Chapter 3: You can never again be sure

Divorce is humbling. It wrecks one’s sense of entitlement.

Before divorce it’s possible to believe that life will be fine if you just keep your nose clean. That the fulfillment of dreams is simply a matter of effort. And that mistakes can be remedied.

After divorce life is full of velvet traps. Even your spouse – the person closest to your heart — can’t be trusted. And your instincts are not always your best guide.

The iron lesson divorce teaches is that you can never again be sure. About anything.

The documents delivered to me, the pleadings my wife submitted to court to begin running the divorce clock, were ferocious. She asked the court to give her custody of our son, to have me removed from our apartment, to make me pay alimony and child support in amounts greater than my income, and to have me pay for her lawyer.

To justify this heart-stopping list of demands my wife used perhaps the most common excuse for divorce of the day. She accused me of domestic violence. On three occasions, no less.

Right from the start of the game, I was deep in the hole.

Accusations of violence in divorce pleadings, whether true or not, ring all the alarm bells. They tilt the playing field dramatically. They open wide most judges’ eyes and arouse their most powerful protective instincts. The mere accusation of marital violence, sometimes even without the flimsiest proof, arouses many courts to vigorous action, commonly the removal of the accused from the vicinity of the household. In the English language the cliche which most succinctly summarizes the virtual impossibility of regaining one’s good name in the face of nasty accusations is “When did you stop beating your wife?”

Over a year passed between the time my wife first slammed me with her accusations of violence and the delivery to court of the final, polished revision of her beefy set of complaints. That was a year of intense introspection. In that period of time I became familiar with every emotion between hope and despair. Many times over.

When friends part from each other, someone is likely to say goodbye by saying “Be good.” The words “Be good” are ordinarily nothing more than an innocuous platitude. At some time during this year of anguish, I took to replying to the words “Be good” with the wise-crack answer “Why?” I thought I had been good all my life. I thought I had tried to do the right thing. I thought I was a pretty decent guy.

Now my reputation hardly seemed worth the paper it’s printed on. In just a few florid pages, my very own wife put me on the defensive and did more to destroy me than anyone else had ever done. What had all those years of being good gotten me?

Eventually my wounded feelings had to give way to rational planning. If we were going into legal combat, I had to have a strategy. Something had to be written and said to the court, no matter how hurt and dumbfounded I was.

Knowing I never came close to even a single instance of violence toward my wife gave me a tiny island of relief. Hitting has never been my style. Not a single instance of violent behavior by me is recorded anywhere in any of my dossiers ever. Errr, my older brother and I exchanged blows a thimbleful of times. But even that deviation ended by second grade. I might have spoken some not-nice words, but fists are not in my behavioral vocabulary.

But an accused husband can’t afford to let himself believe that mere innocence will sway a court. I had my work cut out for me. I needed to pulverize her opening gambit, and I needed to pulverize it so forcefully that the court wouldn’t reflexively fulfill her wishes.

The big picture job ahead was even grander. Not only did I want the court to dismiss her dastardly allegations, I wanted to turn the tables on her. I wanted the court to come to its senses and see that of the two of us I am the more honorable and steady person and, as such, that I should be our son’s custodial parent. I wanted the court to award me sole custody.

The times seemed especially ripe for the notion of primary custody for a father who is not a widower.

The 1979 movie Kramer vs. Kramer captured the inequity of the courts’ sexual prejudices and gained some sympathy for the cause of more considered custody assignment. To assure the public that times have indeed changed, the female Chief Judge of the Courts of New York pronounced the unfairness depicted in that movie a thing of the past. No, fathers will no longer be treated as miserably as the fictional Mr. Kramer was treated. New York judges were supposed to be effectively gender-neutral, she said.

My custody story began in the 1980s. In synch with the times and my own history in the ‘movement’ – to be detailed later- I wanted to believe that my chances of getting custody were somewhere close  to my wife’s chances. I had put away my political and social activism on the alter – and in fact I don’t recall a single political discussion in my second marriage – but my apple didn’t fall far from its old tree. I wanted to believe that custody justice was on its way to really and truly and blessedly becoming blind.

Above and beyond my belief that the new default setting of the court would give each of us shots at custody, my case was based on my conviction that I would be a far better custodial parent than my wife. No comparison.

By the time she had me served with divorce papers in the fifth month of pregnancy we already had serious falling outs. Indeed earlier in our time together I had more than once mentally packed my bags to get away from her. But we also had our good days or weeks. During one of those low  pressure zones my thinking brain went on vacation. It didn’t remind my other brain of who was there in bed with me.

