Yesterday I posted about some recent gun violence, and ED Kain keyed in on the fact that a lot of gun violence is related to divorce. That got me thinking about our wasteful and stupid divorce system, which I think sets up a few of these murder/suicides because of the hard feelings and financial ruin that it spawns.
By the time you get to be middle-aged, you’ve seen a few of your friends and family go through divorces. In all the messy ones I’ve seen, it was really easy for one or both of the parties to engage a “shark” lawyer and go the mattresses over every little detail, including custody of the children. In these battles, every major or minor issue in the marriage is litigated in the most adversarial way possible — it’s a mudfight where nobody really wins, except perhaps the lawyers who are billing by the hour. Instead of tamping down the conflict inevitable in the dissolution of a marriage, the process amps it up in the theatrical setting of a court of a law.
With this in mind, my first prescription is that divorces that involve children should have mandatory mediation as a first step, and custody should only go into traditional litigation after a lengthy process designed to extract as much good faith negotiation as the situation allows. Lawyers in the mediation process would be required to undergo special training, and the mediators running the show should have broad powers to keep the proceedings on track and focused on a quick dissolution and healthy custody arrangement.
My second prescription is that anyone with children getting divorced should have a few counseling sessions with a mental health professional who’s a mandated reporter. By that, I mean that the professional involved has a legal responsibility to report anything they see as a danger to the children or adults in the process. I have to believe that someone who’s willing to kill his children and himself will show at least a few signs at a counseling session, and perhaps a few of these tragedies could be averted in the same way that thousands of suicides are prevented by mental health professionals every year.
If you think that this is some kind of conspiracy to deprive people of their rights and due process of law, a few things to consider. First, states have already invested broad authority to mediators — for example, even in retrograde South Dakota, child support modifications are determined by a court-appointed referee rather than directly by the court, simply because even the lunkheads in that state’s legislature realized that separating that red-hot issue from the rest of the custody discussion makes for better outcomes. Second, marriage is a voluntary contract with a bunch of state-sponsored benefits (if you’re middle class), so if we want to add a few more conditions to get that benefit, people can always choose to remain single.
Who’s going to pay for the counseling?
why link that little ratbastard?
there are better writers and more honest pundits to link too.
He is against teachers unions, pro “freed” market, and a JAFI.
He just farmed the juicitariat for pageclicks on his way to a paid gig at Forbes, and flipped on unions the minnit he got it.
Hes just an embryo Villager and a wannabe Douthat.
is your barebacking protocol that you link each others posts?
Or is it that you just cant bear to admit how righteously he spoofed you?
or that you dig the glibertarian reacharound sooooo much.
there is too much homoerotic tension around here already.
its upsetting mangurakin.
One thing that I’ve seen with my sister’s divorce is that people don’t act rationally is such an emotionally charged arena. Couples want to hurt the other, make the other pay for the pain inflicted, and most often don’t understand that judges don’t want to get involved in the petty fights they are having. So they clog up the court system with issues that don’t belong there.
@cathyx: Health insurance, especially after HCR is fully live. It’s much better on mental health care than the current situation: either you’re uninsured or you have mediocre insurance.
And, btw, mediation is a lot cheaper than a court battle, so there’s some savings there.
Anonymous At Work
Nothing wrong with your prescriptions per se, but divorce, like marriage, is a state law only area (hence some states are no-fault while others require actual cause), so this is 50 different sets of law required. The major problem is that not every location would have access to a lawyer with the right training. In major cities, there are enough people for specialized divorce lawyers but not in lot of America, including some substantial towns.
Han's Big Snark Solo
Wouldn’t it be easier to just outlaw marriage? Didn’t marriage start out as a financial transaction where the husband owns the wife and the potential wife comes with a dowry?
The institution belongs in the dustbin of history. And I’m not just saying that because I’m a bitter divorcee (althought that is a big part of it.)
I’m kidding… mostly.
@mistermix: My sister did use mediation to resolve many issues, but when something comes up after they were divorced, it seems that they have to go to court to resolve the new issues.
There bolded parts of this sentence indicate a significant part of what you left out of your analysis. Divorce violence tends to be a gendered phenomenon. Part of addressing this issue involves addressing violent masculinity that sees women as objects to be controlled.
@Elizabelle: but the link to EDK is uneccessary. Mixie is just farming pageclicks for Kain so that Forbes doesnt give him the boot.
Personally, I think divorce should be as easy as pie. Mediators are fine, if there are kids involved, but it should be ridiculously simple to get a divorce.
Marriage is where there should be gigantic numbers of hurdles to climb before anyone is allowed to do it. There are four sisters in my family. One has been married three times (and is about to do it again for the fourth time), another twice (the second one stuck), and a third once and still going (if unhappy). I’ve never done it. And my reasons for not doing it are that I never wanted kids (so what’s the point?) and I don’t believe that the whole concept is a good one for me (or most people, really). IMHO, marriage should be much less common and should be very, very difficult to get into. And there should be multiple tests and waiting periods that you must pass to in order to get a marriage license.
