Sorting through divorce

If you have not personally suffered through the experience this winter, you undoubtedly know one or two people who have. It is almost as common as a cold, and maybe just as contagious. Science has not yet determined whether it is caused by a virus or bacteria. If you catch it, it will take years to recover. What am I talking about? Divorce.

I think many of us moved to our little Shangri-La in northwest Wyoming believing that we automatically acquire antibodies here to fight off the usual aches and pains of the human condition. Once here, we discover that life in the Hole has its own agenda, not precisely as we envisioned it. The divorce rate in Teton County was actually higher than the national average in 1997, the last year from which statistics were available.

Like many things in this world, divorce law has undergone significant changes since my lawyering days began. In 1969 — the year I graduated from law school — if you wanted a divorce it was necessary to show your spouse was at “fault” for virtually all the problems in the universe. You needed to prove what we in the lawyer trade call “grounds” for divorce, such as mental cruelty, physical cruelty, abandonment, adultery, too much Monday Night Football, and the like.

The concept of “no-fault” divorce was just beginning to emerge in that era, pioneered of course, by all those California weirdos. Wyoming is now a “no-fault” divorce state, which means that it is no longer necessary to proved that your spouse is at fault for ruining your life. Now we talk about “irreconcilable differences.” When we file for a divorce these days, instead of making unkind remarks about your most beloved, we simply state that irreconcilable differences exist in the marriage. Some call it progress.

When we say in the divorce papers that irreconcilable differences exist in your marriage, the judge automatically knows that you will go stark raving mad if you have to spend one more second taking care of that person you used to be crazy about, but who now drives you crazy. If, for example, you are a woman filing for divorce and your lawyer states that irreconcilable differences exist in your marriage, the judge automatically assumes that your husband: has not cooked a meal for the family in the last 40 months; is still wondering where you finally decided to put the washer/dryer; will not get off the couch to take the garbage to the can, even during commercials, and has gotten no exercise in the last year except for wrestling with the children for the remote control. (Don’t worry men, I promise we’ll get equal time in a bit.)

So, you cannot tolerate one millisecond more with that stranger who shares your bed. What next? Swallow hard, screw up your courage, select your very own personal lawyer as carefully as you can, and then take a deep breath. You have entered the land of divorce.

The length of time it takes for a divorce, and the cost involved, typically depend on the complexity of the issues. The simplest case, for example, involves a marriage of a couple of days, no children, and no assets. But who among us is that lucky? Most marital circumstances are far more complicated, involving either difficult children issues, property and debt issues, or both. You can generally count on the process taking about a year from the time you hire your lawyer to the day the judge grants the divorce.

If you have children and each parent wants the children to live with him or her, the judge will typically appoint a “guardian” for the kids. In Teton County the guardian will be a lawyer experienced in divorce and custody matters, and who acts as an advocate for the children. The guardian will meet with each parent separately, interview friends, neighbors, teachers, clergy, and anyone else who may have something important to say about the parenting of one or both spouses. The guardian will communicate with the lawyers and act as a sort of international clearing house on the custody issue. The guardian will typically formulate an opinion on custody and share it with the spouses and lawyers. The guardian may be instrumental in helping settle the custody issue.

In Wyoming, the official party line is that there is no bias in favor of either a mom or dad in terms of who is a better or more appropriate parent to take care of the children. I have found this to be generally true of Wyoming judges. The judge will attempt to figure out which of the spouses has been the primary parent — the parent who has generally taken responsibility for meeting the needs of the children — and then determine in whose home the kids will be best cared for in the future. It is often a difficult, torturous decision with heartbreaking consequences.

Most of us have heard the phrase “community property.” Whatever you think it means, forget about it because it doesn’t count in Wyoming. Wyoming, like most states, is an “equitable distribution” state, which means that all the assets, liabilities and property in your marriage will be divided in a manner that is “equitable,” or fair, for your unique circumstances.

To tell you the truth, though, in my 26 years of lawyering I have not heard too many clients say “you know, Ken, the lawyers did a great job in my divorce, and I got exactly what I deserved. Thanks so much. By the way, would you mind if I paid you a large bonus for the terrific work you did?”

One of the cardinal rules of divorce is that it generally doesn’t feel so good, or equitable. One of the ironies of this process is that each spouse feels like the loser. I guess that’s why they call it divorce.