By Melanie Thernstrom
Excerpted from The New York Times Sunday Magazine, August 24, 2003
In most public accounts of divorce, there is no confusion as to why the couple is splitting up. The reasons are so sound — the trails of manipulation, exploitation and betrayal so thick — the only mystery is why the couple were together in the first place. Is it possible to imagine that Ronald loved Patricia or that Donald truly cared for Marla? What does love mean to someone who presents his bride with a prenuptial on the eve of their wedding, stipulating that she would get many millions of dollars for a marriage of four years, but only $1 million for less than that — and then discards her on the deadline? And what does love mean to a woman who’d sign on that particular dotted line?
In contemplating these questions, however, we neglect the more difficult ones. The truth is that most Americans do not marry for power, money and status. Nor do they marry out of social and economic necessity, as in an earlier era. They marry for love. Yet an enduring truth of our time is that marriage dissolves as often as it holds. So how is it that ordinary love ordinarily fails? If love is, as Wallace Stevens suggests, a dwelling ”in which being there together is enough,” how does silence fall on a thousand evenings and the possibility of intimacy flicker and die? How do lovers become lonely?
MARRIAGE: THE SPAGHETTI
‘It was a good story — a story we liked to tell when we were together,” Max says, in the slightly droll drawl he uses when speaking about his marriage now, as if irony will obscure his sentiment when its actual effect is more like chiaroscuro.
Yet the story that Max tells of meeting Kate is simple. (Both of them asked to be identified only by childhood nicknames.) Fourteen years ago this fall, Kate showed up at an opening at the museum where Max was working. They seemed to have a lot in common; they were both 32, with graduate degrees in education and experience working in nonprofit agencies, although Kate was already on a corporate track. She was visiting from the Midwest; he invited her to lunch at an Italian restaurant near LaGuardia, before her flight the next day. ”She had a slightly wicked sense of humor,” Max says. ”She was from a rural town and had these appealing colloquialisms, such as ‘cold as a witch’s elbow.’ ” He gropes for adjectives. ”She was energetic and enthusiastic, intelligent, athletic . . . beautiful. She surprised me. And as I got to know her, she continued to surprise me.”
It’s not hard to picture them together: everything each recalls liking about the other still seems true. In fact, if you met both of them today, you might think to introduce them. They are equally distinctly attractive, in differing genres: Kate looks a bit like Dorothy Hamill, with short, silky brown hair, fair skin, impatient blue eyes and a trim, compact build. Max looks like the man who ruins or rescues the heroine: dark, tall and lanky, with a languor about his body and voice.
Kate remembers being drawn to his attentiveness and intensity. ”He had cool interests, jazz and wine and art and literature,” Kate says. ”And he was very cute.” She laughs, her voice lingering in the ”very” in which she once fell in love.
But the story she tells of their first date includes a layer absent from the one that Max tells. Like Max, she felt an urgency in their conversation — a possibility of intercourse, in all senses of the word. But at the same time, there was a way in which she was already dropping out. When lunch was over, Max insisted she take the remainder of her spaghetti home. He must already have cared for her, he explains now; he had never done such a thing on a first date before.
”It was so him,” she says, in the way that the fondest of phrases — it’s you, darling! I understand you! — can metamorphose into the bitterest, as caring begins to be seen, through the lens of years, as controlling. ”I hate leftovers; I was hardly going to lug that damn spaghetti back to the Midwest. But I said, ‘Fine,’ and threw it out when I got to the airport. So there you have it, that’s the whole thing — the beginning and the end.” It was the first of 11 years of things she said ‘Fine’ to while thinking something different.
DIVORCE: A FAILED CONVERSATION
In his radical address to Parliament in 1643, ”Doctrine and Discipline of Divorce,” John Milton argued that ”in God’s intention a meet and happy conversation is the chiefest and the noblest end of marriage,” and that divorce is not only necessary but right when that special conversation fails.
Does it follow, though, that divorce must maintain silence? Or is there a possibility of dialogue even in separation? Can two people come to a shared understanding of fractured love? And if so, is that valuable? What is the good of a good divorce?
