Archive for the ‘Divorce’ Category

The world is full of bad parents. Some parents give their daughters a new car that’s the wrong color. Others lock them in the basement and father multiple children by them over decades. There is obviously a vast, yawning gulf between those two examples, but I think it is fair to say that the legal system only needs to intervene in cases closer to that utter waste of genetic code from Austria.

Others may disagree with me.

Others like Steven A. Miner II and Kathryn R. Miner, feeling dissatisfied with a childhood free of basement imprisonment but also devoid of clever birthday cards, may decide to sue their mother, Kimberly A. Garrity, for the emotional distress caused by  such omissions (h/t Geri Dreiling).

What horrible acts gave rise to their claim? The Chicago Bar Tender blog reported at the time the suit was filed:

- Garrity will invite one child to an event without inviting the other.

- Garrity would purchase things for Kathryn without purchasing anything for Steven.

- Garrity offered to provide college financial assistence to Steven and not Kathryn.

- Garrity did not provide Christmas or birthday gifts to Steven from 1996 through 2005 or Kathryn in 2007.

- When Steven took back a popsicle jewelry box he made Garrity, she called the police because she asserted there was a diamond necklace in it.

- Garrity told Steven that if he didn’t wear his seatbelt, she would drive to a local police station and tell the cops.

- Garrity smacked Steven on the head for no reason in 1994.

- Garrity did not provide “so much as a care package to Steven while he was away at college, while other parents send their children items and packages on a continuous basis.”

- Garrity “refused to assist Kathryn with the purchase of a dress but, provided Kathryn with the use of an automobile for homecoming; and then proceeded to contact her at midnight while she was with her friends and made her return the automobile.”

I picture the Miners' childhood being exactly not like this (photo by Scott Liddell)

I read the complaint, and while it sounds like there was certainly a strained relationship between the children and their mother, nothing sounds too different from the thousands (if not millions) of other children of divorced parents around America. Some of the allegations relate to payment of child support and reimbursement of medical expenses, claims usually made by the other parent or the state (but maybe Illinois is different). Lest you wonder where their father has been through all of this, don’t worry. He’s one of the kids’ lawyers.

Maybe their childhood really was pretty awful. I know for a fact that it is hard to view one’s own childhood through a perfectly objective lens. We tend to remember our childhood with a child’s mind, not a rational adult mind, no matter how old we are. Still, once you are an adult, you are supposed to be able to deal with life on life’s terms, or to seek help from those qualified to offer it. A crappy childhood is not an excuse for misbehavior as an adult (except in some pretty extreme circumstances). The plaintiffs in this case are adults–barely adults, but adults nonetheless. They don’t need a lawyer to confront their maternal abandonment issues. They clearly need better therapists. However bad their childhood may have been, this is not the way to deal with it.

This is really, I suspect, just a case of a post-divorce parenting plan that did not work out very well. Happens all the time. It doesn’t sound like Garrity would have ever won any mothering awards, but that’s not exactly actionable. They allege some abuse by the mother but never really delve into it. Is this some contorted way of confronting real childhood demons, or a couple of teacup children acting out? I guess we’ll never know.

And what the H-E-double-hockey-sticks was their dad doing helping with this???

The case was dismissed, and the plaintiffs appealed. No, really.

An appellate court dismissed the appeal this week, renewing some semblance of my faith in our judicial system.

“Such alleged actions are unpleasant and perhaps insensitive, and some would arguably fall outside the realm of ‘good mothering,’ but they are not so shocking as to form a basis for a claim for intentional infliction of emotional distress,” said Judge Kathy Flanagan in a court statement, adding that ruling in favor of the children ”could potentially open the floodgates to subject family child rearing to … excessive judicial scrutiny and interference.”

Garrity’s lawyer had some choice words as well:

In court papers, Garrity’s attorney Shelley Smith said the “litany of childish complaints and ingratitude” in the lawsuit is nothing more than an attempt by Garrity’s ex-husband to “seek the ultimate revenge” of having her children accuse her of “being an inadequate mother.”

