by Laurie Israel
Lawyers often use idioms rather than legal terms to explain concepts and strategies in divorce law to our clients. Somehow, these idiomatic terms are more descriptive and powerful in describing the dynamics and techniques that are present in a divorce than any other type of language. Lately, I have been collecting a number of these terms that I frequently use in my divorce practice. What follows are my favorite and most frequently used idioms, and what they mean for my divorcing clients.
“Whose ox is gored.” This is one of my favorites. It’s so graphic. It reminds me of the strong feelings (like bellowing oxen) individuals have when they are going through a divorce. This idiom came from the Bible in a passage relating to compensation for gored oxen. What a great metaphor for divorce financial terms. “Whose ox is gored” was referenced by Martin Luther at the Diet of Worms in 1521, when he observed that most human affairs come down to depending upon whose ox is gored. I think Martin Luther may have been right.
The expression means that someone’s interest is threatened or harmed. That happens a lot in divorces. Divorces are easy when there’s enough money to go around. Otherwise, someone’s ox is being gored, and it becomes a zero sum game, the parties are in pain, and there’s lots of bellowing going around.
“Zero sum game.” This is a favorite for collaborative lawyers and divorce mediators. The concept is that if you find out people’s interests rather than just hearing what their “positions” are, you can get more for each of the parties. Litigation tends to be a zero sum game: someone wins, and someone loses. In collaborative law and divorce mediation, spouses can both get a bigger piece of the pie if they express interests rather than positions, and often it is not a zero sum game.
Another of my favorites is “skin in the game”. I use this one a lot. That’s when you have something at stake in a result or agreement you have made.
For instance, when couples are deciding who pays for college in their divorce agreement, if a party doesn’t share in the cost, that party may not have the incentive to control college costs, because they are not paying them. The result is post-divorce struggles and ensuing litigation. We have seen many of these. The dispute may be about whether to send Junior to a private college (now costing over $50,000 a year) or a state school at $25,000. Good divorce agreements have both parties with skin in the game on college payments and other financial post-divorce decisions.
You may think the expression “gotten by the short hairs” has an off-color derivation. I did. But I found out when writing this article that the short hairs originally referred to are the short hairs at the back of a man’s neck. The first documented usage was in Rudyard Kipling’s “Indian Tales” published in 1890.
We lawyers use gotten by the short hairs when our client, or our client’s adversary, has an advantage in bargaining that is watertight. We usually don’t use it in front of our clients, because it’s too depressing for them. It’s very difficult to negotiate from a position of weakness — usually you have to make a trade of a strong position for a weak one in a negotiation. Or in the divorce context, you can rely on a spouse’s compassion for the other spouse, which does miraculously reappear at times.
In guiding a client in a divorce, “smoking her (or him) out” can be an apt term. For instance, say a spouse has left and is sending over enough money (maybe due to guilt at having ended the marriage) so that the other spouse’s lifestyle has not changed at all. The spouse who left may be living like a student in someone’s house or a really bad apartment. The spouse who is still living the marital lifestyle has no incentive to move towards divorce. A reduction of the voluntary support results in smoking her (or him) out and can cause a reality check. Then, progress can be made on getting the divorce done.
“Tough love” is also appropriate. She wants to leave the marriage, but still wants him to support her. She doesn’t want to hold a job, or can’t seem to. Exercising tough love, the supporting spouse will want to “put her on a short leash” and not make it too easy for her to “have her cake and eat it too”.
Finally, in a divorce, you can be “hoisted by your own petard”. The derivation of that one is interesting. A petard was a little box filled with gunpowder used to burst open gates and doors. Shakespeare was the first to use the term, in Hamlet (1602): “For tis the sport to have the enginer Hoist with his owne petar”. Basically, it means killing yourself with your own bomb.
Sounds like a divorce, in which you decide not to work very hard to punish your spouse (who will receive support). That’s being hoisted on your own petard because you suffer, too. You might even say that the quandary puts you “between a rock and a hard place”, the rock being your obligation to support, and the hard place being scarcity for both ex-spouses created by lack of money.
So next time you need a divorce, think of the dynamics of your situation. See if any of the above terms apply to your divorce and have a frank discussion with your divorce attorney, mediator, or collaborative lawyer about how to best manage your divorce as it proceeds.
As posted on Huffington Post. © 2017 Laurie Israel.
on both prenuptial and postnuptial agreements. She works as a consultant and mediator
nationwide. She previously practiced for 35 years in the areas of tax law, divorce, collaborative
law, estate planning, probate of estates and trust administration, as well as mediation and, in
Massachusetts, providing counsel for couples entering into prenuptial agreements. Laurie is
one of the initial practitioners and developers of the field of marital mediation, the practice of
using mediation to help couples solve marital problems and improve their marriages. Laurie is a former board member of the Massachusetts Council on Family Mediation and the
Massachusetts Collaborative Law Council. Her writings include articles on divorce, mediation,
marital mediation, and prenuptial agreements. You can find her articles on www.ivkdlaw.com,
Huffington Post, and Mediate.com. She is the author of the book “The Generous Prenup: How
to Support Your Marriage and Avoid the Pitfalls,” available on Amazon. Laurie is frequently
called upon by attorneys and mediators to share her expertise, through giving both formal and
informal presentations, on the subject of prenuptial agreements all across the country. You can
contact Laurie at laurie@laurieisrael.com. Her website is www.laurieisrael.com.