The questions have grown only more urgent: four centuries after Milton urged that divorce become a civil right, American matrimonial law is still punitive — protracted, expensive, confusing, damaging. Yet divorce is now an ordinary — perhaps even a likely — outcome to marriage. Over the last two decades, the proportion of failed marriages had held stable at around 50 percent, but (while national data lags) some experts suggest that the rate may be tipping over half. Historically, periods of economic hardship tend to keep couples together; the current economic downturn, however, appears not to have had that effect. A survey by the American Academy of Matrimonial Lawyers found that 78 percent of divorce attorneys say that their caseloads are steady or increasing. Several studies, according to The Wall Street Journal and others, show that divorce filings have increased in many areas and, moreover, that there is an increase in the number of contentious divorces.
Kate and Max vehemently disagreed on the terms of their separation. But they avoided the quagmire of litigation through an increasingly popular alternative to handling disputed divorce: mediation. Although mediation began in the 1970’s, it is now beginning to reach critical mass. In California, Maine and other states, mediation is mandated in custody disputes in divorces, and other states are considering similar legislation. Oklahoma, which has one of the highest divorce rates in the country, has recently instituted a program that refers couples to free or low-cost mediation. If the trend continues, someday soon people may look at litigation as a last resort only for unusually contentious divorces (cases in which one partner is abusive or absent), rather than the norm.
Jack Himmelstein, co-founder and co-director of the Center for Mediation in Law, which trains mediators, says that the trend is spurred by the grown children of baby boomers who were victims of their parents’ 80’s ”Kramer vs. Kramer”-style divorces, and who want their own divorces to be less damaging. And there is a growing interest in a concept that has newly made its way into our culture, ”the good divorce” — a phrase that once would have sounded not only oxymoronic but also unseemly — something that implies permission instead of punishment, like ”happy hooker.” Litigated divorce inherently fosters enmity. In litigation, ”meet conversation” immediately ceases: the first rule a lawyer conveys to the client is literally to not talk to his or her spouse — lest self-scrutiny prove contrary to self-interest. Refusing to join the modern ”no fault” trend, New York continues to require one of three extreme grounds for divorce: cruelty, adultery or abandonment. (Milton advocated that the 17th Puritan Parliament liberalize grounds to include incompatibility.) Individuals in contested divorces have to pay lawyers to establish grounds by creating false narratives about their spouses. Thus insensitivity becomes cruelty, a busy father turns into a negligent one and so forth. By the time litigation is completed, the anger — if not the accusations — becomes reality.
Mediation, by contrast, ”relieves couples of the need to demonize each other,” says Barry Berkman, a matrimonial attorney and mediator who drafted the final agreement with Kate and Max at the end of their mediation. Couples employing mediation have been shown to be significantly happier with both the process and the results than couples using litigation. As an article in St. John’s Law Review noted, one study found that 73 percent of those in mediation were satisfied or highly satisfied. Trials yield little satisfaction, and even attorney-negotiated settlements were satisfactory to only 23 percent of divorcees. Himmelstein, who acted as the mediator for Kate and Max, says, ”In mediation, you have the opportunity to tailor the law to your own needs.” Kate and Max ”wanted to create a separation that reflected the relationship they had.”
The only problem was that Max and Kate had profoundly different notions about what that relationship had been. Like most divorcing couples, they found themselves disputing not so much their desires for separate futures as their beliefs about their common past: the nature of the marriage they shared — or thought they shared.
MARRIAGE: A DANGEROUS INTIMACY
How do we describe the arc of a failed marriage? In one model, a period of happiness would turn into unhappiness, as if the marriage were a plant that bloomed and then withered. There might be identifiable adversities — weather, soil, pestilence – and turning points, or at least a progression, as in a snowfall. The accumulation of moments might be too numerous for each to be observed, but the trend would be clear: you look once and see a light dusting, and the next time you look, it’s an impossible snowdrift.
Another model of a failed marriage holds that the crucial elements are written into the marriage contract from the beginning, and like genes, express themselves over time. Those elements — the strengths of the bond — might even prove to be the weaknesses, the way a certain kind of intimacy, for example, might protect against loneliness while weakening autonomy, the way a gene that protects against malaria also causes sickle-cell anemia.
In the 11 years they were together, the dynamic between Kate and Max changed very little. But in the early years, the dynamic worked. Soon after that first lunch, their lives began to merge. Kate relocated to New York, and they moved to an apartment on the Upper West Side.