How do other countries handle divorce and child-custody issues?
Our adversarial system of justice, with hired-gun lawyers subject to very few ethical restraints, is just disastrous for these situations. As you point out, they often just add fuel to the fire of bitter family disputes, rather than calming the situation down. And there are almost never any consequences for truly outrageous tactics, such as trumped up charges of abuse, etc.
Nothing against court-appointed mediation, but IME most of the drama in divorce comes from people that aren’t happy with what they’re required to do by law, not with the legal process. If you want a quickie divorce, you can get one. I have yet to meet a lawyer who advised their client that they should prolong a divorce proceeding, but know lots of people that have fought to the bitter end over getting an extra monday holiday with the kids.
(I don’t know what ND is doing exactly, but a court-appointed referee is usually NOT a mediator. Usually, a referee is essentially making a ruling on behalf of the judge on stuff the judge doesn’t want to be bothered with. Discovery referees are common, and referees for evidentiary issues and sometimes specific legal matters.)
Can we get a “Show me on the doll where the bad ED Kain touched you” tag, just for Samara?
I’m in favor of not having marriage at all. It should be a private thing outside of the government, since it should be a personal and religious contract much more than a social one.
But that’s not going to happen.
Still, when a marriage goes sour, whether or not there are children, there isn’t much that can be done if two people (or their families and friends living vicariously) want to hurt each other. Prolonging the marriage only allows them more time to destroy their credit ratings. Forcing mediation will not make everyone open up (and if there’s a divorce in the works, there’s probably a lot of secrets to be kept.) And the lawyers will get their pounds of flesh at some point no matter what will happen.
It’s a good idea, but the practical fact is that I think divorce should be as easy as getting married. And I don’t think that should be made any more difficult, even though I think the entire process should be stopped.
Marriage is an outdated thing where people and their wealth are on some level considered property. Maybe such arrangements could be reconstituted as some sort of LLC, with the children as independent contractors. But nothing will stop some people from burning down the business.
These “divorce-related” murders are much more likely to be man killing woman than the other way around. http://answers.google.com/answers/threadview?id=58911
Maybe if we could raise more boys to be men who don’t think they own their wives and girlfriends, there would be many fewer “divorce-related” murders.
Mistermix’s point reminds me of an article I read years ago that said men and women we equally vulnerable in relationships because while men could hurt women physically, women could hurt men’s feelings. Amazingly, when my former boyfriend hit me, it hurt my feelings! Along with my face.
I don’t do family law, but my initial thoughts are that: 1) there is such as thing as collaborative divorce, which uses alternative dispute resolution (mediators). You might think that this would be a popular option for parents, who would like to separate from each other in as amicable or at least drama-free way as possible in order to minimize the impact on their kids. My understanding is that it is not especially popular. 2) There is an inevitable baseline of financial & emotional hardship in a divorce. Simply maintaining two households is a big financial hit. Interestingly, women generally come through a divorce a lot worse for wear while it’s the men who are generally responding with violence.
Thoughtful Black Co-Citizen
So you want to prolong the agony, eh? Create a few more hurdles. Brilliant. I won’t even get into the fact that your plan would make divorce more of a burden for one class of people (those with children, think of the children!) than another. I will note your plan doesn’t take into account cases where one of the spouses is violent.
By the way, any licensed health care professional has a duty to report when they believe a patient is a danger to himself or others. However, there are clear guidelines for what constitutes a danger.
F’rinstance you can have thoughts of suicide, but if you don’t have a plan – or don’t tell the professional you have a plan – to carry out said thoughts you aren’t considered a candidate for involuntary committal. If you propose lowering the standards, good luck finding anyone who’d perform or attend this counseling.
@geg6: Thank you.
Also, what MAJeff said while I was typing.
Sorry, don’t know how to reply on this goddamn IPad. Nothing but a big phone that doesn’t phone.
Minnesota has a process called Collaborative Divorce; I think other places have it, too. Different from mediation. Much as I hated every ()*#$^ minute of the divorce process, the whole Collaborative thing meant that everyone was working to keep things calm, fair (“meeting everyone’s needs” is a key phrase) and focused focused focused on how “co-parenting” after the divorce is going to work. Divorce is hell and I wouldn’t have gone that route if I had any goddamn choice in the matter, but once one person is determined to leave, I figure the best thing to do is to try to minimize the damage as much as possible (though God knows the temptation to go for revenge etc is a powerful human impulse). Anyway. More info here: http://www.collaborativepractice.com/
When my parents divorced, there was no such thing. The issue wasn’t so much custody of the kids – neither one of them gave a shit about that – but the money. My mother was determined to financially ruin the family (yes, she is not right in the head) and that is exactly what she did. Every dime they had went to lawyers.
Being raised in poverty that your parents deliberately chose for themselves sucks, let me tell you.
Raven (formerly stuckinred)
I spent the last year-and-a-half encouraging a young (40ish) friend who was not married but had a child during their custody fight. The mother actually kept him from seeing his little girl for 2 months at the height of the fight. He did way better than I ever could have at keeping his cool. Just this week he received a way better custody arrangement than we had thought he would. If you think divorce is nasty try being an unmarried father.
