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Gay Marriage -- and Divorce

A Commentary by Susan Estrich

Friday, June 06, 2008

"Today is a great day not only for every lesbian and gay couple who wants to get married, but for every Californian who believes in fairness and equal opportunity for all," said Judy Appel, executive director of Our Family Coalition, a group that advocates for same-sex couples with children, in response to the California Supreme Court majority's refusal to delay its ruling on gay marriage. As a result of that refusal, California counties have until June 17 to start issuing marriage licenses to same-sex couples.

It is also a great day for California divorce lawyers.

Business is going to boom, no offense to anyone.

Don't get me wrong. I believe anyone who wants to get married should have that right, without regard to the gender of the two people involved. In that respect, I'm actually part of a new majority in California. Polls taken since last month's landmark state Supreme Court decision have found that for the first time, a majority now supports gay marriage. That bodes well for not overruling the Court's decision when the issue is put to voters on the ballot this fall.

But the problem with marriage, whether gay or straight, is that it is way too easy to get married and painfully difficult to get divorced. You can get married in a minute. The fee is minimal. The forethought required is nonexistent.

Divorce doesn't work that way. The only winners in divorce tend to be the lawyers. Marriage is a fantasy. Divorce tends to be a full-blown nightmare. Maybe now that gays are going to be stuck in that particular dark night with the rest of us, they can help us figure out a better way out of it.

Divorce is one of the few situations where the incentives for the lawyers are totally and completely at odds with the interests of their clients. The best thing for clients is almost always to settle, the faster and more amicably the better, particularly when there are children involved. Divorce is a zero sum game, and the more money you spend dividing the pie, the less there is to go around in the end.

If the parties can't reach an agreement, a judge has to come up with one for them. But there's nothing inherent in going to law school or being a lawyer that gives you the wisdom of Solomon, which is what is required. Accountants, shrinks and financial planners are all better trained to address the issues in divorce than lawyers and judges, but the buck stops with the judge.

There really is very little "law" in divorce law. There's almost never a "right" answer, only a long list of wrong ones. The idea that governs much of contract law -- that you are trying to discern and enforce the intent of the parties -- doesn't work in divorce, since parties getting married never intend to get divorced, even though half of them do.

Every year, I ask my students how many of them plan to get married, and almost every hand goes up. And how many of you plan to get divorced, I always ask, and all the hands go down. No one plans to get in car accidents, either, but at least most of us buy insurance to protect us if we do. No one sells divorce insurance because no one would buy it, and you couldn't make much money selling it even if they did. You'd have to pay off too often.

What's worse is that most people aren't in their right minds when they're going through a divorce. They're emotional, not rational. They want to get even or get back, or they're so guilty they want to give up, which they then regret, leading them to want to get back what they gave up. Clients in business disputes tend, at least much of the time, to be rational in assessing the costs of fighting and the advantages of settling. Clients in divorces are more like first-time homebuyers, or sellers, who take everything personally and are willing to let the deal go south and lose the house of their dreams because they're attached to the refrigerator, or the other side is.

One of my friends, who started out doing divorce work and gave it up even though it was very lucrative because of how awful it was, says it's the one area of law where you have clients who are more interested in hurting the other side than helping themselves. I'll take criminal defense any day.

Ms. Appel is a mother of two who plans to marry her partner of 16 years. Hopefully, with 16 years together, which is longer than most marriages last, the ceremony won't jinx it. But just in case, there will be plenty of lawyers waiting.

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