“It would be laughable that these children of privilege would sue their mother for emotional distress, if the consequences were not so deadly serious” for Garrity, Smith wrote. “There is no insurance for this claim, so (Garrity) must pay her legal fees, while (the children) have their father for free.”

On very rare occasions, “loser pays” doesn’t sound like such a bad idea.

I’m not sure this story even needs my commentary:

Saying his ex-wife Isa had always wanted a “big rock,” Dany Lariviere of Montreal gave her one last weekend for her birthday. She will not be wearing it on her finger, though, because it weighs about 20 tons:

Bonne fête, Isa

As you may have surmised, the two have not been getting along very well since they were divorced last year, after being married for ten years. Apparently they have continued to argue about financial and custody matters, and each has accused the other of harassment. From the report it’s not really possible to tell who has the better argument there, although I guess Lariviere has now dropped off 20 tons of evidence that it’s not him.

He may have a hard time convincing a court of law that he is not being harassing, I suspect. Incidentally, he is the mayor of the town where they live, and he owns an excavation company and a quarry. Even if he didn’t admit to doing it…

Do people get all of their ideas about how to behave in a divorce from TV? It’s as though this guy watched The War of the Roses without realizing it was supposed to be a comedy.

A mother in Oregon, Trisha Conlon, recently lost a custody battle with her ex-husband, John P. Cushing Jr. The reason this has been news is because Cushing is now re-married to Kristine Cushing, whom he divorced after she murdered their two children in 1991. Kristine Cushing was found not guilty by reason of temporary insanity, and she attributed her actions to a bad reaction to Prozac. Conlon is understandably upset that she will now have an active role in raising Conlon’s two teenage sons.

This is a doozy of a case. What struck me, leaving aside the very pertinent issues of the safety of the children, is what the judge had to say after making his ruling:

Commissioner Leonid Ponomarchuk said that because the boys had been spending time with Kristine Cushing since 2008 with no problems — even if it was unknown to Conlon — there wasn’t evidence of a change in the situation that would warrant an alteration of the parenting plan.

“I have to look at this dispassionately,” Ponomarchuk said. “Would I ever want my children around her? I would say no. But that is an emotional reaction coming from a parent.”

As emotional as the case is, I agree with the judge here. I cannot say for certain if I agree with the ruling itself, but he is right about his duty to be dispassionate. Kristine Cushing was ruled temporarily insane, was treated at a psychiatric hospital and released, and has by all accounts “paid her debt to society.” If her actions (which technically do not constitute a crime) really were caused by an adverse reaction to Prozac (which, while controversial, is not unheard of), then she should not be a danger to the children as long as her psychiatric condition is monitored and she stays away from drugs like Prozac. It is difficult, if not impossible, to make that kind of analysis if you view the situation emotionally. Emotionally, the notion that CHILDREN ARE IN DANGER overshadows all other considerations, even when the evidence suggests that the danger is unlikely. It is an uncomfortable situation, but I cannot say the judge was wrong in his decision. I know he was right in his duty.

This case also led me to wonder what might happen if, instead of a woman who had killed her children, it was a man on the sex offender registry at the center of the story. Obviously the public outcry would likely be the same or greater, but how a judge might rule is an interesting question. Something somewhat like this is going on in Florida. In the case of Miranda Wilkerson, Donald Coleman has been awarded custody of his 4 year-old daughter Miranda. Coleman is on the sex offender registry for impregnating the child’s mother, whom he later married despite a 24-year age difference. The child’s mother died shortly after she was born, and the child went to live with her maternal grandmother, Rita Manning. Manning is now fighting to regain custody. An interesting tidbit here is that Coleman is the legal father of the child, since he was married to the mother when she was born, but he is not the biological father.

In many circumstances, it might seem noble for a man to fight for the right, and obligation, to care for a child who is not biologically related to him, as opposed to rejecting any responsibility. This is not one of those cases, unless it is. It appears that everyone in this case has some baggage: Coleman has a history of domestic violence (according to local news) and is on the sex offender registry, while Manning has received probation for child neglect. If the only things you hear are SEX OFFENDER and CHILD IN DANGER then it is easy to conclude that the judge made a colossal error. Court documents show, however, that this is indeed a complicated case:

Court documents released Friday afternoon detail how, after First Coast News started asking questions about why Coleman was fighting to get custody of another man’s child, his attorney filed a motion to get Miranda.

