#1697: The Good Divorce | 51%

On this week’s 51% — why is the beginning of the year such a big time for divorce? We speak with attorney Lauren Hunt to learn more about the divorce process and dispel some of the myths. We also speak with Sarah Armstrong, author of The Mom’s Guide to a Good Divorce, on how to keep kids at the forefront during the change.

Guests: Lauren Hunt, divorce attorney; Sarah Armstrong, author of The Mom’s Guide to a Good Divorce: What to Think Through When Children are Involved

51% is a national production of WAMC Northeast Public Radio. It’s produced by Jesse King. Our executive producer is Dr. Alan Chartock, and our theme is “Lolita” by the Albany-based artist Girl Blue.

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You’re listening to 51%, a WAMC production dedicated to women’s issues and experiences. Thanks for joining us, I’m Jesse King. With Valentine’s Day around the corner, I hope I don’t sound like too much of a cynic by introducing today’s topic. Today we’re gonna talk about divorce, and what people of all genders can expect as they’re going through the process. 

Just to get it out of the way, the common saying that “50 percent of American marriages end in divorce” is widely disputed. Tracking marriage data and coming up with a reliable divorce rate turns out to be a very tricky and debated process, but generally, researchers believe the number of U.S. divorces is on a decline, with “historic lows” right before the pandemic. How COVID-19 has impacted couples remains to be seen, but aside from an initial spike in those early lockdown months, some experts believe the divorce rate is again slowing down, and that, in some cases, the pandemic has brought couples closer together. 

But all of that said — divorce is still a very real possibility for any marriage, and it can have lasting impacts on everyone involved. We shouldn’t be afraid to talk about it. So even though the chocolate hearts are still on the shelves, let’s get into the nuts and bolts of the divorce process, dispel some myths, and grab some tips for when it gets especially tricky: when children are involved. 

Our first guest today is Lauren Hunt, a divorce attorney in Albany, New York. A bit of a disclaimer here: laws on marriage and divorce vary from state to state, so it’s always important to consult an attorney who is familiar with the laws in your state — but Hunt has been working with soon-to-be-single mothers and fathers for a little over a decade in the Capital Region. A child of divorce herself, she gets a lot of satisfaction from helping others through the process. I sat down with Hunt to learn more.  

Before we launch into the legal stuff, I heard that January is a major month for divorces? 

100 percent. 100 percent. The divorce filings do spike in in January, but within my firm, we tend to see a lot of people who are really reaching out for the first time trying to get information in January. They may not file immediately in January, but there is a lot of interest. And I think it’s primarily because you know, it’s a fresh start, right? It’s the new year, and they’ve made a goal that this is the year they want to take control of their world and change things around. 

So why do people get divorced? Legally, what are some of the reasons that are there?

A lot of my clients say that the relationship fizzled. They’ve either realized that the person they’re married to is not maybe the person they thought they married, right? Or perhaps over the years, that individual has changed. So perhaps over the years, they became much more of a workaholic, and they’re not as home anymore, leaving all of the childcare to one of the spouses. Or perhaps over the years, they realize that their spouse is more on the line of a narcissist, who is a very tough person to manage and to live with. But most of the time, it’s because people change as the year goes on. And I think that’s the change that people are like, “You know what? I have the ability to start fresh if I want to, and why not?”

What do you recommend people do before they come to you? 

I believe so much in the power of counseling. I always think it’s worth it to try couples counseling, assuming there’s no safety issues, right? Physical safety issues, emotional safety issues. It makes sense to try – it’s either going to maybe set you on a path to be able to reunite and have a great relationship again, or it could set you down the path of “OK, you know what, let’s find an amicable resolution here to dissolve this and start fresh for both of us.”

Once procedures are starting, what kinds of divorces are there? How are they usually carried out?

So let’s even back up further than that question, because I think the perception that so many people have is, “If I go to see an attorney, that means I’m automatically filing for divorce, my world is going to collapse, and it’s going to be this hotly contested thing.” No. There’s so many options out there other than pursuing a litigated court-based divorce – options like mediation, where both spouses sit with one individual who acts as a neutral and helps you walk through the issues. Another option is simply hiring attorneys and negotiating a resolution outside of court. And easily 50 percent of my caseload is handling divorces outside of court, where there isn’t even a divorce action pending. We resolve the entire thing, and the parties never stepped foot in the courtroom. But if you go to see an attorney and get a little bit of information about the process and the different options that are available to get divorced in New York state, you can then have a more clear picture as to “What’s my strategy here?” One of the benefits of mediation is you tend to have a more amicable resolution. And a more amicable resolution means less hostility between the parties, and an easier transition for the kids.

