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May|June 2004
An Illegal Arrangement By Cynthia Joyce
...Join 'Em By Geoffrey Gagnon
Double Blind By Clive Thompson
The Snap-on Wives By Brian Montopoli
The Prudent Jurist By Stephen Gillers
Cases & Controversies
Breaking Up Isn't Hard to Do By John Swansburg

Breaking Up Isn't Hard to Do

Hollywood and network television have decided divorce isn't a big deal. Why that's a big deal.

By John Swansburg

WHEN SOON-TO-BE COURTROOM RIVALS Audrey Woods (Julianne Moore) and Daniel Rafferty (Pierce Brosnan) meet at the beginning of the new movie Laws of Attraction, Audrey rouses Daniel—he's dozed off while waiting for a preliminary hearing to start—by sticking a pencil in his ear. He returns the favor by wiping a crumb off her cheek and eating it, having surmised (correctly) that the offending morsel came from a Hostess Snowball. This, apparently, is what passes for meeting cute these days. Before you know it, these two New York divorce lawyers who couldn't make a more unlikely couple—her pantsuits are always crisp and he's forever rumpled—end up falling in love.

After, that is, they get married. In Ireland to take depositions on behalf of their respective clients—he's representing the wife, she the husband—Audrey and Daniel decide to holster their weapons for an evening and attend a frolic in the hamlet where they're staying. After throwing back many pints, they wake up the next morning and find that while in their cups, they seem to have gotten hitched.

The rest of the movie is given over to watching as the attorneys' affection for one another plays catch-up with their marital status. (To stay out of the tabloids, the attorneys have decided to stay married at least until the case is over.) Their masquerade produces the occasional tiff, of course: Attorney-client privilege suffers when you can't take out the trash without coming across the other side's confidential memoranda. But when their clients decide to patch things up (with make-up sex that Audrey and Daniel accidentally walk in on), how could the attorneys not be inspired by the example? The gloomy cloud of divorce supposedly hangs over Laws of Attraction, but it never blots out the sun for very long, and, in the end, it evaporates completely. Everyone is happy, and everyone stays married.

IF ALL OF THIS SOUNDS CONTRIVED, IT IS. Laws of Attraction is not a good movie. Then again, neither was The First Wives Club, the 1996 film in which Bette Midler, Goldie Hawn, and Diane Keaton teamed up to play a trio of scorned wives who exact revenge on their rogue husbands. That movie raked in over $100 million. Laws of Attraction doesn't hit as raw a nerve, but it may reveal a movement in our culture more troubling than a backlash against trophy wives.

Laws of Attraction inspires not so much faith in the institution of marriage as nostalgia for the divorce movies of old. According to opponents of same-sex nuptials, the sanctity of marriage is under cultural assault. But what of the sanctity of divorce? While the frontal attack on marriage made by reality programs like My Big Fat Obnoxious Fiancà has been roundly denounced, a more subtle encroachment on divorce has evaded detection.

Once upon a time, popular culture treated divorce with the respect it deserved and depicted divorce lawyers, the practitioners of the black art of asset division, as lowly villains. Thinking of calling it quits? Pop in the Kramer vs. Kramer DVD and see if it doesn't persuade you to give counseling one more shot. First Dustin Hoffman's Ted Kramer has to deal with the heartbreaking threat of losing custody of the son his wife Joanna abandoned. Then he has to cope with his lingering feelings for Joanna as he watches her get dismantled on cross-examination. "Did you have to be so hard on her?" he asks when his merciless lawyer is done reducing Meryl Streep to a quivering mess. To which the lawyer replies, "You want the kid or don't you?"

The take-home message of Laws of Attraction, by contrast, is that love is so powerful even divorce lawyers are helpless against it. Compare this rosy outlook with the dismal viewpoint of Woody Allen's Husbands and Wives, in which divorce is so powerful that the breakup of one couple leads to the ruin of another. Allen's humor doesn't salve the film's sting.

Husbands and Wives is only a dozen years old, but it feels like it's from a different era, when even comedies about divorce could be devastating. In Danny DeVito's 1989 The War of the Roses, Oliver (Michael Douglas) and Barbara Rose (Kathleen Turner) do pitched battle over their marital estate. Along the way, Oliver runs over Barbara's cat, and Barbara makes pâté out of Oliver's golden retriever. Oliver and Barbara don't kiss and make up, with all wounds of their divorce proceedings stitched and forgotten. Clawing at each other to the end, they take a multistory plunge from a chandelier in what's left of their ruined Tudor.

Now that's a divorce movie: It may not make marriage look good, but it makes splitting up look unbearable. Framed as a cautionary tale, the story of the Roses unfolds as a lawyer (DeVito) recounts it to a potential client who has come to him seeking a divorce. By the time DeVito is done with him, the would-be client has scurried off to take a stab at reconciliation. Unlike Audrey's and Daniel's clients, who get back together because they're horny, this guy has been scared straight.