The motion said the woman who has been caring for Miranda since birth, her grandmother Rita Manning, was keeping him from the child and that Miranda was in danger.

The motion said Manning has a history of arrests: In 1995, she was charged with contributing to the delinquency of a child, but the case was later dropped.

In 1997, Manning was charged with child neglect. Around the same time, Manning’s then 14-year-old daughter, who is Miranda’s mother, got pregnant by Coleman who was 38-years-old. Manning got probation.

Coleman was sentenced to register as a sex offender for the rest of his life.

Perhaps Coleman was the best of some bad options. His status as a sex offender creates some automatic negative associations that must have weighed against him in court. He broke the law and did something many find both abhorrent and creepy, but it is a fair question whether his status as a sex offender by itself proves that he poses any ongoing danger. The same can be said for Manning and her history. It takes quite a bit of dispassion to slog through this mess of facts, arguments and innuendos.

We may not always like the way judges rule. We may suspect the impartiality of judges at times, and we are right to always demand adherence to the rules of judicial conduct. What we should never do is demand that judges use emotion to determine their rulings.

Attorney Mark Baer was recently interviewed by the Pasadena Star-News about the role of lawyers:

“Law schools train attorneys to spot problems but not how to solve them,” Baer said. “By teaching lawyers to identify problems but not training them to solve them, the practice of law has shifted from resolving conflict to creating it. This is particularly detrimental in cases dealing with children and families as it causes wounds that often last a lifetime.”

I have seen time and time again in divorce cases where situations that might have come to a peaceful resolution with a bit of guidance, or that might even have worked themselves out, were made worse by an overzealous lawyer. Lawyers, in the cases where they actually make matters worse, do not always do so out of malice, but also out of overzealousness or even just habit. Lawyers are indeed trained to spot problems and to look for ways to persuasively present a position, but not necessarily to consider all positions and work towards a compromise. Lawyers are trained to be warriors, or at least carpenters–to quote Abraham Maslow, “If you only have a hammer, you tend to see every problem as a nail.?

Photo by Stephen Coles

A client once came to my office in a panic. He wanted a divorce, and he wanted one as soon as possible. It turned out that he and his spouse had separated years earlier, and that after the separation she had settled in California while he had moved around the country. He had lived in Texas for a few years at the time. There were all sorts of jurisdictional and venue issues, as it was not at all clear where the two of them had last cohabited as husband and wife. The issue for him, though, was that he wanted the divorce granted in Texas, because she wanted a divorce in California and she wanted alimony.

It struck me as odd that, after years of living apart with little to no contact, she might be able to claim alimony under California law. My understanding of alimony is that it is intended to help one spouse get on their feet after years of being supported by the other spouse. It was possible, though, that this person could be stuck with an alimony bill from someone who had been supporting herself in a different state for the better part of a decade. Is that fair to him? Also, is that fair to her? Because to award alimony to her would be to assume that, despite her years of presumed self-sufficiency, she really still needs the support of her husband. I realize she may not have seen it that way, and that as the attorney for the husband, I am not the best person to argue for her interests. Still, it troubles me that this could happen.

Alimony was recently in the news in the Arnold Schwarzenegger/Maria Shriver divorce, with the rumor mill buzzing about Arnold initially refusing to pay what was described as “alimony,” then changing his mind. This sounds to me more like a $400 million property division between two absurdly wealthy people, but the word “alimony” is being used extensively. Another way to look at it, at least hypothetically, is some form of compensation to Shriver for her husband’s infidelity. It does not make for much of an object lesson on alimony for anybody else, unfortunately.

Texas has generally held alimony to be against the state’s public policy, but has allowed for “spousal maintenance” in the event that:

1. The parties have been married more than ten years, and one spouse either (a) has significantly lower earning capacity and cannot meet basic needs, (b) has an incapacitating physical or mental condition, or (c) has custody of a child requiring substantial care due to an incapacitating physical or mental condition; or
2. One spouse has a conviction or deferral of adjudication for  criminal offense involving family violence.

