A large dark cloud has hung over divorce mediation in the United States ever since the family mediation movement went national in the early 1980’s. That cloud has been the idea that mediated settlement agreements somehow could be suspect because they might not accurately reflect “The Law”, as if that were a real entity in every concrete case that a judge might otherwise have to decide. It’s time for mediators to put a final end to this sort of “shadowboxing”.
American divorce law is almost exclusively state law. Although it varies somewhat from state to state, there are also many common features. Most state divorce law is not in the form of fixed rules. Rather, it exists at the level of principles and criteria. A principle is essentially a goal, such as “the best interests of the child”. Criteria are lists of considerations. Here is a sample criterion for parenting plans: “The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, and the ability to accurately access and meet the emotional, intellectual and physical needs of the child.” To see a full list of such criteria for parenting cases in a typical state, just go online and Google Virginia Code Sec. 20-124.3.
It should be obvious that when the law is framed in this way just reading the Code does not automatically decide the case – there is ample room for discretion. Furthermore, one does not have to be a lawyer to understand and apply the list of considerations to a particular case. Often most of the items on a given list of such criteria correspond to common sense and good social policy. Indeed, perhaps the best background for appreciating and applying the statutory provisions on parenting is to be a parent.
Remember also that if an agreement is signed in proper form it will almost always supersede state law. That means that the parties are not only free to make their own determinations based upon the criteria in the Code, but also that they may add to or subtract from those considerations. So for example, most states do not give a minor child the power to make the final decision on the parenting plan, but the parents may agree to honor the child’s wishes. In effect the parties become a two-person legislature, and they can make a binding law for themselves by a simple 2-0 vote that is then memorialized in the agreement.
At times the law may seem more mysterious than it actually is, perhaps in part because some lawyers seem to like it that way, just as church rituals were in Latin rather than vernacular languages prior to the Reformation. Fortunately there is now a strong movement among lawyers and judges that favors legal drafting in clear and understandable English prose. But we still find far too much archaic or otherwise obtuse language in legal documents which muddles rather than clarifies the matters at hand. The worst example in divorce law is the persistence in over two-thirds of American states of using the obsolete and misleading terms “custody” and “visitation”. A growing minority of states substitute terms such as “parenting plan” and “shared parental decisions”, which are far less emotionally charged and much more descriptive.
A major part of the knowledge and skills of divorce lawyers pertains to adversarial negotiation strategy and litigation. However, these are usually of scant value when the lawyer is mediating. Far too often the adversarial process of divorce leads to excessive expense, delay, and emotional stress. And when the case is concluded, the result may be unsatisfactory to both parties. Then, to add insult to injury, it may be expressed in that horrible form of bad drafting called “legal gobbledygook”.
Courts usually have scant experience or expertise to assist the parties in making important future plans. Often they do not even have any jurisdiction in these matters. Litigated cases look backwards, not forwards. For example, if a vocational expert is hired in a litigated case, the purpose is to impute income to a party who may be underemployed, rather than to assist that party in finding a more satisfying and remunerative future career. The case law system that still predominates in American legal education looks to the consequences for what has happened in the past, rather than to creative ideas as to what should happen in the future.
Divorce attorneys do settle probably as many as 80% of their cases out of court. However, often these settlements come only after protracted delays and considerable expense. A major cause of excessive expenses in adversarial cases is the discovery process – requests for documents and interrogatories (questions that must be answered under oath). Full and fair disclosure is of course something that mediators should always encourage. But in litigated cases the scope of discovery requests may far exceed any reasonable or common sense need for relevant information.
Even though legal ethics requires that the clients approve any negotiated settlement, the adversarial process often erodes their sense of self-determination. Too often the settlement is achieved only by means of predicting the probable outcome in court, rather than upon anything based upon the real concerns and goals of the parties. Often little if any attention is paid to either the future relationship of the parties or to their longer-range financial interests. The legal costs to both parties of an adversarial settlement can easily more than erase any benefit to a party of having achieved somewhat better terms.
Because children develop differently at different ages, good parenting is rarely static. The adversarial system is poorly equipped to deal with issues of childhood development. Courts also don’t have much expertise in the means to encourage parental cooperation. In fact, the process of custody litigation, which is supposed to serve the best interests of children, may be inherently contrary to their best interests when it erodes the likelihood of effective future parental cooperation. How well the parents can respect each other and cooperate as parents can easily be more important to a child’s future than the exact structure of the parenting schedule.
The child support guidelines, which exist in some form in every American state, are a special case. The mediator should always make the parents of minor children aware of those guidelines. They are the most significant area of divorce law that appears to function more at the level of rules rather than of principles and criteria. In every state a court has the power to vary the guidelines based upon statutory criteria, but it will normally be required to explain the calculations and reasons behind any such variance. In some states the parties may also have to provide an explanation when they deviate from the guideline figures in an agreement. But the parents should also know that in most situations they have the power to reach their own agreement upon a different figure or some alternative manner of handling child support. This can even include a sharing of certain out-of-pocket expenses for the children, in addition to or in lieu of requiring one party to send the other a monthly child support check.
Spousal support is handled quite differently from child support. There are more variables as to whether such support is appropriate and, if so, in calculating how much and for how long. The first consideration is whether there is a large difference in incomes between the parties, and then why such a difference exists. Although some states and localities have guidelines or formulas for spousal support, even those jurisdictions give more consideration to the particular circumstances of the parties. Often the goal is to help the lower income spouse move toward being completely or mostly self-supporting. Every state now authorizes spousal support to be time-limited in appropriate cases, such as shorter marriages. Spousal support ceases at remarriage or the death of either of the parties, and it is generally modifiable if there is a material change in circumstances. Often the most difficult situations involving spousal support are those cases where one party has set aside a career to be a stay at home parent, and then has not resumed a remunerative career after 10 or more years after the youngest child is in school.
