He deferred to her, listening intently as she spoke. When she cried, his eyes were pained and he placed his hand on her back reassuringly.
It was a second marriage for both. Her ex had some undisclosed tax shenanigans that pre-dated the divorce. To make matters complicated, while they were still married but separated, husband #1 accepted service of important tax notices for his estranged wife (“It’ll go away if I ignore it, right?”). The divorce is finalized, years pass, and she remarries.
Then the tax man called. It’s a big number.
No scowls, no sidelong stares, no stiffly raised eyebrows from husband #2. This is not a “let’s march you down to the principal’s office, young lady” sort of visit. He gently passes her the box of Kleenex on my conference table. She hadn’t known she was bringing a financial demon into the marriage, but now through tears she asks: “Should I get a divorce?”
* * *
This is deeper than innocent spouse defenses and due process challenges and tax appeals and strategic bankruptcy questions. I cannot but mourn the death of a marriage.
My associates in the bankruptcy bar may disagree with me: The practice of law is, after all, a giant chess game. We trade pawns all the time, and if you’re a true grandmaster, you can sacrifice your queen to gain a tactical advantage and get a pawn to the other side later. So why not divorce, stay shacked up, and then re-marry after the demon du jour has gone away?
But marriage matters. Good marriages and even rocky marriages are worth fighting for. It calls to mind C.S. Lewis’s famous quote about “nations, cultures, arts, [and] civilizations” being mortal; “their life is to ours as the life of a gnat.”1 “But it is immortals,” Lewis continues, “whom we joke with, work with, marry, snub, and exploit . . . .”2 I’ll go a step further: marriage, as a union, has the potential to be as everlasting as the immortals who make it—a truly eternal quantity. In comparison, that tax lien or multi-million dollar judgment has “the life of a gnat.”3
The world extols the playwright who leaves his controlling wife to have the creative freedom to write a great play. The world champions the cop who ditches his self-centered wife for the waitress to whom he has promised half his lottery winnings. The world cheers for the man who rejects his wife’s invitation to reunite when he has found a nubile female interest in a foreign country. The world celebrates the salesman who falls in love with someone other than his wife finally gets an annulment so he can be with his true love.
But I want a true story. 4 Tell me about spouses who step on each other’s toes, but then forgive each other and move on, together. Tell me about marriages that are not always smooth and not always magical, but are always committed. Tell me about spouses who see each other with the eye of faith, when the world sees a balding 40-something and a frumpy soccer mom who will never fit her wedding dress again.
When did lifelong marriage get relegated to smarmy nursery tales? No, it’s married love that walks over uneven terrain: sand and grit and ambiguity. Between the memorable extremes you find a whole lifetime of mundane sacrifices and quiet perseverance, and sometimes the name of the wilderness is mediocrity. The world demands pablemized plot curves—conflict, climax, resolution—but marriage thrives on more complex patterns. Show me iterative conflicts and sacrifices and delayed resolutions and on-going redemption, 5 and I’ll show you a committed marriage.
* * *
In this case, it was easy. Even suspending my values, I saw no legal advantage to divorce. We made a game plan; there were tears of relief. I’ll never forget how husband #2 tenderly placed his hand on the small of her back as they left my office.
I have written elsewhere about the intersection of Divorce and Chapter 7 Bankruptcy. I do not attempt to dissuade clients from divorcing who have already resolved to do so, and I do not judge clients who have divorced. If divorce is just one option on the table, however, the chess game will be only a part of my analysis. How many opportunities do we get, in this life or the eternities that follow, to show that our commitment transcends financial difficulties? And for those to whom this is just a chess game, my advice is to think carefully before you sacrifice your queen.
1. The Weight of Glory and Other Addresses 15 (Macmillan Co. 1949) (available here).
2. Id.
3. Id.
4. On this note, James Q. Wilson persuasively writes of the societal crack-the-whip game “[w]hen the haves remake a culture, [and] the people who pay the price are the have-nots.” For example, “[h]eroin and cocaine use started among elites and then spread down the social scale. When the elites wanted to stop, they could hire doctors and therapists; when the poor wanted to stop, they could not hire anybody.” As it pertains to the love stories we tell, “the sexual revolution . . . was supposed to help make men and women equal. Instead it has helped men, while leaving many women unmarried spectators watching Sex and the City on HBO.” Why We Don’t Marry, City Journal, Winter 2002 (available here).
5. On-going redemption in a family relationship is a theme of Les Miserables often omitted from film and stage adaptations:
[I]n order to express our idea thoroughly, at the point Jean Valjean had reached, when he began to love Cosette, it is not clear to us he did not require this fresh supply of goodness to enable him to persevere in the right path. He had seen the wickedness of men and the misery of society . . .; new waves of bitterness had overwhelmed him; disgust and weariness had once more resumed their sway; the recollection of the bishop, even, was perhaps almost eclipsed, sure to re-appear afterwards, luminous and triumphant; yet, in fact, this blessed remembrance was growing feebler. Who knows that Jean Valjean was not on the point of being discouraged and falling back to evil ways? Love came, and he again grew strong. Alas! He was no less feeble than Cosette. He protected her, and she gave him strength. Thanks to him, she could walk upright in life; thanks to her, he could persist in virtuous deeds. He was the support of this child, and this child was his prop and staff.
Victor Hugo, Les Miserables (J.M. Dent & Sons 1913) 422-23 (available here).