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Divorce in the Time of Corona

SOLO 21 | Divorce

 

There’s emerging evidence, anecdotal and statistical, that the quarantine is – not surprisingly – putting strains on partnerships. In this episode, Peter McGraw talks to a former divorce litigator and now divorce mediator. His guest dishes out some important advice for divorced people, married people contemplating a divorce, and single people who are contemplating marriage. In the bonus material, Peter explains what the divorce rate really means.

Listen to Episode #21 here:

Divorce in the Time of Corona

There’s emerging evidence anecdotally and statistically that the quarantine is, not surprisingly, putting strains on partnerships. I invited a former divorce litigator and now mediator to dish out some advice. In particular, she discusses advice for divorce people, married people contemplating a divorce, and single people contemplating getting married. For example, if you’re solo and thinking of getting married, do not marry someone you don’t want to be quarantined with. In the bonus material, I attempt to explain the divorce rate which is surprisingly complicated and what it means when someone says that 40% of marriages end in divorce. I hope you enjoy the episode. Let’s get started.

Our guest is Jennifer Winestone. She has a JD from the University of Ottawa and a Master’s of Law in Dispute Resolution from Pepperdine. She runs Winestone Mediation which helps families navigate separation, divorce, and child custody. Welcome, Jennifer.

Thank you.

Jennifer, I feel like this topic is so important. The idea of doing a divorce-related episode has been on my radar for a while. I decided to speed this along because of the pandemic. People have been sequestered, quarantine, and sheltered at home for quite a while. In addition to me having two friends who had been informed by their partners that they want a divorce, they’re starting to emerge some evidence. Everybody’s focused on data rather than models that the quarantine might not be good for every relationship.

There’s some evidence out of China that the divorce rate increased post their quarantine and there seems to be a rise in the reporting of domestic abuse that I’ve been hearing grumblings about, which is incredibly concerning. I want to talk about divorce because we have readers who are maybe single for now but eventually want to get married. I have some married readers, I don’t know if their partners know that they’re reading, and I have divorced readers. I think your expertise is relevant to each of those. Before we get into it, let’s talk about your transition from a divorce lawyer to a mediator. That’s something that you’ve just done. Tell people a little bit about you.

I’m still a lawyer. I operate mainly as a mediator or as a consulting attorney in mediations. That’s my bread and butter. I do not litigate anymore. I did the transition from litigation to what we call consensual dispute resolution.

How did you go from being a litigator to a non-litigator?

I’ve always loved mediation. I’ve always been a fan of consensual dispute resolution and alternative forms of dispute resolution. Especially in family law, the courts are an awful place for people to be. Sometimes they’re necessary places for people to be but for the most part, if you can resolve your dispute in another way, it’s going to be better for all parties involved. Nobody wins when they go into court, even the winners.

When you say an awful place to be, do you mean it becomes zero-sum and so on or is it because it’s an awful place to spend a day?

It’s an awful place for families to be in particular because it’s a living beast. You may win a motion, it’s like winning the battle but not the war. There’s no end even if you’re dealing with a case where there are children involved and the kids are 2 and 3 when the case starts, and 4 and 5 when the case ends. That’s if you’re lucky and the case goes through quickly. It’s not over because there are changes in circumstances. You may find yourself back in court for decades until the kid’s age out of the jurisdiction of the court or support ends and there’s no more jurisdiction on all matters. What happens is even when the court no longer has a say over the decisions that are affecting and impacting your life, you still have to live. If there are children involved, you still have to live and be dealing with this other person in all forms for the rest of your life when we’re talking about co-parents. If you can’t get to a place where you can start to make decisions together and change the paradigm of your communications, then you’re stuck in this breakup for the rest of your life.

Please correct me if I’m wrong. I’m going to tell you the limits of my knowledge. I’m a child of divorce. I went through this as a child. I was nine-ish when it all went down. I’m amazed that my parents stayed together that long. It was traumatic and it was ugly. Although I can say, “I’m glad my parents divorced.” They should have divorced but it made for a very difficult childhood for me and it was devastating to both of them. The two of them never quite recovered. My mom never had any real, meaningful, loving relationship with a man after that. My father had one woman involved in his life who I got to meet, but otherwise, it was bad. The kids became pawns and it was nasty. My other experience is I have a very close friend who’s been through divorce and it’s become at times rather adversarial. The last thing is I took a sport in the law class in college. That’s been my exposure to understanding the law. This idea of adversarial view of law or foundation of law seems to make sense for a lot of things but when it comes to divorce, it’s not a great model.

It’s not a great model and it’s something that feeds the worst of circumstances in a negative way. If we have an adversarial model and you take two people from an emotional place and it is a contract.

These are cold business relationships.