I’ll go with the “messy divorces are effect, not cause” school. All the laws in the world won’t prevent people from being angry and bitter when their marriage breaks up, or from wanting to take out their anger and bitterness on the person they blame. I think you may find that being an asshole in court is an alternative to being an asshole in person, so that enforced mediation or whatnot winds up encouraging as much violence as it prevents.
@jon: Um, hasn’t wealth always been considered property?
It’s everyone’s choice to get married or not, and it’s nobody’s business but the people involved. But there are practical benefits to it. For example, not everyone is going to write a will, or a living will. Having a spouse lets society know where, probably, you would like your wealth to go when you die or who, probably, you would like making decisions for you if you’re on life support, or who, probably, should take care of your kids. I don’t have much doubt, for example, that Stieg Larsson would have wanted his colossal fortune from the “Girl Who” books to go to his partner of eleventy thousand years rather than his parents, but since there’s no will (I don’t think) and there’s no legal imprimatur of her significance to him in the form of marriage, it’s probably going to be an uphill battle for her.
@Thoughtful Black Co-Citizen: It absolutely takes into account where one of the spouses is violent – that’s why a mandated reporter is involved, they need to report spousal violence as well as child abuse, etc.
But, just in case it isn’t clear, if the couple already agrees on everything, there’s no need for mediation. It’s only a roadblock to those who want to have a pissing match in court.
Well, without this:
Mediation isn’t any quicker or less adversarial. And I speak from the experience of a 2 year long “mediation” of my divorce, before I gave up, hired a different lawyer (less invested in a mediated outcome no matter what outrageous demands were made) and finally got the divorce finalized. BTW, my former husband was already deadbeating on CS the entire time, and my “mediator” just kept rewriting the support amounts to try to balance that off.
It was a nightmare, and I was occasionally suicidal thinking it would never end. But my kids kept me sane.
@Joe Bauers: i thought this was a liberal blog.
Kain fooled all the frontpagers, and i’d just like them to admit it.
he flipped on teachers unions the minnit he got a paid gig.
is that unreasonable to ask why mix keeps linking Kain at Forbes?
is he gettin a kickback?
dont you think liberals have enough trouble right now with messaging without misterMix wetnursing some nasty little embryo Ross Douthat?
How about just doing away with the institution of marriage altogether? Would have saved me a boatload of money.
@ColleenMary: My brother went through divorce in Minnesota and because his ex-wife was intent on inflicting as much psychological damage as possible, it bankrupted them both. The end result: more or less what my brother was offering at the beginning, but now both are severely in debt, and they still have three kids in school.
So much bullshit here. Why does society need marriage to say anything about a relationship? Why is marriage privileged over not married in so many ways? It’s, for the most part, a completely bankrupt institution. Why was my relationship of 18 years treated as nothing in the eyes of the law but my sister’s three marriages over that time given special treatment in the eyes of the law? It’s a load of garbage. I’m the one that believes in long-term, committed, stable relationships (I’m in the third of my life at 52 and we’ve been together for 5 years–longer than all but one of my sister’s marriages) but the law treats me as temporary and unimportant actor in my SO’s life unless and until he puts me in his will. And even then, I would, no doubt, have to battle his daughter and brother in court over being able to stay in my own home.
Unclean! Unclean! Please, EDK, release me from your spell!
It’s counter-intuitive to me that the same people who hire highly-paid professionals to break up their marriage rarely hire paid professionals to counsel them before they married. Some pre-marital counseling might help couples work out some of their differences and to identify potential trouble spots in their relationship before those things end up causing a divorce.
@Raven (formerly stuckinred):
Try being a father, married or otherwise. At the time of my divorce, in TX the rate was 93% of contested custody went to the mother. It’s gotten a little better since then, from what my attorney tells me. Don’t have latest stats.
OK…Here mistermix offers up well meaning and positive advice but he overlooks one thing. Some people who are getting a divorce really want to screw over their ex’s in any and every way possible. It’s kinda like Republicans now wanting to shit can the economy because in their minds it will make them more electable in 2012.
Lawyers aren’t the problem. Immature and vengeful assholes who are willing to shit on their own children in order to fuck over their ex’s are.
(I’ve had breakups in my life but I’ve never been divorced thank the FSM)
@Dennis SGMM: Well, look at the nation’s relationship with the rest of the world, consider the relative size of the budget to the military and toward the diplomatic core (etc.) and you’ll see the same attitude writ large. There is something that makes many prefer the smashy-breaky-killy phase as it is more photogenic and endorphin-laced than the dull plodding day-to-day bit of keeping things standing, tidy and kind.
Some people are incapable of putting the welfare of their children first. They’ve been hurt, or want to hurt back, and aren’t thinking clearly.
There’s not much of a remedy for that, and drawing out the steps / hoop jumping, will probably solidify the anger and resentment.
@jibeaux: I was referencing people as property, which is where marriage started: who owned this woman? this child? and the stuff was another form of property.