What are some circumstances that apply to each type of divorce? I have to imagine that there are some times where you don’t exactly get to choose what your strategy is going to be.

Oh, my gosh, yes. I appreciate that you asked that question. So let’s talk first for litigated divorce. What I mean by that is there’s a divorce action pending, there’s court dates, there’s a judge assigned – it’s what you think about when you think of divorce. That option is typically…I typically see it if there’s, you know, maybe safety issues [in the relationship]. So maybe there’s domestic violence in the relationship, and so you need an order of protection. You’ve requested court intervention in the first instance. Or perhaps the parties just cannot reach a resolution on some or all of the issues, and you got to go to court. The other options, I always think it makes sense to try some sort of out-of-court resolution before you commence an action for divorce. Again, so long as there’s no safety issues. If there’s safety issues, and you need an order for protection, the court system is there. That’s what it’s there for.

What are some of the biggest issues that need to be taken care of during those proceedings? 

Really, what’s the law for divorce, like what are the pieces that a divorce is resolving, right? In New York state, in order to qualify for a judgment of divorce, you have to have resolved all issues related to custody of children under the age of 18; all issues of child support for children under the age of 21; any spousal maintenance, which used to be called alimony; and then property and debt division as well as council fees So those are the five topics that really need to be addressed in order for you to be eligible for a judgment of divorce in New York state. 

When you’re looking at custody, it’s all based upon the best interest test. The best interest test is a test that was created in case law in New York state. So there’s statute, and then there’s case law. And in case law, the best interest test has developed, basically, to say that judges need to look at a variety of factors. So it’s a factor-based test. And every single case is viewed differently. So the factors that might have been applicable in my parents’ divorce, for example, would be different than the factors that are applicable in another parent’s divorce. Most of the time judges are looking at, you know, are both parents fit parents? Are there drug issues, other alcohol issues, anything like that? Are both parents actively engaged in the children’s world? What’s the level of stability? You know, is one parent struggling to maintain a stable home? Do both parents have a roof over their heads and tend to be tied to one spot for quite some time? Other things that can be considered as part of the best interest test are the children’s wishes, but the saying in New York state is that the children get a voice but not a vote. So what that means is that, as kids get older, they certainly have the right to voice what they want to see happen in their world, right? But there is no age in New York state where a child gets to make the decision as to their custodial schedule. There’s no age. But I’ll be honest with you, when their child is 16/17, you know, they’re going to kind of dictate the schedule with what they want to do.

What kinds of custody are there? 

When you’re talking about the word custody, there’s two pieces to it. There’s legal custody and physical custody. So legal custody is decision-making for the children. Most of the time you see something that’s a joint legal custody, which means that both parties have to discuss and agree all major things for the children, things like what school are they going to? Who’s their doctor? Other ways you can resolve legal custody is sole legal custody, where one parent has the sole decision making for the children on those legal issues. And then there’s also modified joint legal custody, where the parents have to discuss, but if they cannot agree, one parent has final say. 

And then when you turn to physical custody, that’s where a lot of the parents are really focused, right? Because physical custody is, “Where’s your baby laying their head? Where are they laying their head down every single night?” There’s a variety of parenting time schedules, and I would say they fall into three main categories. One is where one parent has primary physical custody, and the other parent has parenting time. And then the other option would be where the parents equally share parenting time. So the children literally spend 50 percent of the nights at mom’s house and 50 percent of the nights at the other parent’s house. And then the last option is kind of like a mix-and-match. So maybe there’s one schedule during the school year, and then there’s a different schedule during the summer. There’s a million other schedules. But that’s kind of a broad brush for physical custody. It can be a source of a lot of arguments. But I’ll be honest with you, what I have seen lately in the Capital Region, there is a trend towards finding a custodial arrangement where both parents are equally involved in the child’s life. That trend, I see reducing the amount of custody cases that are brought to court. 

Turning the conversation over towards the money side of things. How do you usually see agreements panning out in that area?

That’s really interesting. So when you’re looking at finances, the laws in New York state say that any property accrued during the course of the marriage is marital property, and has to be equitably distributed. “Equitably” is not “equal,” but most of the time you are looking at trying to achieve some sort of an equal division. The biggest thing people have to look at, first, is what is the part that is a marital asset? So for example, you come into your marriage with a retirement account, a 401k. And you’ve got $20,000 in your 401k. Should you decide to divorce 10 years down the road, you now have $100,000 in the 401k. The difference between what you had on the date of marriage and the date you’ve decided to move forward with your divorce, that’s the marital portion. So in that example it would be $80,000. Really, once you figured out what is the marital piece of the pie, it’s pretty easy to divide it up from there. 

