Gray Divorce Dilemmas: Linda Hershman on Discernment Counseling and Untying the Knot in Your Golden Years
On this episode of How to Split a Toaster, hosts Seth Nelson and Pete Wright speak with licensed marriage and family therapist Linda Hershman. They discuss the rising trend of "gray divorce" among older couples, the practice of discernment counseling, and how divorce later in life impacts adult children.
Key Takeaways on Gray Divorce
Gray divorce rates have risen dramatically, from 10% of couples over 50 getting divorced in 1990 to 25% in 2020. The rate increases for second and third marriages.
Four cultural changes are contributing to the rise in gray divorce: women gaining more financial power and independence, increased life expectancy, no-fault divorce laws, and evolving cultural norms about marriage.
Unique concerns in gray divorce include caregiving as you age, less time to rebuild assets, and women worrying whether they'll find new partners.
Discernment Counseling
Discernment counseling helps mixed agenda couples (one leaning in, one leaning out) decide whether to stay married or divorce. There are 3 paths offered in discernment counseling: stay the course and do nothing for now, move towards separation and divorce, or enter intensive marriage counseling where divorce is off the table. Discernment counseling is not regular marriage counseling - the goal is not to improve the marriage but rather to help the couple decide what to do next. It aims to create momentum to save the marriage for those who are unsure if they want to stay married.
Listener Question on Custody and Visitation Restrictions
Judges can and do restrict custody and visitation if there are demonstrated safety concerns and evidence the children are being negatively impacted, like DUIs with a child in the car. However, schedule disruptions or complications alone don't usually qualify as emergencies warranting restrictions in the eyes of the court. The bar is high for judicial intervention limiting parental rights. The advice is to check your local laws and not assume your situation will automatically be seen as an emergency. Present concrete evidence of danger or harm if you want the court to intervene with custody and visitation restrictions.
Linda Hershman's Book
Linda Hershman is the author of Gray Divorce: Everything You Need to Know About Later Life Breakups. Her book covers various topics related to gray divorce, including the trends, impacts on adult children, LGBT and mixed orientation divorce, and more.
Links & Notes
Linda’s website, on Instagram, and on LinkedIn
Gray Divorce on Twitter and on Facebook
Gray Divorce: Everything You Need to Know About Later-Life Breakups by Linda Hershman
Got a question you want to ask on the show? Click here!
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Pete Wright:
Welcome to How to Split a Toaster, a divorce podcast about saving your relationships from TruStory FM. Today, how do you split from an old toaster?
Seth Nelson:
Welcome to the show everybody. I'm Seth Nelson, and as always, I'm here with my good friend Pete Wright. Today on the show: how do you navigate a divorce when you've got more of your life behind you than ahead? Linda Hershman is a licensed marriage and family therapist and the author of the book, Gray Divorce: Everything You Need to Know About Later-Life Breakups and she joins us to talk about how our perception of divorce can change throughout our lives, the unique issues of our adult children of divorce, and the practice of discernment counseling for answering the question, should I stay or should I go? Linda, welcome to the toaster.
Linda Hershman:
Thank you so much for inviting me.
Pete Wright:
This is an interesting topic and we have talked about in the last, I don't know, seven seasons of this show, we've talked about gray divorce one time and I think it's interesting to revisit it right now and start just setting the stage for the trends in gray divorce. Are you seeing more people, older people getting divorced today than in the past? Are we seeing any changing trends in what gray divorce represents to us culturally?
Linda Hershman:
Absolutely. Just to throw out a couple of numbers, which is not my favorite thing, but in this case I will do it, in 1990, one out of 10 married couples over age 50 were divorcing. In 2020, one in four couples over age 50, married couples, were divorcing, and the stats increase with second and subsequent marriages.
Pete Wright:
Wow, that seems high. Let me just say, first flag on the field, I don't love that the stat is 50 and over because it's me all of a sudden and I'm not crazy that that's part of a demographic that I'm represented by.
Seth Nelson:
But Pete, Pete, it's not going by age of maturity, okay. It's just chronological age, so you're well under 50.
Pete Wright:
I'd thank you...
Seth Nelson:
Yeah, there's a compliment in there somewhere, you just got to find it. I didn't say how immature you were.
