Getting Your Mind Right Even When Everything Else is Going Wrong

By Judge Lynn Toler

When embarking on any journey it is always important to know the lay of the land.  That way you are less likely to get toppled over by the bumps in the road.  This is especially true when the journey you are on ends in a divorce decree. Disentangling two lives that have been intertwined on every level – often for years - is a complex thing. Unfortunately, the judicial process has its limits, ones that can leave some divorcing people feeling, at best, unheard and worst down right abused.

In order to limit the emotional turmoil caused by the manner in which the legal system deals with divorce it is best to understand and get your mind right about what the system is designed to and is capable of doing.

The judiciary is required to do two things: be fair in implementing the law as it exists and provide resolution to the parties. It is impossible to adequately address all of the thousands of the nuances of each marriage.  So, in order for the law to provide resolution state legislatures have had to make some generalizations as to what is fair.

For instance, in equitable distribution states the judge is charged with the duty of dividing the property acquired during the marriage based on factors outlined by law. In a community property state both spouses are assumed to own all property and debt equally.  While the former might allow for more individualized judgments based on the facts it also increases the uncertainty of the resolution.  Each judge will have different ideas as to what is equitable based on the facts.  In community property states, it might be easier to know what to expect but it is more cut and dried and not quite as flexible.

The point is what you walk away with after a divorce can differ from state to state and facts that might serve you well in one state may not be so advantageous in another.  States, however, have to make some generalizations as to what is fair or cases would go on forever and never get resolved.  One could argue indefinitely about everything from the grand and meaningful: child custody, to the inane: who gets the velvet painting of Elvis.  So states just draw a line.

Moreover, some people walk away from divorce court disheartened because it is not designed to fix what is so often the most painful: the emotional hurt. Courts are required to address custody, property and support issues, not to balance the emotional books.   With the notable exception of New York, most states have No Fault divorces.  That means the court will not consider who is at fault for the break down of the marriage when determining who gets what.   While some states consider martial misconduct (e.g. when a spouse has gambled away assets or spent money on a mistress) in dividing assets, for the most part, courts do not delve into the rights and wrongs of the parties when it comes to the money. That can be a hard pill to swallow.

So how do you respond to a system that is so limited in its ability to address every aspect of such a truly all-encompassing life change?

First, understand how your state operates before you wed yourself to a position. This will allow you to establish realistic goals thus keeping you from wasting emotional capital on things you cannot change and enabling you to focus more productively on the things you can.

Second, knowing what alternatives there are to leaving these life altering decisions to the happenstance of geography and the mindset of a judge can help you regain some measure of emotional satisfaction and control.  Many states offer some kind Alternative Dispute Resolution (ADR).  This allows the parties to hammer out a resolution with the assistance of third parties trained in this area.  Usually such methods produce a result that is tolerable for both.  While ADR is not appropriate in all circumstances it still can be successful even when there is acrimony between the parties.

Third, you should have, not unlike the judiciary, two goals as well.  Of course you need to do all you can to get a favorable legal resolution, one in which any children you might have suffer the least harm and you leave economically sound.

However, you must also keep in mind your secondary goal: living happily ever after even after this.  Knowing and accepting the limits of the system will help you do this.  Don’t get me wrong; it is clearly a difficult thing to do. But sometimes you have to be able to step away from the emotional fallout of an unfavorable result in order to live well.  My favorite way of looking at such things is this: Your ex may have gotten the first 10 years of my life and the house, the question is are you going to hand them your happiness from today forward as well?