When Max describes the joy of their relationship, he stresses their easy unity: the interests they cultivated together — the pleasure of finding a partner. For Kate, the joy was one of transformation, as Max’s world opened up to her. She had grown up in a rural town, the eldest daughter of a construction worker and a housewife in a Protestant household where money was tight, whereas Max was the doted-upon child of cultured, Jewish intellectual New Yorkers who reared their children in Westchester. Kate began to learn about bird-watching, baseball, wine and theater. They baked bread, went camping and tried to practice tsedakah — acts of loving kindness — by boxing lunches for homeless people in their neighborhood. They got involved in a local temple, and five years after they met, when they were both 36, Kate converted to Judaism, and they decided to marry. They went to a jeweler on 47th Street and picked out a ring with a modest row of small diamonds. Then they went for lunch to a Chinese restaurant where Max, teasingly, proposed.
They each recall having paid for the ring. ”I told myself it didn’t matter who paid for it,” Kate says. After all, from the beginning Kate made more money, working in finance at a large corporation, than Max did at a nonprofit organization — a gap that would grow.
Their intimacy was sufficiently consuming that neither of them bothered to develop other friendships. Kate loved spending all her free time with Max. But while she was genuinely engaged by their joint hobbies, she secretly suspected her level of interest was slightly inferior to his. She’d find herself gamely tramping along on daylong bird-watching expeditions, when she’d rather have kept it to a morning and gone out to lunch, or she’d observe the Sabbath when she would have preferred to watch birds. And she never quite forgot that each of their shared interests had originally been Max’s idea.
When I ask Max, he exclaims, wounded: ”I can’t believe she’s trying to put these things on me. I wasn’t into Judaism before her. These were things we discovered together.”
A few years into their marriage, Kate had brief flirtations with hobbies of her own invention — singing and horseback riding — but they never really took.
Kate had one close girlfriend, and sometimes in the summer, she’d take the train to see her on Fire Island, play tennis and come back late. ”He hated that — he’d always be in a bad mood when I got back,” she says.
”I guess I wasn’t entirely sure I had the right to want that,” Kate adds. ”I feel like it was very important to him that we have the same interests and do everything together.”
Max now acknowledges, ”Perhaps I was a bit threatened by it.”
While Max found his job satisfying, it had fewer demands than Kate’s did. She worked long hours, concentrating so fiercely she’d sometimes not eat or go to the bathroom. Max would pack a lunch for her or thrust an apple into her hand as she walked out the door, and then call her at work and urge her to take a break. He wanted to take care of her while she was away from him, and he wanted her to take care of herself, and those two things seemed indistinguishable to him.
”Good lord, the idea of deciding what you’re going to eat in the morning is so unappealing,” Kate says. ”Perhaps he didn’t go to school every day for 12 years and take the same boiled-ham sandwich on white bread, but I did. You want caretaking, but you want it in the way that’s meaningful to you — which, for me, is not in a brown paper bag.”
Max does recall Kate mentioning she didn’t want the food. ”I heard it at one level,” he says slowly. ”But I didn’t really hear it — you know?”
The only aspect of their home life that wasn’t communal was finances. Kate insisted they keep their earnings separate and divide their bills proportional to their salaries — a formula that shifted with Kate’s raises. Each year when Max’s parents gave them each a tax-deductible gift toward a down-payment on an apartment, Kate put hers in a separate account. The arrangements struck Max as a bit odd, but he tried not to think too hard about it. After all, he knew Kate was compulsively organized, and he reasoned, since they were spending their lives together, all her money was really theirs. If Kate preferred to have her name on an account, what did it really cost him?
DIVORCE: BALANCE OF POWER
It makes no sense to say that a good marriage requires parity, as most marriages in the world and throughout history have been based on entirely different principles. You might even conclude from America’s unusually high divorce rate that the expectation of equality and personal fulfillment is itself a more problematic prescription than that of honor and obedience. Or perhaps the problem lies not in equality, but in the ambivalence that inevitably surrounds a titanic cultural shift only decades old. Many women today still sign up for marriages in which the man, to some extent, dominates. Traditionally those marriages have ended when the stronger party tires of the dependent. When Harriet Newman Cohen began practicing matrimonial law three decades ago, her clients were mostly women whose breadwinners had walked. But she and others have observed that today, it is as often the weaker party who calls it quits, tired of a role that is no longer culturally sanctioned. And, once equitable distribution laws — which forced the higher-earning spouse to share the wealth equitably — were passed in the 80’s, there was no longer any financial penalty for divorce.
