If you search for divorce on Wikipedia, you’ll find a page that says “Divorce is one of the most common family law disputes in which expensive and protracted litigation may be involved. . .” But this is out of date. In recent years, the divorce law in America has changed a lot. For example, we call them “divorce cases” not “divorce suits.” And the adversarial tradition on which our modern system was based has begun to break down with innovations like collaborative law. Why is it important to recrystallize the chalcone before hydrogenation?
1. The Happy Divorce
The biggest change, however, is that we have stopped thinking of divorce as an adversarial process. Although our laws still envision a winner and a loser, many family law professionals are increasingly committed to avoiding the traditional litigation approach. A positive spin on this shift is that we now consider the possibility of a “happy” divorce, which offers both parties more freedom to negotiate the terms of their dissolution. Anyone involved in the legal system for any length of time knows how rare this is, so it’s hard not to view this change with some optimism.
2. Oh, The Statistics
But what about the statistics that underlie the idea that divorce is bad? According to a recent study by the National Longitudinal Survey of Youth (NLSY97), which follows 4,000 US-born individuals between their 18th and 32nd birthdays, there is no correlation between getting divorced and being unhappy or even feeling lonely or unloved. Nor does leaving a bad marriage cause people to become depressed.
3. The Intoxicated Love Myth
Another persistent myth about divorce is that people are unhappy because they are no longer in love with their spouses. Certainly there is a large portion of the population who make this argument, but statistics tell us otherwise. And they go even further than that. Even if we accept that some people are unhappy in their marriages because they’ve lost their romantic idealization of each other, we have statistics that tell us how infrequently this occurs. According to the same NLSY97 study, most people who get divorced do so because they are unhappy with the way their marriage is going, not because they have fallen out of love with their spouse. While happiness can return later on in life, many people report that they never love their second spouse as much as they loved their first.
4. Hope For The Future
There are some indications that our attitudes towards divorce may be evolving even further in more positive directions. In 2004, the Pew Research Center conducted a survey of attitudes about divorce. It concluded that Americans have become more accepting of divorce in recent years. Now nearly 50 percent of adults believe that divorce is appropriate in some situations. Furthermore, the percentage of adults who think that there should be no legal restrictions on what couples can do after they’ve divorced has grown from 13 percent in 1981 to 45 percent in 2004. And while there is still a significant number of people who believe divorce tends to hurt families, there are also those who believe divorce may even help families move beyond their troubles and make them stronger.
5. What About Divorce Litigation?
Among those who view divorce as a litigious process, there is still a groundswell of support for the adversarial approach. According to the National Center for State Courts, the majority of cases are still contested, with each party trying to convince the court that it deserves more or less custody of children and is worthy of financial support from the other. As one judge put it, “It’s like a dogfight over whose kids you get.”
6. A Winning Strategy?
Perhaps this shows how these statistics relate back to my first point. The adversarial approach is no longer the best way to handle most family law disputes. In the case of divorce, we seem to be moving towards a more collaborative approach where legal professionals and even judges can work together in partnership to help people sort out their problems and make some of their needs a priority. As one defender of this approach has said: “For years, lawyers did away with confidentiality and shared documents among spouses because they knew that the preparation involved was generally effective in helping clients arrive at settlements that were fair.”
7. Unfair Representation
But what about the idea that divorce leaves people without an advocate? On their own, most adults do not know how to navigate the legal system, and that includes navigating divorce. The National Center for State Courts reported in 2006 that only 38 percent of divorce cases were successful in securing adequate support when they went to court. Any attorney who advises his or her clients not to consult a divorce lawyer is advised to put it in writing and submit it to the Bar Association for review.
8. The Law Doesn’t Care About How You Feel
To get a sense of how divorced people feel about this prospect, we can look at other adversarial proceedings where people are represented by attorneys. An article in the New Yorker (“The Broken Promise of the Legal System”), tells the story of how a man who was denied an adequate opinion of counsel because he lacked legal knowledge, ended up not only without counsel, but without any representation in a case that involved breach of contract, unjust enrichment and a criminal court proceeding.
