It Doesn't Have to Be That Way: How to Divorce Without Destroying Your Family or Bankrupting Yourself

INTRODUCTION

Welcome to Divorce in the Twenty-first Century

Marriage is not a noun, it’s a verb. It’s not something you have … It is a choice you make over and over again.

—BARBARA DE ANGELIS

I have been a practicing Family Law attorney for nearly two decades. I am also the daughter of one of the country’s preeminent divorce lawyers. You could say that Family Law runs in my family. Both the law and the practice have definitely evolved quite a bit since I was a kid—even since I started practicing law. Some of the change has been for the better and some for the worse. But I think the time has come to share information about what should be a new approach to revising your relationship—whether it’s a marriage, a registered domestic partnership, or cohabitation with or without children.

In the twenty-first century, people tend to couple up and have kids a bit later in life than they did a generation ago. Many people today are better communicators, better educated, and for the most part more litigation-savvy than their forebears—thanks to the proliferation of fender benders, landlord-tenant disputes, wrongful termination suits, and a rise in general litigiousness. We have also been more exposed to divorce—almost all of us have experienced it in some way, shape, or form. If your own parents remained happily married for the long haul, perhaps your partner’s did not. If both of you are the children of intact homes, it would be almost weird if no friends, friends’ parents, siblings, aunts, or uncles ever went through a breakup to which you were exposed, albeit tangentially. This experience, paired with the technological advances of the twenty-first century, has the average splitting couple poised to experience a far better breakup than couples of generations past—basically, a breakup that promises healthier children, fuller bank accounts, and intact personal integrity.

It’s All Good

It was the early 2000s. I was representing the bass player for an alternative rock band—I’ll call him Zack—and we were on the phone going over the settlement offer sent to my office by Zack’s wife’s attorney. It was about 10:00 in the morning. As I presented my analysis of the first couple of terms, I heard on the other end of the line an unmistakable bubbling sound. Dude, I asked incredulously, are you taking a bong hit?

Silence. Heavy exhalation from the receiver—a long sigh ending in Yeahhhhh.

You cannot take a bong hit while you are on the phone with your divorce attorney, I said somewhat sternly.

Another long silence. Dude, he replied (it is either a blessing or a curse that I often still speak like a fourteen-year-old skate punk and am responded to in kind), is there a better time to take a bong hit than when on the phone with my divorce attorney?

I thought about this for a moment. It seemed a reasonable question.

I make good money doing a job I love, Zack went on. I have a couple of awesome kids, and even though she is being kind of a bitch right now, their mom is actually a pretty good mom. This isn’t the greatest time—hence the wake and bake—but it’s going to get better. Everyone is healthy, I’ve got arms and legs, and I can play my bass. It’s all good.

Now, I am in no way proposing that twenty-first-century divorce is best handled while stoned. But I did have to admire my client’s Zen attitude toward the process. This is a lawsuit like no other you will ever go through. (At least one hopes so.) It is a legal and business transaction taking place in your family—right inside, precisely at the heart of it. Interestingly, the last time you went through a similar transaction was when you got married, but back then, you were likely thinking about what flavor cake to order, how your dress would fit, or exactly what would or would not be appropriate for the bachelor party. You were almost certainly not focused on the fact that you were about to enter into a legal contract with someone, nor were you pondering what the ramifications of that contract would be. Unless you had entered into a prenuptial agreement, the rights and responsibilities of getting married were likely not explained to you. Sure, you were clear about to have and to hold, in sickness and in health, but had you considered the extent to which the state would control how you would spend your money if you and your spouse were to separate in the future? Doubtful. They don’t really put that out there when you’re about to walk down the aisle to the strains of Pachelbel’s Canon in D.

It is certainly true that we are a more sophisticated generation than those before us when it comes to familiarity with divorce. Beyond the firsthand experience, we grew up with movies like Kramer vs. Kramer and Stepmom and with television shows like Who’s the Boss? and My Two Dads. So we are aware that not all families look the same and that some marriages do not last forever. Nevertheless, if it were up to me, marrying couples would be required to take some kind of an entry-level course. But that’s another book.

