Tuesday, March 12, 2013

Does the Adversary System Work in Divorce?

     American courts follow their British counterparts by presenting legal issues in an adversary system. While this may work with criminal cases and certain civil cases, is it the best way to deal with divorce and other family law cases? In a word: NO.
      My personal experience is that while the adversary eventually works in most cases, it is far from the ideal way to work out most family law matters, and is not justified by the emotional damage to the parties - and unnecessary expense - that takes place during the long process of family law litigation. Most breakups involve complicated issues mixed with high emotion and tension. Zealous lawyers can make otherwise reasonable people attack each other vicariously. I once heard one divorcee describe the divorce process as "a public enema of your life." In too many cases, that is true. Rather than hiring attorneys to advocate positions which are entrenched due to anger and resentment, the parties would be far better served being counseled to mediate and communicate directly about the multiple issues involved in their breakup.
      In custody and visitation cases particularly, the adversary system is inadequate, at best. The attorneys and judges do not know your children like you do, and the usual "cookie cutter" approach the judicial system imposes in parenting plans rarely is the best solution. If and when the parties get past their anger over other issues (which can take some time in many cases), they realize that the parenting plans imposed on them by judges and lawyers lacks the flexibility they and their children need. With few exceptions, children need both of their parents to be involved in their lives. Despite what you now think of your former partner, you once chose that person to be the father or mother of your children. Well guess what: they still are, and will always be.  While Massachusetts requires parents to take a special divorce parenting class, it really does not go far enough. In cases where there are no serious issues of abuse, neglect, or substance abuse, counseling and mediation as to child-related issues should be the first step that the parties take, not the last.


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