The two rationales for spousal maintenance in Texas would be either to support a spouse who cannot support themselves or needs extra support for a child at the time of the divorce, or to compensate a spouse for abuse during the marriage. Unless the spouse requesting maintenance can prove an ongoing disability, spousal maintenance in Texas cannot be ordered for a period exceeding three years.

California provides a long list of criteria for determining alimony or spousal support, and it appears to have the same overall rationales as Texas. Some states, such as Massachusetts, have broader criteria, but are considering scaling back. There is a movement afoot to reform so-called “permanent alimony” in favor of a system ostensibly like Texas’, which allows the payee spouse time to get on their feet, but only so much time.

So my question is this: is a system that compels one spouse to pay for the support of the other spouse after divorce for the rest of that spouse’s life in any way sexist? While the history of alimony is undoubtedly one of men paying it to women, that is not always the case anymore. As women comprise roughly half the workforce, it is not uncommon anymore for a wife to be the breadwinner of the family and to find herself owing alimony after a divorce. And women are apparently not at all happy about this:

The idea that men can receive spousal support from their wives may feel like a freakish concept, but as women have become higher earners, it’s increasingly common.

And as men set their sights on women’s earnings, women have become more protective of those dollars. In fact, according to the American Academy of Matrimonial Lawyers, 44% of attorneys included in a recent survey said they’ve seen an increase in women asking for prenuptial agreements over the last five years, where in previous decades, prenuptial agreements were almost always sought by men.

A lot of women are indignant now that the shoe is increasingly on the other foot, says Carol Ann Wilson, a certified financial divorce practitioner in Boulder, Colo. “There’s this sense of, ‘What’s yours is ours, but what’s mine is mine,’” Wilson says. “My first response to that is, ‘All these years we have been looking for equality; well, this is what it looks like.’ I think women get angrier about having to pay than men do.”

Why does an ex-wife paying alimony “feel like a freakish concept”? Because no one expects a woman to be more successful than a man–the concept of men always being the ones to pay alimony is a cultural artifact from the era of working husbands and housewives. While there are undoubtedly many cases where spousal maintenance is appropriate, e.g. a highly-paid professional married to a stay-at-home parent with a high school diploma, or an incapacitated spouse dependent on the other spouse who is the respondent in a divorce case. See also victims of domestic violence who should be entitled to some form of compensation. The statutes themselves make no mention of gender at all. Still, we assume that men are the ones to pay alimony, and it seems odd for a woman to be ordered to pay. These assumptions can harm men by forcing them to make payments long after they seem necessary or fair. They also harm women by perpetuating the false notion that women ultimately cannot take care of themselves and need a partner. Many alimony laws provide for termination of alimony payments once the recipient remarries or cohabitates with someone, since presumably now there is a new person to support the recipient. While payment of alimony may be becoming more “equal” in the sense that more women are being ordered to pay it t0 men, the whole system is still based on a rotten foundation of old-timey sexism towards women.

There are two ways to bring equality among the genders in this system. One is to start making more women pay alimony, thus spreading the misery as evenly as possible. The other is to reform the laws to limit alimony to situations where a spouse truly cannot support her/himself without support, and conditioning that support on the recipient making reasonable efforts to become self-supporting with a reasonable time limit on alimony appropriate to the specific situation. Of course, that requires thoughtful, nuanced consideration of each individual case by attorneys, mediators, judges, and spouses. Will the pain of staying in our current system of bellyaching lead us to a better, fairer solution?

Okay, that last bit was a rhetorical question.

A Pennsylvania man has started a free speech debate, of sorts.

A bitter, divorced Pennsylvania man’s blog has triggered a free-speech debate, officials say.

Doylestown resident Anthony Morelli created his blog, ThePsychoExWife.com, in 2007 as a way to blow off steam about his ex-wife, The Philadelphia Inquirer reported Sunday.