Dividing property can at times involve some technical considerations, but the general outlines are usually straightforward. What is to be divided is what was earned as a result of the efforts of the parties during the marriage. So gifts from family or friends, inheritances, and property brought into the marriage are separate property if they can be traced into existing assets. Presently 41 states and the District of Columbia are called “equitable distribution” jurisdictions. The remaining nine states, mostly in the west and southwest, are “community property” states. The main difference is that in the community property states the property that is not separate is divided equally, whereas in the first group there is a list of criteria to determine how marital property is to be divided. But even in these states the division is usually equal unless there are special considerations. Of course the parties themselves can choose to ignore those technicalities. Also, the parties can agree to tradeoffs that a court could not order, such as between a pension plan and house equity.
There are some types of cases that are more difficult to resolve in the adversarial system, and these can also be very difficult even in mediation or in collaborative practice. These cases include parenting cases where the level of emotions between the parents is high. They include spousal support cases where the higher income spouse is unwilling to acknowledge the contributions and career disadvantage of the lower income spouse, or where the lower income spouse is reluctant to take reasonable steps toward becoming more self-supporting. In some cases problems are created by a party’s unwillingness to provide reasonable disclosures with verification in a timely manner. Cases that involve commingling of marital and separate property can be difficult, as are cases where one party appears to have improperly dissipated marital assets.
Valuation of a closely held business or a professional practice can very quickly become expensive. At times the division of marital debts is a divisive issue where one party has incurred substantial debts that appear not to have been for any proper marital purpose. In mediation the parties in cases such as the ones above can take advantage of the experience of appropriate experts, such as accountants, career counselors, and mental health professionals who have experience with children of divorce. Even in litigation experts such as these are customarily called upon to provide guidance to the court.
The national movement toward no-fault divorce started over 40 years ago, and every state now has at least one no-fault ground. These grounds include separation for a statutory period (most commonly one year), irreconcilable differences, irretrievable breakdown, and incompatibility of temperament. “No-fault” does not necessarily mean that there was never any fault involved in the ending of the marriage, but rather that a fault ground (adultery, cruelty or desertion) is no longer required in order to become divorced. A majority of states have abolished all of the fault grounds, while in a minority of states one or more fault grounds are still available (but are infrequently used). In 21st century America marital fault is mostly either irrelevant to the marital settlement or taken into consideration only when there is a very specific issue of relevance. For example, if a parent has been abusive, there may be a need to consider the effects of that on the children. But for the most part charges of marital fault only make the settlement more protracted and expensive. They often don’t produce a compensatory benefit for the party who made the allegations. Zero-sum-game thinking often produces negative results on both sides.
The judicial system’s lack of resilience to changes in society is perhaps best illustrated by the fact that in over two-thirds of American states a no-fault divorce still requires one party to be the Plaintiff and the other to be the Defendant. In Virginia some important interim matters between separated couples are still handled by an adversarial fault-based procedural device that was inherited from the British in colonial days and was actually abolished in England in 1857! Other states, such as Iowa, have for decades styled divorce actions in a much more modern format as “In re the marriage of ….”
If the law can be used more creatively, settlements can be opened up to be completely or partially worked out outside of the legal box that has been described above in this article. In this context, legal box means the customary points of reference of divorce lawyers. Too much of the legal approach is focused on procedural knowledge, adversarial negotiation skills, and client-based strategies. The case system of legal education gives lawyers some analytical tools that are useful in advocacy, but at the same time holds their thinking inside of an analytical box. However, if one looks at divorce law from the perspective of common sense criteria, valid principles, and useful social policy, the legal system can easily seem to be more interesting and more flexible.
There are many areas outside of the legal box that are very relevant to the needs of the parties, but which fall outside of the customary expertise of courts and lawyers. Perhaps the most important of these is the need for cooperative post-divorce parenting, based upon an understanding of the studies that continue to appear about children of divorce and the stages of child development. Family systems teaches us that the post-divorce family remains a family, but one in there needs to be adjustments to new relationships. The stages of the divorce process often do not end with the divorce itself, and a longer term plan for one or both parties may involve a continuing strategy for emotional support.
The need for short-term financial planning through separation and divorce is obvious, and this is often done even in the adversarial process. Almost no longer-term financial planning is ever done in litigated divorce cases. Such planning may not be a primary function of a mediator who is not a financial planner, but should still be addressed as part of the settlement. One or even both of the parties may require career transition assistance. At time debt counseling becomes a crucial part of any future financial plan. Medical coverage and retirement are also essential parts of any financial plan. The mediator must have an understanding of the differences between defined benefit plans and defined contribution retirement accounts, and should be aware of the provisions of Social Security, COBRA, Medicare, and now also the Affordable Care Act.
The mediator’s responsibility for post-divorce planning is not necessarily to try to resolve in advance all of the problems that the clients may encounter in their future, but rather to get them thinking about how to face them when they come up. The idea of team mediation may be useful, namely to bring into the mediation process other professionals with the expertise to address any of the specific areas mentioned above. If such experts are employed, an addendum to the mediation agreement may be necessary to fully protect confidentiality.
As mediation becomes more professional, mediators who are not attorneys will search for ways to become more comfortable with the useful knowledge and ideas that may be found inside the legal box. Conversely, mediators who are also lawyers will become more creative in taking a broader view of the scope of mediation. Every mediator needs a working set of conflict resolution models. Mediators of any professional background need the “people skills” of successful helping professionals. There are even ways in which mediators can draw on their experience to understand why some marriages succeed and others fail, and how the reasons why a marriage fails can affect the relative difficulty of the settlement. Finally, every mediator and every party to mediation is on some sort of a spiritual journey to find meaning and direction in her or his life.