Recently a Connecticut superior court judge wrote a scathing opinion highlighting the destructive behavior of divorce attorneys, divorcing parties and the court system itself. As Judge Moukawsher states, "In the name of fighting for the best interests of their children [the parties] have bankrupted them." In the specific case, the parties spent more than $250,000 fighting over a relatively minor issue-- both parties agreed the other parent was fit, and both parties agreed to joint custody, the question came down to who would have more time with the children. Three children were involved, and ultimately the court awarded primary custody to the father for one daughter, and the mother for the other two. However, as he noted, the three children are teenagers, with strong opinions of their own, so this arrangement is likely to change. As Moukawsher observed, "Regardless of what the court has ordered...[b]oth parents must reflect on the reality that this could change again sometime soon, and change again after that. No court order can save them from this."
Reading the decision, one has to ponder what went wrong here. Why do parties fight so hard and spend money they don't have on issues that the court really can't resolve? I think there are three main reasons: parties are not capable on behaving rationally in the midst of divorce, attorneys are incentivized to encourage destructive behavior, and courts are not suited to adjudicating these disputes.
Most people are incapable of rational thought when they are in the midst of a divorce. This is a physiological fact. Getting divorce causes tremendous upheaval and stress. Parties are navigating massive change in every area of their lives- including physically moving, sorting through all their finances, incurring major expenses, possibly dating, learning how to parent alone, adapting to a new financial reality, changing jobs or returning to work. All of this change stresses the brain and makes it very difficult, or impossible, to think rationally. The prefrontal cortex is literally inaccessible when you are flooded with adrenaline while panicking about custody arrangements or spousal support. So divorcing parties, faced with a myriad of important choices, find themselves incapable of thinking rationally. Often they turn to their attorneys for advice.
Attorneys make money because of conflict. The more conflict, the more clients. And the more conflict each client has, the more money that can be generated from that case. This is not a judgment on lawyers, this is the business model. Lawyers are then faced with a choice, when panicking stressed out clients call to talk about their divorce, the attorneys can try to rationalize with them and point them to low cost, low conflict solutions, such as mediation, or the attorney can suggest pursuing various legal actions. Unsurprisingly, they typically suggest the latter. A rational client might observe that the attorney's suggested course of action benefits the attorney, but rarely solves any problems, certainly not in the short term. A rational client might ask about how long it will take for a hearing to be scheduled, or the likelihood of success, or the estimated cost of the proposed legal strategy, but divorcing parties are not rational. They are looking for someone to be in their corner, someone to rely on, someone to save the day and assure them they will be okay and that, in the end, they will "win." That is why parties in the Moukawsher case spent all their savings in three years, only to have the judge issue a decision where no one wins, and everyone loses. The parties were not capable on thinking rationally about the process, and the lawyers pursued a destructive legal strategy that ran up huge fees. Attorneys are not likely to dissuade parties from behaving this way when it is exactly this irrational behavior that makes lawyers the most money.
Courts are not set up to adjudicate family disputes. As anyone with children knows, there is a new crisis every day, and often yesterday's crisis turns out to be nothing to worry about. The world is dynamic and children in particular are constantly evolving- with changing interests, issues and schedules. The judicial process is slow and bureaucratic. It is intended to be a venue of last resort, and the process is, or should be, intentional and careful-- and therefore time consuming. Courts are not set up to adjudicate parenting schedules, which may change depending on sports seasons, parent's professional needs, sickness, injury, or changes in schools. Courts are also not adept at managing marital finances. Especially in today's economy, finances are confusing and ever changing. For every divorcing party who makes a regular pay check from a job they have had for years, there is a party who gets paid quarterly, or annually, or in cash, or stock options, or goods. Courts are not equipped to investigate the personal and financial details of each couple they see. There isn't time, and the judges cannot be expected to gain a fluent understanding of every family's personal dynamics, let alone their professional abilities or financial success, or failure. Changing the ways courts manage these cases is a herculian task, judges, including Moukawsher, are trying to streamline the process, but it is very difficult. Some states, like California and New Jersey, mandate mediation before parties can file in court, that intervention may give some parties the opportunity to pursue a less contentious, more productive path. In the meantime the courts move forward, achingly slow, examining evidence and making decisions, often reaching decisions long after the conflict arose, and, very often with children, long after the issue at hand is relevant or timely.
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