual that the "initiator" has been ruminating about divorce for years. He or she has had an opportunity to mourn the loss of the dream associated with the marriage, has had time to think through what an alternative life would be like and has begun to prepare emotionally and in other ways for the end of the marriage. She may have made new friends who are not linked to her mate, may have started to achieve new credentials to be able to better earn money and in general started to live a new life.

The other partner, who we call the "non-initiator" may be anywhere on a continuum from resigned acceptance to utter shock and surprise. To the extent that the two partners are nearly equal the divorce can begin more easily. He announces he wants a divorce citing many years of unresolved unhappiness and numerous unsuccessful attempts at counseling. And although she might have been inclined to try a little longer she agrees that he is probably right and that they out to get divorced. In this situation the decision is nearly mutual and both are almost ready to begin negotiating the divorce. Contrast this situation with one in which he makes the same announcement but she reacts with surprise and terror. She is committed to the covenant they made in their wedding vows and believes that marriage is forever no matter what. She is aghast at the damage a divorce would do to the children and she is filled with fear for her loss of place in the community and the changes that would be necessary. She is outraged that he could even consider divorce and declares her complete opposition. This couple is in trouble.

Divorce is about change. There is often change in housing. There are economic changes, none of which are comfortable. There is change in social status and in the way the children's lives are managed. And for most of us change is not welcome, often involves loss and often is scary. For the initiator there is a tradeoff. There will be uncomfortable changes and inevitable losses. But because life will improve-stress will be reduced, there will be an opportunity to find a more suitable mate, dating may be an exciting prospect--- the losses are experienced as offset by the gains. For the non-initiator it depends where that person is on the continuum. If the decision to divorce is mutual or nearly mutual the non-initiator probably has also thought of the potential improvement in life, or if he hasn't yet will quickly be able to do so. But for the non-initiator who is surprised or who doesn't want the divorce there has been no opportunity to grieve the marriage, to make plans, to develop alternate scenarios or to prepare to be single there is nothing but loss and fear. And until the non-initiator has time to think things through and to come to emotional terms with the divorce he or she will not be ready to engage in reasonable discussions about how the partners should go about separating their lives.

If good divorce is possible only when both are ready to negotiate the burden of timing falls on the initiator. If you are the one who wants out you have to give your partner time to adjust, time to mourn and time to explore his/her own possibilities. Push too fast and your spouse retreats to the perceived safety of a lawyer who she thinks will "protect" her interests. Then you will have a long divorce. Although it is counter-intuitive the initiator of the divorce has a huge investment in the spouse feeling safe. So how the opening scenes are played is critical. When telling the spouse that you want a divorce you must use neutral language. "Our marriage hasn't worked and I don't think it will in the future so I want a divorce." is neutral language. "I'm sick and tired of your bitching and selfishness and I can't wait to get away from you." Is provocative and will only assure defensiveness, denial and retaliation. So if you are the one to end the marriage planning how you will discuss it with your spouse and planning how you will manage while she/he comes to terms will largely determine whether your divorce is successful or simply a nightmare.

If you want to understand more I have fully described this process in an article called "Litigation, Mediation and the Psychology of Divorce" in The Journal of Psychiatry and Law. You can find the article on my website www.sammargulies.com

Introduction: Divorce for Grownups

Sam Margulies — Tue, 13 May 2008 07:20:54 -0700

As this post is the first of many to this blog some statement of purpose seems in order. My posts to this blog are intended to educate as many people as I can about the American way of divorce. It is not my purpose to analyze why people get divorced although some of that discussion will inevitably occur. Nor is my purpose to reduce the incidence of divorce. I am not about saving marriages in this blog. Rather, I seek, in my mediation practice, in the books and articles I have written and in this blog to critique the way people get divorced using conventional divorce lawyers and heavy reliance on the courts. It has long been my mission to convince people that the way most people get divorced is unnecessarily painful, hurtful and emotionally and financially wasteful. Further, though it supports the multi-billion dollar divorce industry, conventional divorce serves families poorly and makes it more difficult for family members to adjust and get on with their lives. So early on I shall try to show how most divorces are acted out according to an expensive choreography based on a series of myths propagated and maintained by the practitioners in the divorce industry.