But then his ex-wife, Allison Morelli, found out about the Web site and became very upset, calling it “heartbreaking” and potentially harmful to their 9- and 12-year-old sons.

At a June 6 custody hearing, Bucks County Court Judge Diane Gibbons ordered Anthony Morelli to take down the Web site and banned him from mentioning his ex-wife “on any public media” or saying anything about his children online “other than ‘happy birthday’ or other significant school events.”

At that point, Mr. Morelli did not stop posting, and the judge ordered that the site be taken down. Did this violate Mr. Morelli’s free speech rights? Many people believe it did, to the point that a campaign has begun to bring his website back:

We are asking for help in this defense because it is an issue that faces any parent that is divorced. Imagine a judge telling you that you cannot talk about your children on “any public media” – which would include things like Facebook updates, Twitter, or your personal blog – or you will lose custody.  Imagine the far-reaching consequences for bloggers everywhere if orders such as this one are left unchallenged?  There goes your online support group.  There goes your Facebook and Twitter updates.  Your website, personal OR commercial – ordered gone under threat of incarceration and having your beloved children removed from your custody.  This order flies in the face of our civil rights, and your civil rights, too! Imagine trying to protect your children from abuse and a judge telling you that you must hide the abuse and protect the abuser by not allowing you to talk about the abuse in public, we can’t let this stand.

While you're busy blogging, your children might be lost in a cornfield!

This does not appear to be a question of defamation, in that I don’t think the mother is specifically charging that statements on the blog were untrue, but rather that they would be harmful to the parties’ children if the children saw them. Most states, Pennsylvania included, follow the “best interest of the child” doctrine when determining child custody and orders relating to parenting. The question is, does the best interest of the children trump the father’s First Amendment rights?

I am very hesitant to support curtailing anyone’s freedom of speech and expression based on the extremely fuzzy “best interest” standards. In my experience, though, judges often place “best interests” above any rights of the parents, basic common sense, and the laws of gravity. Since I cannot directly review the blog in question, all I can say is that it seems to have contained some rather unpleasant stuff (just as anything at the forefront of a free speech debate does). I can see how the contents of the blog would be relevant to an ongoing custody case, since the nature of the parents’ relationship affects the children  on a daily basis. I can see a judge exercising some sort of review to make sure neither parent is defaming the other (in any medium, really). To issue a blanket injunction against most forms of communication with (or about) the children, though, does not sit well.

The blog seems petty, to me at least. Even if his ex-wife is a psycho, he is taking the low road. The point is that the low road ought to be his to take if he wants.

This week I am at the Advanced Family Law CLE seminar in San Antonio. Some may be tempted to ask “Why?”, which is a good question. As I sit here with about 500 other lawyers, I ponder my decision to step away from family law yet immerse myself in it this week.

1. Keeping my skills up. Legal skills are a good thing to have. The mind needs exercise.
2. Reminder of why I’m doing what I’m doing. I’m in for four days of tale after tale of familial acrimony and bitter feuding, plus advice on how to facilitate such conflicts. I’m positively giddy about looking for a job.
3. Reminder of why I did what I did. For every tale of vindictiveness and strife there is a story of someone genuinely helped by a lawyer through a difficult process. I am proud to have been part of that system.
4. I already paid for it. I got a discount for being a solo, but this thing still ain’t cheap.
5. CLE credit. This 4-day seminar gets me 22.5 hours of credit. Since I’ve always been an overachiever where CLE is concerned, by Thursday I’ll be covered through 2015 or so.
6. I’m in San Antonio! I’m not sure if this is an argument in favor of or against my attendance :p

This will be an interesting few days. More to follow, I’m sure.

Posted with WordPress for BlackBerry.

Holly at The Pervocracy (a blog dealing with gender and sexuality issues from an unconventional perpsective, so I’ll go ahead and call this NSFW for language and maybe subject matter) has worked as a paramedic and therefore spent a good deal of time in emergency rooms. From that, she has heard just about every excuse people make when they come into the hospital with injuries caused by a family member. “I fell down the stairs” is only the most famous one. It is far too easy in such situations, for someone who does not know the people involved, to conclude that weakness or stupidity could be the only reasons why someone might stay in an abusive relationship. That is simply not true, and it is especially important for lawyers and people embroiled in the family law system to understand why people may choose to stay with an abuser. Holly has made a list of many of those reasons.

