Perhaps they could get Byron as a marriage counselor

Bryan Caskey brings our attention to this line in a Costa Pleicones dissent:

In my opinion, public policy does not require parties live in separate residences in order to bring a separate maintenance and support suit. Instead, I would allow such a suit where the parties no longer have a ‘romantic’ relationship.

Bryan doesn’t like it — he prefers a “bright line” — but I do. I appreciate thoughtfulness and creativity in a judge, up to a point. And as you know, I don’t think everything in the world can be quantified; sometimes we actually have to use judgment. (Also, I’ve never had much trouble with the “I know it when I see it” ruled for obscenity.)

Of course, it could get me in trouble at home. I feel like J and I have more of a Mark Twain kind of marriage than the James Fenimore Cooper kind.

Oh, but wait: I am into tales of chivalry and seafaring, so I guess that’s how I do my part to keep things going. I’m sure she appreciates it.

13 thoughts on “Perhaps they could get Byron as a marriage counselor

  1. bud

    And as you know, I don’t think everything in the world can be quantified;

    I disagree. I just cannot look at the world any other way but to try and “score” things. If I look at two paint colors I’d automatically try to rate each one numerically in order to decide.

  2. Bryan Caskey

    First, thanks to Brad for indulging in my legal wonkery. After pondering further, I have more to add. (Being a lawyer, don’t we always have more to add?)

    The reason I don’t like the standard of allowing a Plaintiff to bring a suit when the marriage is no longer “romantic” is that it creates uncertainty, and as a family court practitioner, I like a little bit of certainty. One person’s romance may not be another person’s, and yours may not be the Judge’s. I don’t necessarily have a problem with any particular standard as long as the standard can be articulated and defined. I think we would all agree that certainty and predictability in our Courts is a good thing.

    If Justice Pleicones had created a standard for what constitutes “romance” I could maybe get on board, but I can’t sign up for such a nebulous and undefinable standard as “no longer romantic”.

  3. Kathryn Fenner

    Speaking as a lawyer admitted in two other jurisdictions as well as SC,why not make it a whole lot easier to divorce anyway? Harder to marry, perhaps, but how many people change their minds about divorcing b/c we make them live “separate and apart” for a year? If they do change their minds, could they not remarry? Maine and Illinois require less than 2 months separation for a no-fault.

    I am no fan of divorce, but where there are no minor children involved, why do we have such draconian restrictions? If there are minor children involved, does it matter how long the parents are apart, or should we not focus on the children’s welfare specifically?

  4. Mark Stewart

    Divorce law, especially in SC, is one of those fields where I have to agree with Juan Caruso’s disdain for the legal profession.

    When a hear lawyers speak of “bright lines” and whatnot, I know that common sense has flown out the door.

    This is the real problem: Suing for separate maintenance and support is just that, a lawsuit. Right out of the gate a divorce is turned from what is most likely a mutual desire for separation into a field of legal (and emotional) conflict. If the SC Supreme court wants to reinforce the idea of marriage as a worthy goal, then it should support it by constructing a system where people can untangle their lives with a minimum of conflict, especially with children involved. If the couple has to ratchet their divorce up to civil war standards, fine. But give people the opportunity to resolve the end of their marriages amicably. Sadly, attorney’s want the fees generated by conflict. The system is broken and is designed to serve the interests of the intermediaries over the needs of the families. That is bad public policy.

    I think a longer waiting period to divorce does make sense for society. But drawing bright lines at the beginning of a separation doesn’t make sense. If we really want to reduce the divorce rate, a person contemplating non-fault divorce should simply be ample to sign an affidavit that they want the 12 month waiting period to begin and have some simple fixed division of assets/incomes that will then be subject to modification in the actual divorce. Then the married couple could do whatever they want for the next twelve months – including continuing to live together (and even having a romantic connection) if that’s a possibility for them.

    I would hazard a guess that lowering the conflict threshold at the beginning of the divorce process would actually increase the chance that a good number of marriages could find a way to get back on track. Creating a bright line early on for legal expediency does nothing but insure that separation will absolutely lead to divorce. That’s not good public policy – or law.

