Putting Justice into the Family Law System

I have done a lot of work over the years in the area of family law, and as anyone who has been through a divorce or other family law proceeding can attest, I can state unequivocally that the family law system provides no satisfaction and adds not a whit to human happiness. I cannot call the system a “failure” because, if one looks at it from the perspective of the state, it has certainly provided the state with lots of power over what are ordinarily very private and intimate family affairs, and the entire child welfare bureaucracy provides lots of jobs for parasites and other folks who like to exercise power over others.

I have come to the conclusion that it is a mistake to marry under a state license. Marriage is a matter between spouses and their families and their gods, and the state should not be in the business of regulating or legitimating consensual relationships. That said, a lot of us find ourselves married or drawn to one or more of the supposed benefits of state sanctioned matrimony. Now, if we need to extricate ourselves from the relationship, we have to ask the state to let us get divorced, and we are subject to the state’s definition of what our marriage was all about the whole time. Indeed, the state intrudes more and more into relationships where there is no official marriage under the same terms.

One of the most difficult aspects of divorce practice is getting clients reconciled to the fact that the state does not care about the justice of their situation. To the client, the central issue is often the grotesque betrayal of one spouse by the other, and the division of assets and liabilities is largely irrelevant. Assets and liabilities become proxy in the clients’ minds for justice, and they have difficulty with the idea that the state will award the guilty spouse a share of property without regard to his or her guilt. Access to children also becomes a potential instrument for marital justice, and clients will make demands that fly in the face of the interests of their children and their own interests in a vain effort to get justice.

As a divorce mediator and in negotiating divorce and custody matters, I encourage the disputants to address issues of marital justice and betrayal and to account for this in their property settlement and other aspects of their divorce decree if they wish. It is not unusual or inappropriate for the spouse who wants the divorce to feel guilt and to want to buy out of it by making a more generous financial arrangement than a court would probably decree. The “innocent” spouse almost always feels that this kind of arrangement is the least that the leaving spouse can do.

I find that the parties are more satisfied with the outcome and better able to live with their arrangements as to custody and visitation when they feel that they have been heard and that they have grappled with the justice of the situation. Providing a forum for addressing justice and openly discussing how to adjust for it makes it less likely for the spouses to use custody and visitation as weapons. Moreover, if the spouses feel that some justice has been done, there is less reason for them to continue an adversarial relationship after the divorce. After all, if they have children, they will always be a family, albeit in a new and untested form. Unresolved issues of justice are not helpful in the functioning of the family in its altered form.

A problematic aspect of this approach is the involvement of divorce lawyers. Counsel almost always questions the settlement of the parties because it does not conform to what a judge would order. It is difficult for lawyers to conceive of disputants’ desire to remain empowered to adjust their relations as they see fit without regard to the perspective of the state. For counsel, dispute resolution almost always boils down to force, what you can get the state to decree, and you should settle the matter based on what the likely outcome of trial would be. Counsel for the guilty spouse sees part of her role as educating her client to the reality that marriage is what the state says it is and that there is no state sanctioned guilt to be felt. The emotional and spiritual components of marriage are simply childish illusions, and one important role of the divorce lawyer is disillusionment of the client. This role conveniently decreases the likelihood of an amicable settlement and leads to a more disputatious and lucrative case for counsel; therefore, counsel feels ethically obligated to get their clients to fit the state sanctioned mold. Counsel will almost always try to undermine a justice-based settlement or any settlement that does not conform to expectations.

To divorce counsel, I submit that being an officer of the court does not require you to be a tool of the state and to disempower your clients. You don’t have to accept the state definition of marriage as exclusive or even valid except as a social fact to be reckoned with, and you should recognize your clients’ right to define marriage along any dimensions they see fit. Your job is to serve your clients’ interests as they see them and to help them negotiate the family law system in a way that lets them retain as much power and autonomy as they wish. The guilt, the sense of betrayal, and the concern for justice are not pathologies to be treated and eliminated from the system; rather, the system’s inability to address these matters is the central problem to which counsel energies should be directed. Rather than making clients fit the system, let the system serve clients. The best way to do this may be to make the system as irrelevant as possible.