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Marriage schmarriage

April 1st, 2007

BY BUD GARDNER

judgestern.jpgMaybe I’m too jaded from all my years of work in the negative end of the proposition to be a really fair commentator on the hallowed institution of marriage. I’ve done pretty well in my own two attempts, one sailing along for more than twelve years before breaking up on the shoals, and the second still running briskly on a long fetch against pretty steady winds after nearly thirty. But that divorce, way back in the Seventies, left its scars on my psyche, and on hers and the kids’. We all got our ration of sadness out of that, and one of life’s hardest lessons about the fragility of hallowed institutions and the emptiness of human expectations. But all of life is risk of some order, and there’s something in our tribal nature that craves relationship. It’s worked out better for me this time, much better.

But the divorce work I do, maybe thirty percent of my law practice, continues to exact its toll.

It’s hard to keep the dark sadness and explosive anger of other folks’ fiery unravelings from affecting, or perhaps infecting, my own outlook. It’s easy enough to say that as an attorney I should maintain a professional perspective and not embrace my client’s problems, his anger, fear and frustration, and of course I do that as best I can. But it’s not always so easily accomplished as imagined. Often the other spouse really is doing mean-spirited, purposely hurtful things that have their desired effect no matter what I can say. Sometimes my own clients behave very, very poorly or very inhumanely themselves, and it’s a challenge just keeping them reined in.

The requirements of the legal process are businesslike and focused and don’t provide an adequate outlet for anger or an avenue for retribution. Divorces in my state have been “no fault” since 1973, and the judges are required by the law to divide the property and debts “justly and equitably,” and “without regard to marital misconduct,” so they won’t hear anything about who slept with whom how many times, or how many days in a row so-and-so went without speaking, or how many nights it took at the casino to gamble away the family fortunes. I am mindful of my own limitations as well, and urge clients having difficulty dealing with the stresses to talk them out with someone they trust, an older sister, priest or doctor or counselor. I see these folks through some of their most painful times, but with training and tools to help with only the legal tip of that hulking iceberg, I’m plowing through. I can help with their legal problems, but I can’t save, or change, their lives.

I guess lawyers protect their own fragile psyches from their clients’ sadness and desperation, like the docs in M*A*S*H, elbow deep daily in the gore of man’s unending inhumanity, by posturing a cynicism and guarding their own feelings with gallows humor. And so often the breakups of these modern marriages are so predictable as to be laughable, if it weren’t the case that so many people are injured and wounded, particularly innocent children. Frequently, the more you learn of the parties’ personalities and behavior, the more you wonder how the hell they ever got together in the first place. For the past twenty-five years or more, half of marriages have ended in divorce. With re-marriages, sixty percent or more wind up with another divorce. Millions of children are raised in single-parent households, and even with “intact” families the signs of inadequate parenting and role-modeling are manifested in diminishing school performance and drop-out rates, to say nothing of gang membership, drug abuse, indiscriminate sex, violence, and crime. It does get one wondering if that ancient, god-approved institution is up to the challenges of our brave new world.

As I’ve said, perhaps my perspective has been warped by my experience as a divorce lawyer. I do realize that nearly half of the divorces done in my state are “pro se” divorces, where the couple just go to an office supply store or get the forms off the internet, then make a pot of coffee, and sit down around the kitchen table and work it out sensibly, or work through the necessary division of property and debt, and provision for the children, with a pastor or a mediator. In Washington State, a twenty-dollar surcharge on the court filing fee for divorces and custody proceedings has paid for the placement of a “Family Court Facilitator” in every county courthouse in the state, to help people with the paperwork and through a process which is for most altogether unfamiliar and to many terrifying. And I do see the very positive side of the marriage relationship, in flashes, through the years as well, helping elderly couples with their estate planning, seeing the exchange of loving glances, the clasping of hands; helping them translate their respective affection and concern for the other’s well-being, and for their extended families, into provisions in their wills and family trusts, or helping grieving families through the death of a loved one and the probate of the estate.

Marriage still does seem to work for many, or at least they’ve decided to try to make the best of it, or to suffer in silence. One way or the other, they aren’t bothering lawyers about it. But the awareness of this broad malaise, these angry divorces, the parenting failure, the loveless, silent suffering, really makes me wonder when I witness the harangues and feverish legislative posturing in opposition to gay marriage. Why should our gay friends be denied the grand opportunity for failure, for the suffering the rest of us are able to enjoy?

But times really are changing. I’m enjoying observing our young people experiment with alternatives to the old one-on-one pairing off, noting the emphasis on personal responsibility in varieties of living arrangements, from perfunctory expense-sharing to joint venture enterprises, to expanded romantic tanglings. Most often they’ve been forced into some sort of cost-sharing arrangement to start with, as a necessary response to the expensive realities of city living, but often, as well, their choices in living arrangements and emotional relationships are a conscious response to, and rejection of, the negatives they experienced growing up in a household clouded with parental strife. These young folks seem much more wary and willing to “wait and see” before jumping into the formal, god-blessed lifetime commitment. And isn’t it interesting that a recent census bureau study reports that fifty-one percent of women of marriageable age choose to live alone?

I don’t think marriage is dead as an institution, but I do think our notion of its exclusive sanctity as a legal institution is beginning to change and will have to continue to evolve for the simple reason that legal means will have to be developed to relate to these new kinds of relationships. By nature, relationships evolve and change, and sometimes die, and so do the humans involved in them. It would be a wonderful world for lawyers and judges if people took the time when they got into new relationships, romantic and otherwise, to sit down with a lawyer and write up a nice, tidy contract. But they don’t. And unless legislatures develop laws that relate reasonably to these evolving sorts of interpersonal arrangements, lawyers will continue to relentlessly push the courts into applying marriage law to relationships that are for practical purposes marriage-like, and into finding in an ever-growing number of states that special legal treatment only for the traditional “man-woman” marriage is contrary to the state constitutions. There have been, and will be for some time, blaring headlines and angry recrimination from the more religious among us, threatened by the notion that the civil institution of marriage created and defined by state law might be broader than that approved by their religious texts. I think this narrow definition of marriage is just fine for those who want theirs’ defined that way, and the rest of us will, by fits and starts, struggle to find one that seems genuine and humane, that sparkles with fairness and respect for loving relationships, no matter whether the issue is health insurance, inheritance, liability for debt, income tax, or winding up matters with a failure. And these days, with free-fall morality and overweening narcissism and all the other pressures there are on relationships, it’s hard to expect that those involved in a more broadly defined twenty-first-century marriage will be any better at it than the rest of us. •

Posted by: The Editors
Category: All Marriage Issue, Gardner | Link to this Entry

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