Taking Divorce out of the Context of Dispute Resolution
The last issue of Family Court Review, presenting models of interdisciplinary collaboration in family law, was presented as a look toward the future for improving the family dispute resolution system. The opening article by Gregory Firestone and Janet Weinstein (Firestone & Weinstein, 2004), which pointed out the inadequacies of the adversarial court system for handling family problems, proposed that a new system be developed within the community for handling divorce and child protection. Although the idea of a “comprehensive dispute resolution system for families in transition”, in which court litigation would be just one option, is certainly a move in the right direction, it does not go far enough. What is needed is a much more radical change. Divorce needs to be taken out of the context of dispute resolution and “reframed” as an administrative process, comparable to the administration of marriages. Family courts may still be needed, but for a small minority of cases only.
Out of disillusionment with the handling of divorce in the adversarial court system, we have developed an impressive variety of means for “improving” a defective system: the creation of family courts to handle family cases somewhat differently than other civil lawsuits; mediation, both within the courts and in the community; the use of mental health professionals for custody evaluations; parent-education programs; parenting coordinators for high-conflict families; even the “domestication” of attorneys, who now practice in less adversarial ways (collaborative law and now “cooperative law” as well, as Lande and Herman (2004) described in their article) and the proposal to use ENE in divorce disputes (Santeramo, 2004). All of these attempts at “renovating” an unsatisfactory process – as we often renovate an old building that does not meet our needs – were welcome improvements, developed with the best of intentions to better meet the needs of divorcing families. However, sometimes it is better to demolish the old building and build a new one without having to fit the improvements into the constraints of the old frame.
Court was the natural place for handling divorce requests when one spouse had to prove that the other spouse was guilty of behavior defined by law as grounds for divorce. With the advent of no-fault divorce laws, the court context should have become “extinct”, but the framework for society’s handling of divorce remained unchanged. It has gradually become apparent to all involved – judges and attorneys, no less than to mental health professionals who have been trying to heal the wounds of divorced adults and their children for several decades – that the system we have in place for handling divorce often makes a difficult situation worse and by its very nature, has the potential for creating antagonism between divorcing spouses.
Although I am certainly not an expert in alternative systems for handling divorce, I learned about an alternative system described many years ago in an article in AFCC’s journal (Andrup, 1990) and by a subsequent visit to Denmark. I referred to the Danish system in an article I wrote a decade ago (Zaidel, 1993) and will describe it here as another alternative to consider.
In Denmark, separation and divorce decrees are granted by a county official, called an Amtmand. The Amtmand is a lawyer, whose role is to guide couples towards agreement on custody, access, financial support and property settlement. According to Danish law, the Amtmand can only grant divorce decrees (equivalent to court orders) when the terms of settlement are agreed upon. He has authority to determine amounts of child support and alimony, based on objective income guidelines, and to resolve conflict about access (visitation), if necessary, but custody and division of property must either be agreed upon or be determined by a judge in court. In order to assist couples who have difficulty resolving the various separation issues, child psychologists and other experts are called in to meet with the couple in the Amtmand’s office.
Andrup (1990) reported that only about 6% of all the divorcing couples end up in court. For 94% of the divorcing couples, the divorce is an administrative decree without any court involvement. The process is free (including the involvement of counselors, legal advisors and mediators), very informal, and allows for the efficient processing of divorce. Spouses do not need to hire attorneys, as the spouses themselves are the active participants and the ones to decide about the terms of the divorce, and legal information is provided by the Amtmand himself or other legal experts on staff. Agreement is the norm and the procedure is primarily administrative rather than judicial. The emphasis is on the couple’s need to make decisions based on the best interests of their children and on their understanding of Danish law. The overall approach is one of “joint problem solving”, with the assistance of an interdisciplinary staff, if needed. The context is a “divorce office” – not a court of law and not an office for dispute resolution.
Perhaps an awareness that divorce does not have to take place in the context of a court system – or of a system for dispute resolution – will enable us to see beyond the borders of the frame we are used to. That will enable us to design a system for handling divorce which is not constrained by existing structures. Not all divorces are “disputed”. Differences of opinion or disagreement need not be framed as “disputes” and most divorces can be settled if handled properly.
A radical change in how society handles divorce will inevitably disturb the status quo: there will be a reduced need for family law judges and large numbers of family attorneys will have to look for alternative work. My proposal is not likely to be greeted with open arms by the legal community and powers that be. In spite of all the innovations, the handling of divorce has remained in the hands of the legal community, known to be a conservative element in society. It is noteworthy that while the Family Court Review is described as “An Interdisciplinary Journal”, and the editor, in his preface to the special issue on models of collaboration in family law writes that “modern family law dispute resolution is an interdisciplinary enterprise”, eleven of the contributors are lawyers, one is a judge, two are court managers and only two of the ten articles were written by mental health professionals. This observation is not meant as a criticism – it is merely a reflection of the judicial system for handling divorce. It is my hope that we will not remain entrenched in the old system because of the limited perspective of the legal and judicial communities and their understandable need for self-preservation.
Andrup, H. (1990). Divorce – Danish Style. Family and Conciliation Courts Review, 28(1), 23-26.
Firestone, G.& Weinstein, J. (2004). In the best interests of children. Family Court Review, 42(2), 203-215.
Lande, J. & Herman, G. (2004). Fitting the forum to the family fuss. Family Court Review, 42(2), 203-215.
Santeramo, J. (2004). Early neutral evaluation in divorce cases. Family Court Review, 42(2), 203-215.
Zaidel, S.(1993). Ethical issues in family law. International Journal of Medicine and Law, 12, 263-270.
Susan Zaidel, Ph.D., is a clinical psychologist and family mediator in private practice in Israel. She was among the earliest mediators in Israel and has contributed to the development of mediation in Israel through teaching in universities, training mediators and through her writing of articles and books on divorce mediation (in Hebrew).