Written by Chicago-based Litigator, Brendan J. Hammer, Esq.
We don’t come to anything as a blank canvas when we’re adults. We have complicated backgrounds, genetic predispositions, specific experiences, and unique psychological baggage that has been shaped over time. Because of this unavoidable reality, our ability to have an easy divorce experience is necessarily limited. In other words, we all have "our stuff" that will inevitably cause us to get in our own way when we divorce (just as it does with our diet, exercise and finances).
Moreover, our ability to fashion a more ideal divorce is shaped by other things beyond our control: the law, our money, and of course, our spouse (and their own background, experiences and dispositions).
From that starting point, it’s common to struggle as we begin going down the road of divorce. We don't usually know exactly what we want, but I think we can all agree we don't want to recreate Marriage Story.
Typically, we need assistance, so we look to lawyers who know this type of work inside and out. We often go to them bitter, confused, and angry. Maybe we’re even ashamed, guilty, and afraid. We hope these lawyers will help us. We've heard and seen so many bad divorce stories from friends and family. We've watched, listened to, or read so much in our culture that depicts a harsh and combative struggle as inevitable. If we have children, we worry about them most of all. We wonder how much it all will cost and when it will all be over.
When it comes to divorce, we can be our own worst enemy.
Unfortunately, there is a big problem. The problem is us. The same reasons why we don't stick to diets, get sucked into social media, spend too much money on Amazon, procrastinate at work, drink too much on the weekends, and fail to save enough money--our ingrained ways of habitually thinking, acting, responding, resolving, and speaking--provide the primary roadblock to a more positive resolution.
Coming to terms with the idea that you yourself are part of the problem can be a tough pill to swallow, especially for someone who has just been told their marriage is over or learned of a great betrayal. How can the victim be to blame? How is that fair or just? But the buck really does stop (for the most part) with you. Just as your spouse's buck stops with them. The inability to grapple with that tough but true fact will render any divorce process even more difficult, painful, costly and damaging. No one else can heal what hurts in divorce other than you. And to do that requires accepting that you had a role in everything that happened. That is not ascribing blame, it is accepting accountability.
Your divorce lawyer is not your therapist.
Another problem is that, against that background, most divorce lawyers (myself included) are either not able or equipped to deal with the primary emotional and psychological issues operating in a divorce. These include that suite of complex issues, grievances and betrayals that brings the couple to the point of rupture in their relationship. Many of us, divorce lawyers, manage to make our way through these issues for clients in an arm-chair psychology sort of fashion. But we are trained in the law, not clinical therapy. Our own professional biases, norms, and dispositions get in our way too. Don't count on us lawyers ever getting past that.
Moreover, the "law" itself is wholly unequipped (and mostly unwilling) to address those sorts of issues. In the American legal system, the default model for divorce cases is necessarily adversarial in its structure. There is a Petitioner and Respondent (or Plaintiff and Defendant). In a traditional divorce, each spouse works with a lawyer of their own to advance or defend claims or make or defeat arguments to obtain a particular financial and /or child-related result. The Court then makes decisions (to the extent the spouses don't do so for themselves) using a statute or code that instructs it on what to do and how. This entire drama all plays out like a well-scripted piece of Kabuki Theatre that is sensible to us as attorneys, but operates in ways most clients do not understand and cannot easily accept.
In the end, judges in divorce do not exist to conduct a historical audit of the ebbs and flows of a marriage. They do not make definitive calls on the morals or ethics of a given disagreement. They do not reward or sanction any party for non-financial or non-child-related slights, abuses, or misdeeds. There is no real or tangible premium for good behavior and no real or meaningful sanction for poor behavior during the marriage. Even where "fault" is considered. A judge in divorce is not like a judge in the Academy of Motion Picture Arts and Sciences. They do not bestow a prize for the “Best Spouse in a Supporting Role.”
This is all to say that your lawyer, in this particular system, is not and can never be your knight in shining armor striding into court to obtain either absolution, vindication, or justice. We, divorce lawyers, really only obtain awards or allocations of property, debt, child support, alimony/maintenance, custody and visitation rights regarding children (and sometimes pets too). End of story.
This is probably all sounding a bit demoralizing. What is one to do? It all seems pretty unjust. Sterile. Clinical. Formulaic. Expensive in time and cost.
Handle your emotions before diving into divorce.
It is at this point that some divorce professionals will trumpet a particular process, whether that be mediation, collaborative law, or other forms of alternative dispute resolution. These truly well-intended people believe that a non-adversarial divorce process will be better, cheaper, more peaceful. They will explain the ways in which the process can be more gentle, private, and provide professional support for the psychological and emotional components involved. In many, if not most instances, these processes can be and often are significantly better than litigation in a variety of ways. But there are unique shortcomings with these processes as well, and there are certain circumstances and cases that are not served well by these processes.
In order to yield a less damaging divorce, all divorce processes, even non-litigation processes, must grapple with the actual terrain of what is primarily at work in divorce. At its core, this comes down to the emotional and psychological material of two people over an extended period of time. Grudges about the past. Fears about the future. In the end, no matter how skilled the lawyers and professionals are, in any process, a good divorce first and foremost requires excruciating and hard work from the spouses involved.
