Minnesota Considers Moving Divorce out of Court

Institute for the Study of Conflict Transformation by Dan Simon

“In our culture, court means contest – it means a fight. . . we’ve culturally viewed divorce as a battle” says Bill Doherty. Doherty is a longtime marriage and family therapist and the former head of the University of Minnesota’s Graduate Marriage and Family Therapy Program. Last week, he introduced to the state legislature a bill that would allow couples to complete a divorce, just as anyone can complete any business deal, without judicial oversight. Doherty says that, no matter how well-intentioned the lawyers, the assumption that judicial supervision is needed greatly increases the risk of destructive conflict arising. Doherty believes that, very often, couples who get divorced without the help of lawyers do better than they would with lawyers. Doherty’s plan takes divorce entirely outside the courts.

Family Court System Adversarial and Paternalistic

But what about the cases where one spouse dominates or victimizes the other? Doherty says the court system would remain an option for those who need it. But he says the assumption that people won’t take care of themselves, that there should always be someone overseeing their agreements, does more harm than good.

Doherty’s beliefs about how conflict works share much with the transformative theory of conflict. In transformative theory, a sense of relative weakness or of being victimized is at the core of the worst sorts of conflicts. Overcoming that sense of being victimized is achieved through “empowerment”. Empowerment arises most readily when the parties are able to make their own decisions about how they handle the conflict. While part of someone’s empowerment might include the choice to use the legal system, the legal system itself does not support continued empowerment. Doherty’s point (that turning immediately to legal authority is disempowering and leads to a vicious cycle) is consistent with the transformative approach’s preference for keeping as many decisions as possible in the hands of the parties. Doherty’s proposed legislation includes resources to provide couples optional help with financial planning, parenting advice, and mediation. But he believe that the best way to help couples stay out of destructive conflict is to provide couples a path that is totally outside of the court system.

The audio of an interview with Doherty about the bill is available here.

                        author

Dan Simon

Dan is a leader in the field of transformative mediation. He is the author of the chapter on divorce mediation in the Institute for the Study of Conflict Transformation's ("ISCT") TRANSFORMATIVE MEDIATION SOURCEBOOK. He is a Past Chair of the Minnesota State Bar Association's Alternative Dispute Resolution Section. He served… MORE >

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