But the notion of wills and automatic assumptions isn’t solved by marriage anyhow, especially since we have so many marriages, divorces, stepchildren, and so forth that it’s all a mess no matter what. There’s no easy answers with inheritances, so make it everyone’s responsibility to come up with a plan. And register it at some impartial agency. And if there’s no plan, then the family and friends can make claims and some government agency can make determinations. Let contracts mean something, or fuck it.
Divorce is a ‘made in heaven’ situation for lawyers and our system. We are screwed since changing the system is impossible. I had an open and shut case and even the system was afraid of my ex-wife (TWO police were assigned to her as guards when she was ever in the court building – that did amuse me (I knew and said she’d not hurt them but I understood their fear.)
Yet I was dragged throw three court systems (local, State and Fed levels!) and on the local level six different judges in two systems (civil and criminal) had hearings at some time about the case. The number of health care experts was ridiculous (private – three and three county agencies involving seven people) and police systems involved (Local county and city (NO neither I or she lived in the city but they too were pulled in!)), and Federal officers! (worse still – four different Fed agencies were pulled in at that!) Even the State’s Attorney was pulled in as a witness (still can’t figure that one out but they volunteered for my side so who was I to say no?)
The case included three appeals (two higher levels and one required full blown court appearances by all attorney’s!) and still, there was more that I will not get into.
And this was – by all parties: lawyers, judges, prosecutors (what they are doing is really, really strange in a divorce case but the Ex pull that one off too), experts, – an open and shut case but I was dragged through every possible course by the Ex because she was confused and (really) not responsible for her actions yet that never mattered to the system because I shielded our child so it was ok (they often said so in court!) So I was both physically/emotionally destroyed and financially destroyed (After fifteen years I am still trying to recover the loses – the health part will never be recovered and I’ll be lucky to live another ten years – thanks court system.)
End result – I got full, unshared custody and she got zero visitation rights and is bared from direct contact and has to use lawyers to even contact our child. While new law was created by my case I paid huge $$$ for it (at least others in divorce cases will benefit from my horror.) As for the EX, I have no issues with her because the SYSTEM cased 90% of the issues and she DID not try and make it that bad – she just needed help (the one thing our system refuses to get involved with during a divorce: would appear as taking sides! Insane.
Divorced is designed to harm everyone, and not help anyone – the only point is that in time, both parties do dissolve the marriage (the primary Judged (Chief of the entire court system) decided to retire after this case and he sited this case as the cause!)
I agree to an extent and IMO everyone should hire a professional to protect their interests. I personally had a great family attorney.
Even though I had thought a lot about the process she corrected some of my assumptions and added suggestions that helped smooth the transition. Worth every penny to date.
“The Winner” -Bobby Bare
The hulk of a man with a beer in his hand he looked like a drunk old fool
And I knew if I hit him right why I could knock him off of that stool
But everybody they said watch out hey that’s the Tiger Man McCool
He’s had the whole lotta fights and he’s always come out winner yeah he’s a winner
But I had myself about five too many and I walked up tall and proud
I faced his back and I faced the fact that he had never stooped or bowed
I said Tiger Man you’re a pussycat and a hush fell on the crowd
I said let’s you and me go outside and see who’s the winner
Well he gripped the bar with one big hairy hand then he braced against the wall
He slowly looked up from his beer my God that man was tall
He said boy I see you’re a scrapper so just before you fall
I’m gonna tell you just a little bout what it means to be a winner
He said now you see these bright white smilin’ teeth you know they ain’t my own
Mine rolled away like Chicklets down the street in San Antone
But I left that person cursin’ nursin’ seven broken bones
And he only broke ah three of mine that makes me the winner
He said now behind this grin I got a steel pin that holds my jaw in place
A trophy of my most successful motorcycle race
And each morning when I wake and touch this scar across my face
It reminds me of all I got by bein’ a winner
Now this broken back was the dyin’ act of a handsome Harry Clay
That sticky Cincinnati night I stole his wife away
But that woman she gets uglier and she gets meaner every day
But I got her boy that’s what makes me a winner
He said you gotta speak loud when you challenge me son cause it’s hard for me to hear
With this twisted neck and these migraine pains and this big ole cauliflower ear
And if it wadn’t for this glass eye of mine why I’d shed a happy tear
To think of all that you gonna get by bein’ a winner
I got arthritic elbows boy I got dislocated knees
From pickin’ fights with thunderstorms and chargin’ into trees
And my nose been broke so often I might lose if I sneeze
And son you say you still wanna be a winner
Now you remind me a lotta my younger days with your knuckles a clenchin’ white
But boy I’m gonna sit right here and sip this beer all night
And if there’s somethin’ that you gotta gain to prove by winnin’ some silly fight
Well okay I quit I lose you’re the winner
So I stumbled from that barroom not so tall and not so proud
And behind me I still hear the hoots of laughter of the crowd
But my eyes still see and my nose still works and my teeth’re still in my mouth
And you know I guess that makes me the winner
Moderation? Help, I’m being oppressed!
