Divorce Corp - Part Three

Simply because I believe that Divorce Corp was a poor movie doesn't mean that the points raised aren't worthy of discussion.  Quite the contrary.  It is no surprise to anyone who reads this blog that I don't believe that litigation is an appropriate way to resolve family disputes.  One thing Divorce Corp does quite well is demonstrate how the use of litigation to handle divorce became the status quo.  Divorce was not common place in our society, in part because people didn't live long enough to make divorce practicable, and in part because the economic structure of society made it all but impossible for a wife to be able to afford to leave her husband.  As a consequence, law makers and the judiciary had no need for rules to cover every contingency in the dissolution of the legal entity known as a marriage.  First, divorce didn't happen often.  Second, the wife wasn't entitled to anything if she left her husband.  Third, custody of children was always awarded o the mother.  Fourth, no one was going to live long enough to worry about the long ten picture.  Then came women's lib, and women left the home and moved into the workplace in greater numbers than ever before.  People were living longer, and women had the financial means and lifespan to make leaving an unhappy or abusive marriage possible.  The divorce rate climbed.  Society had no means to deal with the complicated financial and societal issues raised by the dissolution of that legal entity.    The only means that society knew to use to untangle the complicated legal, financial and familial threads that bound two people's lives together was the court system.  That the adversarial system was ill suited to resolve disputes between people who needed to have a continuing relationship with each other, whose needs would change throughout life, necessitating a revisit to any "final" resolution, didn't matter.  Society needed a solution. Now.

What we've found out in hindsight is that the solution really doesn't work for most people.  Sure, families get a decision and the dispute ends for now.  Family disputes, however, are not just legal disputes.  They are also emotional and financial ones.  The court system is particularly ill suited to dealing with emotions.  I don't just mean judges.  Watch a jury in a case in which witnesses are emotionally overwrought and what you'll see is plenty of discomfort.  The difficulty is that most cases that end up before a judge, those 2% of all family cases, are usually there because one party or the other is a high conflict personality, or is otherwise suffering such debilitating emotions that they cannot make a decision other than to keep fighting.

Most of us who work here in the Trenches really care what happens to our clients.  Unlike the lawyers who were depicted in Divorce Corp, most of us want to help our clients move on with their lives, reconfigure their families, and move on without unnecessary angst.  What most of us have found is that collaboration and mediation should be the first choice for divorcing families, and not an "alternative" means to resolve the dispute.  When those methods are the default, then, and only then, will it become unnecessary to file suit in court simply so the other spouse will (1) realize their spouse is serious about wanting a divorce, (2) realize that mediation or collaboration make more sense than endless court appearances, discovery requests, and the like, and actually engage in meaningful dialogue to resolve the issues attendant to the end of their marriage.  Wouldn't that be wonderful if it occurred during my lifetime?  Here in the Trenches.