How Opting Out of the Work Force Can Hurt You During a Divorce

There was a fascinating opinion piece in the New York Times recently, entitled, "Do Millennial Men Want Stay-at-Home Wives?" It was written by Stephanie Coontz, the director of research at the Council on Contemporary Families. The answer, apparently, is yes -- at least among the young Millennials surveyed. 

The specific question asked was whether those surveyed agreed with the following statement: "It is much better for everyone involved if the man is the achiever outside the home and the woman takes care of the home and family."

In 1994, a group of young people were asked the same question, and only about 20 percent of men and women agreed. Yet in 2014, when asked the same question, almost half of the young men (48 percent) now think women should stay home and tend the family. (About a quarter of young women now agree, too -- up just slightly from 1994.)

According to Coontz, there are many reasons why so many more young men now believe it is better for everyone involved to have one male wage earner, and a female stay-at-home mom. You can read the article here.

But from my perspective as a divorce lawyer and mediator, I can tell you that women OR men who plan to be stay-at-home parents should only go into this kind of arrangement understanding the economic risks they're taking. While we all hope it won't happen, divorce is still widespread, and our alimony laws are less generous than they once were. Even more seriously -- stay-at-home parents who leave the workforce and try to re-enter in their forties or fifties face daunting challenges in terms of their earning power. In a study of women who opted out, 'for every two years a woman is out of the labor force, her earnings fall by 10 percent, a penalty that lasts throughout her career," says Ruth Franklin, in an article from the New Republic. And that doesn't even address what such a parent loses in terms of building a personal retirement fund or having other perks that come with long-term employment, such as major career advancements.

The point of this blog is not to condemn parents who make the choice to opt out of what is still a mostly hostile workplace for the primary caregiver of children. Until we have national policies that support work/family balance, it is incredibly difficult for both members of any couple to have hard charging careers and raise children. My wife and I opted to each take periods of time when we ran our own businesses from home, in order to achieve the flexibility we wanted until our kids were out of high school. We were lucky to have skills that allowed us to do that, I know.

For a working parent who is considering being the primary, stay-at-home caregiver, consider a frank discussion with your spouse who will continue working outside the home. You may be able to enter into a "post-nup" -- an agreement that can put in place protections to go beyond existing alimony and/or child support laws. The agreement could also stipulate that the "opting out" spouse will be entitled to more of the marital assets -- such as retirement funds, savings, investments, and real estate -- than the law would provide in case of divorce.

Though it may feel awkward to bring up an agreement like this, you, as the opting out spouse, must explain that being a stay-at-home parent comes with financial risks for you -- even if it's something that you both want very much. All marriages face unexpected risks, and the risks for the parent who remains in the workforce are there, too. The parent who works outside the home, for example, risks a lack of meaningful relationships with his or her children. But if it's what you both want, you deserve financial security, as much as your spouse deserves time to be with the kids. 


Shuttle Mediation for High-Conflict Divorces

"Before you embark on a journey of revenge, dig two graves" -- Confucius

Mediation is generally thought of as a process where a divorcing couple sits down with a mediator and negotiates a settlement face-to-face. The mediator explains principles of law, helps the parties collect and share financial information, and, when communication breaks down, helps them refocus on the issues at hand. 

For people who are reasonably amicable, this process goes very well. Even for most high-conflict couples, this kind of mediation works -- though it may take a little longer. A well-trained, highly experienced mediator can help very-high-confict couples set aside for a moment the anger and pain that make them lash out at each other. The goal is to get them to focus on what is really imporatnt to them for the future. For most people, that is emotional and financial stability for themselves and any children they might have, and an end to conflict and all the negativity it tends to perpetuate.

Essentially, a mediator can help a couple see that they want a settlement and a future more than they want to fight with each other or get revenge.

One tool I use to prevent couples from jumping down each other's throats, is to ask them to think, every time they are about to say something cruel, whether the statement is going to move them closer to their goals -- or move everything in the other direction. I point out that married people, especially long-married people, really know how to push each other's buttons. "Quotes with a sting, quips with a sneer," as composer/lyricist Stephen Sondheim famously wrote. People we have loved and trusted are uniquely able to find the words that cut to the bone, that dredge up every fear, insecurity, and humiliation buried inside. Most people can learn, and practice restraint before such words are used.

But some simply cannot. I worked with a couple recently who were unable to bite their tongues. At every opportunity, they made those hurtful, stinging statements, and they couldn't seem to stop themselves. The accusations cut deep -- as they were intended to. She accused him of being a failure as a provider, a father, and a husband. He accused her of being a failure as a mother and a companion. They both accused each other of selfishness, wastefulness, and treachery of all kinds. It just kept spilling out. At every crucial juncture where settlement seemed close at hand, another shot would be fired, another dagger plunged. I can't tell you how many times I heard, "Everything is off the table. I want a judge to decide."

