This month, the 94th annual Academy Awards, will take place. The popularity of the Oscars illuminates more than we know about how we view divorce. Although no court bestows an award for Best Supporting Spouse in a Long-Term Marriage —many people speak, think, or behave as if this is or should be a thing. We lawyers often hear about the years that our clients have spent deferring dreams, postponing advancement, taking care of the household, and rearing children. We learn of the decades of toil and labor. We discover the indignities endured and the accumulated slights, fights, silences, and betrayals. All of it is very much real and it deserves our compassion and empathy.
But the “awards” that many of our clients seek for their endurance are beyond that which is compensable in dollars — and they constitute something that a court can never provide, and lawyers can never obtain. In divorce, quite often, people seek validation or vindication. And while we can write fault out of the statute, we cannot write it out of our minds, hearts, or souls. We are not (and perhaps never will be) any less a blaming, shaming, and guilt ascribing people than we were when warned against casting the first stone. These attributes that we seem imprinted with are, quite possibly, intrinsic to our humanity.
When fault was banished from legislative legitimacy in divorce, it did not go away, it simply went underground like any banned substance, practice, idea, or movement. Fault continues to drive divorce, but because it is not recognized and has no formal outlet, it presents itself as many suppressed or repressed matters do––it comes forth unconsciously, finds a host, and latches on to what is available. It may drive positions on matters large and small in a case. Noting this all does not mean that fault should be restored. But it must be accounted for in how we approach divorce as both lawyers and as participants, in an emotionally intelligent and mature approach to litigation.
Although I am a divorce lawyer, I am also a divorcé. My observations as a practitioner are also grounded in personal experience. In divorce we can often see our spouse as “winning.” This tendency comes from an impulse to view things as zero-sum propositions. Divorce is complicated from the start by what we bring to it, how we approach it, and what we ask of it. In divorce, lawyers can obtain financial and child-related results, but they cannot obtain these other things we often seek. Even with objectively good outcomes, many clients still feel like they lost. They often sense that something is incomplete or missing.
We can all, at times, conceive of our lives as a grand narrative, almost like a film or novel. We can come to view the marriage as a kind of story— with a beginning, middle, and end to which we must ascribe meaning. We feel a need to have our loss, pain, and suffering make sense and have a clear and concrete purpose. Like my clients going through it now, I know the thoughts, feelings and sensations that come with divorce — the confusion, anger, regret, bewilderment, and sorrow. Even in an amicable divorce, as mine was, the maelstrom of emotions can be overwhelming. As a former spouse — I know that tendency to seek out the elusive Award.
While there will never be an award for time spent within a marriage as a spouse, understanding with clarity the real-world limitations of what any process can provide is critical to gaining greater self-awareness and equanimity and also to adjusting one’s expectations of that process to what is reasonably and fairly achievable.
Brendan Hammer is a Partner at Schiller DuCanto & Fleck LLP. For more information or to reach Hammer, call 312-578-6129 or visit sdflaw.com.