Marriage is a contract. Every relationship, in fact, is a deal. Each person expects something from the other in exchange for whatever each is bringing to the table. It can be as simple as the fact that one person is the provider and the other is the aesthetically pleasing subservient. Or, one half of the couple might be the fun one and the other the voice of reason. Generally, there is a list of things for which each party is responsible, so if and when the responsibility changes by virtue of time or circumstance, it means the contract terms have also changed, and that must be addressed. If the provider is no longer able to provide the unlimited credit card spending at Prada, Chanel, Gucci, and Hermès, the aesthetically pleasing subservient may not be feeling as subservient as he or she was before, nor as eager to please. The deal has changed. Not every couple is able to adjust to that or to weather the storm. Love may not always conquer all.

A new deal must be negotiated. That can be in the context of the relationship or in the context of a breakup. Although your head should be clear and ready to address the issues that arise, developing my pot-smoking client’s mentality might not be a bad idea. It’s all good.

Generation Gap

Tap tap tap. It was my father, knocking on the door of my office. He is the founding partner of the law firm where I work, and he is my father, two titles that give him every right to come into my office, even when I am meeting with a client. But it was probably not beside the point that at the time, the client with whom I was meeting was a rising star among film actresses and drop-dead gorgeous to boot.

My father is a very prominent lawyer, one of the best known of the Hollywood divorce lawyers, highly respected and indeed celebrated both inside and outside the legal community. The Silver Fox, as we call him, is a wonderful-looking man, and he was dressed for work the way most people probably think prominent partners of big law firms should dress—looking very distinguished indeed in an elegant suit, with a silk tie, cuff links, and butter-soft Italian shoes. I was wearing a black mini sweater dress and Alaïa platform ankle boots. My father came in, and although he did not know who the actress was—exactly—he knew she was someone, and she’s hot. He chatted her up and took his leave.

It’s so nice that you let your father work here, the actress said when my dad had departed. As far as she was concerned, I was dressed for work; my father was costumed in some Hollywood idea of what the head of a prominent law firm should look like.

But I’ll bet you that if you stand my father and me side by side and ask most people which of us looks like the divorce lawyer, ninety-nine out of a hundred will point to the guy in the suit. Old perceptions die hard.

That’s true of just about everything having to do with divorce. The fact is that now, in ending a marriage or dissolving a relationship—as in everything else—there’s a whole new way of doing it and a whole new generation in charge of getting it done. It’s a change that is way more than clothing-deep. Yet my guess is that most people reading this right now still harbor an old idea of divorce—and probably of divorce lawyers—left over from our parents’ generation.

That’s too bad because divorce, never a happy episode, can today be a better process resulting in a better outcome than at any time in history. Enough has changed in a generation, and a sufficient range of tools is now available to the parties to a divorce to make the dissolution of your marriage or partnership smooth, expedient, cost-effective, low-stress, and as amicable as your goodwill or your perseverance allows. In short, divorce today can be, if not almost-good, at least good enough to keep yourself, your sanity, your wallet, and your dignity intact—and your children safe, sound, and emotionally healthy.

This book tells how.

This Is Not Your Parents’ Divorce

What is different from a generation ago? Family law, the body of laws governing domestic relations, has undergone a profound and dramatic change, propelled by and reflecting equally profound and dramatic changes in the social reality of relationships. A case I recently handled sums up what I mean.

We’ll call them Melissa and Jennifer. They had been registered domestic partners under California law for well more than a decade. They had two children, a son and a daughter born two years apart, both now in school. The women had contrived a somewhat elaborate formula for conceiving the kids. To ensure that the children would have the same father, they used a single sperm donor for both pregnancies. But then they went a step further. Melissa contributed the egg that would become their son, but after fertilization, it was placed for gestation into Jennifer’s uterus. Two years later, it was the other way around: Jennifer’s egg, fertilized by the sperm donor, went into Melissa’s uterus, and it was Melissa who gave birth to their daughter.

