As published in the Huffington Post 3/15/2012
Lawyers often use idioms rather than legal terms to explain concepts and strategies in divorce law to our clients. Somehow, these idiomatic terms are more descriptive and powerful in describing the dynamics and techniques that are present in a divorce than any other type of language. Lately I have been collecting a number of these terms that I frequently use in my divorce practice. What follows are my favorite and most often used idioms, and what they mean for my divorcing clients.
“Whose ox is gored.” This is one of my favorites. It’s so graphic. It reminds me of the strong feelings (like bellowing oxen) divorcing individuals have when they are undergoing divorce. This idiom came from the Bible in a passage relating to compensation for gored oxen. What a great metaphor for divorce financial terms. Whose ox is gored was referenced by Martin Luther at the Diet of Worms in 1521, when he observed that most human affairs come down to depending upon whose ox is gored. I think Martin Luther may have been right.
Whose ox is gored means that someone’s interest is threatened or harmed. That happens a lot in divorces. Divorces are easy when there’s enough money to go around. Otherwise, someone’s ox is being gored, and it becomes a zero sum game, the parties are in pain, and there’s lots of bellowing going around.
“Zero sum game.” This is a favorite for collaborative lawyers and divorce mediators. The concept is that if you find out people’s interests rather than just hearing what their “positions” are, you can get more for each of the parties.
Litigation tends to be a zero sum game: someone wins, and someone loses. In collaborative law and divorce mediation, spouses can both get a bigger piece of the pie if they express interests rather than positions, and often it is not a zero sum game.
Another of my favorites is “skin in the game”. I use this one a lot. That’s when you have something at stake in a result or agreement you have made.
For instance, when couples are deciding who pays for college in their divorce agreement, if a party doesn’t share in the cost, that party may not have the incentive to control college costs , because they are not paying them. The result is post-divorce struggles and ensuing litigation. We have seen many of these. The dispute is about whether to send Junior to a private college (now costing over $50,000 a year), or a state school at $25,000. Good divorce agreements have both parties with skin in the game on college payment and other financial post-divorce decisions.
You may think the expression “gotten by the short hairs” has an off-color derivation. I did. But I found out (when writing this article) that actually the short hairs originally referred to are the short hairs (of a man, anyway) at the back of the neck. The first documented usage was in Rudyard Kipling’s “Indian Tales” published in 1890.
We lawyers use gotten by the short hairs when our client, or our client’s adversary has an advantage in bargaining that is watertight. We usually don’t use it in front of our clients, because it’s too depressing for them. It’s very difficult to negotiate from a position of weakness. Usually you have to make a trade of a strong position for a weak one in a negotiation. Or in the divorce context, you can rely on a spouse’s compassion for the other spouse, which does miraculously reappear at times.
In guiding a client in a divorce, “smoking her (or him) out” can be an apt term. For instance, say, a spouse has left and is sending over enough money (maybe due to guilt at having ended the marriage) so that the other spouse’s lifestyle has not changed at all. The departed spouse is often living like a student in someone’s house or a really ugly apartment. The spouse who is still living the marital lifestyle has no incentive to move towards divorce. A reduction of the voluntary support results in smoking her (or him) out and can cause a reality check. Then, progress can be made on getting the divorce done.
Same with “tough love”. She wants to leave the marriage, but still wants him to support her. She doesn’t want to hold a job, or can’t seem to. Exercising tough love, the supporting spouse will want to “put her on a short leash” and not make it too easy for her to “have her cake and eat it too”.
Finally, in a divorce, you can be “hoisted by your own petard”. The derivation of that one is interesting. A petard was a little box filled with gunpowder used to burst open gates and doors. Shakespeare was the first to use the term, in Hamlet (1602): “For tis the sport to have the enginer Hoist with his owne petar”. Basically, it means killing yourself with your own bomb.
Sounds like a divorce, as in when you decide not to work very hard to punish your spouse (who will receive support). That’s being hoisted on your own petard because you suffer, too. You might even say that the quandary puts you “between a rock and a hard place”, the rock being your obligation to support, and the hard place being scarcity for both ex-spouses created by lack of money.
So next time you need a divorce, think of the dynamics of your situation. See if any of the above terms apply to your divorce and have a frank discussion with your divorce attorney, mediator, or collaborative lawyer about how to best manage your divorce as it proceeds.
Copyright 2012 Laurie Israel
May 11th, 2012 in
Law,
Marriage |
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As I get older, I become more nurturing of younger people. I commute by subway, and generally, I (at the tender age of 65) am the oldest person on the train. I look at the younger people – so full of life and activity. And in spite of being an avowed nonbeliever, I pray for them. How does a nonbeliever pray? I wish them well, a life if not free from suffering, a life where they can bear life’s pains. I wish them strength to face the hard things history will throw their way that I will no longer be alive to experience. I wish them peace, harmony, good home lives, satisfying work.
I also find myself becoming more nurturing of older people, people around my age, as I myself age.
At my age, most people no longer have living parents. For those that do, the pleasure of having the company of a living parent is bittersweet, almost always mixed with great loss and huge responsibilities.
I have not had living parents for over 30 years. During this time, I have had to parent myself. Now I find myself parenting others, not just my only child, but family, friends, clients, acquaintances. Many of these people are my age.
When I talk with someone who has done something good, I find myself saying to that person, “You did a really good job. I’m very proud of you!”
This is something our parents said to us (or should have said to us) as we were growing up. This is one of the best things a parent can do – let us know when we do well and acknowledge our efforts.