Today, almost as many women as men file for divorce. Infidelity, in addition, is no longer a primarily male province. One divorced investment banker discovered that, within his circle of male friends, it was their wives who cheated, not they. ”In the culture of my firm, having affairs is just bad behavior, like drunk driving — something that could harm your reputation,” he says. Female infidelity, on the other hand, he says, reads differently. ”They’re finding themselves, exploring their sexuality,” he observed bitterly. ”She was fragile and neurotic and I was the white knight. I made her feel taken care of and she made me feel strong — right up until the day she left.”
MARRIAGE: THE SMART, INTERESTING ONE
Max did not wish to oppress, repress, subsume or engulf Kate. He did not subscribe to traditional sex roles, and if he were to describe what he valued in Kate, he might have listed strength of spirit, competence, perhaps even independence. Like many contemporary men, he never would have been attracted to someone who conceived of herself as Adam’s rib. But there was a current in their marriage that ran in a different direction. And for reasons neither of them can fully account for, it was that current, rather than any other, that gathered momentum over the years and began to erode their lives.
”She talks about the relationship like she’s Anna Karenina or Madame Bovary,” Max complains. ”It’s a cliche.” The very thing that Kate admired about Max — his sophistication and sensibility — made her feel bad about her own tastes. Max found some of the music and movies and TV she liked lowbrow. Although he grudgingly conceded that they could get cable, he’d give Kate a hard time about shows she enjoyed, like ”Alias.”
” ‘Why does it always have to be great art or film?’ ” Max recalls Kate complaining. ” ‘Why can’t we just enjoy mindless entertainment?’ But I don’t enjoy mindless stuff,” he says. ”Did I think she was less of a person for liking them?” Max asks himself. (While Kate tends to speak crisply and definitively, Max’s words circle back, his thoughts evolving as he speaks.) ”I don’t know, maybe to an extent.”
Later, he says: ”The thing is, TV was not what I needed. And the way the relationship was set up, we did everything together,” he adds softly.
Once, Max gave Kate a book of Shakespeare criticism after they had seen a play, and then began to read it himself. ”That angers me so much about him,” Kate says, with surprising vitriol. ”I don’t have two seconds to read it, and then it’s too late.” She says she felt she had been ”robbed once again of this opportunity to possibly be the expert. Max was such a know-it-all about everything. He always had more time and education and background and context. You could never win.”
When they socialized, Kate found herself feeling slightly left out. ”I felt like he was the smart, interesting one, and I didn’t have anything to say,” she says. Max disagrees. ”Kate is very articulate,” he says emphatically. ”At dinner parties, she was much more the raconteur.”
When I repeat Max’s comment to Kate, she says: ”I’m going to start to cry. He never said anything like that to me.” Max says he felt basically content with the marriage and assumed Kate did as well. And Kate was content in many respects, but a small resentment pressed at her. Her feelings were intensified by the fact that she had no time to herself. She suffered the New Yorker’s fate: she went from a crowded office to a crowded subway to a small apartment in which Max was always already waiting and often annoyed at the late hour.
Like most powerful, pervasive dynamics, the tensions found expression in incidents almost too trivial to recollect. She’d get cross with him for not keeping the apartment as tidy as she liked. Or she would rebel in an inchoate, pointless way, like leaving the bathroom door open while she dried her hair, a sound that Max found grating. ”Another way of describing the relationship was that she had more trouble compromising and being in a relationship than I did,” Max says. ”It cost her more to accommodate me, so she resented it more. That’s as much of a truth as that everything revolved around me.”
Over time, they had sex less often, and when they did, they had less of a feeling of reaching one another. The shift was subtle enough that neither can place it — did it happen in Year 5, 6, 10? Without saying so, each attributed the distance to the other. Max says that Kate didn’t encourage him to be the physically expressive person he really is — and has been in subsequent relationships. Kate laughs in astonishment to hear it. ”Oh, my God, that is so different from how I describe it,” she says. ”He wasn’t particularly cuddly or romantic at all. But I don’t know, maybe I did that to him. Or maybe he did that to me.”
Kate took on progressively more responsibility at the corporation, and her income grew from $80,000 to well into six figures, while his merely rose from $45,000 to $65,000. She was gaining confidence at work and managing large teams of people. But then,”I’d come home, and Max would pick on me for drinking whole milk or not eating the stupid health food he likes,” she says.
