The June 17, 2020 South Carolina Supreme Court case of In Re Estate of Brown appears to finally resolve the estate of the “Hardest Working Man in Show Business,” a/k/a “The Godfather of Soul,” a/k/a “Soul Brother #1.” To reach that resolution the Supreme Court clarified its holding in Lukich v. Lukich, 379 S.C. 589, 666 S.E.2d 906 (2008), which held that the annulment of a prior voidable marriage did not render valid a subsequent marriage that was entered into prior to that annulment. In this case, Tommie Rae Brown attempted to argue that, because her marriage prior to James Brown was actually void as bigamous, and not merely voidable, when that prior marriage was annulled her marriage to James Brown became valid. The Supreme Court wasn’t buying it.

The Supreme Court held that if Tommie had not obtained a formal annulment prior to the time of her attempted marriage to James, her marriage to James could not be validated by her subsequent annulment of the prior marriage. Citing S.C. Code § 20-1-80, the Supreme Court noted that “the General Assembly has declared all marriages contracted while a party has a living spouse are void, unless one of three specified circumstances is established:

All marriages contracted while either of the parties as a former wife or husband living shall be void. But this section shall not extend [1] to a person whose husband or wife shall be absent for the space of five years, the one not knowing the other to be living during that time, [2] not to any person who shall be divorced[,] or [3] [to any person] whose first marriage shall be declared void by the sentence of a competent court.

Emphasis in opinion.

Finding a strong public policy in the accuracy of public records regarding marriage and divorce, the Supreme Court held it was immaterial whether Tommie’s prior marriage was void or voidable at the time she attempted to marry James. Since she did not meet any of the three criteria set forth in S.C. Code § 20-1-80, any attempted marriage to James Brown was invalid. Therefore she was not his surviving spouse.

The Brown case indicates that subsequent marriages undertaken before any of the three criteria of S.C. Code § 20-1-80 are met will not be recognized. Since South Carolina abolished prospective common-law marriages just last year, this code requirement is of even greater significance going forward.

The main thing that differentiates marriages that end in divorce from those that end when death-do-them-part is the sheer stubbornness of the parties involved….

–that and the access or lack thereof to a handy murder weapon.

In my twenty-six years practicing family law, I’ve yet to have a marital dissolution case end in murder–although a few, sadly, have ended in suicide. However, while there are common themes to what ends marriages–adultery; physical violence; reckless spending; untreated mental illness or substance abuse; outright contempt (in the emotional, not legal, sense)–I conclude that stubbornness distinguishes the spouses that remain together through the inevitable bad times from those who hire divorce lawyers. Such stubbornness isn’t necessarily a good thing: many folks continue in joyless marriages because they lack the courage to fix things or separate. But stubbornness is a necessary component of a lasting marriage.

Humans chose to marry because they find another individual with whom they envision building a life together. While marriage is not unique in the ability to bring moments of joy, for me, like many people, marriage can provide a sense of wholeness that was lacking prior to marriage. But humans change, and such change more often drives spouses apart than brings them together. Folks are likely never more compatible than around the time of their engagement, and any change is likely to make them less, rather than more, compatible. It takes effort and thought to incorporate this inevitable change into the structure of marriage, so that it becomes a strength. Without this effort, folks drift apart, either into divorce or a joyless marriage. The modern, self-actualizing, vision of marriage is extremely hard, but tremendously enriching if successful. And it definitely requires stubbornness.

I’ve spent the better part of my 50’s having resumed counseling in order to examine my life goals. Part of that process has been examining my relationship with my spouse, children, and parents. The conclusion I’ve reached–and wish I had reached years ago–is that we should enter marriage and have children not to be loved but to learn better how to love others. Too many folks enter marriage or become parents because they are looking for someone to love them–understandable but tragic. If one of the goals of modern marriage is self-actualization, the radical acceptance that marriage and parenting require is a pathway to such actualization. It is easy to love conditionally–although that really isn’t love at all. Loving unconditionally is hard. The mindfulness required to love one’s spouse (and children) unconditionally is the pathway to loving oneself unconditionally.

