Divorce Corp - Part Four

It turns out that all four of us here in Maryland who saw Divorce Corp over the weekend were in one room last week.  One had testosterone as his main hormone and was elder enough of a statesman to remember the "tender years" doctrine, when moms were presumptively the better parent.  This individual no longer litigates (except to represent children0, but concentrates on mediation and collaboration.  Another of us is young and practices exclusively in negotiation and litigation.  Yet a third has been a law professor and not practiced law for quite some time.  Then, there's me. I practice family law in all of its forms - mediation, collaboration, negotiation and litigation.  We're a pretty diverse bunch.  Three of us teach collaborative divorce at the University of Maryland law school, and in fact, we together to plan our first class of the semester.   So, what did we think?

The law professor dismissed the movie as poorly done and not worthy of substantive discussion.   That's not surprising, given that she is used to serious and scholarly work, which this movie definitely is not.   What about the rest of us?  You already know that none of us thought the movie was a balanced picture of the family law system.  Our youngest member researched all of the litigants whose stories were shared in the movie (don't you love Imdb?).  As you might expect,  just as all those experts were misquoted in the film, so were the litigants' cases.

Beyond that, we hope that the family law community doesn't ignore this movie.  Yes, it is an inaccurate representation of us and the system.  Divorce Corp offers us here in the Trenches an opportunity to see how the public in general views us.  The scene is not pretty.  The solution is not for us to dismiss this movie as a one off and defend the way things have always been done.  Divorce Corp is a wakeup call to all of us here in the Trenches.  Why do you think the number of self represented parties increases every year?  It's not because they can't afford us - it's because they don't trust us to help them more than we help ourselves.  Sobering thought.  Here in the Trenches.

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.

Divorce Corp - Part Two

Sometimes when I don't write for a few days, it is because there is nothing that strikes me that I want to share.  In the case of Divorce Corp, I have so many ideas swirling that I'm having trouble organizing them in my head, much less on paper.  I have no fewer than 4 blog posts begun on the topic. Then, as usually happens, inspiration struck this morning.

One of the premises of Divorce Corp is that divorce would be so much better if we simply got rid of the existing family law structure and adopted one just like Sweden.  Would it be great and preferable for the default method for resolving family disputes to be either mediation or collaborative law?  Absolutely.  That, however, is not what Mr. Sorge is advocating, and in fact, he edited out of his movie practically all references to the use of these methods in family law.  What he wants is to completely dismantle our present family law system and substitute the Swedish one in its place.  Here's what I have to say on the subject, in typical Life in the Trenches style.

As you all know, I am a runner.  I have had some trouble with my right knee during long runs, as it starts to hurt and then decide that bending is an optional action. Ouch!  I have tried taking Ibuprofen, with little result.  I have tried walking when it locks up until I can start running again.  That works, but still, I only do that after it has locked up once.  I found a series of exercises in Runner's World guaranteed to solve my problem.  I did them faithfully, and my knee locked up a mile or two after it used to do so.  Then I added stretching in the form of yoga, strength training for my both my upper and lower body and balance training on the Bosu ball (which I love to hate), plus I changed my stride and learned to notice when my knee was just thinking of hurting.  Oila!  15 miles without pain.  The Trenches learning point here is that any one or combination of things I did made little difference in the condition of my knee.  It was only when I did all of them in conjunction with each other that I experienced complete relief.

If we analogize my knee to the family law system, Mr. Sorge would say it proves his point that we have to radically change everything to fix the divorce process. I look at it differently.  I respectfully disagree.  If my knee is the family law system, then what my story shows is that we cannot view that system in a vacuum.  My knee, like the family law system, is part of an interconnected system of societal assumptions and governmental policies, formats and actions.  Changing the family law system to one like that in Sweden works in Sweden because the assumptions, policies and actions of the society as a whole support it.  The United States is not Sweden, and unless you change all of the United State and its government so that it is like Sweden, from their socialized medicine, subsidized daycare, family leave policies on down the road, implementing their family law system would not work.  There are major societal changes that have to be in place to make that experiment successful.  If we simply did as Mr. Sorge suggests, we would in all likelihood enter the world of unintended consequences.  If you doubt me, look at Obamacare.  No, I don't care to nor will I debate the relative merits of Obamacare.  I think, however, we can all agree that what we have with the rollout of Obamacare is a mess of unintended consequences, from website snafus to cancellation or alteration of pre-existing health insurance benefits.  At this point, the merits of Obamacare are obscured by the unintended consequences of its provisions and rollout.  Then again, if all of those possibilities and results were considered and dealt with, not only would it have taken more time than the President has in office to implement, but it still would not have gotten rid of all of the intended consequences, there would simply be different ones because at the base of the problem is our societal mindset. The consequences that occurred were because you can't change an entire society just by changing one small part.  All of society, and our view of health insurance as a government entitlement for all and not just the destitute and elderly, would have to change in order for Obamacare to overcome the unintended and unforeseen consequences its rollout created.

