Bench-Bar-& Beyond

Last month, I described the meltdown of family that resulted from our nation’s movement from an agrarian, small town economy to a technological economy. Men and women have more contact with members of the opposite sex who are not their spouses than with their spouses. The Nineteen Sixties marked the pivotal change. The judicial system and the legal profession were not designed to solve the problems of the disintegration of marriage and family.

Nursery Rhymes teach us a lot. Humpty Dumpty sat on a wall, and had a great fall. All the Kings horses and men could not fix the problem. And the “king’s horses and men” –judges and governmental bureaucracy—can’t repair emotional and structural problems inherent in the breakdown of marriage and family. Assigning domestic relations disputes to the courts seemed natural enough. Courts were already handling the divorces that occurred when governmental policy required a sufficient legal reason for divorce. Marriage was more than a simple contract between two parties. Government was like a third party to the marriage. After the adoption of no-fault divorce the assignment of marital disputes to an adversarial system was not a good policy.

For a lawyer to make money, there had to be a divorce. Trials have often been detrimental to the continuing relationship of the parties. The adversarial system required lawyers to provide “zealous representation” for their client. Lawyers were forbidden by the system to advise both parties to a divorce. Zealous representation often involved digging every possible skeleton out of the closet and throwing as much dirt at the other side as possible. The parents were urged to “fight for their rights”. But the kids were still emotionally attached to both parents. Children were caught in the middle. Often kids were pulled into the battle, with both parents trying to “use” them as witnesses, and urging them to take sides.

The system that had previously sought to preserve marriages became extremely insensitive to that relationship overnight. In the “no fault” system, there was no legal issue as to whether a divorce was “justified” or “in the best interest” of the family. The issues were about who would get the kids, who would get the property, and how much spousal and/or child support would be paid. A financial obligation replaced the emotional support of the non-custodial parent.

The breakdown of marriage was brought about by changes in the culture, not by changes in the law. Judges could not handle the onslaught of cases. The changes opened Pandora’s Box. I spent about 40% of my time for 18 years as a judge dealing with domestic relation cases. No amount of wisdom can bring happiness in these cases. Hundreds of hours would be required for every case, and judges simply cannot do that. Myriad problems engulfed the system, and Humpty Dumpty lies shattered.

The problem is not the character of lawyers and judges. Most of them are extremely sensitive to the issues, but are caught in the system. We assigned the most sensitive and important relations that exist in our society to an adversarial system that was not designed to deal with it. Lawyers are ethically committed by the adversarial system to “zealously” represent their clients. In other words, unless they fight with maximum hostility for husband or wife with kids in the middle, they may be criticized for being “ineffective”.

Describing the problem is easy; solving it is not. Someone said, “To survey the Aegean Stables is not to clean them.” In Greek mythology, the Aegean Stables was where the horses that pulled the sun across the sky by day slept at night. One of Hercules tasks was to clean the Aegean Stables. He solved the problem by running a river through them.

To understand that there are problems with the system is not to provide solutions. But recognition of problems is the first step toward solving them. Many lawyers and judges today recognize the problems, but are caught in the system.

Mediation holds some promise, but often is too expensive, and fraught with the same faults and economic burden as the adversarial system. Collaborative divorce, in which lawyers representing the parties attempt to work peaceful solutions, without the bitter rancor of the traditional adversarial system also holds some promise.

We have a long way to go. The system that has ruled for the past forty to fifty years has damaged the role of family in the moral formation of children. We will explore that topic next month.