As my mom always said, there’s a fine line between love and hate and I think that’s true. You put people in this fine line between love and hate and you stick them into a system that is adversarial in nature. When you serve somebody with your summons and petition for divorce in California, the first line on the summons says, “You have been sued.” People get formally served with this paperwork sometimes before the other person has even told them they’re not happy in the relationship.

That’s brutal and we have to state this and I’m sure it will come up. There’s this idea in economics called the principal-agent problem. Anytime you hire someone to do a job, the worry is that the person cares more about their interests than your interest. It’s a comment whether it be hiring a contractor to fix up your house, a doctor to treat you or whatever it might be. The concern is that because of the nature of the payment, which might either be you get paid by the hour or by a percentage, either of those can create a situation where a lawyer is interested in aggravating the process. It’s drawing it out and so on because of the potential profits for the lawyer. Am I incorrect in that?

That’s a valid concern that has been raised, that most people have, except for the fact with family law, you don’t get paid in terms of a percentage, it’s hourly. There are different structures that people are looking at. I don’t know anyone who’s doing flat fee litigation but it’s hourly. You look at, are the lawyers motivated to do things quickly if they’re getting paid by the hour? The flip side of that is there are responsibilities of the lawyers. It’s not about making the money, it’s also about protecting ourselves from potential malpractice by doing everything and anything that we can, and anything and everything costs a lot of money.

That makes sense. I’m sensitive to the transition you have made. Let’s talk a little bit about that. You were one of those lawyers who had to litigate and had to make sure that everything was covered. How did you get into that? You’re Canadian. You were trained in Canada. Does Canada treat divorces differently than the United States?

Yes. The laws are different but the issues are very much the same. A lot of it is a different means to get to very similar results in most respects. Child custody laws are exactly the same. The division of property is treated differently in Toronto, Canada. We have a system-based on the equalization of net family property. Here, it’s a community property state but if you were to break it down, it’s very similar. It’s just a different formulate approach.

Are Canadians more polite about their divorces than Americans?

Not in terms of the litigants or the disputants, but in terms of the litigators. The Litigation Bar in Canada, I’ve noticed some real differences. Canada is a different piece. When I went to court in Ontario, I wore the full robe and the little tabs on them. The other lawyer, you would shake their hands and call them my friends. You will refer to the judges, “Your Honor.” It has a different decorum than the courts here.

It feels more British in that way.

It’s in between American and British. The first time I left a California courthouse, I walked out backward and bowed. The judge started to look at me like I was crazy.

You were doing this in Canada and then what changed? How did you end up in California running Winestone Mediation?

I like to tell people that I was chasing my Hollywood dream. I was talking to my husband one day and we’re talking about my life’s ambition. I said I wanted to do mediation. He said, “Why don’t you do that?” I said, “I’ll do that but first, I have to practice for another twenty years and maybe become a judge. On my way to retirement, I’ll become a mediator.” That has been the path for a lot of people. He said, “That’s stupid. There’s got to be another way.”

The idea is you cut your teeth. You make your money before you grind yourself into the ground, you downshift into mediating prior to retirement.

It’s a newer meaning. It’s not brand new but it’s newer compared to other forms of dispute resolution. California, in particular, is progressive in terms of the mediation industry. It’s very open to innovation and new generations of mediators. It’s not to say that Canada isn’t. We’re a little bit more reserved in changing things.

That’s when you pivoted and went to Pepperdine?

Yes, I went to Pepperdine. I thought if I’m going to try this thing at a younger age and an earlier point in my career, I need some credentials behind me. Pepperdine has or had the number one rated program in the country and there wasn’t anything equivalent anywhere else. I say that and I will say that I now teach family mediation at USC and they have an excellent program as well.

If I may ask, what does your husband do? Is he not an attorney?

He’s not an attorney. He’s in real estate, but he works with attorneys. He does real estate transactions in divorce cases and estate and trust transactions.

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It sounds like his authentic reaction to the status quo has proved useful for you. As a partner, it helps that he supported you in that transition because he knew that was going to be something that would be good for you.

He’s a little bit crazy, to be honest. We sold our house, we took our two-year-old with us and moved to another country to try it out and see what would happen.

Did the mediating thing lead you to come to California?

I came to California to do the program at Pepperdine.

I thought it had been the other way. You came to California and then you’re like, “Let me go to this program.” I’m sure people are chomping at the bit to find out a little bit more about this. I mentioned these three groups of people who you can help. There’s no pressure, Jennifer. Advice for solos who may get married, married people who may be considering divorce or not, and then divorced people. What I’d like to do is to talk about general advice that you would give to anyone at any time with the usual caveats that this is not paid legal advice, and then any specific advice you would give that’s pandemic-related. Let’s work backward. Let’s start with the people who are currently divorced. What’s the breakdown in California of the percentage of people who do mediation versus the traditional litigation?

I couldn’t tell you a stat.

Is it 50/50? Is it 90/10?