How do prenups factor into this?

I love that you just asked that question, because I love prenups. I think they’re the most amazing document ever, and they’re not utilized enough. The laws that I’ve just been talking about are the laws that presumptively govern if there is no prenup. If there’s a prenup, it’s basically the parents’ decision as to how are we going to change these laws to meet with what we think is fair. A prenuptial agreement cannot address custody of kids, and it can’t address child support, but it can address spousal maintenance, and it can address property and debt division. So I’ve drafted prenups that are very complex, but I’ve also drafted prenups that are very simple and basically say, “Hey, listen, we’re going to have a normal married life, we’ll have joint bank accounts, we’ll create property together. But upon divorce, Spouse A takes this much, and Spouse B takes this much.”

So that sounds like something that like is good preparation – just in case – to save you some headaches down the line. 

Yes, you are literally making my heart sing right now. I think when people are considering getting married, one of the things you should do is just sit with an attorney and understand what laws apply to your marriage. Because you could choose, “Hey, listen, we’re not going to do anything. We’re not going to do a prenup.” But at least you then know what you’re potentially looking at. I did a whole podcast episode on this with Jennifer Hurvitz, where I went through what I think are the top three myths for prenups. Everybody’s like, “Oh my gosh, it’s the chill on the happy union, right?” I think a prenup actually helps you to stay married — because every single marriage hits a rocky point, every single one. And in that rocky point, if you don’t have a prenup, what you typically see people doing is they’re like, “Well, I want to stay married, but I also want to make sure I’m protecting myself in the event of a divorce.” Right? So you’re like straddling this line. If you have a prenup, you know what’s going to happen financially, you know what’s going to happen in a divorce. So you don’t have to straddle that line, and you can keep both feet on the side of “I want to remain married.” We could talk about that for days. 

Well, obviously, these are all topics where emotions can run high. How do you as a lawyer have to usually handle those types of situations? Or how do you see people trying to mitigate those high emotions, and get through it? 

Your attorney needs to remain a little bit above the fray. They need to be able to say to you, “OK, let’s pull back into a cost-benefit analysis here.” But other things to think about when you’re going through divorce is having a therapist. There is no shame in having a therapist, I actually think that judges find it to be a good thing when parents have a therapist, because you need to have that venting, you need to have that out somewhere. Another really good person to have in your corner is potentially a divorce coach. Have you ever heard of a life coach? Similar idea, it’s just they help you walk through the non-legal side of divorce. They can kind of bridge that divide between the attorney and the client, because sometimes we’re dealing with things with clients that aren’t necessarily a legal issue, it’s more of an emotional issue. And they can go through that with their divorce coach or their therapist. 

Before people say, “Holy cow, how much am I spending on these people to support me through my divorce?” So many divorce coaches have Instagram accounts, so many of them have Facebook pages, and they post very helpful information.

That actually kind of goes into one of my next question. How much does a typical divorce cost? Even if they’re not battling it out over the money. 

You know, every single person who sits in that chair has asked me that question, and it’s hard because it really varies on the issues. Attorneys, at least in this area, tend to charge by the hour for our time. If you come to me and you tell me, “We’ve basically resolved everything, we just need you to draft an agreement outlining what we’ve reached,” that’s a very different legal fee than, “We’ve got nothing agreed upon and we’re heading to trial.” And I hate to give you that non-answer, but I can tell you that the laws say that the more-moneyed spouse is presumptively required to contribute to the council fees of the lesser-moneyed spouse. “Contributing” doesn’t mean “pay 100 percent of,” but it does mean that you won’t be left holding all of the bag for your legal bills.

How long does it usually take? 

If you’re in court, you’re typically seeing a resolution within six months to a year. If you’re outside of court, it’s really as fast or as slow as you want to make it.

As someone who has to help people through divorces every single day, has it affected your thoughts on marriage at all?

No. I, you know, it’s funny. Being a child of divorce, right, my parents had what I would consider a high-conflict divorce. That made me sort of pause in terms of deciding, “Am I going to get married?” I eventually decided to get married. Love my husband, he’s a great guy. And then we kind of paused before we had kids, not necessarily because of my job, but because, you know, I see every single day people who are breaking up, and they now have to deal with the fact that, if you have kids together, you might not see your your son or your daughter every single night. Because they’re going to be splitting time. So that definitely impacted my decision as to the timing of our child. For a long time, I was like, “I never want to do that. I never want to have a kid, because I don’t ever want to have to be in a situation where I’m potentially facing not seeing him every single day.” But we had a child, I’m thrilled that we made that decision to have a child. And you know, I honestly think that having a child now is an asset as a divorce attorney. Because when a parent is sitting and talking to me about how they can’t ever imagine not seeing their child every single day, I get it. I absolutely get the clenching of your heart that that makes. 