The theme of paradise lost recurs throughout the history of art. For most of us, our first experience of love is unconditional. Parents facing a colicky baby don’t attribute ill will to that baby–they simply try to comfort it. Yet, as we age, the folks who care about us also impose expectations upon us. A toddler throwing a temper tantrum is expected to change his behavior. Whereas ill will was not attributed to the baby, we assume ill will of this toddler without recognizing that he no more desires to be miserable than the colicky baby does. The paradise we’ve lost is the experience of that unconditional love. At it’s best, marriage can be the pathway to paradise regained. When our spouse loves us unconditionally–which does not relieve us of the consequences of our behavior–we can relearn how to love ourselves unconditionally. For me, this has been the greatest gift of thirty years of marriage. Mutual stubbornness has its rewards. Thank you Karen for the past thirty years.

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Five years ago I posted a blog commemorating my twenty-fifth wedding anniversary so I’ve long planned a blog commemorating my thirtieth. There’s a certain (as of five years ago, unexpected) symmetry with this anniversary. On my wedding day, I was half-way through law school. Thirty years later, my bride just completed the first half of her second year of law school. She is where I was thirty years ago. Thanks to my law practice, this anniversary will be more lavish than anything a law student could afford for his honeymoon (I post this blog from the old town section of Prague). So a gracious thank you to all my clients who made this possible.

I recently handled oral argument on an appeal that resulted in the unpublished opinion. One unusual aspect of the case was Husband’s focus, and the opinion’s recognition, that, Wife had a “crush” on someone who worked with one of the parties’ children and that Husband learned of this crush when he caught Wife emailing a friend about it. The opinion then notes, “The crush did not develop into anything further.”

I assume Husband raised the issue at trial because he perceived Wife’s crush as marital misconduct or fault, which can be relevant on issues of alimony (S.C. Code § 20-3-130( C)(10)) and property division. S.C. Code § 20-3-620(B)(2). Is Husband correct that merely having a crush on another is marital fault? My opinion is no but would concede that a South Carolina family court judge or appellate court might disagree. The Court of Appeals mentioned it as part of a passage explaining the parties’ separation without elaborating on its relevance.

The saying, “The heart wants what it wants,” appears to have originated with Emily Dickinson. Finding fault with folks because their desires don’t meet social approval seems a harsh judgment. While marriage may give one an exclusive claim on a partner’s loins, my opinion is it does not give one the right to control that partner’s heart. At best we can treat our partner kindly, attempt to meet his or her desires, and hope that partner reciprocates.

Part of marriage (or any intimate relationship) should involve avoiding causing unnecessary pain for the other. Having a crush on another is always disappointing and often devastating to one’s partner. Revealing that crush to third parties can be humiliating. Could have, and should have, Wife better controlled her heart? If not, should she at least have keep this “crush” secret?

Is merely having a “crush” on another marital fault? For the right case that may be an issue worth litigating.

Within popular culture, the viewpoint on marriage is that it’s something women intensely desire and something men have to be dragged into reluctantly. In this mindset, marriage enables women to raise children with a stable helpmate and source of income while men give up their “freedom” and money while being forced into a life of monogamy, then monotony, then celibacy.

While the culture of marriage has changed over the past fifty years–single motherhood less vilified; men more willing to handle household and parenting tasks (although still rarely on an equal basis); women earning a greater share of the couple’s total income–it is still almost solely men doing the proposing and women doing the accepting (or rejecting). The question “when is he going to ask her [to marry him]?” is commonly heard. I’ve yet to hear anyone ask, “when is she going to ask him?”