The job in front of me was to put together my response papers to my wife’s ‘moving papers’ — the papers that start a case, the opening barrage — and to draw my lines in the sand. My education in the law began.

I soon learned that in the law, just as in many parts of the rest of life, some things aren’t what they appear to be.

People usually assume that the moment a wife delivers legal papers to a husband announcing her desire to kick him out of the house, hubby must pack up and go. This is an urban myth. A husband is under no obligation whatsoever to assume he must clear out pronto. It’s his home as much as her home, and a man’s home is his castle, so they say.

Not only did I not want to decamp on general principles, there was an added reason to stay put. Custody of our child. The marital residence almost always goes with the child. I had no intention of being scared out of my home and away from our child’s home by her bluster.

Indeed, had I moved out at this early moment I would be doing the equivalent of conceding to her my entire case for custody, something I had no intention of doing. If the man moves out of the house and leaves the child(ren) with the mother, that’s as good as declaring that the man thinks the wife’s a good enough mother. Any judge wanting to avoid making a hard decision merely has to remind the man that he left the kids with the wife, so the poor guy must live with his decision. Judges usually don’t want to complicate life for the kids by moving Mom and Dad back and forth because Dad is having second thoughts.

Another gem I learned in the early rounds was that a diligent lawyer can delay almost any action by almost any divorce court for almost any length of time, most of the time. The wheels of justice can grind slowly, given a lawyer who knows how to keep a foot on the brakes.

Don’t expect anything to happen quickly, I was told. Judges don’t really like to decide custody cases when both father and mother appear to be reasonable alternatives. Before custody cases get decided, judges have to go through piles of papers, wade through a million motions, endure mawkish trials, then make Solomon-like decisions. Judges dread the hassle. To avoid trials that bring out the worst in parents, and decisions that judges know are only partly right at best, judges use every trick in the book to get the parties to settle between themselves. At the slightest hint, judges will delay acting for another day, hoping the parents and the lawyers on their own negotiate their way through their messes.

Assured that there is no time pressure from the court, I hunkered down for the long haul. The likelihood of getting my wife to see the light and to agree to give me custody was minuscule. There was almost no chance we would be heard in full by a judge for at least eight months. Or did my lawyer say eighteen months? I forget which. I might as well throw out my calendar. This thing could take years before any definitive decision is made by the court, as long as my lawyer doesn’t run out of paper and ink.

How am I going to deal with the list of accusations my wife made in her papers? She wanted custody, our apartment, and money for herself and her lawyer. All because I allegedly had been violent on three occasions.

Actually, not satisfied with tossing around accusations of violence — as if that bludgeon might not seal the deal in her favor — my wife also dumped a bunch of additional zingers into her pleadings. Her kitchen sink contained a pile of accusations that ran the gamut from the almost plausible-sounding to the truly petty. She made me out to be a foul-mouthed, indifferent, pathological hothead who mouthed off about her in public and private. And I was too cheap to buy her a winter coat until I was embarrassed into forking it over for one by my friends.

My instinct on seeing her list was to undress each and every item bit by bit, proving beyond a shadow of a doubt that nothing negative she said about me had the slightest substance. I wanted to vaporize each of her accusations and show the court that everything she wrote was a lie — even her name, which, by the way, she never changed to my family name at the beginning of our marriage, nor did she change it even after we went through the legal process of name change right before our son was born.

Whoa there, big boy, insisted my lawyer. Not so fast. The kind of painstaking reclamation of my reputation I wanted to whip up isn’t necessary at this point in our struggle, no matter how much it would satisfy my ego. My lawyer introduced me to the way lawyers think, which, not too surprisingly, isn‘t the way non-lawyers think.

Instead of embarking on the meticulous operation of dissecting and devastating her shrill accusations one by one, my lawyer introduced me to the legal maneuver called Denial. Used the right way, denial can be enormously economical. To all the items in the long list of accusations she had trotted out in her papers, the sole thing I have to say is “I deny the allegation.”

Her pleadings didn’t worry my experienced lawyer, no matter how much they ticked me off in all their misbegotten glory. She had the burden of proof. I had assured my lawyer I was entirely innocent of all the heaviest accusations on her list, and innocent of the minor accusations ninety-something percent of the time. She had no police reports, she had no doctor’s reports, she had no witnesses. She had nothing. She had nothing because there was nothing to her allegations, I insisted.

Given my assurances, my lawyer urged me to sit back and relax. She was just plain over-reaching.

