The Dirty Business of Divorce Law

Patagonia, Argentina. Photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com

It is no wonder divorce law is big business in the United States which has the highest divorce rate in the world. The divorce rate abruptly increased in 1960 and plateaued twenty years later. These rates were sustained until the mid 1990’s when they slowly began to diminish. According to the CDC, the marriage rate in the United States is 6.8/100,000 and the divorce rate 3.4/100,000 or 50%. However, confounding variables such as remarriage and subsequent divorce over estimate the real value which probably is in the mid 40% range.

Half of all women are married by age 25 and half of men by age 27. Non Hispanic blacks are less likely to marry than other racial groups. Age is a good predictor but not a guarantee of marital success with divorce rates much lower for women who marry after age 25 and men after age 30. Those who marry earlier experience sharply higher failure rates. Four to five years of marriage is the time interval when divorces most likely occur.

Divorce is an agonizing, emotionally fraught experience where two people likely are exposed to the judicial system for the first time. The first impression is one of helplessness as the litigants are caught in a maelstrom of confusion. It is an expensive process where competing attorneys have no impetus to conclude matters expeditiously. The entire process is open ended with the limit of billable hours equal to the total accrued savings of the contestants. In this highly charged atmosphere it is not difficult to goad clients into spending more money in hopes of thrusting the dagger deeper into the heart of the estranged spouse.

California is a no fault divorce state where from the legal perspective one's conduct within the marriage is not considered when determining financial settlements. Serial killer, drug abuser, uncommitted parent, or the opposite - it does not make any difference when it comes to dividing assets. In theory this should simplify and hasten the process.

Once entangled in the web, one is overwhelmed by the amount of information demanded by competing attorneys. No piece of documentation is too abstruse or remote to be analyzed at the hourly rate.

One learns, too, how important it is to have certain judges presiding over divorce proceedings. Some are more sympathetic to women while others tend to rule the other way. What difference should this make? How can a judge interpret the law so differently? At any rate during the pretrial hearing, all of us rose as the judge entered the courtroom. This was the first time either one of us had been involved personally in a legal proceeding, and expectations were high the officers of the court would perform in a competent manner. Within five minutes after the attorneys began to speak, the judge was asleep in his chair. A pivotal event for both parties and their children, but the judge could not stay awake. There would be no Solomon to adjudicate, but rather a character out of Dickens’ Bleak House.

Court dates are difficult to obtain, and in our community the contestants are forced to attend court to see if their case can be heard. It is not unusual to miss work only to be told one will have to return another day to determine whether or not there is an opening on the docket. Would this arcane, capricious system work in medicine? Imagine being diagnosed with colon cancer and having to show up with your surgeon at the hospital to see if there was a vacancy in the operating room schedule. A sleepy bureaucrat informs you, “Sorry, sir or madam, come back in a month, and we will see if there is an operating room available.”

Eventually a court date was set, but the judge was a question mark. He was a rookie and had never worked in family law. This was not reassuring. The next time a loved one has a brain tumor, I’ll be sure to request the intern to do the operation.

No one was pleased with the results of the case with the exception of the attorneys. The process continued far too long, cost a considerable amount of money, and provoked so much animosity it was impossible to establish a civil relationship necessary for dealing with children issues which would be present for years to come. To the divorcees the conclusion was a relief at best. In the long run it would have been better to swallow pride, sit down over a cup of tea, divide the assets, and agree how to best care for the children. However, even among rational people it is easy to be swallowed in a system where it is difficult to extricate oneself. It is like falling into a rapidly flowing river, only later to be washed up on shore down stream totally exhausted and dispirited.

This last week a prominent local divorce attorney and her client were murdered by an estranged husband who later committed suicide. This tragic event illustrates how rash behavior pushes people to the brink as they are consumed with the adversarial nature of divorce law. When I read the attorney’s obituary, she is described as “tough and an advocate for woman’s rights.” Perhaps so, but beneath these accolades there is a dirty side to divorce law where spouses are pushed to the limit and reasonable conduct and compromise are exchanged for rancor and revenge.

The time is long over due to reform family law. First of all, attorney fees for divorces should be set at a fixed dollar value to prevent the insufferably long and inordinately expense divorce process. Attorneys would have a vested interest in resolving the matter rather than prolonging it. Second, the process should change from an adversarial contest to one which employs binding mediation. Third, reconciliation of all financial matters should be an accountant and not an attorney responsibility. Lastly, when determining spousal support payments and child support, provisions must be in place to insure the children actually receive the financial support given to them by both parties.