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An Essay on Divorce Corp., The Movie

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I finally saw Divorce Corp. Finally. After much banter on Facebook, a barrage of emails, a New York Times article, and the Huffington Post's own Paul Raeburn's review of the film, I finally saw what all the fuss is about.

Finally someone is shaking the snow globe.

Is everything in Divorce Corp. indicative of how litigation works in every case? Of course not. But it does illustrate that when you go to court you take your chances. Are the judges biased? Are they corrupt? Probably not, but you never know. Is your child custody evaluator an extortionist? Probably not, but maybe. And you won't find out until after the fact.

For years mediators and Collaborative Divorce attorneys have battled the long-held cultural notion, reinforced by the litigation attorneys, that clients must have their own attorney in order to be protected. That clients get taken advantage of in mediation. That notion hasn't been challenged in any meaningful way. Until now.

We hear it every day on the phone: "I'd like to try mediation, but I'm afraid I won't be protected." Protected from what, exactly? That's the question that Divorce Corp. raises.

If the average divorce fees cost $50,000 (according to Divorce Corp), and the average Los Angeles divorce fees cost upward of $100,000 (according to former Presiding Family Law Judge Marjorie Steinberg), is it protection from the litigation system that clients actually need?

I was disappointed that the movie didn't explore the idea that divorcing couples and never-married parents can opt out of the litigation system. They can avoid the Divorce Corp. by choosing to settle out of court, whether that's at their own kitchen table or with the help of a third party facilitator like a therapist, clergy, accountant, mediator or Collaborative Divorce team.

You don't have to opt into the litigation system. You don't have to roll the dice on the judge you're assigned to, the custody evaluator appointed, and having to pay fees upon fees. You can opt out. And it's not difficult to opt out. There are lots of choices.

But divorcing people are scared. They're scared of the future, of the unknown, of the things that their spouse might do. What most don't realize is that they really have nothing to fear but fear itself (and maybe litigation lawyers). When a gladiator lawyer says,"I'll protect you", the temptation is to believe it. And while I still believe most lawyers really mean that, the truth is that divorce is a business, and lawyers can't keep their offices open when clients can't pay. And almost every client runs out of money eventually. Even the wealthy McCourts ended up in bankruptcy after their LA Dodgers-centered divorce fight.

We helped clients sign a mediated divorce agreement yesterday. Was it perfect? Probably not. But did each client come out substantially better off than if they'd paid attorneys' fees and litigated in court? Absolutely.

As a litigation attorney for 12 years in Connecticut, I'm happy to say I never experienced any of the corruption or biased favoritism that plagued the cases in the movie. But there are bad apples in any profession, judges, custody evaluators and attorneys included. Why take your chances with the court system, especially when it involves your family?

What will it take for people to get a grip on the reality of the court system? While not usually as dramatic as the cases in the movie, even the simplest divorce is traumatic enough without the added stress of court. When you add the built-in financial stress of the divorce -- dividing your assets in half -- to attorneys' fees that are enough to pay for a kid's tuition to Harvard, it's a wonder anyone recovers.

Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Perigee 2010).