Yet, as a great moral philosopher Jane Austin noted two centuries ago, “It is a truth universally acknowledged, that a single man in possession of a good fortune must be in want of a wife.”  Myriad social science studies demonstrate that marriage is a tremendous boon for men.   This is one of the few things that both liberal and conservative media agree upon. For men, marriage means bigger income, better health, less depression and substance abuse, greater longevity, and more and better sex. For women, not so much. Yet the cultural belief continues to be the opposite.

One advantage of marriage for men is so obvious that it is rarely noted: a man who is married to the mother of his children is likely to interact with his children on a daily basis. I’ve previously written about why women are more likely to get custody. However men who have lived with their children since birth are much better candidates for custody–and if they don’t get custody, are much better candidates for very generous visitation–than men who did not. A sizable portion of my unmarried male custody clients complain about settling on a 30-70, or even 46-60, division of custodial time. However it’s hard to get them more time when the child is more closely bonded to the mother–a normal consequence of the child primarily living with the mother during infancy. To these men I quote a great contemporary moral philosopher Beyoncé, “If you liked it, then you should have put a ring on it.”

It’s time to stop treating marriage as something men should enter warily and as a boon to women. As most happily married men know, we get the better end of the marriage bargain. On this Valentine’s Day I urge all my single male friends, if you like it, put a ring on it.

A few months ago, an attorney friend asking me if I’d ever “cheated” on my wife. Being a legalistic sort, I asked back, “what do you mean by cheating?” He didn’t think it was a question that needed clarification.

In this culture, he’s right–which is a shame. A definition that considers all adultery cheating is too broad. As I explained in a blog earlier this month, and as Esther Perel has discussed in her recently released second book, The State of Affairs: Rethinking Infidelity, an understanding of adultery that cleaves “guilty” perpetrators from “innocent” spouses is simplistic and counterproductive.

Yet, if this definition of cheating is too broad, it is also too narrow. Every time we tune out our spouse in the middle of a conversation to check our twitter feed we cheat our spouse. Every time we diminish our spouse’s dreams because they aren’t our dreams we cheat our spouse. Every time we talk harshly to our spouse because we are tired, stressed, or otherwise engaged, we cheat our spouse. Making adultery the one and only way one can “cheat” one’s spouse not only fails to acknowledge the dynamic that leads to much adultery, it also fails to acknowledge the myriad ways that everyone cheats on their spouse every single day.

The modern wedding vows (which removed the “obey” from the wife’s pledge) are typically “to love, honor, and cherish so long as you both shall live.” Nothing explicit about monogamy there. Now, outside of an open marriage, one wouldn’t argue that adultery fails to honor or cherish one’s spouse. But there are numerous ways one fails to love, honor, and cherish one’s spouse that one is likely to accomplish before finishing breakfast. When we tune out our spouse when he or she needs an ear and a bit of compassion, we aren’t cherishing our spouse. When we denigrate or diminish something meaningful to our spouse because it isn’t meaningful to us (perhaps it even disgusts us), we aren’t honoring our spouse. When we yell at our spouse, roll our eyes at our spouse, or talk harshly or sarcastically towards our spouse, when we are critical of our spouse in ways that demean him or her, we fail to honor our wedding vows.

To answer my friend’s question in the way he intended it and to answer it accurately is to conisder two very different questions. The modern wedding vows are clearly aspirational. It is the nature of aspirations that we continually fail to meet them. The mindfulness necessary to fulfill these vows is difficult, but such mindfulness is vital to sustaining a strong and loving marriage. It’s when we stop putting in the effort to love, honor, and cherish our spouses that we truly cheat them of what we have pledged. Years–even decades–of a closed heart and a sharp tongue are way more damaging to a marriage than simply joining one’s genitals with some third person on one (or even multiple) occassions. A culture that considers the latter, but not the former, cheating, is not a culture designed to sustain strong, long-term marriages.

I was 9,930 days old when I married Karen Anne Klickstein on December 30, 1989.  As of March 8, 2017, I had been married 9,930 days–half a life.