Closer to home, there is a move afoot to revise the domestic violence laws.  We here in Maryland have had quite a few horrific and highly publicized incidents of lethal domestic violence within the past year or so.  As a result, there is a push to relax the requirements necessary to obtain a domestic violence order.  As we all know, every action has a consequence, and today, one of colleagues here in the Trenches, Hadrian Hatfield, published an editorial in the Washington Post on that very topic.  I commend reading it to you.

Ultimately, unless we are in favor of gutting our entire governmental system and revamping everything we do as a nation from the Executive Branch down to Joe and Mary Citizen, the Swedish system is not going to work here.  Even if it were, you are talking about generations of time to see improvement.  I don't know about you, but I don't think my clients have that kind of time.  What we can do, and must do as attorneys here in the Trenches is urge our clients to view mediation, collaboration and negotiation as the primary and front lines way of resolving their domestic disputes.  We have to education our clients about all methods of resolving disputes, help them determine which method is appropriate for them, and save litigation and its mind set as the alternative dispute resolution mechanism, rather than its default.  Educating the public is part of the bottom up method of effecting real change.  It doesn't happen if we as lawyers don't embrace that change from the top down.  Moving back to our origins as counselors at law rather than the hired gun enables us to serve our clients and meet their needs in a way that feels fair to them and the rest of their family.  Just my $.02.  Here in the Trenches.

Divorce Corp - Part One

Over the weekend, I and one of my Trenches colleagues took a road trip to New Jersey to see Divorce Corp., a movie that promised to be an expose of the 50 billion dollar family law industry.  Its release has caused a firestorm here in the Trenches, and I felt that prior to commenting on it, I should actually view it in its entirety and not judge it on its trailers. In his review, Roger Ebert described this movie as "less a nuanced documentary than a cry of rage."  With that I would agree.

As I have said previously in this blog, the Trenches contain a lot of people who we refer to as high conflict personalities.  This term was coined by Bill Eddy to describe those folks for whom everything is black and white, with no shades of gray.  The difficulty is that when a family dissolves, there are usually plenty of shades of gray and no true black and white.  High conflict people don't understand this, and you are either for them or against them, good or evil.  When these people do not get everything they want, they lash out into an explosion of rage.  Although they may make valid points, these are lost in the cry or rage.  Divorce Corp felt like a bad online review of the family law system by a high conflict individual with enough money to fund a full length documentary.

Wow, that seems a bit harsh.  It's not.  If you read all of the articles that have come out in the wake of the release of this movie, what you will see is that at the beginning of the making of this film, there was a well-respected documentary director.  He obtained interviews with a number of well-respected people in the Trenches.  These people spoke frankly about what was wrong with the family law system, and more importantly, movements and actions taken by people working in the Trenches to change the status quo.  Between the time of the interviews and the editing and release of this film, the producer (Joe Sorge) replaced the director with himself.  The interviews were edited to further Mr. Sorge's obvious political agenda and any reference to mediation or collaborative law, both positive movements in the Trenches, were removed.  The work of people to reform the system, like Mark Baer, was not included.   The editing changed, in many cases completely, what the interviewee stated, all to further Mr. Sorge's purpose.  It is his story, and he makes sure you only hear his side.

The same is true of the stories of the litigants represented in the movie.  In no case were both sides of the case presented.  The only story told was that of the person who was screwed by the system.  As I have said repeatedly in this blog, attorneys only get one side of the story, and that side is always polarized and determined by the emotional state and view of reality of the teller.  There were plenty of hints in the movie that many of these cautionary tales were not as they appeared, that the people interviewed were high conflict personalities.  You had to look for them, but they were there.  As both sides of the cases were not explored, what you are left with is a number of cries of rage inside this one large scream.