To be clear, any gender in any sort of relationship can be an abuser (Holly mixes up the genders in her examples for that very reason). Abuse can be man-to-woman, woman-to-man, man-to-man, woman-to-woman, person-to-polyamorous-partners, etc. And “abuse” doesn’t just mean hitting, shoving, or breaking bones. It could include yelling, belittling, controlling, or anything else that would make one partner perpetually subordinate to another.

It is worth reading the whole post. She ends her post with a plea to her readers, and I pass that same plea on to you.

Usually I end these “long-list” posts with a cheery little “add your own!”, and while that invitation remains open (sadly, I’m sure there are tons that I missed), I’m going to add something to this one:

If any of these sound like you–even if they sound like you in a “yeah, but” sort of way–even if your partner never laid a finger on you physically, it was just some yelling–even if you’re a man and she’s a woman and it doesn’t work like that–even if you swear your situation isn’t abuse because–call this number:

1−800−799−SAFE(7233)
TTY: 1−800−787−3224

It’s the National Domestic Violence Hotline and they will talk to you. They are not going to call the cops on your partner (or you). They are not going to tell you that you have to leave your relationship. Calling them is not a commitment of any kind–you can always call them and decide to stay in your relationship after all. All they’re going to do is talk to you, give you an outside perspective from people who are trained to recognize and deal with abusive situations, and help you find resources for getting out of your situation if you decide that you want them.

There is much that lawyers and the family court system can do, but there is only so much. There are tools out there, if you are in an abusive situation, to help you help yourself. Please read Holly’s list if you think there’s even a chance you are in a bad situation, and please stay safe out there.

A friend and colleague sent me a link to an article about adultery issues in divorce cases in Texas.  The article, from the Beal Law Firm in Dallas, Texas, addresses issues that rarely if ever come up in my cases, but that got me thinking about how much I value collaborative law and the collaborative process.

A good litigator will always look for the facts or legal principles that will best serve their clients’ interests.  At the same time, a litigator wants those facts or legal principles to negatively impact the opposing parties.  Litigation is usually a zero-sum game this way; if it helps my client, it probably hurts the other guy.  This is often why litigation is such a poor mechanism in many (not all) divorce matters.  These are not litigants in a business dispute or opposing sides of an auto accident.  These are people who are married, who once felt confident enough to stand up in front of their family and friends and recite vows.  When such a relationship ends, as many must, is it ideal to impose a zero-sum framework like litigation?  While it may be unavoidable in some cases, I would say no, it is not ideal.  The article begins with a thought that could apply to any financial dispute as easily (if not more easily) than a marriage:

When those clients [whose spouses have committed adultery] come in, the first question any creative attorney would ask himself is, “What can I do to gain an advantage and really give the other side something to lose?  You want something more than just the threat of a “disproportionate division” using adultery as a fault ground – that’s often not much of a threat.  “I’ve got it, there must be a Tort that will work,” you think.  Maybe there is.

The article goes on to describe various civil tort claims (claims for injury or negligence) that have been brought against a spouse who has committed adultery, or even against the person who was the other party to the adultery.  The gist of the article is that such claims are generally barred in the state of Texas, either by statute or by court ruling.

Make no mistake, it is not for anyone, let alone me, to discount the emotional (and perhaps financial) toll when a spouse has committed adultery.  Perhaps the lack of trust that would obviously result would make such a divorce a poor candidate for collaborative law.  What this article brings home for me is the type of situation in which the collaborative model would not work at all.

I would therefore add “significant distrust” to the list of situations in which litigation in a divorce is necessary. Elizabeth J. Kates, writing for Collaborative Lawyers, Inc., offers an excellent summary of the types of cases where collaborative just won’t work:

[T]here are cases for which collaborative law is not appropriate. These would include cases involving serious domestic violence or coercive control, elder abuse, child abuse, or mental illness. Additionally, if one party can intimidate the other because of matters other than the issues involved in the case, collaborative law would not be appropriate.