Not knowing any more than your brief summary, I will venture to say your situation is about the outside 1% of all divorces. From my understanding of friends/family and attorneys I’m friends with.
@Dennis SGMM: Solidarity.
@jwb: So sorry to hear that. I think what people have been saying so far–you can’t stop hateful people from being hateful–is probably true. But I think you CAN stop fairly decent but very upset people from becoming crazy hateful vengeful if you get them in a collaborative, not an adversarial, process. As someone said above, tho, collaborative divorce is not very popular. Basically I just wanted to let people know that if you’re faced with a divorce and (luckily) dealing with someone who is at least close to rational, then collaborative divorce is a way to at least attempt to keep things sane. I was so afraid that having to go through the divorce process would force us to be paranoid and punitive, and I knew that would hurt my boys more than anyone, so I was glad to discover the collaborative thing. But not many people know about it, and it’s also very true that it’s simply not appropriate when one spouse is violent, vengeful etc.
I have no real problem with the concept of creating a system that would allow for more options to separate amicably and easily. But what makes you believe that a state that is doubling down on repressing women’s rights to begin with is going to set up an equitable mediation process? In the real world reasonable people don’t have to be forced to consider sane options. Creating more steps just puts the power to negotiate in someone else’s hands. IMHO even a fair mediation system would just further enrage someone who was already on the path to violence. An unbalanced one would place more obstacles in the way of people who desperately need an quick way out of a dangerous and violent situation.
The premarital counseling is a good start, but doesn’t catch everything. Mainly, because things can and do change as the years go on. People react to life differently and premarital counseling doesn’t necessary catch that. Also, certain behaviors in the beginning of a relationship are excused, but as time goes on is like fingernails on a chalkboard, annoying.
There are of reasons people get divorced. I think it would be helpful for martial counseling and individual counseling before a divorce. That way maybe a couple can learn to listen and talk to each other and also figure out what they want individually and as a couple.
Counseling as a couple doesn’t always work because maybe someone is abusive or cheating or whatever, but counseling as individuals could help keep people’s head on straight.
There are no easy answers when it comes to relationships since there are so many shades of gray.
@Samara Morgan: Kain never hid his beliefs. Oh sure, like many conservatives he proclaimed himself a ‘libertarian’ not a conservative republican. It’s hard to call that a lie when libertarian isn’t defined really well, or more accurately, everyone has their own definition and libertarians like that approach.
Having said that, I suspect block quoting from a source might be better than giving advertising dollars via links a better way to go for those who don’t want to support people they don’t approve of. So I’m ambivalent as to what you are suggesting. I can see yours and others points on the issue. But I might suggest you not be so forward in expressing your conspiracy theories about the Front Pagers here. It’s a tad unseemingly. Just sayin’.
I’m reading a book on the stages of life, from birth to death, and divorce is addressed in the young adult and middle adult life stages, with it being (usually) much more acrimonious in the young adult stage of life, possibly because people expect more out of their life partner during that stage. Divorces once people are mid-life (40 and up) are often much less angry.
I don’t think more mediation is a bad thing, but it’s very challenging when a person is angry and hurt and eager to lash out at who they see as the cause of all their anger and hurt. And our particular cultural view of marriage is that of union of soul mates, and that’s a lot of emotional weight to put on what was originally a business arrangement between families.
So maybe the answer is just to not let people get married until they’re too old to have kids. ;)
@gnomedad: you too.
what does the Forbes link add to mixies post?
nada, zip, zero, nothing.
mistermix is just using his frontpage slot to farm pageclicks for another nasty little embryo Douthat.
like we dont have enough of those already.
@geg6: Right. Because the law doesn’t know, can’t know, what you mean to your SO if you’re not married to him and not in his will. Surely you could see the legal problems here — what if you inherited your parent’s estate, for example, who didn’t have a will, and a boyfriend or girlfriend who you don’t think was anything special to that parent claimed a part of it. How is a judge supposed to decide that? It isn’t a MORAL issue, or a what’s better/what’s worse issue. I take you at your word that your relationship is better than many marriages. It’s a LEGAL issue. If a person is dead or in a coma, the judicial system does not like to guess about what that person would have wanted.
@kindness: oh bulshytt
i knew Kain from culture eleven. he never moved a nanowafer away from the libertarian mantra. he just faked it for pageclicks.
and you guys all swallowed the load.
Most people don’t handle being fired very well either. Now take that fundamental anger, shock and fear and wrap it around someone who knows about your deepest secrets and wildest dreams.
@jon: The majority of people do not make a will or a living will, and I’m unaware of how would you compel them to do it. The probate courts do not have the resources to determine who takes in an intestate succession if you eliminate marriage, they simply don’t. There are a LOT of deaths, and a LOT of marriages. Many that aren’t contested now, because there’s no legal basis to contest them, would become highly contested in a free-for-all. The alternative, if there’s no marriage, is a legal presumption in favor of blood descendants. Some states do have that as their takers in intestate succession, but based on what people do when they write wills, most people would prefer their estates to go to their spouses rather than their children, so there’s a strong case that those laws do not capture the likely intent of the decedent.
