How to Navigate the Difficulties of Divorce
Divorce is never easy, but there are ways to navigate the difficulties
Illustration by Stephen Sauer
Outside of Court Room Number 4 at the Merrimack County Courthouse sit a dozen or so people - gathered on two long, hard benches waiting for the door of the family court to open and their marriages to end. A quiet, nervous sadness settles over the scene. Eyes are fixed on the floor or off into empty space. The only reprieve is the sound of shuffling papers in the hands of smartly-clad lawyers with somber funeral director faces.
Nearly all are waiting for their divorces to be finalized - few risk an unpredictable court-mandated settlement or are too anxious to wait the many months it takes for a trial. The hard-negotiated deal is done - assets agreeably divided and, if children were born to this union, a parenting plan is in place. All that is left is for the judge to give his civil blessing to undo what the scripture says "what God has joined together."
All walk out single, but bound to this agreement. "Marriages come and go," says Marilyn Billings McNamara, a family law attorney with the Concord-firm of Upton and Hatfield, "but divorces last forever."
Divorce, it has been said, is like death except no one brings flowers. It's a major life-changing event rocking every aspect of normalcy - financial and emotional security to be sure, but also basic living arrangements and simple interactions with children. It creates a sort of a temporary insanity that only time heals, but decisions need to be made - life must go on. Amidst what McNamara calls "wrenching pain" and "raw emotions," couples are forced to decide an array of financial and parenting issues that become the "Final Decree on Petition for Divorce."
The standard state divorce decree covers 20 specific topics relating to parenting plans and the division of assets and debts. The parenting plan, which can be highly specific, includes such things as custody, visitation, child support payments and insurance coverage. The financial side is similar to a loan application and includes every imaginable asset (home, retirement accounts, vehicles, etc.), future obligations (life and health insurance, potential alimony, etc.) and even who gets to claim the children as a tax exemption. Lest you forget, the decree also reminds that it is "enforceable after death."
Billings, who became a lawyer 35 years after a brief stint as a home economics teacher and social worker, believes in the old-fashioned concept of a lawyer being "counselor of law." She starts with the basic question: "How'd you get here?" and "Can the marriage be saved?" She's had clients who just wanted to understand their options during rocky times in their marriage.
Most importantly, McNamara adds, divorce settlements are as unique as the marriages that spawn them. There are no set rules or formulas because the vast majority of them are negotiated. "It's important," Billings says, "to focus on the best interest of the children." And, although the trend is toward shared, 50/50 custody, it is in many cases in the "best interests of the parents," she says, "[but] not the children."
Divorce - like matrimony - has changed over the years. Once upon a time most everyone got - and stayed - married. Divorce was only for those extreme situations - adultery, abandonment and cruelty. The group expanded to include socialites and movie stars who divorced for less extreme reasons - but it was legally necessary to assign blame. But with the advent of "no-fault" divorce, the flood gates opened, washing away half of all marriages. Even publishing the names of the offending parties in the local newspapers and neighbors tagging divorced women with the derogatory moniker "divorcée" didn't seem to turn the tide. Back then fathers and judges thought children belonged with their mothers, and most agreed that men's sole role was that of a distant breadwinner.
It may be no surprise that marriage over time has become less popular - especially among poor and middle class people. Many people are living together and having children but not getting married. Kysa Crusco, a Bedford attorney and family law blogger, says marriage provides a structure for divorce. "Common law," she said, "only applies to death, not divorce." A more complicated probate court must settle these issues.
Deep down, "divorce is a cultural issue," says McNamara. Now that the roles have become more equalized, they're less clear. This amplifies a basic gender stereotype that she says holds true: "Men and women have a different way of communicating," McNamara says. While the court follows a masculine model driven by rules and process, "women [want to] share and collaborate" and when they "go to court, emotions are not taken into account." Men, McNamara says, have much simpler goals - get it over quickly and avoid pain.
This communication quandary plus an overburdened court system has encouraged more structured negotiations to force people to settle or, as the attorneys call it, "alternative dispute resolution." These include mediation and Unbundled (or cafeteria-style) Legal Services and Collaborative Practice.
"Collaborative Practice works because it's in everyone's best interest," says Jeanmarie Papelian, an attorney and co-chair of the Manchester-based McLane Law Firm's family law group. It requires divorcing couples and their attorneys to sign an agreement to arbitrate a settlement. If negotiations break down, both attorneys must withdraw. While not everyone likes this process (some feel it too strongly discourages access to the court), it seems to work for many women who want to be heard, men who want it settled quickly and children who want their parents to stop arguing.
McNamara offers another tongue-incheek alternative. She suggests having people file to get married, rather than divorced. Couples should "talk about the business of marriage" and devote as much time to it as they do purchasing a car.