I have practiced divorce law for 48 years. I've worked with and against just about every type of divorcing spouse imaginable: unreasonable, practical, obstinate, angry, vengeful, combative, miserly, and emotionally challenged, to name but a few.
You cannot swim in the waters that I have for almost five decades and be naïve when it comes to what people are capable of during divorce.
With this is mind, and with full knowledge of the extent to which I am sticking my neck out, I predict that divorce is one generation away from becoming much less contentious and considerably more amicable than it is now. I say this because I really don't see how it can do anything else.
Here's my thinking.
The public is displeased with the divorce legal system, and sees it as too complicated, lengthy, and costly. The argument is that the system should satisfy society's needs, not frustrate them. Heck, many soon-to-be exes are now spending more on their divorce than they did on their wedding. We need to change how we divorce, but the problem lies in figuring out what to change it to.
Lawyers could start charging less, but this isn't going to happen. Lawyers' rents, employee salaries, and other operating costs are not likely to decrease, so neither will their legal fees.
People could stop getting divorced, but this is not going to happen. Human nature is human nature and there will always be two sides to every story.
More people could start doing their own divorces. Admittedly, pro se (or pro per) divorce is becoming more common, but acting as your own lawyer is not for everyone. Only a small portion of the populace is actually capable of adequately representing themselves. The others may be making a grave mistake.
We could mellow-out our divorce court procedures and treat marital dissolution in a more family-friendly manner. However, this cannot happen because the Constitution prevents us from taking someone's property without due process of law. This necessitates adherence to the rules of evidence, and to the strict standards that go hand in hand with formal court procedures.
I submit the answer lies in our finding a way to stay out of the divorce legal system altogether. We have to learn how to settle our cases before it becomes necessary to take them to court.
This is not as impossible as it sounds, but it does require our doing the last thing on earth that we want to do: treat our soon-to-be ex and their settlement position with respect and understanding. This does not mean being weak; it means being smart. Listening to their side of the story is the cheapest concession we can make.
This is the civilized approach to divorce. It calls for us to behave at our best, at a time in our lives when we are inclined to act at our worst. Up to now, we have felt entitled to act at our worst, and the result has been disastrous.
The best way to disarm our spouse is by respecting their stand. This changes everything. Showing concern and respect for what he or she is saying reduces their anger and lack of trust. It relaxes their defenses and puts us in position to persuade them to settle out of court.
I predict that the future of divorce lies in this anti-war divorce mindset. One generation from now we will be well on our way toward this new cooperative and non-confrontational way of thinking.
Why will this occur, and why am I so certain of it? The reason lies in the answers to the following four questions:
- What do you think a divorcing party would dislike more: the prospect of treating their spouse respectfully or the prospect of throwing money away?
- Which of these do you suppose a divorcing party would find more distasteful: being pleasant to their soon-to-be ex who does not deserve it or giving money to their soon-to-be ex who does not deserve it?
- Who would they rather give a new car to: their lawyer's kid or their own kid? Similarly, whose child would they prefer to put through college?
- Will a divorcing party that wants blood, still want blood once they realize they will get just as bloody as their spouse?
Divorce will always be able to bring out the dark side in all of us. Human nature is not going to change, but our willingness to subsidize its folly will.
As much as we dislike being nice to our soon-to-be ex, we dislike wasting our money more. This is the basis of the civilized approach.
Admittedly, this will not work for everyone, as there will always be people that must fight. However, most of us can get pretty doggone cooperative once we fully understand what it costs to act otherwise.
J. Richard Kulerski is a partner in the Chicago area, Oak Brook, IL divorce law firm of Kulerski and Cornelison. Richard is the author of The Secret to a Friendly Divorce: Your Personal Guide to a Cooperative, Out-of-Court Settlement. You may find him at www.civilizeddivorce.com and at his firm's blog, www.dupagedivorcelawyerblog.com.
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