Another variable in all of this is that at least out here, the courts are completely overburdened. Our austerity measures means that a child custody case can take years to resolve – and then you get to send the kid off to college.
A slow and overburdened system only adds fuel to whatever emotional campfires might be smoldering.
As a family law lawyer (our euphemism for divorce lawyer), I can tell you that nine times out of ten, it is not the lawyers stirring up problems for feuding couples. Couples that have decided to divorce don’t need any outside influence in order to do irrational things to hurt each other. Children are generally nothing more than particularly sharp weapons with which the adults can inflict maximum emotional damage. These couples don’t want mediation – they don’t want some outside mental health professional telling them that they should be calm or think things through rationally. Clients get upset with their lawyers when we are not adversarial enough. Lawyers who are friendly with each other will even send pre-emptive warnings prior to sending a client-mandated “angry letter.” You talk about ways to make the system better, but it’s not the system that’s the problem. It’s people, and we’re not going to make them any better.
Well, I’ve argued that nobody should be able to draw SS without having one on file. Even if you just look at it from a ‘cost of government services’ standpoint, it’s strongly in the best interest of the country if people have instructions for physicians being paid out of Medicare. I’m sure you could find suitable catchpoints for married couples, etc. Prospective parents now do all manner of expensive and unnecessary things because there’s a whole ritual to becoming parents that people don’t want to miss out on. Make it part of that ritual.
Good point. People change, sometimes profoundly, as the years go on. My wife and I have been married for thirty-three years. We came close to divorcing more than once. On each of those occasions we talked things out and changed what we could because, for us, staying together meant more to us than continuing the behaviors that had brought us to the brink.
That has worked for us. Part of the reason that it has is that neither of us were dewy eyed youngsters when we married. I was thirty, she was twenty-seven and we’d lived together for three years when we chose to marry.
Like the man said, “Marry in haste, repent at leisure.”
@geg6: And just to be clear, the Stieg Laarson example demonstrates a couple of things, one of which is the importance of a will, but another is the great difficulty in trying to craft an alternative to what we have now. (That’s Swedish law, of course, and if the girlfriend has a shot anywhere it’s probably there, but the basic principles are going to be the same.) The goal of estate law is to do with the decedent’s property, and dependents if he has them, when the decedent would have wanted done with them. That is the overriding principle of estate law. If the decedent didn’t tell the world what he wanted in a will, then the probate court administers the estate under the laws of intestate succession. There simply have to be people with a legal presumption to be takers in that estate for the reasons I set forth before; the courts don’t have resources to delve into the lives and relationships of every single person who died and determine the best takers. Every state in the union and I’m sure every country with a functional judicial system has statutory takers of the estate. In some cases, it may be pretty clear that the decedent probably wanted someone else to take that estate rather than the statutory takers. But how clear is pretty clear? A partner of 5 years, 15, 25, 50 years? An on again, off again partner who was there when he died? A parent of the children? Judges dislike guessing about these things. So, have a will.
Counseling also doesn’t work when people have made up their minds what they want to do and don’t listen to the counselor. When my friend’s sister and her now ex-husband were getting their mandatory premarital counseling before getting married in the Catholic Church, they were strongly advised not to get married, but they didn’t listen. And, hey, what a shocker, everyone around them turned out to be right and they never should have gotten married in the first place.
@Martin: That’s a good idea, although it won’t help with people under, what is it now 66 or 67? But, yes, that’s something I hadn’t thought of.
You should probably do a little background reading on the prediction of dangerousness before you pull out your prescription pad. It’s actually a difficult task even when dealing with someone with a documented past history of aggressive behavior.
It’s not a difficult task for a psychopath or paranoid character with a modicum of intellectual ability and reality testing to look good over the course of however many counseling sessions you’re suggesting. Throw on top of that the fact that a lot of otherwise well-adjusted, normal folks get a little nutty during the divorce process (particularly when custody is involved!), and you’re creating an unholy mess of false positives and litigation attached to both false positives and missed true cases. As a mandated reporter, I don’t want any part of this mess.
I have less direct experience with mediation, although my general observation/anecdotal experience says that unless both parents are fundamentally on the same page re: custodial issues going in, it’s just a way to kill time and money before bringing on the lawyers.
Divorces don’t kill people, crazy people with guns kill people. That they’re sometimes married is neither here nor there.
There should be no privilege for marriage, in any part of the law. It’s complete bullshit. It’s the only legal “contract” that can and is broken, continuously by parties on all sides, with no consequences whatsoever.
I should be able to put my SO on my employer-provided medical insurance. Hell, gay relationships are privileged ahead of mine in that case and SSM is not permitted in PA, just as one example.
“Marriage” should have no legal force. It’s a religious or a personal thing. Wills should be the only thing that determines how a person’s estate is settled, with the sole exception of children.
A lot of states already do require divorce mediation and/or counseling, or have programs linked to the court that they can recommend even if it’s not reuquired.