That day’s approach had me reflecting on the meaning of marriage. I spend much of my time working with people in unhappy marriages. Sometimes they are certain their marriage is over and are ready to move on (and elsewhere). Sometimes they struggle over whether and how they might repair their marriage. Sometimes the end of their marriage comes as a shock that makes them question the very validity of their perception of how they’ve lived their life. No one–even the folks on their 6th divorce–ever really expect to be in my office when they first arrive.

The institution of marriage is both deeply unnatural and deeply human. Intimately living with a single other human being for the majority of one’s adult life is extremely rare are among sexually reproducing animals and does not appear to come naturally. Yet almost every culture has developed some form of pair bonding for household creation.

The concept of marriage is not necessarily tied to parenting. In Genesis, both the first human couple and the first Jewish marriage did not initially anticipate child rearing. God created Eve as a helpmate for Adam–sex and childbirth not becoming part of their relationship until after they ate the forbidden fruit. Abraham marries a quite elderly, and apparently barren, Sarah. While child rearing clearly had some impetus for the creation of marriage, even the ancients recognized a significant companionship aspect to marriage. Even if one marries with the expectation of raising children together, one also marries for companionship.

Choosing early in one’s adulthood to have a companion for life is a remarkably optimistic act. Every lengthy marriage will be filled with frustrations and disappointments. Before one marries one can try to anticipate what those frustrations and disappointments might be–and forgo the marriage if what one anticipates is too much to bear. But humans have a remarkable ability to surprise. Every wedding is a leap into the unknown.

I was nine years into legal adulthood, and a long way from maturity (likely still am), when I decided whom to marry. While I thought I put a great deal of thought into whom and when to marry, my 54 year-old self is shocked at the brashness and naivety of my 27 year-old self. This doesn’t mean I regret the marriage–I don’t at all. I am simply shocked that I ever felt ready to spend 50+ years in close quarters with another human being–and was quite thrilled that another human being might feel ready to do the same with me.

For someone who makes a nice living helping folks tear their own marriages asunder, the concept of marriage continues to fascinate. I’m completely uncynical about weddings. Hoping and expecting that one’s life may be immeasurably improved by spending countless days [yes, I know I’ve counted–humor me] in close proximately and mutual co-dependance with another person may be the defining characteristic of being human.

A friend and colleague of mine suggested I blog about Angelina Jolie’s recent filing for divorce from Brad Pitt on the ground of “irreconcilable differences,” noting that South Carolina does not allow divorce on that ground. Instead, South Carolina allows a “no fault” divorce after one year’s continuous separation along with three fault grounds for divorce (there is actually a fourth fault ground, one year’s desertion, that fell into disuse after South Carolina reduced the waiting period for a no-fault divorce from three years to one year).

Many states have a divorce ground of irreconcilable differences. One assumes legislators from these states believe that if spouses cannot reconcile their differences they should be allowed to divorce. The culture, especially the therapeutic culture, believes that all differences are reconcilable through mutual understanding and compromise. Thus, if differences cannot be reconciled, spouses must be incompatible.

That belief is mistaken. For a marriage to succeed many differences must be finessed or ignored rather than reconciled. Perhaps a wife overlooks a husband’s occasional crazy boys-night-out and a husband overlooks a wife’s occasional “unnecessary” shoe purchase. Neither has to like–let alone approve of–the other’s behavior, they merely need to tolerate it.

Most folks enter marriage with the belief that, if they are truly in love and their marriage is meant-to-be, they will be able to resolve all their differences. Many folks enter marriage with a list of “intolerables,” things they simply cannot accept in their spouse. “I cannot stay with him if he resumes smoking marijuana.” “I cannot stay with her if she cannot stay within the budget.” Within a few years most marriages have shredded that list. We learn to tolerate what we didn’t believe we could tolerate. Some of us even manage to forgive the occasional adultery or domestic violence.