Pete Wright:
Yeah. Feeds a child, that's all right, I've got toys hanging off my wall, it's fine. Look, the thing that I think is so interesting about this is that I'm wondering what is changing culturally that is driving more older people to be aware that divorce is suddenly an option that they've had long marriages or second and third marriage... I get the stat about second and third marriages, once you've broken the seal, it's easier to get divorced. But my parents not in a bazillion years, would they have gotten divorced because of the cultural weight of what divorce represented to them and what that was burned into their souls when they got married at 19, what's changed?
Linda Hershman:
What you're saying about the culture is what's changed. And there are really four specific things about the culture that has changed and the most important one, and again I'll throw out another number, 66% of gray divorces are initiated by women, the reason is because they can. If you think about when our parents were growing up, women didn't have financial and economic power, until I think 1976 women could not get credit cards in their own name, they could not buy a house unless their husband or father signed for it. Even if they were the primary breadwinner in the family, they couldn't afford to leave marriages that were abusive or unhealthy or just generally unfulfilling. And so economic power of women is one of the big changes that has happened.
A second change is people live much longer. When our grandparents were getting ready to retire, if they were lucky, they would retire at age 60, they would get their gold watch and hopefully have a couple of years to enjoy it. Now people who are age 60 can very, very often look forward to having 20, 25, 30 good years productive years left where they can still do things and live vital lives and they're looking at these people they've been with for 30, 40, 50 years and are saying, "Is this how I want to spend the next 20 or 30 years of my life?" A third factor in it is no-fault divorce. It used to be that when people wanted to divorce, there were seven grounds and I can never name all seven of them, but it was adultery, addiction, failure to consummate the marriage, incarceration, abandonment, and two more that I forget.
Pete Wright:
Sloth and gluttony were those in there? I'm sure that sounds something like that.
Linda Hershman:
No, then everybody would be divorced.
Seth Nelson:
Sounds good to me. But to your point, it's no-fault you don't have to prove that stuff anymore.
Linda Hershman:
Exactly and think about the dynamics, especially if it was a marriage where it just wasn't working, there was nothing terrible happening, but in order to get a divorce, somebody had to be the bad guy and somebody had to be the good guy. And especially if you had children, you had to go to court and say terrible things about their other parent.
Seth Nelson:
Now people just do that because it's fun
Linda Hershman:
Because we have the internet.
Pete Wright:
Yeah, right.
Seth Nelson:
That's right. They do it now, they still say terrible things, not because required under the law, but because that's what they do, because they think that's what you need to do to prove a case. So it's terrible.
Pete Wright:
Right, well that's again the lesson culture has taught us.
Seth Nelson:
That's right. That's right.
Pete Wright:
So I want to pivot because one of the most interesting things that you brought, when we initially started talking to you, Linda, about being on the show was you were talking about this process called discernment counseling, and that's something we haven't really dug into on this show, and so I'm hoping you can tell us what it is and what we need to think about when talking through the idea of divorce. How does discernment counseling help you frame divorce in a relationship that's troubled?
Linda Hershman:
Oh, I would love to talk about that, thank you for asking. As a marriage counselor, when couples come into my office, sometimes it's very clear that one person just does not have skin in the game, that they don't have the motivation for change or there's something going on. They may be having an affair, they may have something that they don't want their partner to know about, and so they're not leaning into the marriage counseling process. When you have these mixed agenda couples, when one partner is leaning in and wants to save the marriage and the other is leaning out and doesn't really want to work on the marriage, the leaning out partner doesn't have the motivation for change. What typically happens is they come in, they're checking off a box. They may come in four or five times and then say, "Well, the therapy isn't working."
I can't take credit for this, there is a very well-known in our field therapist named Dr. William Doherty who developed a protocol called discernment counseling and it's not marriage counseling, we're not working on the relationship, you're not getting homework assignments, we're not trying to improve communication. Discernment counseling is a brief protocol that is strictly about making a decision about what to do with your marriage. And there are three paths to it and the first path is to stay the course and do nothing right now, which is whenever I talk to anybody, they say, "Well, that's what we've been doing, I don't want that." In discernment counseling, that's a more active path it's, "In order for me to agree to go to marriage counseling, I need X, Y, and Z to happen."
Pete Wright:
But that choice is a choice to stay actively in the marriage.
Linda Hershman:
It's a choice to not make a decision about whether to stay until and unless there are certain needs that are met.