But I think you’ve got it backwards. I think people who are already really furious about the divorce — and/or life in general — then go out and use the court system to make the divorce process worse. In California, if you want a divorce, all you need to do is fill out a few papers and file them with the court. You can work out the property and child issues yourselves (if you can) and only go to court to put the settlement on the record. There is NOTHING about this that inherently, irretrievably provokes conflict.
I think what happens — and I’ve worked in the legal system for 27 years! — is that people who are already angry about the divorce, and/ or life in general, hire shark lawyers and use the court sytem to make the process worse. Sometimes the shark lawyers may enhance the sharkiness of their clients, but it was always there to begin with. And some divorce litigants don’t even bother with lawyers; I work in a court of appeal and we have several divorce-related appeals in which the lawyers tried to stop the proceedings by telling the clients they had no case, and the clients went ahead with the appeal in propria personamn (representing themselves).
I would bet — though I have no stats on this — that many of the litigants who “turn” violent in the divorce process had already had some incidents of domestic violence.
And if the person doesn’t have a will? I’m impressed at the amount of hate flowing through you concerning marriage, but you’re really ignoring all the mess that would result if a number of issues weren’t covered in that baseline relationship contract that we call marriage.
I was married for 20 years when my then-husband cheated on me. He did not want to give up his girlfriend, so we decided to divorce. We had two children, one of whom was an adult, the other was 12.
Before I filed for divorce, I went and talked to a lot of lawyers. What I found is that even though I went in with them knowing I was interested in a collaborative divorce (because I was just going to be better off if we divorced, so doing that as cheaply as possible was my goal), they immediately ramped up the adversarial tension.
So we divorced without lawyers at all. I filed the paperwork, I wrote out the divorce agreement, I basically did everything myself (much like the last few years of our marriage!). He didn’t do anything until the actual court date – yes, he never responded when he was served, so I was really pissed on the day of the divorce, but then it was over. My divorce cost me $350.00.
It can be really emotional, but sometimes you have to just decide what your actual goal is, and leave behind the attempts to hurt the other person. My ex hasn’t paid a penny of child support, but I’m not going after him, because he’s unemployed, and I doubt he’ll ever work again, since he has his 25 year old girlfriend taking care of him. I accomplished my goal: he no longer has an impact on my life, and I’m happier, and my daughters are happier.
@Mnemosyne: Oh, yeah, know a couple of those, too. Those divorces can be pretty nasty.
What puzzles me the most are the people who get involved with married people (either before or during the divorce) and then are all surprised and hurt when their SO steps out on them later. Honey, they were stepping out on their SO with you, so you KNOW that’s their MO.
Even with the best will in the world, dividing up a life so that property that both people were able to use has to belong to one or the other is always going to feel lose-lose. I once heard a lawyer say that they were treated more politely, and thanked more often, as a prosecutor, by people that they put in prison than they were by any of the clients that they’d had in family law cases in private practice. With some exceptions, most accused criminals get significantly less than the maximum sentence they could have received, whereas both parties in a divorce almost always end up with less than they thought they would.
I believe mandatory mediation is actually dangerous. Frequently women need out of a abusive marriage right that second. A mediator isn’t much help while your husband is beating you to death.
Lots and lots and lots of people who were never married fight over their shared children. In the case of teen parents, their parents (the respective grandparents) fight over their children, too.
Depending on how you look at it, that’s 2 sets of adults fighting over children, or 1 set of adults (the grandparents) fighting over 2 sets of children (the teenage parents and their children).
Other than that, I agree with everything you wrote.
I’m late to this party, but here goes. My ex and I seperated and agreed to a 50/50 split of the assets of our ‘long term marriage”. We were living in Boston at the time and part of our agreement was I would pay her tuition to go back to school to finish her degree, 4 semesters. Just before she started school, her Dad was diagnosed with bone cancer and her mother who had Parkinsons, couldn’t deal with the situation. She decided to move back home (to North Dakota)live with her Mom, help manage her dads cancer and go to school there. She took her money from the sale of our house, our 3 year old BMW and left. Our youngest kid had just started BU and she moved in with me. We had just started proceedings in Ma, I put everything on hold until her life settled down. (against my lawyers advice) When her dad died about 9 months later, I flew out for the funeral and we discussed our situation, I agreed to let her file in ND, gave her $1,000 to get started and flew home. Nothing happened except the check was cashed. Months go by and I hire an attorney in ND to file on my behalf. The first thing she does is have her attorney contest my right to file since I’m not a resident, another 6 months go by. Finally I can file, then the fun begins, if I filed a request for information, my attorney would get the answers 29 days 23 hours and 59 minutes later, it took almost a year to finish the discovery phase. During this time she finishes school, gets a job as a nurse and starts grad school. By the time we finally get into court she is one semester from her MS in Nursing and has a job offer from a cardiologist. Finally over three years from the time the divorce papers were served we are in court. My attorney who counsels me to be cool and not bring up any periferal issues lets me be questioned on everything from my sex life, how much money I REALLY make, where I’ve vacationed and he even asked me how much my suit, shoes and tie cost. The farce goes on for a day and half and ends withthe judge saying, “you tow have been apart for a long time, the financial issues and property issues have been settled why don’t you shake hands and wish each other well”. The ex storms out of the court room, I’m so happy I go to the hotel and get mildly drunk, smoke a cigar, have dinner with my Mom and fly home the next day. One month later my ex announced her engagment and is married 3 months later. 6 months to the day she filed an appeal. A year later she won a 30,000 judgement against me payable over 5 years. Even though she remarried, according to the appeals court she is entitled to the lifestyle our long term marriage afforded her and her current salary of over a 100k wasn’t relevant, she deserved to maintain her former lifestyle and that’s why she was granted spousal support. Her new hubby didn’t make shit but “it isn’t against the law to fall in love with a pauper”….