Perhaps the most common irreconcilable difference regards sex. So long as couples have mismatched libidos, and so long as the culture sees monogamy as a defining feature of marriage, there will be conflicts over sexual frequency within marriage. The counseling industry would have folks believe such conflicts can be resolved through compassion and compromise. They’re half right. Compassion can ameliorate the problem. Compromise cannot resolve it–often it can exacerbate it. Asking the low desire spouse to have sex more often than he or she feels desire leaves neither partner happy. The low desire spouse now sees sex as a chore–something to be avoided. Unless the high desire spouse is oblivious, he or she cannot help but see that his or her partner is coming to the marital bed less-than-enthusiastically–which, in itself, can be a real libido killer.

The irreconcilable difference of sexual desire is a paradox to be managed, not a problem to be solved. A low desire spouse might ignore his or her partner’s mastabatory habits. The high desire partner might remember to clear the browser history. The low desire partner might approach the other when he or she isn’t in the mood and make an effort to be fully present. The high desire partner might appreciate such effort rather than focus on the low desire partner’s lack of response.

A culture that tells us that a successful marriage will resolve all differences is a culture that is lying to married couples. Marriage is unsustainable if all differences must be reconciled. Living with irreconcilable differences is the gravamen of successful marriage. This may be a paradox but it remains a truth.

My wife and I celebrate our 25th anniversary today. Thanks to a family law practice that exceeded my expectations in personal, professional and financial success, we will be able to celebrate in grand style. The irony that this success is predicated upon the inability of others to sustain their most important familial relationships is something I note but am not really bothered by. If folks find their intimate relationships problematic, and I can help them resolve these problems, then I see myself as providing benefit.

However the issue of why contemporary Americans have such a hard time sustaining marriages when our (great)grandparents’ generation seemed able to do so is a frequent topic of discussion among family law attorneys and judges (and some sociologists). The obvious answer is that humans have not changed so much in the past century but our expectations of marriage have changed greatly.

For much of history marriage was merely a household management and child rearing arrangement. The word “merely” in the preceding sentence fails to give sufficient respect to what marriage accomplished. In binding men to children it enabled children to have greater access to resources–financial, emotional and physical–before they achieved self sufficiency and fledged (it also gave rise to the dreaded patriarchy). Marriage was also useful in organizing and combining the labor of two adults into one household. With most humans throughout history living a bare subsistence existence, such pooling of resources and specialization of labor conferred substantial benefits to both one’s survival and the survival of one’s children.

Marriage still remains a useful institution for household management and child rearing. However, with industrialization creating greater labor efficiencies, having two adults contribute to a household–while still helpful–is no longer a matter of survival. The movement of women into the wage-labor force has reduced their economic dependance upon men. Changing social mores have reduced, if not eliminated, the stigma of single-parent parenting. The irony is that, as a consequence of these developments, the well-off and educated are showing a greater likelihood to marry and stay married, while the less educated and well-off are having a harder time getting and remaining married.

The same sociological developments that have made the household management and child rearing features of marriage less vital have also caused the role of marriage to expand–greatly. No longer is marriage merely expected to involve a pooling of resources, a division of labor, and the mutual raising of children. Now one’s spouse is supposed to be one’s best friend, one’s closest emotional companion, and one’s lifelong erotic playmate. That’s a lot of burden, and it’s pretty clear that most marriages cannot sustain it. Of the folks I see in family court attempting to end their marriage, a significant number have their marriages “fail” because one spouse is not accepting the responsibilities of household management or child rearing. However the majority of those ending their marriage do so because they see their marriage as failing to uphold these modern roles. Such marriages might have endured a century ago.

From both discussions with my peers and from the sociology I read, I am not convinced that even the well-off and educated are sustaining these modern marriage roles with complete success. Some of the burdens we place on marriage may be ill advised or unsustainable. Throughout history most humans have had their closest friendships with members of their own gender. While it is lovely to see one’s spouse as a friend, the burden of making one’s spouse one’s best friend is a burden marriage could probably do without.