Before I go further in that analysis I should state some of the affirmative beliefs I have acquired in thirty years of practice. I believe that:

1. Most couples, that is, 80 to 90% are capable of achieving an amicable and fair divorce that optimizes the resources of the family.

2. There is an inverse relationship between the quality of the divorce and the amount of contact between the spouses and their lawyers and the spouses and the judicial system. The more contact with lawyers and judges the worse will be the divorce.

3. The more difficult the divorce the greater the probability that the subsequent marriages of the partners will also end in divorce.

4. The divorce lawyers with the biggest reputations are generally the worst divorce lawyers and you need to be either misguided, misinformed or a little nuts to hire one.

5. The destructive capacity of the contemporary divorce system is based on the ignorance of the public and the robustness of the myths supporting the system.

6. In most divorces couples retain a surprising amount of affection and goodwill despite their anger and it is possible to leverage that affection to obtain a "good" divorce if they can avoid the polarization that begins as soon as lawyers take over their cases and their lives.

7. There is such a thing as a good divorce. It is characterized by a mutual sense that the settlement is fair, an ongoing ability of the partners to wish each other well, the development of constructive and collegial communication around the children, reasonable economic parity between two households and a continuing ability to resolve the inevitable conflicts that arise as families adjust to new lives. Good divorce is available to the great majority of divorcing couples.

A Little About Me.
I became a lawyer in 1978 after an eight year career as a professor. After passing the bar I set up a practice in general civil law and became heavily involved in litigation. As divorce is the bread and butter of many solo law practices I was quickly involved in numerous divorces. Although I was good at it I was quickly appalled by what I saw as unnecessary emotional carnage that was accepted by the profession as the natural state of divorce. In 1978 the divorce mediation was beginning to stir and I became involved with a small group of lawyers and therapists from around the country to look for ways to reduce the damage caused by modern divorce. Out of those discussions a movement now numbering in the thousands of practitioners developed.

Divorce Mediation

The object of the early pioneers was to develop a way for people to settle their divorces quickly and at reasonable cost by avoiding the wasteful processes of litigation. A prevailing myth in American divorce is that divorces end in trials in which judges decide who gets the kids, money and property. But the truth is that about 99% of all divorces are settled by negotiation sometime before the trial. All too often the settlement does not occur until two lawyers have "developed" the case for trial, cost a lot of money and completely polarized the couple. And although the case is "settled" the couples relationship is often poisoned by the legal maneuvering of the lawyers and about half of these cases end up back in court within two years fighting about kids and support.

The remedy was divorce mediation. Mediation works on the premise that because the couple is going to settle anyhow why not facilitate that settlement in the beginning rather that put them through years of preparation for a trial that will not happen. So in mediation a skilled mediator works directly with the couple to make it possible for them to have discussions that they otherwise would be unable to have. These discussions lead to resolution of parenting and custody issues, support issues such as alimony and child support and the division of marital property. When mediation succeeds the issues are resolved typically within a few months and at a cost of a few thousand dollars rather than the five and six figure law fees that are prevalent in conventional divorce. Mediation tends to produce lasting agreements with less than five percent of couples going back to court to continue the conflict.

In future posts I will explore in greater depth how people are led into bad divorces and talk about ways to avoid those mistakes. We will discuss the psychology of divorce as well as the laws and practice norms of the legal culture. Those who wish to read more may want to read either of my first two books. GETTING DIVORCED WITHOUT RUINING YOUR LIFE was first published by Simon and Schuster in 1991, was revised in 2001 and is still selling well. It was the first book on "good divorce" and is still helping thousands of divorcing people. In 2004 I published a book for men called A MAN'S GUIDE TO A CIVILIZED DIVORCE: How to Divorce With Grace, a Little Class, and a Lot of Common Sense. The publisher is Rodale. Either of these books will provide a comprehensive guide to a decent divborce.