Seth Nelson:
So let me just go through the three steps, the three paths, there's stay the course, what's the name of the second one?
Linda Hershman:
Move towards separation and divorce and the third path is to enter intensive marriage counseling where divorce is off the table for a period of time.
Pete Wright:
How is one different from three, Linda, they sound very similar to me, did I miss a step?
Seth Nelson:
Yeah, I think I got an answer, I'm going to repeat it back, Pete, because I think I'm understanding.
Pete Wright:
Okay, so Linda, make sure because if Seth is wrong, I have a bell that I like to ring.
Linda Hershman:
Oh, I have a bell.
Pete Wright:
Linda had brought her own bell. She read the assignment.
Linda Hershman:
It's my BS bell.
Pete Wright:
Perfect.
Seth Nelson:
Well we're not using that unless Pete's talking, so here we go.
Pete Wright:
All right, Seth.
Seth Nelson:
So number one is stay the course, which is basically we're just going to keep doing what we're doing and by default we're staying married and someone is obviously going to be unhappy in this relationship because they're sitting in your office.
Linda Hershman:
Yeah. Let me take a pause on that and give you some concrete examples of what a stay of the course choice might look like. A stay of the course choice might look like, I can't make a decision right now, in order for me to be able to make a decision I would like you to go get some help with your drinking and have six months of sobriety and then we can revisit what we're doing with the marriage. Or I need to do some work on myself for a period of time and then we can revisit the marriage. Or I don't want to do this because of where the kids are developmentally and so I would like to put a pause on it until the school year is over or until they get to the next phase of development or whatever it is.
Pete Wright:
But the third one is the one that I heard the first time around, which was we're going to stay in the marriage conditional upon work. We're going to agree to stay in the marriage for a period of time going into intensive counseling and support.
Linda Hershman:
The third one is we're going to marriage counseling.
Seth Nelson:
The goal is to stay married, we're going to do the hard work, we've made that decision, it might not work out, but we're going to give it the old college try.
Pete Wright:
Yeah.
Linda Hershman:
These are couples on the brink. These are in some ways some of the most difficult couples to work with because again, you've got at least one partner who doesn't even know if they want to stay married. And so when discernment couples come in for discernment counseling, we're not even at the point of, let's see if this marriage can be saved, we're at the point of let's see if we can create enough momentum here for you to want to want this marriage to be saved.
Pete Wright:
I so appreciate that description. I love the term, you use the term mixed agenda couples, I think that is a fascinating way to frame couples entering into discernment counseling. So let's talk about that in the context of gray divorce.
Linda Hershman:
And again, I have to give credit, it's Bill Doherty's term, not mine, but to your point, it is a great term. When couples age 50 and over come in for discernment counseling, we have different fears and concerns and problems. And one of the biggest things that we're looking at is who is going to take care of us when we're older or as we're getting older? This plays into the decision-making in a much stronger way than when couples who are 30 come in for marriage counseling. Another thing couples over 50 are looking at is, all right if we get divorced and we're dividing the assets here, we don't have 20 or 30 years to rebuild our assets. We are not at the beginning or even at the middle of our careers where we can look forward to recouping that money eventually. So those are great concerns.
Another concern for women more than men is will I ever meet somebody else? Another thing that is not so much a concern people don't see as a concern, but it is one of the questions that comes up when we're doing discernment counseling is what impact will this have on the children? And people think, well, the children are adults, they have their own lives, it's not going to be a big deal. But in a lot of ways parents divorcing later in life impacts the children in very different ways and sometimes in harder ways.
Pete Wright:
How so? I'm curious about that, seems like aren't the children off living their lives, is that not the assumption?
Linda Hershman:
That is the assumption and that's the problem, there is a term called ambiguous loss and ambiguous losses are those that are not generally recognized as losses and they're not validated, they are not talked about, there are no rituals for them. And people don't talk with their adult kids, they don't give them a voice for how is this impacting you? Emotionally, it can have huge impact, especially when it's been a very transactional marriage where the parents got along really well and it seemed like everybody was fine and it seemed like they were a happy family, all of a sudden the parents are getting divorced and the adult children are questioning, was my whole life a lie?