Laws of Attraction occasionally tries to channel the spirit of The War of the Roses, but the reception feels fuzzy. "Lawyers are scum," Daniel says in a passing moment of self-loathing. "Divorce lawyers are the fungus growing beneath the scum." If anything, the movie disproves the assertion. There's a dirty trick or two, but Audrey and Daniel aren't meant to be fungus; they're meant to be lovable. The actors are too busy selling their cuteness to say anything believable about the perils to which their day jobs have exposed them, or, for that matter, to say anything believable about their day jobs, period.

And why should they worry? The movie hasn't treated those perils as that big a deal in the first place. Strangely, aside from a brief montage setting up previous courtroom sparring between Audrey and Daniel, there is very little divorce in the movie. In this way, Laws of Attraction betrays a nonchalance about divorce that is cropping up elsewhere. In The Stones, a new CBS sitcom, Robert Klein and Judith Light play a couple whose divorce is such a casual matter that they're still living in the same house. (The premise facilitates the exchange of zingers between the separating couple—and keeps the set budget down.) An even better example is Miss Match, a comedy that debuted last fall and will return to NBC this spring after a hiatus. The show chronicles the career of a young divorce lawyer who moonlights as a matchmaker. Kate Fox, played by the ever-plucky Alicia Silverstone, may not be able to save your marriage, but for a reasonable, though additional, fee, she can help you get over it by setting you up with a fabulous new partner.

Kate works at her father's firm because she wanted to spend more time with Dad. (Her parents are divorced, wouldn't you know.) Father and daughter don't always see eye to eye, even when Kate wears her really high heels, but they always make up after they've had a spat. "Your following in my path has been a not inconsiderable source of pride for me," says Dad after one such dust-up. "And for the record, I'd be categorically opposed to any attempt on your part to leave this firm." "That was sweet," Kate replies. "Lawyerly, but sweet." No one scarred for life here.

In the show's first episode, Kate briefly worries about the implications of her matchmaking impulse. "I'm a divorce lawyer," she tells a friend, "an ass-kicker." But ass-kicking isn't Silverstone's thing, her turn as Batgirl notwithstanding. And thus the law offices of Fox & Fox soon become a place not where love comes to die, but where the seeds of new love are planted, watered, and given plenty of sunlight. The first official success goes like this: After helping a conniving husband leverage custody of a beloved pooch into a bigger settlement, Kate takes pity on the wife she just defeated by setting her up with a swell bachelor. The pair hits it off, as do their pooches.

Where's the divorce lawyer as a mercenary home-wrecker bent on reducing the value of a shared life to a cold dollar figure? Even the dogs get along? What's scary about the world of Miss Match is how un-scary it is. Kate Fox isn't a divorce lawyer, she's a car dealer: When the warranty expires, her clients come to her to trade in and, usually, up.

LIKE LAWS OF ATTRACTION, the recent Coen brothers film Intolerable Cruelty is a love story about a divorce lawyer. It also has an implausibly happy ending, but at least the Coens lace their homage to screwball comedy with an insight into the institution of divorce. Having seen an ad in the paper hawking a no-fault divorce that takes two weeks—no lawyers necessary—George Clooney's Miles Massey becomes sick to his stomach. "Good God," he gasps. "What is the world coming to?"

What the world seems to be coming to is a place where divorce is no longer viewed as war, and not just in the movies. Divorce has been getting easier ever since other states adopted Nevada's no-fault divorce laws in the 1960s and 1970s. As Jonathan Rauch argues in his new book Gay Marriage, divorce has lost its stigma not only because of these legal reforms but also because of the "power of example." "When more respectable people began divorcing," he writes, "divorce became more respectable."

But seeing divorce as respectable doesn't have to mean greeting it with a shrug. It's troubling to think that Miss Match, despite its silliness, accurately reflects a breeziness in our culture. Divorce rates may be flat, but they remain disturbingly high: Close to half of married couples won't make it to their 15th anniversary. As Rauch writes, "Divorce is not forbidden and never should be; but it is sad." He believes that the anger and confusion left behind among exes and their kids is a bigger threat to marriage than gay unions could ever be. But you don't have to think that divorce leaves an indelible mark to be disturbed by flippancy about its aftereffects.

Reassuringly, there is still a demand for old-fashioned battles royale between soon-to-be exes, even if they're no longer prime-time material. Each weekday in most major markets, Judge Mablean Ephriam presides over Divorce Court, "where real couples deal with real life." But even this remaining bastion, which depends for its ratings on nonfiction divorce at its ugliest, is strikingly nonchalant. Visit the Divorce Court website, and you'll find a link entitled "Dating for Divorcees." It whisks visitors to a dating service hosted by the site.

John Swansburg is a senior editor of Legal Affairs.

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