I don’t know if it’s tracked at all. Probably someone’s tracking it somewhere but I couldn’t tell you. I know that mediation is gaining a lot of grounds. The courts have been very supportive of mediation. When you start your case, there’s a little box that you check that says, “I’m considering or I’m going to be mediating the entire case.”

If I remember correctly, Colorado asks or requires you to try to meditate first before you do it. There’s like a step-wise thing. I could be wrong about that.

I don’t know about Colorado. In California, there’s mandatory mediation for custody matters. The first time custody is an issue in your case before you proceed to a hearing, it’s about 1 to 2 hours with a court mediator, and how that is handled in the different venues is a little bit different. In Canada, it was interesting. We do have mandatory mediation in a lot of areas except family law.

Let’s talk about the people who are divorced. I’m not sure this ended up happening in my parents’ case. That was a long time ago. The need for divorced people sometimes has to go back to court to resolve things that are either unspecified or changes in circumstances. My question is, if you’re a divorced person, do you have any general advice? Do you have any pandemic-specific advice?

The general advice is to try to resolve your case before going to court especially now if we’re talking about the pandemic. There are a lot of changes of circumstances we’re going to see. The courts are closed except for matters that are urgent. There are going to be overrun. We can anticipate that the court dockets are going to be overloaded with cases that have been laying in wait and new cases that unfortunately are likely to result from being stuck in the house with your spouse.

Things might have been a little tenuous before.

Anything people can do to try to resolve it themselves either directly. There’s a spectrum of dispute resolution. One end of the spectrum you’re sitting across the kitchen table, you’re writing on a napkin, you’re working it out, you’re figuring out what issues need to be addressed and how you want to resolve those issues. On the other end of the spectrum, you go to court, you go to trial, and the judge makes the decision for you. In the middle, there’s a wide range of options for you. The mediation centers somewhere along the middle, closer to the kitchen table approach, which is a facilitated negotiation. You have someone helping you have those conversations and work it out.

If I understand correctly, there’s a difference between a mediator and an arbitrator. An arbitrator is involved in making a decision but a mediator is about facilitating a decision. Is that the correct way to say that?

In mediation, the parties and the people make the decision. The mediator helps them get there, helps broker the deal. An arbitrator is someone who is a private judge. They make the decision but it’s not in the public realm.

As a mediator, to what degree does hypothetically you or a mediator help? I’m trying to think of someone like a good mediator is helping people get an idea of boundaries or they are maybe being unreasonable. The idea is that you can smooth and be like, “In my experience, you’re being an asshole.” Does a mediator do that?

There are different styles of mediation. Experienced mediators will generally use different styles at different times. A facilitative approach is more of a helper approach and putting all of the autonomy on the parties. As you move across the spectrum then you get to a more directive or evaluative approach where a mediator might say something like, “This is what the law might say on this. This is what might happen if you go to court and knowing that, how do you want to handle it?” When I talked about practicing for another twenty years to becoming a judge and then seeing mediation on my way to retirement, retired judges tend to be more directive and evaluative which makes sense because they have that to offer parties. Whereas non-retired judge mediators tend to be more facilitative and evaluative when needed. There are different types of mediators. There might be mental health professional mediators. A lot of mediators are attorneys. There are financial professionals who will mediate certain aspects of the case. There are all types of professionals depending on their expertise, they may become more evaluative or more directive in certain areas.

How do you find a good mediator? It sounds to me that all things equal, you should try mediation as a first step unless there’s some extraordinary circumstance. How do you go about finding a mediator as a couple?

There are a lot of resources. There are online resources and tools. They are asking for referrals from friends, from other professionals, and people you know who’ve gotten divorced.

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Put it there on Facebook, “I’m getting divorced. I need a good mediator.”

You see a lot of that coming up. I’m on different mom forums on my Facebook groups. I’m getting a lot of information from people saying, “My husband is making me crazy in this quarantine, what do I do?” There are a lot of resources. There are organizations that can help you make your choice. A mediator is like an invited guest to the dinner table. You want to make sure that you like them and you have a rapport with them, especially in family law. You’re putting all of your dirty laundries on the table at a time when you’re very vulnerable. You’re speaking about things that you may not have told anyone in your life. You have to feel comfortable with the person. You want to meet with them and interview them like anyone else that you’re choosing as a professional who’s going to deal with important things in your life. You want to interview them and make sure that their philosophies, their style of mediation is on par with what your expectations are.

I have a previous episode on How To Find A Therapist. I think that some of the advice that was given in that episode is exactly the same advice that you would use to choose a mediator.

What was that? How was that?

A lot of it is the idea that you want to meet with them. You want to see, does their style feel right to you? There’s a prior step to that. In the case of therapists, do they have the right orientation for your particular problem? That may be less so there, but this stylistically it sounds speaking. 