They never talked about how they felt about the difference in their salaries, but Kate sensed that Max believed his flexible, socially responsible, artsy job was superior to her corporate grind. Max interpreted Kate’s long hours as a withdrawal from the relationship — and she resented his resentment, which in turn caused her to actually withdraw and work harder.
But while she craved the intensity of her work, it was also a constant source of anxiety. But she had her savings, she’d tell herself. No matter what happened with her job or with Max, she could take care of herself.
DIVORCE: THE MEANING OF MONEY
The simplicity of divorce is that, in the absence of a custody dispute, there is only one issue that needs to be resolved, and that is finances. All of the impossible disputes in the relationship — sex and lateness and whole milk — become miraculously moot. The complication of divorce is that without the practical realm in which emotional conflicts are ordinarily expressed, the unresolved feelings compress into the single question of money. And so, money becomes everything. When Max and Kate decided to divorce, Max suggested they see a mediator. ”He always knows the cool, new thing to do,” Kate says tiredly. She agreed to go for a session or two, but she didn’t see why they needed a professional. Although they never talked about how they would divide their assets, ”it was so clear in my mind, I thought I would lay out the obvious facts, and that would be that,” Kate explains. ”Then I got to mediation,” she says, ”and I just couldn’t believe it.”
She sat on the couch in Jack Himmelstein’s Upper West Side office and revealed her plan. Their finances had always been separate, so she would keep her money and he would keep his. When she moved out, she left Max their rent-stabilized apartment, their furniture and their pet, and she didn’t want any of them back. What was there to discuss? ”My money was always mine,” she said. ”We shared everything,” Max said. That’s the kind of marriage I was in. What kind of marriage were you in?
It was the late 90’s, the stock market was booming, Kate was earning a lot of money at her job, and like her colleagues, she wanted to play with it. At one point, she had her heart set on buying a BMW. Max said it was absurd; he was the one who drove their old car to work every day, and he says he felt uncomfortable with the idea of showing up at a nonprofit in a status-symbol car. ”I don’t have that many vices or do many wild things,” Kate says. ”We were at a time in our life where we had some disposable cash, and I felt like, let’s get a cool car, a great car. His response was so predictable to me: ‘Oh, it’s ostentatious, it’s impractical, it’ll get scratched in the city, think of the maintenance, only Republican capitalists would buy a BMW, not socially responsible people like us who recycle.’ ”
Max began to warm up to the idea. ”I went down to the dealership with her and said, O.K., if she really wanted it, we should get it,” Max says. He likes to talk things through, he explains, whereas Kate always wants to make quick decisions.
”He took all the fun out of it,” Kate says. ”I felt like he was right and I was stupid — I felt embarrassed for bringing it up, and exposing myself for being the kind of person I’m not supposed to be. But somewhere in my mind I thought, O.K., fine, maybe I am a Republican capitalist — I don’t know.”
Kate’s pet desire was to add diamonds all the way around her engagement ring, so that the band would make a complete, shining and invincible circle. It still bothered her that, according to her memory, Max hadn’t paid for the ring. ”I think I thought it was O.K. at the time, but I don’t know if that was true,” she says. ”Maybe I want a man who’d buy me a diamond ring,” she says. ”Does that sound superficial?”
She brought up the idea of adding more diamonds from time to time over the years, but Max always refused. He found the thought deeply disconcerting. ”Sometimes you see these very successful people with modest little rings that represents an earlier time in their life,” he says. ”What was she saying by telling me that our ring wasn’t good enough for her anymore? Did she want an upgrade on the marriage too?”
Kate couldn’t understand it. ”He was so begrudging about it,” she says.
Over time, when Kate looked at her ring, she began to see not what was there, but what was missing. And the chinks in the ring became what Max feared: chinks in the relationship.
DIVORCE: THE BACK DOOR
Mediation exposed the fragile civility between Max and Kate. In the second and third sessions, Kate tried again to calmly articulate her guiding principle: the origin of the money should determine who would get it. The principle was not entirely self-serving: while she would keep her earnings, she would return to Max the gifts his parents had given her since they were intended for their future home. Therefore, in her mind, apart from the gifts, the fair amount that she should give Max was zero. Max had a different but equally clear guiding principle: mutuality. Drawing on the principle of communal property, Max says he thought that they should roughly pool their total assets and then divide them equitably. The impasse seemed absolute.