When I see a client who has, against great odds, reclaimed a career, made an important and difficult decision, or helped another person by acting in the other’s interest rather than in their own self-interest, I find myself saying to them, “I’m really proud of you!” Many of these people are in their 50s and 60s (or even older) and have no one to say this to them anymore. But they deserve to have it said and to have it said sincerely.
When a friend or relative works on a problem for months or years and solves it, I find myself saying to that person, “I’m really proud of you!” They did well, and unless they have a spouse who will say it, many of them don’t have parents any more or anyone who will say those words to them.
I found myself saying these words this week to my friend, who spent two years of hard effort arranging a complicated personal transaction that will benefit many others in the future. I said to him, several times during the update on his project, “I’m really proud of you.” He knew I meant it, he knew he deserved it, and it made him feel really good.
So if you find those words coming out of your mouth, don’t be afraid or embarrassed to say them. Saying, “I’m really proud of you,” can be the appropriate and fitting thing to say to a person at times.
© Laurie Israel 2012
In the not so long ago times, people kept their loved ones in their parlors prior to burial. I remember my parents telling me that my grandmother (who died in 1955) was wrapped in a shroud afterwards, and the family was around her during the day she died, and overnight, until she was buried.
Our burials are very antiseptic arrangements. The bodies are whisked away to a morgue and then sent to the funeral home. Depending on our religions, we may (or may not) view the bodies of our loved ones. We are taken away from physical association from the departed almost from the moment of death. This distances the grievers from their loved ones.
Though separating the dead from the living is now tradition, it was no always so. People used to have home funerals. Preparing the dead for burial and funeral rites were generally done by the friends and family members of the deceased. This “old-fashioned” manner of dealing with the dead offers much. It is essentially a return to a more traditional, personal approach to honoring the dead and going through the grieving process. It may seem scary to us, but that is because we are so used to the other way, where the body disappears, and professionals handle everything.
If you want to find out more about this end-of-life option, a good place to start is by seeing the movie, A Family Undertaking (PBS 2009), a film by Elizabeth Westrate, available on Netflix. The movie follows several families and friendship networks in the United States during the illness of a loved one, through preparations prior to death, sitting with the bodies, the funerals, and the burials. It is an eye-opening and touching experience.
Another good source of information on home funerals is the classic Caring for the Dead: Your Final Act of Love, by Lisa Carlson (1998). It is still in print, and provides a wealth of information on home funerals, with articles written by various commentators on aspects of home funerals and caring for the dead.
In some states, home funerals are not permitted. In Massachusetts, they are, but you have to follow the rules. State health and sanitation laws and regulations must be scrupulously followed in the preparation and handling of the body, home funeral, and burial or cremation. There are a number of individuals working in Massachusetts with people who want to have home funerals for their loved ones. You can find Massachusetts information, find them, and get guidance by clicking on this link.
http://homefuneraldirectory.com/archives/category/directory-listings/home-funeral-guides-and-consultants/ma
The Commonwealth of Massachusetts has posted many useful resources addressing handling of bodies, burials, and cremations by family members for people planning home funerals. http://www.lawlib.state.ma.us/subject/about/burial.html
If you would like to pursue this matter further, it will take time to address all the legal and practical issues. Therefore preplanning is important. You can’t wait until your loved one (or you) dies. So if having a home funeral interests you, start now to prepare.
© Laurie Israel 2011. All rights reserved.
What follows is a composite of a story (really a family tragedy) that occurs again and again as people age. It has to do with aging parents, the onset of dementia, and insufficient preparation for the future.
A husband and wife, let’s call them John and Joan, have 2 children. They have had middle-income earnings and saved for their retirement. They now live in the (big) house where they raised their children. Their income comes from social security, and IRA, and a small amount of income from a securities account. They are 85 and 86 years old.
During the past few years, they have started to progressively decline mentally and physically. This is no surprise, since they are both older than average life expectancy. (Most people over 85 have some sort of dementia). John and Joan meant to have estate-planning documents (wills, health care proxies, powers of attorneys, etc.) but they never got around to it.
John and Joan cannot take care of themselves in the house. They are barely able to pay their bills (although they have enough money to do so, and are confused about what they have and what they can afford. They have trouble climbing the stairs. They are both still driving (small distances, slowly), but clearly are a threat to themselves and others on the road. (Their refusal to stop driving is a symptom of their dementia.)
John and Joan are only able to stay in their house because of the assistance of their daughter and her husband, who are driving 480 miles every week, and taking turns staying with the parents. They are leaving their children (young adults who live with them) at home with only one parent at a time. The daughter and her husband are at the end of their rope.
John and Joan want to stay in their home on some days, and on others, they want to move to an assisted living facility. When a lawyer came with power of attorney and health care proxy papers, they decided they did not want to name anyone. With proper organization, they could hire home health care workers during the day, and continue to stay in their home for a while. The help they need to stay in their home wouldn’t cost very much.
The parents are getting very close to the point where, if they do not voluntarily accept help from their children, things will spiral down, and the parents will be in danger. Then the children will need to ask for an involuntary guardianship/conservatorship. The children do not want to do this, because they love their parents, and know their parents will hate them for it. It’s not a good way to end a family history.
So, if you are in your sixties, seventies, eighties (or older), do your planning now. See the lawyer of your choice. Try to plan for a smooth transition between you and the ones you trust. Make it easy for your loved ones. Otherwise, you will sadly be leaving them as a burden, which I’m sure you don’t want to do.
© Laurie Israel. 2011.