That’s true for mediation as well. I’ve told you that there are different professionals who will mediate. It’s not only attorney mediators, there are issues where if there are complex custody issues, you may prefer a mental health professional to mediate those issues. You go to an attorney mediator or someone else to draft it up. Sometimes these mental health professional mediators will also draft up these elaborate custody plans and those are important.

The first thing I heard you saying for our divorced readers is, in general, but more than ever now because of the pandemic, if you have a custody conflict, there are these things about, “There’s nothing in our contract about vacations. This hasn’t been covered.” There’s a conflict around this or whatever that might be. Maybe someone gets thrown out of work, it might change something like child support or alimony. Are you allowed to call it alimony anymore? I’m not sure.

Spousal support alimony.

It sounds less of a dirty word than alimony. Your first piece of advice is to try to work it out because it’s not going to get worked out fast anyways and it’s going to be costly to get it to work.

There aren’t a lot of options available to people and everyone is in crisis, including the mediators and lawyers. We’re all living through this crisis and the issues are novel. If you go to a lawyer and you say, “My ex is working in the hospitals and he gets the kids on the weekends. My 75-year-old father is now living with us, what would a judge do?” I don’t know that the lawyers will be able to tell you, not that they ever could tell you definitively, but we’re living in novel times. We don’t know how the courts are going to deal with all of these issues ultimately. When I talked about a facilitative approach, you are in a time and issues that you and your partner are going to be best suited to make these decisions together. No one else is going to be able to tell you what’s right. People all over the world are taking the guidelines and doing different things with them. There’s a huge range.

It has to be so difficult even if you’re not married anymore. I have friends who are divorced and I know divorced people and it’s the full range of relationships with their exes. They’re friends with their ex. They have to meet in a church parking lot, the kid walks from one car to the other car, and there’s some supervisor of some sort there. It’s got to be awful. The advice is if you can work it out, you’re the best people to work it out, but what if you can’t? What if you are in that situation that is ugly? Is there some stop-gap measure? Is there someone you could turn to? If I was in that situation, could I call you, assuming my imaginary ex because I’ve never been divorced, was on board with that to work this out via Zoom? Are you doing Zoom?

Yes, everything is via online video conferencing or conference calls. This is one of the only options that’s available to help people resolve their disputes. Ultimately, the people are still in charge of the decisions but mediators are trained and skilled at helping people get there.

Do you think that this is going to cause a bit more of a surge in the use of mediators? They shut down the courts and it sounds like you guys are the only viable option for the people who can’t work it out themselves.

This is going to make mediation more of a necessity than it’s been viewed in the past. There are private judges available. The courts are still available in emergency circumstances. They will reopen again. Some of the courtrooms are moving to remote platforms as well. Everything is changing and it’s changing every day. It’s not that people are without access to justice. Not at all.

Is this slower justice than normal?

It’s a slower justice and it’s still as expensive as it was at a time when the economy has been greatly impacted already from all of this. That’s a big factor as well.

It has to be. What little I know about divorce, it seems to be the case that financial problems are a major cause for divorce and if you have fewer resources. It’s an interesting paradox. People are predicting the divorce rate is going to increase as a result of this for the reasons that are obvious. The other one is, not with a financial crisis necessarily. Can people afford to get divorced? Divorce can be a great destroyer of wealth. If you’ve lost a bunch of wealth because of the stock market and job prospects, that may keep people together in a way that might be unhealthy too.

With child support and spousal support, these are huge not just for people who are getting divorced or want to get divorced. They are also for people who are already divorced where there are support orders or agreements in place. There are changes in circumstances daily and they’re significant. People’s incomes are being cut entirely or cut in half. That necessitates immediate relief on their obligations sometimes. I say the courts are going to be overloaded. Everyone is coming back.

Anything else that comes to mind in terms of people who are divorced and in this circumstance?

The most important thing is for people to be interest-based in their approach. Everyone is on high alert and anxious about everything. It’s hard to communicate when you’re communicating from a position of crisis. If you can take a few deep breaths and communicate what your interests are, what’s behind the requests you’re making, it’s going to be received in a better way than demands.

One of the things that comes up a lot is how you go about communicating that is the medium. You have texts, calls, email, and face-to-face. You have Zoom suddenly. This is becoming a more normative thing to do. I can see the pros and cons of writing something out to get the precision but then you lack the emotion. Sometimes that can be good but sometimes that can be bad. Do you have any instincts about when you’re communicating those needs, the right way to go about doing it?

It depends on the dynamic between the people and their sophistication when it comes to writing things out or talking things through. There are a lot of good resources for people like online and messaging tools for divorced people for co-parents. Some of them even have these little tone meters that’s helpful when they’re getting too crazy. Maybe they may want to revise it. I always refer people to this book called BIFF and it’s written by Bill Eddy who is the Founder of the High Conflict Institute and he has some great resources. BIFF is his approach to responding to hostile communication and it has to be Brief, Informative, Friendly and Firm. There are 5 or 6 other things that we’ll learn from reading about BIFF responses. I find it useful as a resource for clients who are dealing with someone who’s more high conflict on the other side in terms of personality or circumstance. You help them to respond and to deescalate that conflict.