Pete Wright:
Yeah, oh wow. Oh, that's dark. I totally get that and we've talked about that in the context of like, okay, my parents got divorced when I was 18 and got out of high school. Then it was transparently obvious that the parents were waiting until the day after graduation to file for divorce and that can be troublesome. But this whole idea of waiting until you're 60, 65 to get divorced, the kids have a certain assumption of what life aging grandparents is going to look like, right? Aging parents.
Seth Nelson:
Adult children have the same questions.
Pete Wright:
Yeah.
Seth Nelson:
What are we going to do about the holidays? Is it going to be awkward if I'm getting married? Now, do I have to bring the grandkids for Christmas at one place, then another? Are you guys going to be able to stay in the same room and be nice to each other so we can all have Christmas together or Thanksgiving or whatever the traditions may have been? So all of that is going to play out when you're talking with your adult children. And if you're fortunate enough to have adult children in your hometown where you're currently living, that's great, but sometimes that makes it even harder because, oh, we're used to having Shabbat dinner altogether, well now what do we do? And the grandkids are used to doing that, so why isn't grandpa here? Why isn't grandma here? And you have to explain it to them.
Pete Wright:
Just feels like there's nothing that'll make you feel more like a child than finding out your parents are getting divorced.
Linda Hershman:
Absolutely. Also, speaking to what you were saying, Seth, about trying to divvy up all the holidays and everything, think about if your parents get divorced, both of your parents end up in other relationships. Your partner has divorced parents and they're both remarried. And so now you've got four sets of parents that you have to try and give equal time. But there are also financial implications for adult children because a lot of times as they were growing up, their parents have said to them, okay, we're going to pay for college, or we're going to pay for grad school, or we're going to pay for your wedding, or we'll give you a down payment for the house, now all of a sudden the parents are splitting up, they're dividing the assets and saying, "Sorry, we said we were going to do this, but we can't." Even in terms of childcare, when the parents split up, sometimes one moves away, sometimes both move away.
Seth Nelson:
Yeah. There's a lot of issues on how all that impacts the grandkids and what happens and you got to talk it through with your adult kids like, "Hey, we're going to go live our lives, we have 30 years left maybe on this earth, 20 years left, but these are the decisions we're making. It sucks, it's going to impact you, but here's why." And you go from there. But I want to, as Pete says, pivot back to something you said that I don't want to lose sight on. I want to make sure I heard you correctly, Linda. You said one of the concerns that gray divorce for women, they're concerned whether they might meet somebody else again. And we know statistically that men tend to remarry quicker than women, but you also said that 66% of gray divorces are started by women or initiated, so even though they might think, I might not meet anyone else, I'm still good, because I'm done with this guy. Did I get that right?
Pete Wright:
Right, I'm throwing in the towel.
Linda Hershman:
Yeah, you've got that right. It seems like an inconsistency, but here we are.
Seth Nelson:
Well, I don't think it's inconsistent, I think it's an interesting dynamic where they're like, "I might not meet someone else, I would like to meet someone else." But I know a lot of women in the, not just gray divorce, but even women who have lost their spouse from death, have formed great bonds with other women that is very close knit, they travel together, they go to family events together and there's nothing sexual or romantic about it, but they've found companionship through friendship as opposed through someone that they're either dating or married to or romantic connections.
Pete Wright:
It's like, what is it, what are the different things that satisfy the psychosocial level of intimacy that is left as a whole after a divorce, gray divorce?
Linda Hershman:
Yeah, you're right on about that and women are much better at developing these connections and to your point, traveling with other women or going out and do things or just having a standing Saturday night date, not a sexual date. My mother who is 89, has a few friends every Saturday night, they go out for dinner.
Pete Wright:
Yeah, I mean it feels like ritual connection is important. Like Seth, you mentioned Shabbat dinner, right? Those things that are standing and predictable can go a lot toward protecting yourself, I imagine, from the grief and loneliness that can set in if your expectations about meeting someone else are not met, especially after you've taken an active role in your own divorce.
Seth Nelson:
Well, and the other thing is with that same point, Pete is where you live, you've always been living with someone for this whole time and now you get divorced and you're on your own. Well, that's very analogous to what happens when a spouse dies. You're living, maybe you kept the house in the divorce. So I can speak from my own experience with, as you know, my father, my mother passed a couple years ago, my father is elderly, he needed more help. We moved him and I even hate to say that we moved him, I helped with the boxes, but he made the decision to move into an assisted living facility. It's been the best thing, he loves it. He is a social guy, he's on book club, he does the trivia, he has three meals a day with friends that he walks down to the restaurant. And so getting back out there, I'm going to use in a different way, not in a dating sense, but in a social sense can be very fulfilling for people that have gone through a gray divorce. And I see it a lot with my clients where they taking trips with friends, they're doing Mahjong, they're golfing, they're going to museums, whatever the case may be, but I've really seen people a year or two after the divorce, gray divorce, that are much happier than being in a marriage that was very stressful for very many years.