If the formula seemed a bit of a reach—if it seemed to some that the couple was using it to make a statement—it was nevertheless a way for both women to experience pregnancy and childbirth and to make their two children truly the offspring of them both. In any event, it was their choice, their uteri, and their family.

And when their relationship unraveled, as relationships can, and the couple decided to separate, a similarly well-planned and lovingly thought-out process governed the issues of custody and child care. On those subjects, the two women were in fairly harmonious agreement.

Other issues proved thornier, however—namely, money. As is typical in many states that recognize domestic partnerships, the money earned by Melissa during the course of the partnership was to be equally divided in the event of a separation. But since federal law at the time did not as yet recognize same-sex marriage or its joint-property provisions, she could end up having to pay federal gift taxes on the amount she was giving to Jennifer. At the going rate at the time, that would mean she would be almost doubling her property award—which Melissa did not find acceptable. Her only out would be to pay a lower lump-sum payment, which was not acceptable to Jennifer. So the case went to court.

The judge hearing the case was an older man—old enough, in fact, to be the grandfather of the couple’s children, and the way in which those children came into the world seemed to transfix the judge’s mind to the extent that it became a sticking point in the proceeding. Befuddled by the formula the women had devised, hung up on the lengths to which they had gone to ensure their kids’ origins, fascinated and at the same time repelled by a situation utterly foreign to his experience, he simply could not get past what he persisted in calling the couple’s lifestyle.

His emphasis on this issue was irrelevant and wide of the mark, as both lawyers agreed, and the judge’s insistence on raising it was both time-consuming and offensive. It was Melissa who first hit the bursting point, proposing to Jennifer that the two take their fate out of the hands of a guy who struck her as very much a caricature of the quirky judges on The Good Wife. He simply could not get his head around who they were as people and what they had at stake. Melissa and Jennifer were not comfortable with this person making decisions that would affect their lives—lives he clearly did not understand. Instead, the couple agreed to go to mediation to settle the issue on their own.

And that’s exactly what happened.

To me, this case seemed to exemplify the disconnect between outmoded perceptions and current reality when it comes to relationships and their dissolution. To oversimplify a bit: On one side was the generation the judge embodied, still clinging to the idea that family means father, mother, two kids, refrigerator, and split-level—a template that was never as pervasive as claimed but that served as a kind of Madison Avenue standard for many years. On the other side was a family configuration that shattered that notion noisily and then had the temerity to break up and seek resolution in the law, which, by the time the twenty-first century rolled around, in fact protected the new configuration.

Social Revolution, Legal Evolution

The irony is that it was the judge’s generation, the generation that has trouble getting its head around the new definition of families, that set in motion the social changes that did the redefining. They were the folks who roiled the world with the sexual revolution, the women’s movement, the movements for civil rights and gay rights. Those forces transformed our social fabric, our economy, our politics, our demographics, the way we live, our attitudes about what counts and what works—and what doesn’t—in coming together as a couple and being part of a family. Family law had to evolve to accommodate that revolution. After all, the life of the law is experience; it exists in a context. And the context, after a generation of social revolution, constituted a whole new ball game when it came to defining and dissolving relationships.

Our parents married because it was what you did at a certain time of life. It was expected; people who did not marry were somehow on the fringe. Similarly, couples stayed together because it was thought you shouldn’t give up easily or perhaps because you shouldn’t expect too much. Gender roles to a great extent still reflected the idea of a family as an economic unit in which the division of labor assigned to one spouse—typically, the male husband—the task of earning income, and to the other spouse—the female wife—the job of maintaining the household. Interracial couples were oddities, typically confined to specific neighborhoods of big cities. Nonheterosexual individuals—and certainly nonheterosexual relationships—were still in the closet a generation ago; in fact, it wasn’t until 2003 that so-called sodomy laws, effectively outlawing homosexual activity, were struck down by the Supreme Court.