You might think all of the above means I hated the movie and completely discounted it as propagandistic garbage.  You would be wrong.  I am saddened that Mr. Sorge determined that he would use this vehicle to further an obvious political agenda (Why can't we be exactly like the Swedes?) rather than begin to fully explore what is wrong and right here in the Trenches.  Had he decided to be more balanced in his approach, I think the film would have more impact and perhaps sparked a move toward real reform of the things that need to be changed.  Instead it feels like a hatchet job on a segment of society that we love to hate - lawyers and judges.  That bias will certainly resonate with a lot of people who have come through the Trenches, but it will help not one whit to encourage that change.

Change in the family law arena has to come from the bottom up and the top down.  It has to be deemed necessary by both the professionals and the parties involved.  Everyone involved has to agree on what those changes will be.  Like it or not, marriage and divorce are both legal concepts that require legal help to create and dissolve.  Because of that fact, lawyers are a necessary part of the equation, so producing a movie that simply antagonizes the professionals involved does not promote real change, only discontent.  What is broken in the Trenches and how that might be fixed is a subject for another day, probably tomorrow - here in the Trenches.

When is a Child Not a Child?

If you've done any reading about divorce, I'm certain you've seen the article where the judge asks the parties whether they love their children more than they hate each other.  Most parents would say that of course they love their children more than they hate each other.  Problem is that some of those parents talk trash about the other parent in front of their children, refuse to let the children answer the phone when the other parent calls, don't invite the other parent to the child's birthday party.  Well, you get the picture.  Luckily, there are fewer of those types of parents than you think.  Most parents try hard not to dump their divorce on their children.  They try to be good co-parents.  They suck it up and stand on the sidelines for soccer ages together.  They both attend those sports banquets.  They jointly plan those bar mitzvahs, quincieras and sweet sixteen parties.  They go to doctor appointments together.  They make small talk and generally appear to get along.  After all, they are the adults and they don't need to share their adult issues with their children.

Then the children turn 18.  Most parent understand that simply because their children turn 18 doesn't mean that anything changes.  There are still milestones at which they will need to be around the other parent - graduations, weddings, baby showers, grandchildren's events.  They understand that they will always have to suck it up and be cordial to the other parent, that it isn't right to make their children choose between parents.  Others don't.  They view that age of majority as the time at which they can stop faking it, when they no longer have to suck it up for the sake of their child.  They figure that they had to do what they didn't want to do until the little darlings were 18, and now the children will understand that they're not going to do it anymore.

To those folks, I say - sorry.  You never get to stop being a co-parent to your children.  If it is your event, you can invite whoever you wish.  When you are not intended to be the center of attention - when you are not the one wearing the cap and gown, the wedding veil, or the party hat, and instead it is your child, it is about them.  You are still the parent and they are the child.  They have a right not to have to choose with which parent they celebrate their life events.  They have a right not to have to have two parents' tables at their wedding.  They have a right to have both of their parents at the Red Lobster to celebrate their birthday, or at their home to celebrate one last Christmas before they move.

Another thing I've noticed about these parents is that they think at age 18 they can suddenly tell the child how much they always hated the other parent, couldn't stand to be around them all those years.  They think it's OK to share all those things they bottled up inside them while the child was young.  Again, what makes those parents think the children want to hear it?  They didn't want to hear it when they were younger than 18, and they don't want to hear it when they're older.  Remember, the children never stop being part of both of their parents, and criticizing one of their parents is an attack on them.

If you see yourself as one of these parents, stop now.  Do not pass Go, do not collect $200.  Pretend your children are younger than 18 and behave.  Might I also suggest you find a competent counselor to help you work through your anger?  I know, divorce is full of anger, and I am sure your former spouse is quite deserving of yours.  Your children, however, are not, so work through you anger with a professional and not them.  Here in the Trenches.

Divorce and The Bosu Ball

I wanted a Bosu ball.  As you may know from reading this post, I run, swim and do yoga.  My balance isn't so hot, and I thought a Bosu Ball would help.  I thought it would really improve my exercise routine and imp roe my fitness.  I wanted a Bosu ball.  I read all about them.  I read about all of the benefits of exercising with it.  I watched You Tube videos about it.  Still, I hesitated.  Was it really right for me?  Would it really improve my exercise routine or just sit there unused?  I pondered these questions for a couple of years.  Then, this Christmas, I received $100 in Target gift cards.  A Bosu ball is $100, so I bought one on Saturday.  I brought it home and blew it up.  There, it sat in my living room, looking just the picture.  I couldn't wait to use it.  Being the cautious person I am, I watched the DVD that came with it.  They showed the exercises with a youngish, fit woman, and an older than me woman doing the exercises with modifications.  I was ready to try it.  I stepped up on the ball.  I wobbled - a lot.  I stayed on.  So far, so good.  Then I turned my head first to one side and then to the other - slowly.  I fell off.  Yes, I fell off.  It wasn't as easy as it looked.  I wobbled some more and practiced.  After half an hour, I could turn my head without falling.  Then I tried squats  That ball kicked my butt.  I tried some more, then I took a break until Sunday, when I tried again.  Again, not pretty.  It is going to take quite some time before I look as good on that ball as the older lady, much less the fit younger one.  It wasn't what I expected.  It was different.  It will take some time to get used to it being other than I expected, but I will.