Pete Wright:
That's a really interesting thing, and it reminds me of you and I kind of went through that at the same time and when my father passed, my mom said the biggest challenge was apart from just the grief of losing your spouse, was she got married when she was 19. She said, "I went from my childhood bedroom to my marriage bed. I never lived by myself. I don't know how to make decisions without a partner because I've never been forced to do it as an adult." And I imagine that rift that she's not alone in experiencing that rift of a certain generation, that you just don't have the skills after a life lived in partnership to figure out how to do it alone.
Seth Nelson:
And Linda, do you see that in a gray divorce or do they get over that hump because maybe their first solo decision is, I'm going to get a divorce.
Pete Wright:
I want to get a divorce.
Linda Hershman:
This is where we go back to the adult children and where they come in and things that it creates for them. But I also want to say that we know that one of the protective factors in aging is having good social supports. One of my best friends said to me a long time ago, men come and go, but the girls are forever. And-
Pete Wright:
That's pretty good.
Linda Hershman:
... Since she and I have been friends for 40 years. So yeah, getting back to that, what often happens in a gray divorce is the children tend to become closer to the mothers because stereotypically the mothers have not taken care of the finances, sometimes they don't even know anything about the finances, they may not have the computer skills. And this is probably not so much the case with 50 year olds and even a lot of 60 year olds at that point. But when you get to 70 year olds who are getting divorced, they don't have these management kinds of skills and so the kids do tend to get closer to the mothers because they need more help in those kinds of things.
Pete Wright:
Yeah. I'm about to leave, I leave this podcast and get on a plane to go stay with my mother for a week. I'm not sure what you're talking about.
Seth Nelson:
Well, Pete, I always try to one up you. I was talking to my father yesterday about planning his second Bar Mitzvah.
Pete Wright:
I don't even know what that is, is that a thing?
Seth Nelson:
It is a thing that I've recently learned about that in the Torah, in the Jewish Bible, it says that a life lived of 70 years is in there and I'm not quoting it directly is basically that's a full life of 70 years, so if you make it to 83, it's like you're 13 again.
Pete Wright:
13 again.
Seth Nelson:
And therefore you might have a second Bar Mitzvah. And so he announced that he was having a second Bar Mitzvah and announced the date, and I was like, "Looks like I got some planning to do."
Pete Wright:
Wow.
Seth Nelson:
Happy to do it.
Pete Wright:
What, does he look forward to just envelopes of cash again? Is that how it works?
Seth Nelson:
I don't think so.
Linda Hershman:
Seth, I am putting it right out there. I am not learning another Haftorah.
Seth Nelson:
There we go, Linda's good, she's good. Okay, but he wants to do it, he's working on it, it keeps him busy, he's looking forward to it, it's a life event for him. But this is what happens in gray divorce, either whether you get divorced or if your spouse passes away, that these same issues of how do you go live your life differently i.e. alone, not with a partner every day to fill your time to do things that are meaningful? And I am not suggesting that everyone convert to Judaism and get their second Bar Mitzvah or your first if you did that, but you certainly need to go through the grieving process, be social, make friends, get out there or do the stuff that you've always done. If you're an introvert and your spouse was having you go to parties all the time and now you get to sit and read a book on a Sunday and you don't have to go anywhere on a Saturday night, enjoy that as well.
Pete Wright:
Oh, I like that a lot. But I'm still thinking about the second Bar Mitzvah to look forward to.
Linda Hershman:
I don't think you have to worry, Seth, about a lot of people converting for that first or second Bar Mitzvah because first they'd have to get circumcised.
Seth Nelson:
Yeah, this took a turn we were not expecting.
Pete Wright:
Outstanding. Linda, beyond your ritual expertise, you also wrote the book, Gray Divorce: Everything You Need to Know About Later-Life Breakups. Tell us a little bit about the book and where people go to learn more about you and your work.