I have a particular bias against the text. I say you should use texts for making plans and flirting. When you’re divorced, it’s for making plans. We’ve been dancing around advice and thinking about the needs of married people who might be in crisis. It’s such a huge decision to make especially when there are children involved. It can’t be something that’s made lightly in the same way that getting married shouldn’t be a decision that’s made lightly for this very reason. What are some of the things in general or specific to the pandemic that comes to mind for these people who are very likely spending even more time together than they would otherwise?

It’s safety first. There are a lot of resources available to people. I don’t know if domestic violence incidences are increasing but I imagine that they are because it’s a time of such high stress.

If you’re in the same place as the person more often, the likelihood of things going sideways goes up for that even without all the other emotional challenges that are being presented with.

There’s less support available. People aren’t out on the street. People aren’t around as much and available to you physically. It’s safety first. People need to get out of an unsafe situation and there are resources that continue to be made available to help them with that. If they’re in a situation where they’ve been thinking about divorce for some time and as quarantine is throwing them over the edge and they’re saying, “I can’t spend another day with this person.” I would caution them against telling them necessarily unless they think that it will help to deescalate the issue. Sometimes it is or it’s cathartic for both parties and they’re on the same page.

If you think that telling your spouse that you want a divorce in the middle of quarantine where there’s no end in sight is going to make things more difficult than it might be, better to keep it to yourself and get your ducks in a row. It’s a great opportunity to figure out your finances, how things are structured, what your expenses are, what the other person’s income is. You can do some research and homework. Everything’s housed somewhere in your vicinity, hopefully. You can start to research the different dispute resolution methods and processes that are available to you and how it all works so that when you are ready to make that decision and tell the other person, you’re more prepared to do so.

I have zero training and experience in this. I’ll tell you an anecdote and you can give me a grade on the quality of my advice. I had someone who called me one day and said that she has made the decision that she was going to divorce her spouse. I wasn’t surprised by that. I knew enough about their relationship, their ups, and downs, there were some children involved and I said, “Okay.” I didn’t congratulate her or anything like that. I didn’t try to talk her out of it. I said, “How are you going to do this?” She said, “I’m going to tell him.” I said, “Does he have any idea?” She says, “I don’t think so. I’ve just decided this.” I said, “You cannot walk into the living room and drop this bomb on this guy. You’re unprepared for it. He’s unprepared for it. You’re risking setting up a situation where you have a man who I assume doesn’t want it to happen. You’re setting up a situation where he’s going to fight you all the way through this. He’s going to be hurt. He’s going to feel betrayed. He’s going to X, Y, and Z.”

To her credit, she said, “What should I do?” I was spitballing at that point. I said, “You need to see a therapist. Make an appointment with someone that you can connect with and feel comfortable with. You need to talk to a financial person or some financial planner. Ideally, fee-based.” I have an episode about fee-based financial planners and how much I love them. “You should be talking to a lawyer or some other expert in the field to figure out the state that you live in. What are the norms? What are the practices? What is it going to look like? After you do that, then have a conversation with him in which you say, “This is not working. It’s not working for me. I’m not happy. I know you’re not happy. We need to explore a separation,” or this kind of stuff. Offer him some joint counseling with a different therapist to work through the problems that were leading to this divorce, not just to help them manage a divorce. To her credit and his credit, they did those things. If I can recall correctly, they ended up doing mediation as a result of it. Both generally behaving like holding themselves to high standards. It was difficult but making it a good process. Do I get a B+ or what? 

You got an A+. That was great advice.

What did I miss? When my friends tell me they’re getting divorced, I tell them to change their passwords. That’s my first advice now. Is that terrible?

That’s always a good idea especially if they’re going to be communicating with lawyers.

I say it in a joking way but I’m absolutely serious, “Change your password.”

Make sure they have finances available in their name. There are a bunch of things that they can do to be protective of themselves. What I hear from the advice that you told your friends is how you start matters, how you do this. Before you do it, think about it a little bit because how you do it matters and it will impact not just the tone of the start or the course of the thing, it will impact the ultimate result of how people start.

Getting served with, “You are being sued,” is not the way this should start.

That’s the standard form.

I understand. What I’m saying is if you start with, “I am struggling and I know you are too,” has a way different feel than “Joe, this isn’t working. I want a divorce.” Is there anything you would add to either my reaction to that situation or in general?

