This article first appeared in The Huffington Post
This is the second in a two-part series.
“Divorce is a problem to be solved, not a war to be won.” — Anonymous
This problem, almost everyone would agree, needs to be solved. In part one of this series, “The Truth About Divorce? You Decide!” I explored the two sides of divorce: the emotional and the legal, and in the throes of divorce, what can be done to maintain control over outcomes, as much as reasonably possible with reasonable people — and how the Ontario separation agreement can be achieved without going to court. I promised that the follow up would outline recommendations to family justice.
People often ask me why I’m so passionate about talking about divorce. Quite simply, I personally experienced so much of the bad stuff associated with divorce — both during the process and post, that I wanted to use my experience to make divorce easier for all. I was inspired to hunt for less painful ways to manage the divorce process and share it with others, and hence wrote The Smart Divorce and became a divorce coach. And to that end, through my company The Smart Divorce, I have been researching divorce extensively with the leading divorce professionals across North America since 2005 and share that information to enable others to have more positive outcomes from their divorce.
Divorce can be complicated and messy in and of itself. On top of that, the legal process can exacerbate the issues, inflame the already fragile emotions, rapidly escalate costs; the list of negative outcomes is voluminous. But rather than slam the system for all the bad, let’s use the learning as a launching pad for good, to effect change. And while change is actually happening, it has been far too slow. A wise and respected colleague recently told me, if reforming the system was easy, we’d be finished by now!
There is a movement afoot by many professionals in the divorce arena who are indeed agents of change, and are influencing how divorce is processed. I will highlight a few. Although, there are many others, and many professionals who reach out to me to coach their clients through divorce and purchase my powerful resources. It’s my belief that people be provided with a balanced perspective from many professionals in an effort to draw their own conclusions to make informed decisions about all aspects of the divorce process. I hope you can see why divorce education is so important.
One of the first organizations to make a difference was the Association of Family and Conciliation Courts (AFCC). AFCC took root in California in the spring of 1963 with the creation of the California Conciliation Courts Quarterly. The agenda has changed from reconciliation in the 1960s, to divorce with dignity in the 1970s, to mediation in the 1980s, to working with high-conflict and violent families in the 1990s, reflecting the diversity and complexity of contemporary families. Unrepresented litigants, same-sex partnerships, never-married parents, dependency mediation, domestic abuse, parenting coordination, custody evaluations, non-residential parenting, relocation, alienated children and family preservation are among the present and future challenges for AFCC members.
The Institute for the Advancement of the American Legal System (IAALS) was founded in 2006, is a national, independent research center at the University of Denver dedicated to continuous improvement of the process and culture of the American legal system. While their work is very extensive there are two initiatives which do make a difference to families in divorce. The Resource Center for Separating & Divorcing Families and the Honoring Families Initiative that “empowers, encourages and enables continuous improvement in practices and procedures for divorce and separation and parental responsibility matters.”
It’s also important to note the many recommendations put forward by think tanks and Action Committees on how family justice be reformed. One such paper is “The Meaningful Change for Family Justice Beyond Wise Words.” They propose that family justice be about collaboration: be client-centered, empower families, increase accessibility… and much more.
There are numerous recommendations that each organization or committee has made, and I urge you to visit their websites and papers to see what’s in the works. While many of the reforms require greater government funding and a paradigm shift in the way family lawyers think about divorce, digging deep into these basic requirements will indeed make a difference.
While I may be idealistic in my suggestions below, perhaps there is a nugget here that can be incorporated into the divorce process now, because overhauling the system is going to take years.
Recommendations to divorce reform:
• Separation counseling — to help the parties communicate more effectively, with dignity, honesty and respect.
• Financial advisor — either one or both parties should conduct a cost benefit analysis of the dispute resolution chosen. For example if going to court, a full financial picture should be laid out upfront to the client so they have an idea of how this battle is going to affect family finances and the settlement.
• Parenting expert or clinician — in addition to parenting education, expand that information with an understanding of outcomes such as: not paying child support, estrangement, abandonment, parent alienation and so on.
• Sensitivity training — help family lawyers better understand personality disorder and mental illness. This may also deal with what happens if the difficulty rests with the other side.
• Reinforce realistic expectations — it isn’t uncommon for clients to seek revenge and blame, seeking outcomes which are unreasonable and nonnegotiable. Better client education needs to be provided — for example, going after assets that are not matrimonial assets, such as inheritance or gifts. Lawyers need to take greater responsibility to act in the client’s best interest, and not necessarily what the client wants. Often times, emotions fuel the divorce process, fouling up the process. More accountability should be placed on family lawyers who are seeking outcomes they know up front are not attainable, and clearly excluded from matrimonial property.
• Disclosure penalties — when a client won’t disclose, what action does the family lawyer take to compel financial disclosure from his/her client? Are there guidelines as to how this problem is managed? How does the court enforce rulings when one does not abide?
• Penalties for the spouse who, for no reason, fails to negotiate and stonewalls the system in an effort to be vindictive to their spouse, and therefore unnecessarily prolongs the process and creates astronomical legal bills. Many times that individual will self represent, while their soon-to-be ex is represented by a family lawyer, which often emboldens the self rep to act badly with little consequence.
• Greater access to legal aid. There is a large segment of the population that does not qualify for legal aid, yet cannot afford a family lawyer. Greater government funding should be made available to increase access to cost effective independent legal advice (ILA) for a minimum of two to three hours. Individuals would be better informed, and may end up costing the legal system fewer dollars as the divorce process might be managed more effectively. And I wonder, how many more couples would be more inclined to mediate, rather than litigate; taking the burden off an already financially- and time-stressed system.
• Guidelines for what are legal vs. non-legal disputes. There are many issues that are often brought to court, but are non-legal, so resolution is not attained. This results in unnecessary frustration and legal bills. For example, if parents can’t agree on the simplest of matters like tutoring for a child then it’s the child that loses out, because the resolution is not a legal matter. And while there are parenting coordinators to assist with decision making, not all disputes are relevant in this arena either. Often times, the conflict is so high, that no matter what the issue, couples land in court time after time.
Divorce is one of the most expensive and emotional decisions an individual will ever make. In 2010 the costs of divorce nationally were estimated at $36 billion! As you can see, the costs to an individual and the family are well beyond the parties involved. Divorce costs everyone.
Now that I’ve had my say, what’s yours?
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