Linda Hershman:
The book is the first comprehensive treatment of the topic. I cover a variety of things, I talk about the wise of gray divorce and some of the things we've talked about. I have a chapter on discernment counseling, a chapter on adult children of divorce. I have a chapter on there of alternatives to litigated divorce. I don't know if you hate me for that, but...
Seth Nelson:
I just let that one go by.
Pete Wright:
I know, I saw that.
Seth Nelson:
[Inaudible 00:27:59].
Pete Wright:
I watched watched that go by. You were so calm. Such a good-
Seth Nelson:
I know, you saw the hamster going.
Pete Wright:
That was good.
Seth Nelson:
I just let it slide. I'm learning, Pete, I'm maturing.
Linda Hershman:
There is a chapter on LGBT divorce and also mixed-orientation marriage divorce, when one person comes out or transitions later in life, there is a chapter on divorce among people of color. Hopefully very user-friendly but thorough, yes.
Pete Wright:
Lovely. I mean, we send people to Amazon, but if you have a website you'd like people to learn more about you and your work?
Linda Hershman:
The ebook is on Amazon, but the paperback is not through Amazon. So the best thing to do is go to my website, which is lindahershman.com, and that's H-E-R-S-H-M-A-N. And on the website it will give you the links to both the book on Amazon and also on BookBaby. And I am always running promos, so it will give you the current promo. Save a little bit of money on it.
Pete Wright:
Well Linda Hershman, thank you so much for hanging out with us today for teaching us a little bit more about gray divorce and sharing the book with our audience, we'll put links in the show notes. We sure appreciate you for hanging out with us.
Linda Hershman:
And thank you again for having me and for making it fun.
Seth Nelson:
As long as we're not talking about circumcision, we're good.
Linda Hershman:
Did I jump the shark there?
Pete Wright:
Yeah, it's perfect. It was perfect. All right, well thank you very much, Linda. We so appreciate you teaching us a little bit about this. And now it's time for listener questions.
Welcome to the listener question segment. Are you ready for this?
Seth Nelson:
I'm ready.
Pete Wright:
All right. You say, this is from B, it's all I know, B, you say, assuming you Seth, kind of often that judges are civil servants and would rather not be involved in the intricacies of your marriage slash divorce. In cases with safety concerns, how frequently are judges willing to actively restrict custody or visitation compared to just hoping the at-risk parent can self-correct their behavior and are there standards for judges that are jurisdictional?
Seth Nelson:
Well, I love that they're throwing in the jurisdictional they are listening. So yeah, this is a total check your local jurisdiction. So in Florida frequently, and I mean frequently, daily, weekly, for certain that in our law firm and other law firms and my colleagues on this side of the bar will get calls from clients that say, "This is an emergency. I need to get a judge to hear me and rule in my favor." And it will be something with the kids such as, "It's my weekend and she didn't return the kids and I'm getting on a plane and I need to get the kids so we can leave to travel." That is not an emergency in front of the court's eyes.
Pete Wright:
Judges don't care.
Seth Nelson:
It's not that they don't care, I'm not going to throw them under the bus that much. It's that under the law in Florida, there's a case called Smith v. Crider which says there's got to be real danger, a kid is in danger or is harmed. The fact that she kept him for the weekend and you're going to miss your flight, you're not alleging anything bad happening to the kids, as in real physical danger, right? Yeah, it's going to suck they're going to miss the trip, but that is not going to be a emergency. Now you have a parent that gets on a plane and leaves the jurisdiction and-
Pete Wright:
With kids.
Seth Nelson:
... You say, well, that's an emergency, with the kids, thank you. With the kids, that might not be emergency either. If you're alleging they went on vacation and they're going to be back, that's different than saying, "She packed everything up, I don't know where they are. I need to get an order to get them back. I don't know where they've gone." Stuff like that. So that is one of the problems when you deal with emergencies is what we think of in the good old-fashioned world of, "Hey, this is very time sensitive." That's not necessarily quote-unquote, "an emergency" that you have to get to. Now when you're talking about judges, when you're dealing with someone with mental health issue or alcohol issues, if you can prove that those issues are negatively impacting the children, you have a much better chance of getting judicial oversight to keep an eye on things. So if you can show someone, and these are really bad facts, which you don't want to have, which makes your case stronger, right? Had a DUI while driving with the kid. Yeah, that's a problem.