I don’t think there’s anything to add. The only thing is when this person is speaking with her therapist, you talk about and get some guidance on a script and timing in terms of how she’s going to relay this information to her spouse. When they’re working together with the mental health professional, talk about a script and timing in terms of how they’re going to relay this information to the children.

I was about to ask that. The classic thing is you tell the children. My parents said this to us, “This isn’t your fault. This doesn’t have anything to do with you. It’s mommy and daddy thing.” There’s got to be something else than that for kids.

You give them the information that they can handle based on their age and stage of development. The most important piece of it is to practice it together beforehand. If you’re in a lucky enough situation where you can have the conversation together with your children, the mental health professionals say that you’re so far ahead by doing it together and by being able to do that. Practice how you’re going to respond to the various questions. Most people, the more prepared they are, they’re almost underwhelmed by the children’s responses. Sometimes they expected more questions or they expected it to go worse than it ultimately does because they’re prepared.

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I’ve never heard that advice about practicing those conversations together but that makes sense. I do believe that you can be united in your pursuit of separation. It’s disappointing that you made public vows and there are these contractual issues. It can be embarrassing but if you think of it like, “We were in this together. Our circumstances have changed. We can stay together and help each other out of it.” It seems to me that when it comes to splitting resources, that causes hurt feelings, problems, and fights. The other one is I have to imagine when one person wants it and the other person doesn’t.

That can be very difficult. It becomes about pace and readiness. A mediation process or a collaborative process is more attuned to dealing with those types of dynamics than an adversarial process because you’re separating together. You’re doing the thing together just like you got into the relationship together. You’re going to get out of it together, which is more natural and dignified in most cases than going from a married partnership to adversaries, enemies.

I have divorced readers and I’m happy that they’re embracing their remarkable lives. I have the saying for Solo which is, “To be single for now or forever.” You don’t have to be a lifelong single person and know that you never want to get married. To be a reader, I have people who someday they want to be married or they’re open to it if the right person comes along. They don’t want to treat their single years as the way society often treats them as an in-between transitional state where you’re less than. I have solo readers who have that open mind. They may even have marriage as a goal in some way. What’s good to know before you get married based upon your experience?

I have a colleague who always puts it this way. Everyone has a prenup. You either go and get a prenup that sets out your specific intentions or you’re stuck with the statute.

The estate’s prenup. I like that, everybody has a prenup whether it’s yours or the estates.

The other thing that I often tell people is all marriages end. They end in either death or divorce. It’s important when you’re entering into this contract, you know what the legal impact is in the event when the marriage ends, in either death or divorce. Talk to an estate lawyer and talk to a family lawyer and get a little bit of advice about what it is that you’re entering into. Decide if there are any steps that you feel would be necessary to take so that you live the life you want to live and your intentions are set out as you go on this journey.

This is the thing I would do if I ever got married which I don’t think is going to happen. I’m like, “We need to talk to an estate lawyer and we need to talk to a family lawyer.” Any woman who would be crazy enough to want to marry me would be like, “We’ll do that.” I like this idea of like, “If you’re going to be perfectly satisfied with the estate’s prenups agreement then that’s fine, but maybe you aren’t comfortable with that for some reason or another.” That seems to be a sensitive conversation to have especially if one person wants to have it and the other one doesn’t want to have it.

It’s not hugely romantic but it is loving because it’s a loving act to think about the future and be able to communicate what your interests, wishes, and desires are for the relationship.

It’s perverse the amount of time, money, energy and efforts that are put into a wedding, and how little time, money, energy and effort is put into planning a marriage.

I agree and litigated divorce will be likely more expensive than that big and extravagant wedding.

This is general advice. This is not pandemic-related advice. I can’t wait to hear your pandemic-related advice. The idea is I have to imagine that going to your would-be life partner and saying, “I’m 100% in. I want to marry you. You’re great and wonderful. I love you. I want to get hitched but I want to do this right. I want us to do these other things.” I can imagine that if your partner is on the same page, goes through with it, and sees these people, you’re better off as a result. It’s a leading indicator that you might not ever need them. You’ll need one or the other is your point, but you see what I mean. If that process in and of itself causes conflict, strife, a challenge, it might be something to pay attention to.

Just like with divorce, how you start matters when you’re talking about engaging in these kinds of discussions. I’ll see people often come to me and say, “We’re considering a prenuptial agreement. We’re not sure how to go about it or my family has money and his family or her family doesn’t. My parents or my in-laws want this document to be prepared.” The traditional approach used to be that the person who had assets that they wanted to protect would go to their lawyer, prepare what it is that they want and then they come and say, “Sign here, dear.” That approach is starting to change with these consensual dispute resolution processes where people will enter into collaborative approaches. They go to a mediator or go to collaborative attorneys and have that initial meeting together where they both have representation and talk about the high-level points of what their intentions are. Once an agreement is working out and they get it, then they get it all drafted, prepared, sign it and away they go.

