You have all heard of a “marriage of convenience?” This is a term that originated in medieval times. It refers to a marriage contracted for motives other than the reasons of relationship, family, or love. Instead, such a marriage is orchestrated for personal gain or some other sort of strategic purpose, such as for political purposes.
I once worked on what one might call a “divorce of convenience.” DeeDee Salerno had phoned me, out of the blue, to ask if I would handle her divorce collaboratively. She explained that she had heard me on the radio, discussing my participation in Florida’s first pro bono collaborative divorce and why I believed so strongly in this means for resolving the issues that arise when people want to dissolve their marriages, and she knew right away that that’s what she and her husband wanted.
Well, this explanation sounded a bit odd, so I asked her some background questions. DeeDee informed me that she was 76 years old and had been happily married (for the second time) for 26 years. Sal, her 78-year-old husband, had recently been diagnosed as suffering from early stage Alzheimer’s disease, and they were both concerned that she would not be able to care for him once his illness became acute. Nor could they afford the help that such care would require. She informed me that, in their hearts, they did not want to be divorced. However, given their understanding of the law regarding Medicare and Social Security, and what they had been led to believe by their friends and Sal’s doctor, they would be better off if her premarital assets (a trailer and the land it sat on) were not called into play when the time came to seek government aid.
I should probably also mention that, between the two of them, they had seven children, although none together, and all adults.
She had heard me on the radio, had researched me on-line, and had gone on to investigate collaborative practice. Thus, she was already well-informed about the positive aspects of the collaborative process, and was under the impression that I could help both her and her husband achieve this new status in their relationship, without costing them an arm and a leg, and without alienating either one from the other.
When she arrived for the consultation, he came with her. They walked into my conference room holding hands and smiling, two small, somewhat shrunken old people, their eyes twinkling in a mass of wrinkles. They looked curiously alike, and had obviously dressed up for the appointment. “We do everything together, except when he goes to work.” (He bagged groceries at the local supermarket.) Still, I met with her alone, while he waited in the reception area.
My chief concern initially was that their marriage was not “irretrievably broken,” as required under Florida law. When I explained my apprehension, she convinced me that, under their circumstances, their desire to terminate the marriage, for whatever reason, satisfied the “irretrievably broken” legal standard.
However, given their understanding of the law regarding Medicare and Social Security, and what they had been led to believe by their friends and Sal’s doctor, they would be better off if her premarital assets (a trailer and the land it sat on) were not called into play when the time came to seek government aid.
I gave her the list of lawyers who had been collaboratively trained in my community and, in short order, received a phone call from one with whom I’d worked before, informing me that he had been retained by the husband. We agreed on a process facilitator and a neutral financial professional, and scheduled our first team meeting.
One would think that this collaboration was a no-brainer. One would be wrong. The collaborative process is comprised of meetings between the clients and each professional, sometimes separately and sometimes together, usually called off-line meetings, as well as full-team meetings of all the professionals and the two clients. As the process here revved up, after everyone signed the collaborative participation agreement at our first full-team meeting, I became concerned by some of DeeDee’s seemingly innocuous comments in our first off-line meeting together (while Sal waited in the lobby). It occurred to me that my client might be setting him up so that she could legally discard responsibility for him when he became too “difficult.”
As it turned out, at the same time, my collaborative team-mate (the lawyer representing Mr. Salerno) began to suspect that Sal might fully intend to leave DeeDee as soon as the divorce became final, that he might really WANT to be divorced, a fact of which, if true, she was not aware.
Transparency is critical to the collaborative process. My team-mate and I therefore discussed off-line with the other professionals (especially with our facilitator) our concerns that the parties might not have been straightforward with each other about their reasons for seeking a divorce. We agreed to take a wait-and-see approach, understanding that we would broach the issues before too much time passed if our suspicions became more serious. This was primarily because the facilitator had not picked up on the same vibes, and she had also spent considerable time with the couple, both separately and together.
It is just as well that we took that approach. In our second full-team meeting, we discussed with both Salernos the fact that they had no wills. Thus, when they divorced, and one of them died, the other would not automatically become heir to at least a major portion of the deceased spouse’s estate, as he or she would, by law, if the surviving spouse. And the fact that they each had children not related to the other made this cause for concern.
At the very next full-team meeting, the couple asked if it would be possible to involve a collaboratively trained probate lawyer. It was. Sal and DeeDee then clarified that they each wanted to ensure that the other inherited his or her entire estate in the event that he or she predeceased the other. As this discussion developed, it became clear from the interactions between them, and especially their affectionate body language, that our concerns about transparency had not been justified.
This conclusion was borne out over several meetings, both full team and off-line. In retrospect, I have to believe that both my team-mate and I had met with these clients at one point after they had had a disagreement or some sort of spat, which is normal in any marriage, and which had blown over as they so often do. In any event, it has now been many months since the parties signed their marital settlement agreement, the court entered its final judgment of dissolution of marriage, and the clients executed their estate planning documents, leaving everything that they own to each other. I recently received a thank-you note, signed by both of them, that said:
“We had to do something so very hard and emotionally very upsetting. But we knew we had to do a divorce because of our situation. We want you and everyone on the team to know that your kindness and each one’s expertise will forever be appreciated and remembered. You have all made this difficult journey bearable and possible! Collaborative divorce is a loving way that makes such a task easier, and takes the stress out of it. So to all of you angels we send our heartfelt thanks and love for all you have done for us.”
It was signed by both DeeDee and Sal, and they delivered it together.
About this week’s author: Joryn Jenkins.
Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law while also serving as a full-time professor in law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen award, an honor bestowed upon those who have provided exceptional leadership to The American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.