The expectation that one’s spouse will be one’s closest emotional companion has also led to disappointment. Even good marriages go through bad periods. The expectation that one will rely on one’s spouse emotionally during these bad periods–rather than seek emotional support elsewhere–denies spouses the opportunity for distance that is often useful in getting through these bad patches. The concept of an “emotional affair”–the complaint that one’s spouse is seeking emotional support from someone else–could not exist but for this expectation. Forcing two people who are having troubles in their relationship to try to resolve these troubles through greater emotional entanglement may be counterproductive to long-term stability.

Finally the expectation that marriage results in unending erotic delights is counterproductive. The close intimacy that the companionate aspects of marriage demand is antithetical to the distance that sustains the erotic. As Esther Perel notes in “Mating in Captivity,” this tension between intimacy and eroticism in marriage is “a paradox to manage, not a problem to solve.” Recognizing this is a key to a happy marriage. Too often couples note the decline in eros and blame the other. They would be better off accepting this paradox and developing mutual strategies to manage it.

When family law attorneys or judges discuss the decline of marital stability they often see it as a reflection of declining morality. I, instead, see it as a result of the increased–and likely unrealistic–expectations we now place on marriage. Because these modern marriage goals are difficult, contradictory, and potentially counterproductive, even the most stable marriages don’t meet them. Many couples who are in marriages that would have seemed very satisfying fifty years ago are vaguely dissatisfied when their “perfectly acceptable” marriage doesn’t live up to the ideal. Further our culture falsely tells us that these goals should be achieved naturally, and without much effort, if we are truly compatible. Thus, if these goals are not easily achieved, folks tend to find fault with themselves or with their spouse. As a result most folks grow disappointed for failing to sustain–without much effort–the emotional, companionate, and erotic expectations in their marriage. Some who reach the conclusion that the problem is with the ideal, rather than with them, simply reject the ideal–which explains the rise of “open” marriages.

Yet I still believe marriage is one of humanity’s greatest inventions and think the expansion of the marital goals is ennobling. If the roles we expect from marriage have greatly expanded, so have the benefits of marriage when these goals are mostly met. Achieving this is a matter of effort, mindfulness and recognition that these goals cannot be perfectly met but must be balanced. The vulnerability and honesty needed to achieve this balance is extremely hard: it requires being able to express disappointment with the situation without it appearing to be an expression of disappointment in the spouse. It also requires a spouse who can hear and acknowledge the disappointment without treating it as judgment.

My bride took me as her husband twenty-five years ago today and I consider myself extremely lucky that she did. Marrying her has been the best decision of my life. Regarding the traditional roles of marriage we have succeeded beyond our expectations. Regarding the modern roles of marriage we have struggled, but even the struggle has been ennobling as a source of personal growth. Stay married to someone for twenty-five years with the expectation that marriage will provide constant friendship, emotional support, and erotic delights, and one is bound to be disappointed. However if one can accept that a marriage is successful if these modern features play a significant part in one’s marriage without necessarily being constant, and if one accepts that keeping these features of a marriage requires mindfulness and effort, they can add a substantial element of joy–if not continuous joy–to a marriage.

To “be known” is the meta goal of all intimate relationships and it is likely that no one will ever know me as well as the woman who took me as her husband twenty-five years ago. It is likely that I will never know anyone as well as the woman I took as my wife at that same time. Though the marriage has had its periods of unhappiness and struggle these hard times are perhaps a feature, rather than a bug, in the institution of marriage–as they lead to personal growth and maturity. If marriage has not met all of my expectations, it has greatly exceeded others, and has provided me delights I was not even expecting. I have been extremely lucky to have a spouse with the maturity and patience to accept the disappointments of marriage–and to accept my failings–without becoming hardened to me. I adore my wife more than I did the day I married her and still consider her the most adorable person I have ever encountered. I am truly blessed.

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[1]This blog’s title is courtesy of my good friend and colleague, Mary Jane Goodwin

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