I spent over 60k in lawyers fees, she spent 40, to get a 30 thousand dollar judgement. She enjoyed every fucking minute of it. BTW, she got divorced from her 2nd husband in less than two years.
There is no “nice” in divorce
I’ll repeat a theme.
Most contested divorce issues are more about one spouse’s attempt to continue to control the other or about lashing out than the issue.
Mandatory counseling or arbitration only gives a new venue for the arguments. It does achieve more “agreement” because it puts an additional roadblock in the way of the most disadvantaged spouse. Try adding counseling sessions 30 miles from work to a single Dad working a shift job’s schedule and see how fast he “agrees” to the other spouse’s demands.
OTH,Opt-out voluntary counseling/arbitration – i.e. everone gets scheduled for counseling/arbitration, but can opt-out – which is free or at greatly reduced cost can achieve the goals Mistermix advocates while allowing those who feel that the additional step would be fruitless or actually coercive in their situation to go directly to court.
@sfrefugee: I have a friend who’s been trying to get divorced for, literally, years. The state she lived in when she got married has such ridiculous laws that it’s been a financial and logistical nightmare — and this with a guy who was controlling at best, abusive at worst. I can’t imagine how much worse it would be if she had to have counseling and arbitration with this jerk, who she now lives three states away from.
@jibeaux:Almost every state’s intestate succession statute prefers the spouse over the children. And in every state I know, you can disinherit your children but not your spouse.
@sfrefugee: Absolutely. If both parties want to mediate, that is easily accomplished. But often, the divorce process is just another way for one spouse to continue an abusive relationship with the other, whether through mediation, arbitration, or litigation. Mandatory mediation is no more sensible or effective than mandatory prayer.
@geg6: Of course there should be legal preference for marriage. Marriage is a legal institution, essentially a way of saying in the eyes of the law “this is my SO” Otherwise, third parties with no knowledge of the situation (i.e., the courts deciding legal rights to property) are left to apply subjective judgements (which in a number of cases, the law allows, but it’s often really imprecise
I can’t understand why you respect wills so much more than marriage. In the eyes of the law, both, like deeds and contracts, are simply voluntary declarations of a person’s intentions of the distribution of his property rights.
One issue not mentioned in this article (I didn’t click over to Kain, because I didn’t want to give him the page hit) is the fact that several studies show that the most dangerous time for an abused wife to be killed is when she leaves the husband. Filing for divorce is final proof that an abusive husband has lost control and this MAY factor into the statistics on more murders and suicides during divorce.
As to this
This is all well and good, except that there are some people who DON’T believe in living wills. They honestly believe that God decides when life should end that extraordinary measures should be taken at end of life (See Schiavo, Terry). I don’t agree with them and I personally have both a living will and a health care POA and I have instructed my daughter to pull the plug sooner rather than later. But we still have the right to live and die according to our own beliefs and forcing a LW on someone is wrong. Maybe have a LW on file or a form that says one does not want a living will would be a compromise.
@Percysowner: If done right, a living will can easily say, ‘yes, I want you to take extraordinary measures.’ The great thing about a living will is lessens the agonizing over what the loved one might want.
@Matthew: As a fellow divorce attorney in North Carolina, I agree. People already hate each other by time they get to my office and I always try to get to a settlement first. Court is the last resort, and a drawn out, painful process. Some people simply won’t be reasonable, however, and must be forced to do the right thing by their kids.
In my state at least, the new Republican legislature is in the process of stripping all funding from domestic court programs, including the domestic court itself. We already have mandatory mediation (about a 50% failure rate, but it does cut down on litigation), but as for counseling, evaluations, child advocacy programs and all the rest, there is no money and what little there was has been drained away. They even cut the court-appointed rate so low that all the experienced attorneys who took appointed cases quit. We can’t get a desperately needed new Judge (we have 4 for a county of 1 million and need 6), and cannot get adequate training for judges in how to recognize and deal with serious domestic issues.
I should also point out that the real sue-happy domestic cases usually involve one person who has some sort of mental health problem. The sue-happy individual often ends up in jail at some point for contempt of Court. Lawyers really aren’t that interested in litigating everything, its exhausting.
Finally, the gun violence is not a divorce issue, it is a domestic violence issue, which is separate and apart–it has its own statutes and its own courts in my county.