”I made too many concessions in the marriage,” Kate says. She was getting a divorce precisely in order to stop making concessions.
Max pointed out during mediation that he had planned his life around the assumption that her corporate salary would subsidize his nonprofit one. All the anger Kate had bottled up during the 11-year relationship exploded. ”Ohh,” she spits, remembering. ”He looked down at me for having a corporate job — he gave me a hard time for working late — and now he wants my earnings? Well, I could have worked for a nonprofit, made $65,000 a year and gotten home at 5 o’clock, like he did.”
Perhaps, Max suggested at one point, he might now go back to school and get another graduate degree — an endeavor Kate could finance. ”I thought what Max wanted was completely preposterous, and every time we talked about it, it threw me into a rage,” Kate says.
It seemed especially unfair because in contrast to Max, Kate felt financially responsible toward her parents and siblings. And the marriage had collapsed along with the stock market; her job could disappear at any time. The morning after the third session, for the first time in Kate’s life, she says she felt ”scarily depressed.” She had trouble getting out of bed and going to work. ”A long time before the marriage started to fall apart,” she explains, ”somewhere in my mind I had a back door in case things didn’t work — an escape plan by which I’d be O.K.,” she says, referring to her savings. ”There was a horrifying loss of control when I realized in mediation that that back door didn’t exist. I felt completely vulnerable.”
The idea that Kate had a back door all along made Max sick. How could he — an insightful person — not have known this about the woman he had slept beside for 4,000 nights? Then again, how could she have concealed it?
MARRIAGE: THE MISCARRIAGE
Kate and Max had been ambivalent about having children. They were both anxious about the time and money and attention a child would require. By the time they decided to try to have a baby, Kate was nearly 40 and she couldn’t become pregnant. And so they proceeded to fertility treatment. Even more than that of a divorce court, the atmosphere of a fertility clinic is thick with desperation: the exquisitely costly torment of drugs and invasive procedures made bearable by the taunting hope that if they work, the suffering of the process will disappear in memory like labor pains. Yet, as Kate sat in the waiting room day after day, it began to dawn on her that she felt different from the other women there — that the frightening odds against the success of fertility treatment were not the only thing that frightened her.
Unlike many of the other women in the clinic, Kate didn’t regret having devoted herself to her career. Nor did she wish to cut back now; she says she felt Max already wanted more from her than she wanted to give. Or perhaps the real issue for both of them was that their relationship would have to change, their fused twosome divide into three. Would the relationship survive?
”Throughout the whole process, I used to worry: ‘Good God, what if I do get pregnant?’ ” Kate recalls.
Through insemination, she eventually did become pregnant but she miscarried within a few weeks. After the last of the fetal tissue was scraped from her cervix, she found herself feeling, along with sadness, strangely freed. ”I realized, Look, I’m never going to have children. It gave me a different perspective on the future. I started thinking, So what am I in this thing for?”
While she and Max began to discuss donor eggs and adoption, she was engaging in a much more complicated conversation with herself. At the same time that she was trying to envision a hypothetical adopted child, her other desires gathered around the figure of a new man. As it is for most people who commit adultery (studies vary greatly — between one-quarter and three-quarters of divorces are thought to involve infidelity), the affair was and wasn’t about the new person.
The man made her aware of a profound sense of absence: how ”desperately lonely and tragic and unbearable it was — being in a marriage and not having that.” Yet she’s hard-pressed to define what that is: intimacy, as it were, the thing that makes people feel close — makes sex feel real and living together meaningful. The affair was ”like a gift that presented itself and I wanted to give it to myself, because I wasn’t getting that out of the marriage, and because I wasn’t sure I would ever have that in my life.”
For Kate, the affair was a signal not just that the marriage should end, but also that, in a sense, it actually already had. She had broken her marriage vows; she wasn’t the kind of person who would do such a thing; she needed to leave to become an honest woman again. ”I felt, Oh, my God, I’m cheating on my husband,” Kate explains. ”And after that, there was no turning back.”
Max was stunned. ”In August we were signing up for an adoption workshop,” he recalls darkly. ”In November, she told me she was leaving.” How could Kate present their separation as a fait accompli before they even discussed it? He says that the affair was a ”destructive thing to do,” but he ”didn’t think it necessitated the end of the marriage.” Through his anger, he could see how hard Kate was struggling to be candid, and her candor held some sense of possibility for him. ”I felt like: Wait a minute, let’s talk. I want better sex, too.”
