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Mediating a Divorce Sometimes Leads To Saving a Marriage

Cynthia M. Fox

I have previously written about mediation as a less adversarial approach to divorce whereby a couple meets with a mediator trained to assist them in peacefully and constructively preparing a final separation agreement that will end their marriage.

Occasionally mediation has worked so well that instead of ending their marriages, the couples involved recommitted themselves to preserving their marriage.

One couple, let's call them "Barbara and Howard", were both in their 50s and married 15 years. Howard was a mid-level executive and the dominant personality in the union, while Barbara was the stay-at-home, supportive wife.

One day, seemingly out of the blue, Howard tells Barbara he wants a divorce. His frustration over several annoying quirks in Barbara's personality and way of doing things has come to a bursting point. She is devastated, but anxious not provoke an escalated confrontation with her husband. She suggests that they try to mediate the end of their marriage rather than go through an adversarial procedure in court. He agrees.

At our first session, after getting to know them both a little bit. Howard announces that he has been trying to explain to Barbara "how things work" in dividing up the property. He says that he is ready to split the value of the home and all their personal property 50/50, but that there is no way that his wife is entitled to his employer-provided pension and 401K.

Howard declares: "I have been trying to get her to understand that I worked and earned these retirement assets. They're mine. By law, I don't have to share these. Can you get her to understand that?"

I asked Howard one question: "When did you earn these assets, before or after you married Barbara?"

"After." Howard replied.

"All of them?" I followed up.

There was a hesitation and then an affirmative nod. For the first time, I could sense a lessening of the bravado in Howard's bearing as if he sensed that things weren't as he believed them to be.

I provided the confirmation: "All pensions, savings, 401Ks, investment accounts and the like accumulated during the marriage, whether through one's employment or not, are marital property and subject to division by the court." I told Howard without one scintilla of uncertainty in my voice or manner.

Howard slumped in his chair, then rose to counter. "But, it was my work that produced these assets, these accounts."

"Just as it was your work that purchased the home, the piano in the living room, and all the other belongings that you concede should be divided with your wife equally, correct?" I reaffirmed to Howard.

Howard could see the inevitability of the logic. He sat quietly, head down, pursing his lips. Ever supportive, even now, Barbara put her hand on his and said simply: "It's the law, dear. There's nothing any of us can do about it."

Howard slowly got up from his chair, saying he needed some time to think, and motioned for Barbara to follow him as he headed for the door.

I never met with them again. But, Barbara did call about a month later. She told me that Howard had dropped all mention of the divorce. Instead, he suggested that maybe they should convert all those airline miles he had earned, at work incidentally, into a long-delayed trip to Paris. It seems that Howard had decided it was easier to live with Barbara's quirks then it was to contemplate living out the rest of his life on half of his retirement plan.

For over 25 years Cynthia M. Fox has focused her practice in family law, with a particular emphasis on matters relating to the dissolution of marriage: divorce representation and mediation, child custody and child support. She is a native St. Louis and a graduate of the Washington University School of Law, Class of '73.

Cynthia M. Fox can be contacted by phone at (314)727-4880 or
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