You cannot find a “good divorce” solely through litigators or mediators. You cannot find it only in fast-take listicles you see on social media, articles online or in self-help books. You cannot find it in just giving up and rolling over in order to get it over with and you cannot find it in fighting like hell for what you think is right. You will not find it in anything other than taking total, complete, and radical ownership of the situation. And that’s something only you can do. You don't start on a blank canvas, but you have the tools (or can acquire them) to make the process better.
Take ownership of your situation.
Make no mistake, the work that is required in this regard is not insignificant. And the work will be unique for each person and in each circumstance. There are no silver bullets or magic cures. Being informed about the law and your rights is necessary but not sufficient. Choosing a mechanism for the process that works for where you are is similarly necessary but not nearly enough on its own. Therapists can be invaluable, but you have to do the work by yourself once you leave the chair. Meditation, yoga, and other forms of self-care are vital for gaining insight and calm, but they are not going to be enough by themselves.
In the end, a divorce process should be as self-directed as possible. What I mean by this is that, whether you proceed with an attorney, through a mediator, or via an online divorce platform, your divorce should be primarily driven by you and your spouse so that it is consistent with your values, goals and interests. In order for the peace you achieve to be a lasting peace, it cannot be imposed vertically from above or laterally through professionals.
The 6 commitments you should make for an easier divorce:
If there are any general features for how such a process would work, they would be:
(1) A commitment to remain dedicated to a divorce process that does not ascribe blame, shame, or guilt, but that nonetheless permits for the full, frank, and respectful expression of those things in the marriage that caused you to feel shame, guilt, and blame.
(2) A commitment to work constructively toward fashioning a future relationship that is respectful, compassionate, and positive. If such a future relationship isn’t possible, efforts should be made to minimize as much damage and discord as you can.
(3) A commitment to take serious, deep, and transparent personal responsibility for your role in everything that occurred in your marriage and to follow what flows from that with honesty and acceptance.
(4) A commitment to personally lead your divorce process along a timeline and in a manner that works with your professional commitments, and within the ethical and spiritual frameworks of both you and your spouse.
(5) A commitment to make the process as simple, easy, and transparent as possible for both parties.
(6) A commitment to make any children of the marriage the primary consideration at all times and to monitor yourself for when your own fears, desires, or goals are interfering with this commitment
In general, the principles of self-ownership, self-direction, transparency, openness, and harm mitigation should be preeminent. These are basic items. It all seems simple enough, but it is unbelievably difficult to do. But bear in mind, while divorce marks the end of a marriage, it is not the end of a family. You have the power to control where divorce takes you and your family.
How It’s Over Easy is changing the divorce game.
One of the truly visionary and exciting things about It’s Over Easy is that it provides a wide range of tools and resources for people to utilize on their own terms and timeframes. While the actual divorce process has been stagnant for many years, if not decades, It’s Over Easy permits people to harness technology, leverage connectivity, and have an accessibility to information so that they can truly fashion a divorce for themselves that is practical, workable, simple, and user-friendly. It’s Over Easy is the first step toward making the “good divorce” a more widely available and attainable goal, rather than just an aspiration.
It’s Over Easy provides people with information, support, and the means to directly implement the lessons learned from that information. Platforms like It’s Over Easy will fundamentally alter the landscape of divorce in a way that is positive and affirming precisely because its format is consistent with, and contains features of, the elements I addressed above. I believe that the impact of It’s Over Easy will radiate beyond the online sphere, and breach the entirety of the divorce industry. We have had a horse-and-buggy mindset when it comes to divorce for too long. It is time we embrace where we are now in the modern age, and think expansively about where we can help our profession and our clients go.
In a shifting social landscape where people work remotely, often have side hustles or other jobs, and are more mobile than ever, we should be championing and encouraging any mechanism, resource, or process that is oriented toward empowering people and working with them in their daily lives.
It is finally time to demystify divorce. Let’s bring divorce to the people through education, information, support, and the tools to help them take responsibility and ownership of their own process. That sense of satisfaction we get from baking our own cake, painting our own wall, or doing something for ourselves extends to almost all other arenas of life. We are truly purpose-driven people. Let us commit now to helping more people take the reins in their own divorces, whether that form means DIY divorce or a more client-driven process that treats divorce as the transition it is instead of the horror it’s been made out to be.
We divorce lawyers can truly be “counselors at law” when we help people see the light. Divorce will always be tough, but we can make it better.
Brendan Hammer is an experienced courtroom litigator who represents a variety of individuals from executives and entrepreneurs, to medical/legal/creative professionals, to political figures, professional athletes and their spouses. He concentrates his practice on the litigation and negotiation of complex family law matters. Brendan is certified in divorce mediation through Northwestern University and is on the Faculty of the National Family Law Trial Institute. He serves on the Advisory Council of the David Lynch Foundation (Chicago) and the Advisory Board of Family Law Center of the DePaul University College of Law.