I like the saying of how you start matters. I like to say that beginnings matter in general. I always try to keep that in mind. What about anything pandemic-related? I know some people are planning weddings that are being postponed. Even if you’re thinking about marrying someone, is there anything about the pandemic that should be changing the way a person is thinking and behaving?

Don’t marry someone that you wouldn’t want to be quarantined with and you couldn’t see being stuck in a room with for three months. That’s a lesson that we’re all gleaning from all of this. Marriage is hard. It’s not easy. Relationships are hard. They’re hard when people have to be apart because of things like quarantines and they’re hard when people have to be together, to have and to hold, in sickness and in health, 24 hours a day.

I don’t know where I picked this up from where someone was like, “This is not in my vows. This isn’t covered by the vows. I didn’t sign up for this.” It’s very interesting in that way. That’s solid advice. If you’re struggling with this quarantine in your relationships, it should give you pause. I’m looking forward to the surge in readership as a result of the quarantine because there are going to be a lot of single people happening after this.

The single hopefuls, people who are dreaming.

This has been fantastic. When you think about marriages and divorce, you think about a man and a woman that’s percentage-wise, the highest percentage. Now, gay couples in many places have access to marriage. It’s interesting the fight for marriage rights for gay and lesbians because of all the spousal benefits that come with marriage. It has this special place in society, whether it be a wealth transfer from the estates, medical decision-making and so on. There are gay and lesbians who are married. Is there anything special that comes up in your experience when the partners are the same sex or no? Is it still being the same?

The issues are still the same. The laws are the same. Every relationship is different. People and families are unique. I haven’t noticed anything specific in terms of advice that I would give.

I didn’t think so either, but I wanted to ask just in case. The reason is there are these stereotypical ideas that you have about divorce and men and women that come from this. It’s my understanding that women initiate divorce more often than men.

I believe that that is still the statistic but I don’t know that that’s what I’ve seen in my practice necessarily.

Everyone in LA seems to have a therapist. There's no stigma attached because it's so common. Click To Tweet

Given how progressive your practice is, you get a different slice of the population.

It’s possible that people are prone to mediation and more amicable to dispute resolution or maybe they don’t find their way in the stats.

What am I missing? I always do this, especially this is clearly outside my experience beyond the ways that I talked about at the outset of this. I’m sure I’m going to return to this topic again because there’s so much to talk about. We’re glossing over lots of things. Is there anything that comes to mind that you think is important for any of those three groups? People considering solos, married people, divorced people who are still having to interact?

One of the things I tend to tell people that is important is the inclusion of some mental health support in the divorce process. That’s because we’re best able to make decisions about process, resolution, what we want to do the next day, how we want to get up and move forward with our lives, when we are thinking logically and when we are feeling strong and supported. One of the reasons that divorce law can be so nasty, brutal, expensive, and life draining for people, it has such a negative and lasting impact in their lives is because at the outset, they didn’t have the right supports in place to help them along the way. You can’t make logical and reasonable decisions when you are in crisis and in the worst place you are in your life. You’re not your best self. That’s important. Before going too far down that road, making sure you have proper supports in place, positive advocates, positive people who are there to support you and help you as opposed to sometimes well-meaning friends and families who are there to support you but are not necessarily positive influences in terms of your goals.

I have this concept of a team for a single person. A therapist is oftentimes critical but I don’t think everybody needs a therapist in the same way that not everybody needs to go to the doctor. In general, it’s good to have one on hand especially to be able to make that call when things go sideways. When you’re married, it’s important to have mental health support. Having that mental health support may help you avoid a divorce. A good therapist is going to not only provide an outlet but it’s also going to help you develop skills, help with communication, help with your coping mechanism, helping reset your expectations and so on. That’s outstanding advice.

That’s one thing I love about LA. I have no idea if there are any stats on this or if this is even a true statement but in my experience or my opinion, everyone in LA seems to have a therapist. There’s no stigma attached. It’s so common. It’s seen as so necessary. I come from Toronto and I feel like nobody had one.

LA has acupuncture for your dog, so if that’s acceptable then having a therapist would be. I think it’s healthy. It’s why I talk about having a therapist as a man especially. As an older man, it’s important for younger men to hear that I have a therapist. I’m not embarrassed about it. It’s provided me great value in my life in terms of improving my happiness and relationships.

When I was at Pepperdine, I mentioned Bill Eddy. He was my professor in the class that was called The Psychology of Conflict. I was completely flabbergasted that this wasn’t a required course. I was almost ten years from finishing law school the first time around when I did my Master’s and I took The Psychology of Conflict. I feel like, “Isn’t that required when we’re dealing with people in conflict?” I took more away from that than I did in a decade of my legal career. It was so insightful.