Just lastly, are there any divorce myths out there that you want to dispel for us?

Oh my gosh, there’s a million. How long do we have? I think the greatest myth of divorce is that it’s going to be this terrible, horrible process that is going to completely destroy you. So many people are like, “Oh my gosh, divorces and broken homes.” All of these negative connotations with divorce, right? I think we flip that script on its head. I think that when you look at divorce, this is your opportunity to create the world you want for yourself for your babies. I just think there’s so much power there. And I think that power that you generate from that is what really gets you through what can be, sometimes, a tough process. Right? Because I’m not gonna sugarcoat it, it’s not always easy. But you can get through it, and then the world is your oyster. You can create your next path.

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That was Lauren Hunt, a divorce attorney in Albany, New York. As she mentioned, it’s important to have the right attorney to guide you through the legal process, but there’s also plenty of professionals, support groups, and guidebooks to help with that personal journey. 

Our next guest, Sarah Armstrong, has some advice on that front. She’s a hardworking single mom and marketing executive at Google now based in San Francisco, California, and the author of The Mom’s Guide to a Good Divorce: What to Think Through When Children Are Involved. In it, she provides some candid advice on how to keep kids at the forefront before you make the leap, during the divorce, and after the change. Armstrong divorced from her husband when their daughter, Grace, was just 7 years old (she’s 19 now). 

Amrstrong says she never imagined writing a divorce guide, because, well, she never imagined herself getting a divorce in the first place — but after the split, a lot of her friends started coming to her for advice on their own crumbling marriages. It suddenly dawned on her that, whatever she and her ex did during the divorce process, they must have done it right. 

How do you define a good divorce? 

My daughter, Grace, actually defined a good divorce for me. We were standing at a CVS, checking out, and there was a People magazine on the stand. This is years ago, she was eight, a year after our divorce. And she looked at the cover, and there was a celebrity couple that was getting a divorce. And she looked at and she was like, “Mommy, is that a good divorce or a bad divorce?” And I said, “Grace, I don’t know, what’s the difference between a good divorce and a bad divorce?” She said, “A good divorce is when the mommy and daddy are nice to each other. And a bad divorce is when they scream and yell at each other.” And I thought, “Wow.” So honestly, Jesse, I walked out of that CVS that day, and I thought, you know, whatever we’re doing, had Grace at age eight terming it as a good divorce. But I think really, if you think about the definition of a good divorce, it’s when parents, regardless of what is driving them to go through divorce, set aside their emotions for each other and really put the interests of their children first.

When did you decide to tell Grace?

We decided to tell her at the point where there was enough time for her to get adjusted to the idea, but it was close enough that we were going to be making a change in the environment, and in her environment. And so we told her about a month before everything was going to happen. One of the things that is written about a lot in various divorce books by specialists is really thinking about, when you do tell your children, you know, avoiding a special occasion that will then stick in their head. Like, “Mom and Dad told us over Christmas, or on my birthday.” So thinking about really strategically, when does it make sense to tell your children? And depending on their age, how you tell your children? Because young children will kind of take in the information and, you know, Grace was seven when we told her, and after we told her she was like, “Can I go upstairs and play now?” Now, older children may want to sit and talk about it for a long time. So it just depends on their age in terms of the reaction of the child, and what’s the right situation and environment you want to create for them as you’re telling them this very impactful news that they’re going to process over the course of time. 

How do you communicate it to them in a way that doesn’t make them feel like they did something wrong?

Oh, that’s a great question. I mean, you really have to think and be thoughtful with your soon-to-be ex-spouse about what you’re saying in that moment, how you’re saying it, and what you’re sharing and not sharing. Because, again, what you tell them in that moment will definitely stick. It’s interesting, Jesse, when we decide to become parents we make a commitment to our children that we’re gonna raise them in the healthiest, happiest, safest environment possible. And I always say that, you know, you put on bike helmets, and you cover the plugs when they’re little and they’re toddlers. You do all these things to keep them healthy and happy. And then as you’re going through divorce, they can be put into a very toxic environment if we’re not careful. And they can sit in that toxicity and the negativity that comes with this decision, and all the emotions that come with it, if we’re not careful. So I think from the moment you start telling them what’s happening through the process, and then post-divorce, you have to make a very conscious decision about the environment you’re creating for your children. Because we do strive as parents to keep them healthy and happy and safe, but if we’re not careful, and we’re not really conscious about how our emotions and our actions are impacting their environment, we can put them in that toxic environment for much longer than they should be. And it can have the negative implications in their life in terms of their view on marriage, their view of relationships, and just the overall happiness.