Now look. Gender roles are out the window, mothers are no longer willing to deny themselves careers, fathers are no longer willing to play a secondary parental role, and instead of looking for partners in an economic unit, people seek a soul mate in a relationship aimed at personal fulfillment, married or not. You can literally see the change if, like me, the first thing you do on Sunday mornings is peruse the Vows page—that is, the wedding announcements—in The New York Times Style section. What not all that long ago was a review of both parties’ prep schools, lineage, and connections has morphed into narratives of how the couple met, fell in love, and made their relationship work well enough to decide to marry.

Today, as often as not, the couples on the Vows page are mixed-race or same-sex—or both. This should not be a surprise. The fastest growing segment of the U.S. population is people who identify themselves as mixed-race—like, for example, President Barack Obama—and interracial and interethnic unions are on the rise.

So are same-sex unions, as gay marriage becomes law in state after state and soon perhaps, depending on the Supreme Court, everywhere. And by everywhere, I mean not just in the hip neighborhoods of major cities on the two coasts, but in suburbs and small rural towns as well—unheard of a generation ago.

When our generation marries, it’s usually far later than when our parents did, although we are sexually active at a far younger age. Yet the truth is that marriage is on the downswing among us; today, almost half of American adults—44 percent—are unmarried. That doesn’t mean they are un-together; at the start of 2013, seven million Americans were living in couple relationships without benefit of a marriage certificate.¹ Coincident with those statistics, as The New York Times reported in 2012, is that 53 percent of all children born to women under thirty² are born out of wedlock. These young mothers may eventually marry, but they are unlikely to marry the fathers of these babies.

The bottom line is that the Norman Rockwell vision of the traditional nuclear family has simply been sidelined by this generation. What served as a romanticized—almost deified—standard for our parents, their parents, and their grandparents before them is a social relic to us, who are totally at ease with blended families, same-sex or mixed-race couples, adoptions, surrogacy, families in which no one looks like anyone else.

But in all the discussion—celebratory to some, a bit threatening to others—about the proliferation of different types of relationships and family configurations, the one thing that hasn’t been addressed very fully is the inevitability of breakups in both the relationships and the families. So let me put it on the record: It is precisely and indisputably inevitable that the more relationships there are, the more relationship dissolutions there will be. When our parents’ generation was breaking down all those barriers between people, they may have neglected to look ahead to that inevitability, but it is here now, and it is here to stay.

Relationships end. Our generation accepts that. Relationships unravel or hit a wall or sometimes blow up. What was once wonderful turns sour. Or we change, and what worked before doesn’t make us happy or fulfill us anymore. And our generation is fine with that. We’re okay with ending what doesn’t work and moving on. We do not believe that it is good for anyone or in anyone’s self-interest to persist in a situation that is limiting or oppressive or, God knows, abusive. We won’t accept a situation that in any way, shape, or form curbs an individual’s control over his or her life.

But there are consequences. Certainly where children are concerned, the consequences can at times be costly, difficult, even ugly. It doesn’t matter whether you are married or not, either. Child support and custody law work exactly the same for the unmarried as for those with a marriage certificate, or civilly joined, or domestically partnered, or none of the above. In the twenty-first century, the breakup is as much a fact of the new relationship reality as are the varied options for getting together.

The law recognizes all of it. The social revolution that prompted this new relationship reality also spurred changes in family law that enable us to dissolve those relationships when we feel we must—consequences and all.

No-fault

The great change in family law triggered by our parents’ relationship revolution was no-fault divorce, first enacted in the United States in California in 1970 and last in New York as recently as 2010. No-fault took the stigma and the scandal out of divorce and put an end to the infantile legal fictions couples were forced to profess—in what one California judge called a melancholy charade—to prove adultery or cruelty, the allowable causes, under prior law, for dissolving a