Denying her accusations was only part of the story. There was more to do. I wanted to grab the opportunity of her set of papers to wheel into the offense. Not only did I not want to concede an ounce of truth to her accusations, not only did I not want to move or pay her scads of money I didn‘t have, not only did I not want to leave my son, I wanted custody.

I was perfectly willing to gird myself up in preparation for a kind of final battle — the fight-to-the-death battle for custody of our son.

My lawyer had other ideas.

Whatever pitch of moral indignation I had worked myself into setting myself up to believe I could get custody as a result of a victory in court, my lawyer put his calming hand on my shoulder and assured me now was not the time for the supreme test. He lectured me that all I had to do in court this time around was survive this one episode, then live to fight the bigger fight another day. If I followed his plan, the court would see through her accusations and would see she’s vastly overplaying a weak hand. She wouldn’t win anything. We’d both emerge bruised, battered and wiser, And I’d keep my powder dry for another day.

My lawyer’s lecture won the day. My answering papers set about trying to defang her accusations, then went on to try to convince the court that she has the story exactly wrong in all consequential respects.

My tactic was to depict our marriage as a run-of-the-mill match with its usual ups and downs. That’s all. While she said I am a gnarly monster, my papers said that we mostly get along. We have our bad days certainly. But, despite her colorful exaggerations, we also have our good days. My reply papers including not only receipts from restaurants, shops and movies we went to together, but also the greeting cards with loving messages she had sent me on several occasions in the recent past. By her own words written in her hand in black and white and colored pen, I can be quite a cuddly guy.

There was also another lesson in the law I had to swallow. Because I chose to tell the court that we were close to the average, reasonably stable couple together, I had to throw away a wonderful opportunity to toot my own horn.

From his fourth month I did virtually all night-time feeding and diaper changing of our son, plus morning feedings and bathing before I left for work.

I began doing these chores more than willingly. Changing his diapers was the perfect thing to do no matter whether the marriage survived or not, and no matter whether I eventually was awarded custody or not.

If the court gave me custody, I had to be ready and willing to take care of most every aspect of his life, both the glamorous and the unglamorous. If diaper-changing came with the package, roll up your sleeves and get to work.

If I didn’t get custody, I wanted to maximize every last moment we had left together in the same house. Since I was a little shy of forty years of age at the time and knew this marriage was doomed, it occurred to me that our son just might be the only child I would have. I wanted to witness everything I could possibly witness about his growing up.

I jumped up to run to his bedroom almost every night. I was so good and reliable that my wife slipped out of the apartment most nights and left me alone with our son until the morning. She perfected the timing of her returns to our apartment until just a minute or two before I left for work.

Occasionally there were problems on those nights when she stayed in the apartment. I was so wrapped up in my self-appointed responsibilities that on those occasions when she tried to replace me at diaper duty I chewed her out for intruding. I didn’t want her to usurp my opportunities.

As both a parent and an observer of human behavior, I witnessed a deliciously instructive phenomenon. Between my bed and our son’s crib were two very solid New York pre-war apartment building walls. Nevertheless, even when I was otherwise sound asleep, I swear I would awaken the instant he so much as cleared his throat, let alone cried. I was perfectly tuned into his frequency and his night rhythms. My hyper-vigilance taught me that a father can be just as sensitive to baby’s sounds as a mother when circumstances call for it.

Much as I would have absolutely loved to slip mention of my diaper-changing into my written response, that charming reference failed to make the cut. The reasons for editing this activity out of my papers demonstrate nuances in my growing legal education.

The plan for my reply papers was to show we are an ordinary couple. Drawing excess attention to anything out of the ordinary didn’t fit that plan.

Beyond that, the court’s standard of proof is a two-edged sword. Just as I wanted the court to dismiss her accusations against me because she had no proof, I had no proof to substantiate my diaper duty. I knew what I did, she knew what I did, but if we got into a courtroom and I said what I did but she denied what I said the judge would have to call it a wash. There were no cameras or witnesses. My word against hers. Not good enough.

There was also a more subtle issue to be concerned about. It would be nice to think that in the space of the decade or so since the movement for sexual equality began, all judges would be up-to-date and on the same page. But there are no guarantees. Claiming nightly diaper-changing by Daddy just might stir up gender role stereotypes in a judge who is not quite up to speed to the historic changes going on. Once stereotypes are stirred up, things could lead to a cascade of negative consequences. What if my stereotype-switching behavior didn’t come across as the reasonable thing to do? What if my diaper-changing was totally misinterpreted? What if my claims were doubted, were seen as grand-standing?

