Mediating A Divorce Sometimes Leads To Saving A Marriage


by Cynthia M. Fox

April 2010

Cynthia M. Fox A few weeks back, I posted a column about mediation as a less adversarial approach to divorce whereby a couple meets with a mediator trained to assist them in peacefully and constructively preparing a final separation agreement that will end their marriage. I am a mediator certified by the courts and I was gratified by how much interest that column sparked. In this and my next article, I will tell you of two situations where the mediation worked so well that instead of ending their marriages, the couples involved recommitted themselves to preserving their marriage.

The first couple, let’s call them “Barbara and Howard”, were both in their 50s and married 15 years. Howard was a mid-level executive and the dominant personality in the union, while Barbara was the stay-at-home, supportive wife.

One day, seemingly out of the blue, Howard tells Barbara he wants a divorce. His frustration over several annoying quirks in Barbara’s personality and way of doing things has come to a bursting point. She is devastated, but anxious not provoke an escalated confrontation with her husband. She suggests that they try to mediate the end of their marriage rather than go through an adversarial procedure in court. He agrees.

At our first session, after getting to know them both a little bit. Howard announces that he has been trying to explain to Barbara “how things work” in dividing up the property. He says that he is ready to split the value of the home and all their personal property 50/50, but that there is no way that his wife is entitled to his employer-provided pension and 401K.

Howard declares: “I have been trying to get her to understand that I worked and earned these retirement assets. They’re mine. By law, I don’t have to share these. Can you get her to understand that?”

I asked Howard one question: “When did you earn these assets, before or after you married Barbara?”

“After.” Howard replied.

“All of them?” I followed up.

There was a hesitation and then an affirmative nod. For the first time, I could sense a lessening of the bravado in Howard’s bearing as if he sensed that things weren’t as he believed them to be.

I provided the confirmation: “All pensions, savings, 401Ks, investment accounts and the like accumulated during the marriage, whether through one’s employment or not, are marital property and subject to division by the court.” I told Howard without one scintilla of uncertainty in my voice or manner.

Howard slumped in his chair, then rose to counter. “But, it was my work that produced these assets, these accounts.”

“Just as it was your work that purchased the home, the piano in the living room, and all the other belongings that you concede should be divided with your wife equally, correct?” I reaffirmed to Howard.

Howard could see the inevitability of the logic. He sat quietly, head down, pursing his lips. Ever supportive, even now, Barbara put her hand on his and said simply: “It’s the law, dear. There’s nothing any of us can do about it.”

Howard slowly got up from his chair, saying he needed some time to think, and motioned for Barbara to follow him as he headed for the door.

I never met with them again. But, Barbara did call about a month later. She told me that Howard had dropped all mention of the divorce. Instead, he suggested that maybe they should convert all those airline miles he had earned, at work incidentally, into a long-delayed trip to Paris. It seems that Howard had decided it was easier to live with Barbara’s quirks then it was to contemplate living out the rest of his life on half of his retirement plan.



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Biography




Cynthia M. Fox is a Missouri attorney and mediator located in Clayton, MO. She has pioneered a new approach to divorce called The ConstructiveDivorce® as well as handling a wide variety of other family law matters in more than 25 years of practice.  Reading or following the information in this article does not create an attorney-client relationship with Cynthia Fox. 

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Website: www.foxfamilylawyers.com

Additional articles by Cynthia M. Fox



Comments



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 Laurie ,   Brookline MA    04/29/10 
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 Laurie  Israel,   Brookline MA    04/29/10 
 Letter in response to Cynthia Fox  
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It’s always good for people to know the rules of divorce before taking irrevocable steps down the divorce chute, as the husband in Cynthia Fox’s mediation found out. Cynthia Fox noted that the marriage was ending because the husband found the wife had “annoying quirks”, in her personality If everyone left their marriage because of annoying spousal quirks, would there be any long-term marriages? I think not.

People give up on their marriages too easily. A case in point appeared in New York Times this past Sunday April 25, 2010 in the “Modern Love” section. The writer and her husband broke up within a few years after the marriage, immediately after they had had their first child. The reason? Because, according to the writer, their personalities “conflicted”.

I have been using mediation proactively and successfully to assist couples who wish to stay married work out their problems through mediation. Sometimes the marital mediation is very practical, and it usually results in a transformative effect on their relationship. These are people who often have not found martial counseling to be helpful. John Fiske and I are doing our second two-day training on Marital Mediation on November 12 and 13 in Massachusetts. Check out my website to see what the course entails, and how to register, if you would like to add marital mediation to your practice.

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 Charlie Asher,   South Bend IN  Charlie@UpToParents.org      04/28/10 
 www.NoDivorceToday.org 
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I'm more and more convinced that many divorces are initiated without a firm wish for a divorce. Enough "divorcing" couples have decided in the course of divorce mediation to renew their marriages that we now make this a standard inquiry in our intake materials (where we think it's easier for people to be honest about their wishes and motivations). We've also created a free website--www.NoDivorceToday.org--for couples open to focusing on making their separation as constructive, child-focused, and healing as possible, just in case they decide later to try to rescue their marriage. Interested mediators are welcome to contact us for more information on these free resources.
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 Kristopher        04/28/10 
 Really??? 
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This marriage was not saved by the mediation. It was saved by this man's concern for his retirement and savings. Any person could have clarified the law for the husband (without charge), had he asked around a bit more.
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 John A.  ,   Weston MA    04/27/10 
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This story is touching and realistic, occurring in my office so often my wife encouraged me to start using mediation to help couples stay married. The results have been most gratifying, to the point where Laurie Israel (www.mediationtostaymarried.com) and I (www.mediate.com/fiske) have been using mediation to help married couples enter post-marital agreements to stay married almost once a month. Last year I trained about 45 family mediators how to do this, and in March 2010 Laurie and I trained another 15. We are planning another training in November and welcome any family mediator who wants to learn how to use (his)(her) mediation skills and experience to help couples negotiate lasting agreements which define new terms for their marriage. "We want to replace Marriage #1 with Marriage #2," said one. Read Divorce Busting by Michele Weiner-Davis for inspiration, and spread the word. Cheers to you and keep saving marriages, John
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