When you were first co-parenting, what are some of the obstacles that you ran into? And on the flip side, what are some things that actually went smoothly?

Early on, figuring out the right approach to communication for the day to day, and really figuring out, you know, what that looks like [was difficult], because with texts and emails and phone calls, you can bombard each other with lots of things all the time. And so we had to figure out what was the right system for us to communicate and make sure things weren’t falling through the cracks and that we were all on the same page on things. After some moments where things were like, “Oh, gosh, that maybe wasn’t the best way to handle this,” I decided to kind of collect my points on a list, and then there’ll be a call — I’d say, “Let’s have a call for half an hour and just run through these,” versus having ongoing, constant communication every day. So that would be one kind of a lesson along the way. 

You know, I think the thing that we did well from the beginning, is Grace always knew that we were both there for her, and we were both in this as part of parenting her. So whether it was going to her soccer games, being on the sidelines together, or, later on, we had an interesting moment where we went to her parent-teacher conference. We got divorced when she was in first grade, but we went to those every year together. And in sixth grade, we were in her parent-teacher conference, and her teacher stopped at the end of the conference, and she looked at us and she said, “Are you two divorced?” And I said, “Well, yes, we are.” She said, “You would be amazed at how many parents can’t come in for one hour and sit down with their children’s teacher and have a conversation about their education, because of their divorce.”

How do you navigate when your ex-partner starts dating again? Or when you decide you want to start dating again?

Oh, that’s a great question. I think this is very personal, and everyone has their own situation. So my ex husband and I both started dating again post-divorce, and we both have significant others in Grace’s life. So I think it’s a matter of when you decide your child is ready for that new introduction, and how they’re introduced, and being thoughtful about that as well. And just making sure that there’s an understanding of what the rules of the road are for that person being in your child’s life. And so we talked about that a lot, actually, even within our parenting plan. We put down some parameters of what that would look like, because we felt it was important to agree about those points upfront before individuals came into our lives that might skew or influence how we might want to think about it. So those were things that were actually thought through within the parenting plan and noted down.

In your book, you mention that if you have a partner who’s uncooperative — you can only control what you can control. At least in your situation, what were the things that you could control? So that people who are, perhaps, in a not-so-good divorce, they know where to ground themselves a little bit, at least. 

It does start with your reactions and your emotions, in times that are either frustrating because of the divorce situation, or because of the interaction with your spouse, and how you handle those. What I like to say is sometimes you need to put your emotions aside and just kind of get through the moment. There’s other times when those emotions are there and you need to let them out — do that, but try to not do it in front of your children, because those are the things your children are watching. Every move, every emotion, every reaction. And so I think that that does take a little bit of self-control. I’ll give you more of a day-to-day example: there would be moments where Grace would come down and say, “I don’t have my special shoes. They’re at dad’s house.” And I’d stop, and there’ll be a point of frustration for me, like, “You know, we’re about to head out the door.” And I’d have to stop and take a deep breath and say, “No, it is not Grace’s fault that there is an item at the other house that she needs.” And so I take a deep breath and go, “OK, well, let’s go get those special shoes.” And so I think those are the moments when you have to remind yourself that your children did not put themselves in this situation.

And when you have an ex-spouse that isn’t participating in the child’s lifes, or not as collaborative in the co-parenting, then you have to decide what elements you can do that allow your child to feel like they’re in as healthy and happy an environment as possible. Jesse, I would like to help change societal perception that divorce always has to be a negative thing. Like there’s a reason you’ve gone through a divorce, divorce is an action. But I do believe that, regardless of the reasons for divorce, it doesn’t mean that you and your children, and potentially your ex-spouse, can’t be happy. And it doesn’t have to be the scarlet letter that you carry around. And I do think it comes down to how you approach it, your mindset, the day-to-day actions you take, and engaging with your children that can help it actually turn out to be a good divorce.

Sarah Armstrong is the author of The Mom’s Guide to a Good Divorce: What to Think Through When Children are Involved. You can learn more about her on her website, gooddivorce.guide.

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You’ve been listening to 51%. 51% is a national production of WAMC Northeast Public Radio. It’s produced by me, Jesse King, our executive producer is Dr. Alan Chartock, and our theme is “Lolita” by the Albany-based artist Girl Blue. A big thanks to Lauren Hunt and Sarah Armstrong for contributing to this week’s episode — and of course, you for tuning in. If today’s episode applies to your life, I hope we were able to offer up a little bit of guidance and support during what can be a stressful time. Until next week, I’m Jesse King for 51%.