The key is deciding whether any of the above factors present a “point of no return,” where the risks inherent in pursuing litigation in something as personal as a divorce case are outweighed by the risks of trusting the other spouse or leaving oneself open to further abuse or duress by that spouse.  I suspect (without any real scientific backing, I realize) that cases where litigation is absolutely necessary are not the norm.

I therefore wish to respectfully disagree with at least one point of the above-quoted article: where the author argues that “any creative attorney” would first ask how to gain an advantage in a divorce case, I believe the first question should be whether looking for an advantage is even necessary.

Last week, I talked about the first of two things you should know about divorce: that a divorce is a lawsuit just like any other lawsuit, with lawyers, judges, document review and (if you’re on television) dramatic background music. Now let’s move on to the second thing you should understand about divorce: that it is unlike any other kind of lawsuit under the sun.

2. A divorce is nothing like a lawsuit

In a typical civil lawsuit, after a trial there is a clear winner and loser: person A sues person B for breaching a contract, and the jury finds for person A and awards him/her damages. In a suit for divorce and/or child custody, there are too many issues and too many “shades of gray” for a simple winner/loser analogy. Suppose a wife and mother “wins” custody of her children, but the husband/father is ordered to pay ½ the amount of child support that she had requested? Suppose each spouse wants the house awarded to them, and a judge orders the house sold and the proceeds split 50/50?

When filing a lawsuit, a lawyer (or plaintiff) must state claims for which a court is allowed to provide a remedy—this could include breach of contract, negligence, assault & battery , and so on. A divorce suit can include claims such as these, such as fraud or assault, but most of the time they present completely different sorts of questions: how to divide the assets (made even more complicated in community property states like Texas), and how to deal with the task of parenting children post-divorce. These issues are very different from those found in any other type of lawsuit.

Another difference involves the parties to the suit themselves—in a suit for, say assault & battery, once the lawsuit is resolved, it is unlikely that the two parties would want anything to do with each other, and there is often no reason to think they would need to see one another again. After a divorce, it may be inevitable that the now-ex-spouses will continue to see one another for some time, especially if there are children involved. If parents of an infant go through a nasty divorce, they still have 18 or more years of interacting with one another in order to raise the child (this of course assumes both parents want a role in raising the child, but courts usually don’t give a parent an out on this issue, and I like to believe that parents will stick around for their kids in some form or another.) The sort of animosity usually developed in a lawsuit does not serve the parties to a divorce well.
In many, but not all, non-divorce lawsuits, a court is being asked to make a decision based on past events, reviewing whether one party is entitled to compensation in some form for a past act. Divorce undoubtedly involves acts and events from the past, but there is a key component that solely involves the future—in particular, the future of the spouses’ care for the child(ren). By taking a divorce and/or child custody dispute before a judge, spouses/parents are asking a stranger, who has never met these people before and may never see them again, to make decisions affecting huge parts of their lives and their child(ren)’s lives. My particular county, Travis County, Texas, has a central docket system , meaning that you may not know for certain who your judge will be until the day of your trial. It is one thing to ask a judge you have never met to decide whether events occurring a year ago constitute a breach of contract. It is quite another thing to ask that judge to decide how best to handle your child’s future summer vacations.

So how can a divorce be handled differently?

I am not arguing that every divorce case should be handled outside of the litigation model. For example, cases of abuse, fraud, or extreme emotional volatility are best handled within the court system.

For many divorcing spouses, there is a better way.

Collaborative law allows spouses to work out the issues of a divorce in an environment specifically designed to facilitate communication, as opposed to the lawsuit environment. Even in a mediation or settlement conference in a regular divorce lawsuit, the implicit threat of a court hearing is always just below the surface. Collaborative law involves a commitment to conflict resolution—only the spouses and the professionals they have chosen to assist them are involved in the process. Ideally, by the end of the divorce itself, the spouses can still work together on any matters requiring their attention, most obviously their children.

Make no mistake: divorce is an unhappy, emotional process. In the absence of serious conflict, it does not have to be war.