She wants the kids. If she loses them, she has double indictment: failure as a mother and as a wife. He will be damned if anyone is going to cut him out of his right to be a father to his children and then sock him with heavy support payments.
The fight is on.
Legal bills totaling thousands of dollars are subsidizing courtroom confrontations replayed over and over again as America's divorce rate escalates.
The uncontested divorce cases may leave the parties feeling bruised, humiliated . . . and relieved. But the contested cases can be ugly, no-holds-barred conflicts in which the most ruthless attorneys win the biggest bucks; spouses scrounge through marital history to find the offhand remark or personal letter to prove the unfitness of their former mate; and children become the prize bounty in a property settlement, or the scapecoat of their parent's hostility.
The legal system, according to critics, encourages conflict in divorce cases by casting the petitioning couple as adversaries competing for the judge's favor. Whatever divisiveness existed before the couple came to court is sealed when the judge declares child custody and labels one spouse a winner and the other a loser.
There is an alternative for couples who want help in disassembling their marriages -- marital mediation. Borrowing from labor negotiation techniques, marital mediation is beginning to be available in neighborhood clinics.
O.J. Coogler, one of the first to practice the service and director of a Florida clinic, is training proteges and spreading the word through legal and mental health professions.
"Our goal," said Coogler at a Georgetown University symposium on divorce, "is to put a couple in a process that expects them to cooperate, rather than compete."
The reality of putting two people -- who may loathe the sight of each other -- across a table and then asking them to rationally and methodically reorganize their lives, may seem farfetched.Yet some couples are opting for out-of-court separation agreements as the least stressful way to dissolve a marriage. When compared to the cost of drawn-out litigation, mediation can also be cheaper (about $40 an hour).
The key, according to Linda Girdner, who trained under Coogler and is the marital mediator at the Divorce and Marital Stress Clinic in Arlington, is that the couple takes responsibility for deciding the content of their separation agreement.
Pointing to the disadvantages of the legal system, Girdner says, "Even with an uncontested divorce, you are bargaining under the shadow of the law with attorneys who may be second-guessing what would happen if this case went to court. Few people walk away feeling justice has been done, even though most attorneys and judges are trying to do their best.
"With mediation, on the other hand, the couple created their own law by making a contract. They are more likely to stick to this agreement, because it is the one they have made, rather than one that has been imposed on them by someone else."
Coogler discourages couples from "abdicating" their decision-making power. "They obviously have more information and feeling for their life situation than any lawyer, judge, jury or arbitrator can possibly gain in the course of the brief contacts provided by legal hearings."
The couple reaches a separation agreement through a tightly structured process designed to cut out the game playing -- the one-upmanship and the finger-pointing -- and to separate emotions from decision-making.
"We are not documenting the past, and there are no good guys and no bad guys," says Girdner. "This is the next step after no-fault divorce."
The couple's feelings about their marriage and their deliberationn on whether to stay together, separate, or divorce may be discussed with a therapist at the Arlington clinic. The couple may be seeing a therapist while they are also meeting with the mediator, but the mediation table is reserved strictly for business.
Before beginning mediation, the couple signs a contract agreeing to follow the set rules of mediation, and, if the process is blocked by an unresolved controversy, to comply with the decisions of an arbitrator.
"We've never had to use an arbitrator," says Girdner, "because when a couple is up against a wall, they have to define exactly what the impasse is, and that process usually clears up the misunderstanding.
"The arbitration provision is a safeguard to prevent people from keeping a lawyer on the side and working on court strategy, while their spouse is mediating in good faith."
Once at the mediation table, the couple works through a pile of forms to resolve division of property, spousal support and child support. It is a nit-picky task which appraises, categorizes and assigns everything from pets and jewelry to stock and equity in a house. The financial forms establish debts, income, day-to-day and future expenses and underscore the sobering fact that it costs more to run two housholds than one.
As an impartial third party, it is the mediator's role to insure that the couple observes the rules (such as full disclosure of financial status); to point to areas which need to be settled; and to guide them toward a new relationship.
Coogler, in his book "Structured Mediation in Divorce Settlement," characterizes this new relationship as the willingness to: "accept an equal share of life style reduction and a fair share of marital property; to become financially independent as soon as possible; and to support the other's right to shoose his or her own life style."
Fair play and equality are all difficult enough in resolving financial issues, but an even greater challenge is deciding child custody. Mediation tries to spare both husband and wife the loss of their children by encouraging equal parenting.
"It is not an issue of who gets the label of custody," says Girdner, "but how can each continue to be a parent to their children. The children are more likely to develop emotionally if they have an ongoing relationship with both parents."
Co-parenting can include a variety of living arrangements, from splitting a week between two houses, to holidays and summers with Dad. Even in a traditional arrangement, with one parent having custody and the other having visitation rights, the parents can choose to share decision-making on important issues like education, religion and who goes where on Thanksgiving.
If the parents disagree, they can individually suggest alternatives, and, if that doesn't work, they can return to mediation. The separation agreement, Girdner points out, "is a blueprint for the future that can be rewritten."
As for day-to-day considerations, "Each does their own thing when they have the kids. That means when the kids are with Dad, Mom is not going to call and ask, "'did they take a shower?'
"If one parent eats health food and the other eats junk food, then they have to recognize they can't force their values on one another. It's good for children to be exposed to different values. They already know they can do things at home that they can't do at the neighbors."
Coogler and Girdner envision a new style of family which extends beyond the nuclear group of two parents plus children to include step parents, step siblings and mates of former spouses. They contend that a detailed agreement on how the parents share their responsibility will ease the encounters between the ex's and the steps and will increase the number of adults the children can relate to.
Custody arrangements are often saved as a last consideration in mediation to insure that the children are not used as a bargaining tool. Both parents are asked to work out two budget forms -- one for if they have custody and one for if they don't -- before they decide custody.
"This procedure forces each parent to recognize how much it costs to raise children," says Girdner. "It also encourages each to grant to the other what they want for themselves."
Once a couple completes a separation agreement, an attorney is called in as a neutral adviser to clarify legal points and to translate the agreement into legalese. If the couple decides to go ahead with the divorce, a petition is filed in court, and their agreement becomes part of the divorce decree.
If the divorced couple have children, this juncture is not a complete severance, but the beginning of a new role as divorced co-parents.
Mediation, according to Girdner, can help couples avoid the pitfalls of post-divorce relationships such as a "Disneyland Dad" afraid to discipline his children; a mother overwhelmed by 90 percent of the parenting responsibility and 100 percent of the drudgery; and children worrying that loving one parent is betrayal of the other.
"Mediation sets a course for cooperation," declares Girdner. "If a couple works through the process successfully, and they are satisfied with their agreement, they will feel less angry and more willing to respect the other's rights in their future relationship."