If your spouse is a louse
I’ll get you the house.
That Dr. Seuss-like saying was the on the business card of a litigator I met at my first training on collaborative law. While his card was memorable (that was over 16 years ago), alas, his name was not. (I just googled the saying to see if I could find his name and came up with a lot of information about head lice. Hah.)
That little diddy is funny, but it brings up a question that comes up a lot – what IS the role of fault in divorce? Just the other day, a student spoke to me about a friend who was considering divorce. She asked if her friend gets to stay in the house when the friend’s husband cheated on her. As another client once put it, “I didn’t do anything wrong so why should I have to move?”
But the answer is that almost always, at least in New York, fault doesn’t matter. I hate to be the bearer of bad news. Sometimes I feel like a real meanie when I’m explaining this to clients. Like I’ve just given someone a terrible diagnosis. (I’m currently binge watching New Amsterdam so that’s where my mind went…). You can see their whole facial expression change – this was totally different from what they were expecting.
I get it. It does seem really unfair. And law is supposed to be about justice, right? Why should the person who is not at fault have to change their whole live around? Why should there be this huge upheaval?
I’m not sure how to answer that question, except to say that there’s real life and then there is that alternate reality called “the law.” Perhaps because there’s rarely just one person who is at fault in any divorce. Perhaps because family dynamics are really, really complicated. Perhaps because it would just be too hard for a judge to figure out. Maybe it’s because marriage is thought of as a partnership, and when any partnership breaks up, it creates a huge upheaval – wanted or not.
Sometimes in mediation or collaborative, one spouse feels guilty (for that affair, for instance) and wants to give more to the spouse they are leaving. Or sometimes it comes out of a sense of fairness, not out of a sense of guilt.
Sometimes life just isn’t fair. But for couples who are lucky enough to be able to work together, it can be a little fairer.