I have one last question then I promise to let you go. There are two different types of couples. There are couples who become very insulated. We’ve all had a good friend who they meet someone and then they disappear into that relationship. Sometimes you never get them back. They’re gone and changed forever. Sometimes, a breakup or a divorce happens and then they’re back. You’re their first call. When I was a younger man, I would resent that. I would grieve and lose someone very close to me. I never wanted to hold it against them. I wasn’t going to punish them when they made that call reaching back out because I care about them. Nothing material had changed in terms of my affection for them.

The other type of couple is bonded. I like to call it a solo mentality where they still remain connected beyond their relationship. Those people do better when it comes to divorce because they already have people that they can rely on. They can transition it back into single life in a way that is less bumpy. For those people who disappeared who went into this insulated partnership, in your experience, do you have any advice for how they should go about negotiating, re-entering friendships and even family connections in light of a divorce?

 

I’ve never thought about it quite that way, but it would go back to seeking support. When people are getting divorced, they’re negotiating for their new identity. It’s so tied to who people are in relationships. It’s important to find those supports. It’s important to dispel any taboos with respect to divorce and not to feel that isolation that will often feel especially if they’re the ones who aren’t the divorce seekers. They were blind-sighted, they may be embarrassed by it, they may not want to seek out friendships and support right away. It’s important to do that because otherwise, they may be negotiating from a weaker position in terms of their negotiating power because they’re feeling so down and out. That’s one of the reasons they need to feel strong and be ready to engage in these important financial and personal decisions that are going to impact the rest of their life.

That’s great advice. I would say this, you’re likely losing a support system if you don’t have one to replace it. One of the best places to replace it is with the people you were close to beforehand. If those people truly are good family members and good friends, they are going to welcome you back with open arms. Jennifer, these people need me because the dating world has changed since they got married. They need someone who’s going to be like, “I’ve got to walk you through it.” There’s this thing called ghosting for example. You’re going to get used to it because it didn’t exist before you got married.

That happens in marriages too, believe it or not.

Jennifer, you’re great. For the readers, they don’t know that we had a couple of failed attempts. I appreciate your patience and your stick-to-itiveness for this. Because the advice that you give and your experience is useful for people given the gravity of these kinds of decisions, given how emotionally challenging relationships are, breakups are, and divorces are. I also think it’s helpful for people to know that there are good alternatives to the traditional litigation route. I say this tongue-in-cheek, but I hope you get lots and lots of clients because of this episode.

Thanks so much for having me. This was a lot of fun.

Welcome back for some bonus material about the divorce rate. What exactly does the divorce rate mean? People talk about 40% of marriages or 50% of marriages end in divorce. I’ve always puzzled over that. It never seems to gel with my experience with married couples. I don’t have a representative experience but nonetheless, it never seemed to right. It’s complicated. The divorce rate is determined by comparing the number of marriages in a year to the number of divorces. That number was 6.8% marriages per 1,000 people in the United States and 3.2% divorces per 1,000 people. You can see how that number starts to get you closer to 50%. That should sound a little strange to you. Those are not apples to apple comparison. We’re not comparing the people who are married to the people who are getting divorced. Moreover, those numbers are imprecisely reported across States. States are the arbiters of divorce. In that way, there is some imprecision with that number, to begin with.

One interesting thing is that those numbers both have been decreasing for the last many years. Both the rate of divorce and the rate of marriage per 1,000 people have been going down. The much better number, the one that you would want to know if you were getting married is, what is the probability that my marriage will end in divorce? To get that number, you have to look at the data longitudinally of which the data aren’t as good and well-reported. There are some issues with that. For example, that probability changes over time. You can do this thought experiment. The probability that someone gets divorced the day after their marriage is quite low. There’s some non-linearity there in which the probability of divorce starts to accelerate and then at some point starts to decelerate.

That is 75-year-old couples don’t tend to get divorced. They’d been together for so long. That number is even more complicated because not everybody has the same probability. For example, highly educated and highly wealthy people are less likely to have divorces. There’s less stress in those marriages. What is that probability? That’s difficult to say. My research suggests that it’s as low as 25%, but not higher than 45%. We could split the difference and say around 35%. I wouldn’t want you to hold me to that number, but let’s say that number is lower than the divorce rate that’s typically cited in the media or around the dinner table at a dinner party. It has been a little bit of fascinating research on my side.

I certainly will say this, even with that lower probability, it still seems rather high given the cost of divorce when you think about the emotional, psychological and financial costs of divorce. The fact that 1 out of 3 marriages may end up in a divorce state is something that can’t be ignored. Thanks for reading this long. This was a super fascinating conversation with Jennifer Winestone. I don’t think that you have to been married, be married or even contemplate being married to find it fascinating. As someone who’s not interested in getting married, it has reinforced somehow by beliefs. Please keep telling your friends, family, and colleagues about the show. It’s continuing to grow mostly through word of mouth. Thanks again for reading this blog. Take care. Cheers.

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