My Bosu ball experience is just like a divorce.  Most people think about divorcing way before they actually separate.  They read books about divorce.  They talk to friends.  They think about it some more.  They do some more reading.  Maybe they go to see a lawyer.  Still, they worry whether divorce is right for them.  What will it do to their lives and those of the rest of their family?  Is it the right choice for them?  Are there other alternatives that will solve their problems?   They are not sure.  It's a big decision, so they think some more.  Eventually, they decide that divorce is what they want.  They go through the process of separating and divorcing.  It is never exactly how it appears in the books and in their friend's lives.  It's different.  For one, their feelings are all their own, and affect how they handle all the changes divorce and separation bring.  They lose their balance, they fall off the ball.  They keep working at it, and one day they balance without falling.  Another day, they do something they never thought they would do.  It feels different than what they expected, but it's still good.  It works for them.  Just like my Bosu ball will work for me.  Here in the Trenches.

The Red Hot Marshmallow

I feel like one of those terrible friends who doesn't tell you when things are crazy and just drops out of sight.  I should have told you all I was taking a break until the first of the year, but I didn't, mostly because I didn't know.  I finished Christmas cookie season, was best (wo)man at the wedding of my first child client ever, and then collapsed.  I came down with the flu, and blogging was the last thing on my mind.  My irresponsibility gave me time to reflect on this blog and what I want to accomplish here.  It gave me time to think of new topics for you all.  I hope to bring us back to our roots.

Today, I'd like to talk about the picture in this post.  It's a photo of Lisa, Chrystal and me in New York last month.  I'm easy to spot - I look like a big red cream puff.  That coat is very warm.  In fact I was out in tonight's winter storm in it, and the part of me that was covered by that coat was warm and toasty.  It's a great coat, and has been for the almost 20 years I've owned it.  So, what's the problem?  Oh, for heaven's sake, look at me in it.  Lisa and Chrystal look stylish as well as warm, and I look....warm.  After seeing pictures of me in it, I have come to the conclusion that this coat is best used for walking my puppies, even though daughter calls me the "red hot marshmallow."

Seeing me in this coat makes me wonder why no one told me how truly awful it looks.  It looked good when I was a lot bit younger, but 20 years is a long time.  I bet I haven't looked good in that coat for years.  Why did no one say anything?  Surely, they would know I wouldn't want to walk around looking frumpy or puffy.  So why didn't they say anything?

For the same reason your friends and family saw you were marrying the wrong person, saw your spouse out with the person with whom they were committing adultery, distanced themselves during your divorce.  Certainly, they knew they should tell you.  It's not about that.  It's about the relationship with you.  What exactly would they say?  Would you kill the messenger?  What if you didn't believe them?  Most importably, they worry about how would it affect your relationship with them.  They don't want to have to tell the whole truth because it may hurt you.  That's really what it's about.  That's why they didn't tell you.  I know, it made you feel a bit silly, a little foolish, to have everyone know but you.  It feels like one more betrayal.  It probably doesn't help for me to tell you that for most of them, it's because they care for you too much and not too little.   It's true.  Most of them don't know what to say and they don't want to be the one who tells you something that will cause you discomfort, if not outright pain.  So, they don't say anything at all.

Sometimes your friends and family don't say anything because they don't want to get involved.  They don't want to take sides.  They don't want to put themselves out there.  They don't want to be inconvenienced.  They don't want to make enemies.   After all, many of them know good and bad about not only your spouse but you too.   It may make being around you uncomfortable.  Maybe it will make it difficult to live near you or your spouse.  Some of them resent being dragged into your divorce, and resent you for making them privy to the knowledge that involves them.  Yes, it's about them and not you.  You're probably not in a place to think about what your friends and family are feeling, but it can help you make sense of how your life needs to reconfigure.  Did they stay silent out of love or something else?  While you're making sense of what happened to your marriage, it's probably a good time to figure that out too.  Here in the Trenches.