It was Max who finally asked her to temporarily find someplace else to stay; he was crying all the time and sleeping alone. He says he hoped that some space would make it easier to communicate. But Kate says, ”I knew once I moved out, I was never coming back.” She had wanted to go, she realized, for such a long time.
DIVORCE: FINDING A FIGURE
The insight of mediation is that neither party’s satisfaction bears a definite relation to the settlement’s dollar amount, and therefore the mediator should not focus on a monetary figure — as litigators do — but on how money figures. Thus the solution that emerged in mediation to Kate and Max’s stalemate was actually a mental shift: instead of thinking that Max was plundering her savings, could Kate imagine choosing to give him a supplement — for a certain length of time — for rent and other expenses so that he could continue the lifestyle they had developed together? The idea indeed was much more palatable to Kate — even if the amount she might end up paying would be around the same amount Max had asked for in the first place. Even working with that concept, though, the details of the settlement took many more sessions to hash out. ”Over the months there’d be cycles of progress, impasse and anger,” Kate recalls. ”I’ll pay this; I won’t pay this.” She often found herself too angry after a session to meet again for many weeks.
At moments, some of their old compatibility would spark; in the midst of a difficult negotiation, they could still make each other laugh — something Himmelstein had rarely observed in couples. ”We both have irrepressible senses of humor,” Kate says. ”As awful as the sessions were.” Max, however, didn’t find the sessions awful; he half looked forward to them as opportunities to examine the breach and perhaps even to mend it. Sometimes, they’d go out for coffee afterward. Once, they parted after the session, only to board the same subway car by chance an hour later. The coincidence taunted Max. They got off at different stops, a few minutes later, but did they have to?
”I felt like, If we can work these things out in mediation, can’t we work them out in the relationship?” Max says. ”But Jack said: ‘Not necessarily. The work can be about trying to create a good ending.’ ”
The turning point, they all agree, occurred during the fifth or sixth session: when Kate alluded in passing to her pain in losing the marriage and Himmelstein asked her to talk more about it.
”Normally we were fighting and accusatory — ‘You’re causing me to lose this,’ ” Kate remembers. ”There we were able to come together and I realized how tragic it was for Max, and he realized how tragic it was for me — even though I was choosing it. And that we were both overwhelmed by the enormity of what happened. We both got married fully expecting. . . . ” she says, her voice trailing off as she loses the thread of what she had expected, and what she had gotten.
”Marriage obviously meant very different things to us,” Max says. He liked being married. Perhaps Kate, on the other hand, ”not only didn’t want to be married to me, she didn’t want to be married at all.”
The mediation sessions were often in the evening, and Kate would arrive in her conservative business attire, looking peaked and tense — like ”a corporate drone,” Max says. He’d be relieved to feel the pull of his attraction slacken, as he’d glimpse her not as his wife but as just another person — and one whose life was becoming foreign to him.
At some point around the 12th session, when they’d been in mediation for almost a full year, Max and Kate arrived at a tentative settlement, but one that didn’t feel right to either of them. It was less than what Max had originally asked for but still represented about a third of Kate’s assets. Moreover, the payment from Kate plus the gifts that Max’s parents had given them would mean that Max’s total assets would actually exceed Kate’s.
They each decided to consult lawyers about the proposed figure. Kate’s lawyer conveyed to her that a legal remedy was unlikely: that were she to take the case to court, given the equitable distribution laws, she might end up paying Max more and she would certainly pay steep legal fees as well.
Max’s lawyer, in contrast, let him know he could probably do better — advice he found equally unsettling. On the one hand, he felt guilty taking money from Kate. ”What am I entitled to?” he says, as if the question still haunts him. ”Am I entitled to anything Kate doesn’t want to give? It felt strange and uncomfortable and embarrassing, and it still does.” (He didn’t want the settlement figure printed in this article, whereas Kate did.)
But disregarding his lawyer’s advice also made him uneasy. ”There’s the chump factor,” he says. ”You want to make sure you’re not being a chump by not getting everything you’re legally entitled to.”