So I tried something a little different. It's called "Shuttle Mediation." I asked one of them to sit in my office, and the other to go to my conference room. I "shuttled" back and forth. I told them that at least I wouldn't have to go to the gym that day -- because the two rooms were on different floors, and I had to run up and down the stairs. That forced some rueful smiles.

When they could no longer continue the dance of death that seems to have been their modus operandi, they were able to focus on what they each wanted and needed to finalize the divorce agreement (the issues left to decide were minor parenting ones). They both slowly realized how close their two positions were.

It took one 90-minute session to resolve everything and settle the case. Though Shuttle Mediation seems to belie the idea of mediation being a face-to-face encounter between two parties, in this situation, separation worked. It turns out there really are people who can't be in the same room with each other (or just don't want to be). In these fairly rare cases (I've only had to do it twice in almost 20 years of mediation), Shuttle Mediation may be the answer.

I wrote an article called "Mediation? We Can't Be in the Same Room," which can be found here: it makes the point that very angry couples are the ones who need mediation most, becaus the lititation system tends to bankrupt and eat alive such people. I try to use every effort to make sure that even these people can succeed at mediation.

If you are mediating your divorce and you are not making any progress because arguments an dbickering seem to dominate the process, discuss Shuttle Mediation with your mediator. It may just be the answer.


A Puzzle Junkie's Guide to Divorce Mediation

I've been an avid puzzle fan most of my life. I start a crossword puzzle almost every day. When I reach a point where I can't think of all the answers I need, I use a trick psychologists refer to as incubation. That's where you stop thinking about a problem -- and "sleep on it." When you get up the next day, the answer is there.

Because it works so consistently well when I face unsolvable puzzle clues, I decided to recommend the trick to my divorce mediation clients, when they're having an especially difficult time resolving a mediation problem while in session. I ask them to put the issue that is giving them so much trouble completely out of mind until the next session. Remember, incubation only works if you can stop thinking consciously about the problem. Admittedly, it's a little harder to do with real life conflicts over a divorce than with my puzzles, but life has a way of pushing even the thorniest problems to the background when we let it.

When I get together with my clients for the next session, I ask them to once again brainstorm new ways of resolving the issue that was so impossible before. To my -- and their -- surprise, they routinely come up with ideas that hadn't occurred to them during the previous visit.

Psychologists say that when confronted with a problem we can't solve, our brain doesn't forget the issue. In fact, it goes into overdrive trying to solve it. This "incubation" stage of creative problem solving, in which the mind continues to work on a problem below the level of awareness, is what my clients experience in the time period between divorce mediation sessions.

Are We Our Own Worst Enemy?

While incubation is one trick to help solve problems in divorce mediation, the seond strategy I've learned from crossword puzzles is how to work around the "I'm certain I'm right" phenomenon. This emotion-driven conviction causes our minds to work against us.

This is how it stymies me when I'm working on a puzzle. I read a clue and I'm certain I know the answer. It makes sense. It has the right number of letters. So I use that word to help me find the answers to surrounding clues. But I can't. None of the answers for the surrounding clues mesh with the first answer I filled in. Why? Because the first answer is wrong! But once I'm convinced I have that first clue's answer, I tend to stick to it, defend it, rationalize it, and protect it. And all the while it insidiously keeps me from getting any more of the puzzle completed.

But, if I can drop the emotional attachment to that first troublesome answer and erase the word, everything changes. Without the wrong answer in the way, I can usually answer the surrounding clues easily, and that makes it easy to find the correct answer where the wrong one had been.

In divorce mediation, I ask my clients to do the same thing. Say the question comes up: "What do we do with the family home?" The couple may feel the only possible answer is to keep the home, to give their children stability. The two brainstorm endless ideas to allow it to happen, but they can't find a financial way forward. If they're going to resolve the issue, the couple may have to entertain the idea that this first solution isn't possible. Because that might be emotionally painful, I ask them to simply put the idea aside for a moment -- and stop thinking about it. Again, it's admittedly easier with puzzles than with real life, but when a divorcing couple is at an impasse, they often realize they have to attempt it.

With a clean slate, I ask the couple to think about other possible answers to the core question: "What do we do with the family home?" Freed from the idea that they must keep the home, they are almost always able to come up with other creative solutions that better meet their financial realities, while still giving their children stability.

The take-away from all this is that divorce mediation is not unlike the problem solving you do with any kind of puzzle. Putting something out of your mind, or admitting that you might be wrong, can really help. I encourage you to try these techniques when you're grappling with a seemingly intractable -- and unsolvable -- problem in your divorce negotiations.