In the early 20th century, Dr. Duncan MacDougall attempted to quantify the mass lost when the soul departed the body upon death. This study has perpetuated the weight idiosyncratically known as “21 Grams.” Although this theory has largely been dismissed by later studies, the better question is: how much weight does your soul bear going through a divorce?
This emotive calculus is best typified by a phenomenon that I have witnessed during my career, which only perpetuates the Apollo archetype. One does not even need to see the Wolf of Wall Street or Mad Men to appreciate this paradigm; you have lived it in some incarnation or know someone else that has.
I have regularly had women retain me whose husbands have recently self-destructed, both emotionally and financially, desperate to extricate themselves from the wreckage. They often appear in consultations with reams of returns and conspiracy theories of offshore accounts. The problem is that these women were largely in the dark, and sometimes intentionally oblivious, to the financial ruin that their husbands have been perpetuating for the better part of a decade.
Typically, these women are married to men involved in some form of finance or stock trading, often self-employed, that briefly masked their addictive and excessive personalities. In the early stages of the relationship, the husband’s focus was on providing for the family and building their relative fortunes. As a result, his rapid ascension and acquisition of jewelry, cars, and homes while the wife was preoccupied on raising the children, led her to gloss over the looming harbingers.
In time, the children grow, the tennis lessons plateau, and the novelty of the toys wear off. Slowly, the husband’s time out of the house grows more frequent, justified by a purported obligation to entertain clients. This leads to excessive rounds of golf and drinks. The wife begins to long for something more, or to be nostalgic about how they once were.
A Bloody Mary with brunch is replaced by a bottle of wine before dinner. The husband’s focus shifts and he begins to become less diligent about his work obligations. He takes shortcuts in order to support his family and his growing emphasis on travel and entertainment to create the illusion that nothing has changed.
He takes shortcuts because he cannot keep up the facade. He incurs larger risks, whether it be through day trading, gambling or other cavalier investments, to cover the losses-only to get in deeper. He fails to make estimated tax payments, maxes out a credit card, liquidates a retirement account, or refinances the mortgage. All the wife hears is, “Sign here, honey”, unless he just signs her name to keep her from asking.
He begins rationalizing that he will simply make up the shortfall at year’s end, or that he will get that bonus that is not guaranteed. Then he doesn’t get it. The walls begin to close in but he refuses to admit to his family that they cannot keep up with Joneses.
This high wire act to keep everything afloat creates stress that cannot be sustained, manifesting itself with fatigue, migraines or a nagging injury requiring pain medication and prescriptions. They are used in tandem with an abuse of alcohol, and in some cases, recreational drugs. Soon, the husband gets pulled over, into a scuffle at a local bar, admitted into rehab, or commits an act of domestic violence. The losses mount, the children’s college funds are gone, foreclosure notices arrive, collection calls abound and he has no choice to but to file for bankruptcy.
Hubris and excess are a deadly combination, especially when mixed with serotonin. So, inevitably, the husband blames the wife for forcing him to provide for a lifestyle beyond their means. She blames him for destroying the family and for the endless dishonesty. She is now in your office, wants off the Titantic, but does not want her life to change. She files for divorce and soon realizes that while he is broken, he will cling to her like a life raft for as long as the courts allow him to.
I have always said that the length of a divorce is tied to the time that it takes for the defendant to catch up emotionally to the plaintiff to come to terms with the fact that their relationship is over. This delay is magnified in situations such as these because the only source of power that the husband once had, money, has vanished. This leads to a defendant that refuses to participate in the divorce, and an increasingly frustrated plaintiff.
As a result, the divorce process begins to recreate the mythology of Sisyphus, as defendants such as these typically refuse: to get a lawyer; file an Answer and Counterclaim; complete a Case Information Statement; or comply with discovery. Instead, they preach reconciliation and systematically hijack the divorce process but refusing to actively participate in it. The courts in turn simply give the defendant endless opportunities to cure his omissions without consequence and fail to move the matter forward.
The defendant begins to put his proverbial head in the sand known as the Ostrich Effect, and becomes the Albatross or Millstone around the plaintiff’s neck. Animal idioms aside, the question becomes how to divorce someone that refuses to acknowledge that the process is even occurring. I would recommend considering the following ten tips in situations such as these:
1. Rather than chasing a life gone by, debunk your illusions about hidden money especially those offshore. You may end up spending more than you will ever find searching for a treasure trove that does not exist.
2. Prior to filing for divorce, consult with a bankruptcy attorney as the filing of a bankruptcy petition will only put the divorce process on hold down the road. You must come to terms with the fact that filing for bankruptcy may be unavoidable as many of the debts are likely in joint name anyway.
3. Your credit score is important, but less important that your ability to provide for your family today. You must accept the fact that the notion of credit is a luxury that you may have sacrificed by living beyond your means for so long. You can always rehabilitate your credit score in the future, provided that you pay for necessities today.
4. Work around the defendant wherever possible to educate yourself about your assets and liabilities, as you have to assume that he will not do anything voluntarily to make your exit strategy easier. Therefore, always utilize your subpoena power if the defendant refuses to comply with discovery rather than filing motions to compel.
5. Determine whether it make sense to default the defendant if he is not participating, and if so, do not waiver from that decision. It may the only leverage you have over him during the process.
6. If the marital residence is facing foreclosure, determine how long before the house is seized, as the process always takes longer than you would think because you will not locate alternate free housing.
7. If you cannot take the risk of foreclosure or coexist with the defendant in the same house, determine if you can afford to move out.
8. Consider looking for a job, or a better paying one to supplement your income in the short term because you likely cannot count on his timely payment of alimony.
9. If there are only debts to divide and no assets remaining, accept it and move on. Do not insulate yourself from the prospect of starting over with nothing.
10. Above all else, try to be cost effective in your decisions and conserve your counsel fee payments while you are waiting for the defendant to come to the table.
Sun Tzu once wrote that: “Supreme excellence consists in breaking the enemy’s resistance without fighting.” They key to freeing yourself from a defendant that refuses to participate, is to embrace the process, conserve your remaining assets and to pick your battles wisely.
The emotional and financial cost to you of seeking the instant gratification of being divorced today will be far greater than the onus of patiently waiting to be divorced tomorrow. At the very least, I can assure you that this burden will weigh more than 21 Grams.
In large part, the difference between the world you will inhabit after you are divorced will largely resemble the one before it, especially if you have children with such a defendant. Inevitably, the judge assigned will not permit him any more chances to comply with court orders or grant him anymore adjournments. While you cannot control how long a leash is given to the defendant, you can avoid turning it into a self-inflicted noose.
Seth Parker is an associate in Fox Rothschild LLP’s Family Law Practice Group. Seth practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7538, or firstname.lastname@example.org.