Kate snorts. ”Yeah, he told me that,” she says sardonically. ”But I felt: I have to fork over money so you don’t feel like a chump? You’re not a chump, all right, so don’t make me give up my savings.” Max decided that making Kate happy — or, rather, less unhappy — was a legitimate factor in his decision to accept the settlement they were considering. Kate, for her part, decided she’d ”rather give the money to Max than to a lawyer,” although she says it in the tone of someone for whom the decision is still fraught. Kate was aware that although it was a compromise, it felt profoundly different from the silent concessions she had unwittingly made throughout their marriage. ”In retrospect, it was powerful to come to terms with something I thought was unfair,” Kate says, ”and move on.”
The number on the separation agreement was one neither of them would have chosen, but one both of them could live with, precisely because they did choose it. Kate agreed to supplement Max’s rent for several years and pay their taxes and legal and mediation bills. He would keep the car, and she would also keep him on her health-insurance plan and pay his premium. They both agree that had a judge given them that same number, they each would have felt cheated — and blamed their attorneys.
During their final meeting, they were both drained and blank when they went to sign their legal agreement at Barry Berkman’s office. On the wall is a print of ”The Desiderata,” urging clients: ”neither be cynical about love; in the face of all aridity and disenchantment it is perennial as grass.”
Afterward, they went downstairs, and Kate finally gave Max her keys to what was now his apartment — something she had held on to throughout the sessions — and Max cried. He says he thought Kate teared up, too. But a few weeks later, she needed to pick up something in the apartment, and she told Max she would let herself in while he was gone. He was stung to realize she didn’t recall having given him her keys: that relinquishing their life had finally become for her an automatic gesture.
There is a moment in the marriage that they each sometimes think back on. They were in Costa Rica, looking for the classic keel-billed toucan they called Froot Loops, from its depiction on the cereal box. They had been in the jungle for several days, and had fallen into a rhythm together — ”learning to see in a different way, knowing when to keep walking and when to stand still,” Max remembers.
Max spotted the toucan with its surrealistically large rainbow beak, perched on a hundred-year old tree. He passed the binoculars to Kate, whereupon she told him it was not Froot Loops but a more common chestnut-mandibled toucan. He looked again, and disagreed, and then ”we began to get really mad at each other,” Kate says. Neither recalls who realized it first, but they both remember being caught short by truth: they had been looking at two different birds in the same tree.
THE MARRIAGE: THE PEOPLE THEY WOULD BECOME
Kate moved downtown, where she always wanted to live, and began looking for an apartment to buy. Now she does things she never did when she was married. She eats what she likes at work, throws out her leftovers and dries her hair with the door open. She invites groups of girlfriends over. ”Friends who used to know me before are surprised at how much I have to say now,” she says. Recently she was invited to a baby shower that Max was attending, too, and she found herself moving easily around the room by herself, in a way she didn’t when they were together.
She goes to movies Max would consider cheesy. Once, she and Max were talking about getting together and she said that, whenever it was, it couldn’t be Sunday at 9, because that’s when she watches ”Alias,” and she felt a delicious relief that she finally didn’t care what he thought.
As for Max, he surprised himself by keeping cable, and now he watches some TV, too. Kate is annoyed to see, when she goes over to pick up something, that Max now keeps his apartment neat, as he never did when they were together. Neither of them keep the Sabbath anymore, and Kate isn’t sure she considers herself Jewish. And, although they both miss doing it, and say they hope to again, neither of them bird-watches any longer.
Most of the divorce lawyers I interviewed seemed taken aback by the question of whether their clients still loved their spouses. A group of mediators at a round-table discussion, on the other hand, all answered with qualified versions of yes. ”To the extent to which they ever genuinely loved each other, they continue to,” Berkman says. ”For most of them, if you search hard enough, you can find that.”
When I ask Kate about this, she says flatly: ”I don’t want to go there.”
There’s a long silence when I ask Max. ”I think so,” he says faintly. ”When she left me, she accused me of never having really loved her.” He recalls how devastated he was by the accusation. ”I think something about the way that she felt about herself made it hard for her to believe I loved her. But I did love her,” he says, in a stronger voice. ”We loved each other for a long time, so there will always be that connection between us, I think.”
He remembers a fantasy Kate offered him once during mediation. One day, she said, in some now unreachable future, they might meet at a cafe, and forgetting they had been married, begin to talk and hit it off all over again. (Max recalls how they did fortuitously meet on that subway, as if destiny were seconding the idea.) Why couldn’t they do that now?
”We’d need to be entirely different people first,” Kate said; the people they would become by getting a divorce.