The bottom line was that I wanted to claim that I, a father with a responsible day job, awoke every night in the middle of the night to change diapers, while the mother sat or slept, or in her case, wasn’t there. Since I had no pictures or witnesses (actually, one picture or one witness would only prove one incident, so claiming I changed diapers most every day would really require piles of pictures and crowds of witnesses) and since the presentation of my case would amount to “he said, she said” I might be putting my credibility on line over a secondary issue.

Since I couldn’t offer rock-solid proof for my diaper-changing claim, the judge just might read my story, scratch her head, then wonder whether I‘m really trying to pull her leg. Instead of concluding that I’m a truly dedicated father who went out of his way, the judge might think I’m a male drama king to my wife’s drama queen. Not only might I not get extra credit, I might wind up stretching my argument to a snapping point.

Maybe times were changing and the world was ready for a new day for fathers and mothers. Or maybe not. No sense taking a chance by running too far ahead of the crowd.

I submitted my trimmed-down papers to the court and held my breath.

Tradition says that a man accused of beating his wife is in serious trouble. My lawyer was the picture of confidence when he insisted I had nothing to fear. I took the gamble and played along with my lawyer.

Good to his word, my lawyer was able to postpone any action by any judge for a substantial amount of time. There were motions and replies and meetings and phone calls and many trips to the courthouse. Just enough distracting legal smoke-blowing to keep me close to our son for a long time. This wasn’t so bad. So far.

Of course, bills were piling up. Even when they’re helping, lawyers don’t come cheap. On top of the zillions of dollars of new baby expenses, which I didn’t stint on, paying for lawyers was excruciating.

Policy in New York about the costs of lawyers in custody cases never left the back of my mind. If one parent is working while the other isn’t working, courts usually make the working parent pay for both lawyers, everything else being average. Even though I recall my wife mouthing words before the birth of our son about wanting to return to her job soon after his birth, she camped herself at home and made no moves at all to earn more than a penny after he was born. I couldn’t force her back to work, even if I wanted to. Which meant that I expected to be socked with huge legal fees when all our troubles were over.

As bad as that prospect was, there was a further aspect of our money situation. There was no way in the world that I could see the two of us setting up separate households in Manhattan or anywhere else in decent vicinity of each other, and being able to afford to eat three meals a day, no matter who got custody. The costs of living in Manhattan have always been notoriously high, my income was decent but not spectacular, her pre-birth income was basic-survival, and the rate of inflation across the US at that time was ghastly. I couldn’t see making it economically, no matter how we played our cards. I guess there are places to live other than Manhattan, but damned if I wanted to give up my big city dream.

I was warned not to expect much sympathy from any court from the kind of money sweats I suffered. Lawyers are lawyers, and lawyers many times grow up to become state lawmakers, so there are plenty of laws to insure that lawyer’s bills are paid.

I tried to think of ways to make more money, but ran into another paradox of divorce law.

Earning more money is a very dubious proposition for someone in the midst of a divorce. The court doesn’t say, “Look what a good guy you are! You earned an extra $xyz dollars by working two jobs to support your family. Take it easy from now on because the court’s going to reward your hard work and devotion by ruling that you have to pay less alimony.” No, the court is much more likely to say, “Okay, you proved that you could earn $xyz dollars last year, so go out and earn a little more next year. A little extra work never hurt anyone, did it?” There’s no sense volunteering to make your load heavier than it has to be.

Another vestige of our choice of plunging into the fully-equipped legal arena was the addition of a bothersome permanent guest. Because we put down on paper our versions of what we did, because we expected someone to choose from our conflicting versions, I was more or less forced to invite into the deep recesses of my brain a permanently-implanted judge. Over the next several years I became hyper-aware of how what I did or didn’t do would play in the courtroom, if it ever came to that. To customize a favorite phrase of Alcoholics Anonymous, the State rented space in my head. All my commissions and omissions had to be justified before an imaginary judge. I was no longer a free agent. I was always under a self-imposed microscope.

Meanwhile, with so much of my brain-power absorbed in this legal stuff, we were living a very artificial life. We were under the same roof. We spent a scant few quality moments together, as well as much tense time. We took care of our growing son. But there was no escaping that the marriage was in an advanced state of decay.

Negotiating didn’t go anywhere. It became more and more obvious to me as we stumbled deeper into this dark wood that I had very little influence over my wife’s decisions, and that nothing I tried made things better. I had no leverage over her. We were stuck in our private ante-chamber to hell.

How our shared progressive society will thoroughly annihilate every last vestige of wife beating in two short centuries.
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4 thoughts on “Chapter 3: You can never again be sure”

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