    When we elevate Separation to the equivalency of actual Divorce we erase the very thing that we say is important as a society to promote marriage – we turn a cooling off period into a churning cauldron of conflict. Divorce would still be divorce. Let’s just let separation be something different, something not so legally destructive.

  5. Kathryn Fenner

    In defense of the Bar, the Sc Bar website has a handy guide, with forms, for a do-it-yourself divorce, which they recommend only for people w/o kids. In reality, most people divorcing have little money to spare for legal fees—it isn’t like it is on TV. People with less than a high school diploma are twice as likely to divorce as those with a college degree and likely to make half as much. You do the math.

    You don’t have to sue for separate maintenance (there is no formal “legal separation” in SC). You sue for separate maintenance because you need income from the other partner–mostly a stay-at-home mom situation.

  6. Mark Stewart


    There is no defense of the SC Bar – or any other Bar – on this issue. The Bar promotes out of the gate conflict between separating spouses.

    It’s a full employment measure.

  7. bud

    Pressing the “Like” button on Mark’s comments. He must have watched my divorce proceedings through hidden cameras. The attorneys really did make out quite well in our case. Money for the kids future, not so much.

  8. Mark Stewart

    I don’t want to be misunderstood – divorce attorneys themselves aren’t what I’m talking about. It’s what Bryan Caskey (and many an attorney) says about “the bright line” that does get to the heart of the situation, however.

    Divorce attorneys want for various reasons to see a clear demarcation point at the beginning so that everyone knows the status quo – and that it’s all about expensive, acrimonious legal warfare. Unfortunately, this has two toxic consequences: 1) it immediately turns a separation into a lawsuit and 2) it legally precludes the very thing that the law calls for a separation to be – a time to reflect before ending a marriage. What happens, too, is that people are caught at their most vulnerable point and forced into making immediate decisions which will never allow reconciliation between the parties. And that’s where the attorneys do actual harm when they force the path of the initial lawsuit for maintenance and support – although they do have a reasonable defense when they say that it’s just to protect their client down the road in the actual divorce.

    That’s what I have a public policy gripe about – the law on separation is a two-faced beast. That is not fair to either the couple experiencing the (most likely) demise of their marriage or to society as a whole. As Kathryn said, it is most certainly not in the best interests of any children of the marriage. Currently, the law pushes conflict and prohibits collaboration between separated spouses – every kid looses in that.

    This idea of the bright line during separation needs to be readdressed. The public good is not served by the requirement that life be black and white – married or in the process of divorce – with no allowance for any possible action that could be construed as a reconciliation. No care and concern for the other spouse can be tolerated by the bright line approach. Everyone would be best served, as individuals and as a society, if separation where instead considered a legal gray area that will, assuredly, be resolved in due time – but just not immediately. As Kathryn also pointed out, there is no formal legal separation in South Carolina. This is because attorneys argue that in the absence of a suit for separate maintenance and support that is before a judge, there can be no agreement between the parties. That, however, is bastardization of the concept of separation which has been adopted for impure reasons and it flies in the very face of the law’s intent as to the period of separation. So to does the requirement that any cohabitation or romance between separated spouses must immediately result in a resetting of the one year waiting period. That in itself is the very antithesis of the legal idea of separation before divorce as a way for society to protect the sanctity of marriage. Yet it’s not hard to see why every divorce attorney and judge would hew to this twisted interpretation – it avoids messiness and keeps things headed for certain divorce, preferably as contentiously as possible. In that they are wrong and that is why it is unfortunate that the Supreme Court has moved father away from the idea of an honest separation period.

    Given the Court’s view of separation the Legislature ought to abolish the laws related to separation and simply – and accurately – say to spouses and to society that you can either be married or be on the way to divorce but you cannot have a legally protected period of reflection – that no such thing exists. That’s the defacto situation today. Therefore, the interpretation of the law is at odds with the public policy goals society has articulated in writing the laws. And that is a much bigger issue than whether or not separated spouses can inhabit the same domicile if one of them wants to bring a suit for maintenance and support.

    Tail wag dog.

  9. Nick Nielsen

    A question for Bryan (even if it is a day late):

    Is six years of a line of pillows down the middle of the bed a sufficiently bright line for “no longer romantic”?


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