Pete Wright:
That's a problem.
Seth Nelson:
Right? Didn't pick up the child from school because, and then you prove they were Baker Acted, so they were in a mental health facility, no one knew, just didn't pick up the kid from school. So you have to have these independent third party verification of things that are bad impacting kids.
Pete Wright:
But is a schedule complication, like they didn't pick up the kids because they got busy and didn't hear the alarm to leave their office in time to go pick up the kids, is that considered an emergency?
Seth Nelson:
No.
Pete Wright:
No, okay.
Seth Nelson:
No, by the time you find out and the daycare calls you and it's 6:01 or 6:10 or 6:15 and they're charging you a dollar for every minute that someone's late, right?
Pete Wright:
Right, yeah.
Seth Nelson:
You're going to go get your kid and then you're going to say, "Oh my God, it was an emergency." I'm like, where's your kid? With you now? Is your kid safe? So that's the problem.
Pete Wright:
And I just want to read into it a little bit because how does this question get asked if there isn't some sort of reputation that in some cases judges don't step in where maybe the question asker thinks they should?
Seth Nelson:
Well, that happens all the time. There's a couple things, I'm really trying to give a full answer here. I know that I'm saying, well, it's not just the judges, thank you, but sometimes what people don't realize is the judges only see what's presented to them in a 15, 30, hour hearing, which is not a lot of time. So these are real world facts that I'm about to tell you in a thumbnail sketch. Emergency motion filed in Hillsborough County alleging that the children were in harm's way, but when you put what they wrote down on their emergency motion, that went in front of the judge and the judge read it, the judge goes, that's not an emergency under the law. The parent unfortunately took the life of the children and then took the life of himself.
Pete Wright:
Oh my God.
Seth Nelson:
And all over the papers, emergency motion denied.
Pete Wright:
Yeah.
Seth Nelson:
Nowhere in the paper did it give the legal analysis that, you know what, what was written and presented to the judge didn't meet the standard. It wasn't a issue on the judge not wanting to protect children, it was an issue of what's presented before me does not qualify as an emergency. You had to tell me something else.
Pete Wright:
Yeah, I mean, it's an issue of bad lawyering and bad journalism, right? That's like a double.
Seth Nelson:
Right, now, it might not have been bad lawyering, because the lawyer might've been taking exactly what the client said was the worst facts, but it just wasn't there and then something else happened. But a lot of people will tell me, "Well, Seth, your emergency motion was denied." And I'm like, "Yeah, I told my client it was going to be denied." I said, "What's the worst thing? Give me the worst. I need to know the worst. That's not going to be enough." But they want you to file it, if you think there's a good faith, non-frivolous way to do it, you file it because you have ethics and you don't want to be scolded by the court and all these other things, but these are not easy answers.
And the thing to remember, is really our judicial system is not set up to solve these types of problems. We're asking them to do too much and with no resources, no staff attorneys, no law clerks, hundreds of cases on their docket, thousands of cases in the counties. So I always tell people, "There's been a lot of these problems that are going on in your life, in your kid's life for 15 years, you're expecting a judge to fix it and a lawyer to fix it in six months?"
Pete Wright:
Yeah.
Seth Nelson:
It's horrible. And I'm not making light of this, this is serious issues.It's
Pete Wright:
But yeah, its horrible.
Seth Nelson:
It's horrible.
Pete Wright:
Well, thanks for that and thank you B for asking the question, and I hope that gives you some context. And also, as Seth said, check your local jurisdiction and thank you everybody for downloading and listening to this show. Keep those questions coming, howtosplitatoaster.com and click the ask a question button and that'll come right to us, it'll come right to Seth, we've got a couple in the queue here for this season. We like more questions, would love to hear from you. So thank you for downloading and listening. Thanks for your time and attention. On behalf of Linda Hershman and Seth Nelson, America's favorite divorce attorney, I'm Pete Wright and we'll catch you back here next week, right here on How to Split a Toaster Divorce Podcast about saving your relationships.
Outro:
How to Split a Toaster is part of the TruStory FM podcast Network, produced by Andy Nelson, music, by T. Bless & the Professionals and DB Studios. Seth Nelson is an attorney with NLG Divorce & Family Law with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different, if you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of NLG Divorce & Family Law. Seth Nelson is licensed to practice law in Florida.
