By Erika Jost • January 16, 2012•Writers in Residence
In my short seven months working as a law clerk in the family court system, I have observed that what a case legally “should be” about and what it actually is about for the people involved are rarely identical; especially in divorce cases revolving around a monetary award, it’s hard for me to believe that we hear days of motions and testimony only to produce a sum that will be half-consumed by attorney fees. I have to suspect that something else is going on there.
This kind of prolonged divorce litigation brings to my mind “7000 Romaine, Los Angeles 38,” an essay Joan Didion wrote about Howard Hughes that appeared in “Slouching Towards Bethlehem,” her 1968 collection of essays. Specifically, her explanation of the eccentric millionaire as cultural phenomenon:
"There has always been the divergence between our official and unofficial heroes. It is impossible to think of Howard Hughes without seeing the apparently bottomless gulf between what we say we want and what we do want, between what we officially admire and secretly desire...In a nation which increasingly appears to prize social virtues, Howard Hughes remains not merely antisocial but grandly, brilliantly, surpassingly, asocial. He is the last private man, the dream we no longer admit."
Howard Hughes represents the great undesirable, the ugly mass inside each of us that we secretly are but want to pretend we aren't. However, our cultural captivation with the likes of Howard Hughes reveals us: we do not always want what we say we want. I think divorce cases can get lost in this bottomless gulf, between what the parties say they want--spousal support, ownership of the house, their 2007 Pontiac Grand Prix--and what they actually want--namely, to be made whole again. This is not to say that parties don't want things like spousal support and their car: they do. But they want something else much more. These people want their happy relationships back. But, in divorce court, that is the dream they no longer admit.
Appropriately so, because it is also the dream the court cannot help them realize. The court can't fix your broken relationship, and it can't punish your spouse for not loving you anymore. But it can divide your property.
It is the role of the attorney, then, to divert the client's unofficial desires--what the case is about to the client--toward official ends--what the case "should be" about: to tease out a parenting time schedule and child support and a property settlement from a party's feelings of loss, anger, resentment and revenge. Sometimes, though, the attorney herself gets caught up in this bottomless gulf between the official and unofficial stories, and this can lead to painful and prolonged divorce litigation.
This is what happened in the first opinion I wrote as a law clerk.
I sat in the courtroom to hear closing arguments on a case that had been raging for days. The situations of the parties were fairly typical for southeast Michigan: the defendant, the husband, was an employee of General Motors, bringing in around $80,000 per year plus benefits, and the plaintiff-wife worked two part-time jobs while finishing classes for her nursing degree, capping out at $20,000 annually. (She also earned a degree in design pre-2008, the loans for which were paid during the marriage; demand for interior decorators in our community isn’t what it once was.) They were married nine years, with one kid resulting from this marriage and one kid from her previous marriage. They had agreed to joint custody and equal parenting time. This case should have been about spousal support, and determining what portion of the parties’ property was separate and what was commingled.
Oh, "should have been."
The non-legal impression I got from this case was that defendant-husband had been really hurt by the plaintiff--he took every opportunity he could to cast her in a bad light. But things really got hairy in the closing arguments, when defendant's attorney took his shot.
“She has to have some onus of doing something,” the attorney said, addressing plaintiff's intention to finish her nursing program instead of establishing an interior design company. “She can’t count on just getting handouts for the rest of her life. He took her in after she had an abusive relationship, and he treated her like a queen...She hasn’t applied herself. It’s all falling on his shoulders. All of it...I’d like to marry someone for nine years and then take $50,000 when I walked out…She already has a degree in design. So he’s paying for her lack of ambition? And all she’s going to do is take, take, take...If a man came in her asking for an award like that, he’d never get it. But this court must have different rules for women than for men.”
The plaintiff-wife started crying, and the judge rejected the attorney's interpretation of this case, as well as any legal significance of the personal attacks he had brought against the plaintiff. And there it ended: the most blatant display of sexism I had yet encountered in the courtroom in my two-week-long career, put forward as a legal argument. The attorney was playing with a few stereotypes about women: as a gold-digger, the plaintiff married the defendant to pay off her student loans; simultaneously as a damsel in distress and a damaged woman, the plaintiff was not appropriately grateful to defendant for rescuing her from an abusive relationship; as a lazy or unambitious person, she did not work hard enough with the degree she already earned. As, I guess, women do. This was the defendant's theory of his divorce case, this was why the plaintiff did not deserve spousal support or a portion of the parties' jointly held property. This was it.
I was, at first, shocked. Not that a husband might have this idea about his wife during divorce proceedings--any TV show or movie featuring a man who has or had a wife could have enlightened me on this theory of marital relationships. What was shocking was that an attorney would argue these points. In open court. In front of judge. And expect it to go anywhere. Was he even paying attention? There are circumstances in Michigan that can affect an economically disadvantaged spouse's alimony or property settlement in divorce: insufficient gratitude is not one of them. Neither is the sex of the spouse.
The more I thought about the attorney's rant, the more uncomfortable it felt: there was something so raw and desperate and embarrassing about it, partly because it was, in the end, so ineffective. The defendant's sense of loss and outrage over his divorce was not something the court could fix, even when it was dressed up in stereotypes about women. This attorney had become wrapped up in the unofficial story whose success hinged on the court making assumptions about the plaintiff, not based on the evidence presented, but based on the fact that she was a woman. In doing so, he had Howard Hughes-ed all over our courtroom. At least in this case, sexist stereotyping was an argument he could no longer admit.
As an attorney at the beginning of my career, it was a relief to be able to contextualize this attorney's outburst, to know at least this is a fight we're not still fighting. Sure, I heard some inappropriate and offensive rambling that I never thought I'd hear an attorney earnestly tout in open court. But it was treated as bad lawyering, as a manifestation of the personal pain of divorce to which the law offers no answer, as a problematic muddying of what a party says he wants and what he actually wants. This is not 1930s Howard Hughes, successful film producer turned airplane pilot; this is sexism as the pea-sorting Hughes, the marginalized figure we only turn to in secret. While not the dream of sex equality we dared in school, it is a position we can move forward from.