Hidden Damage of Divorce: Revisionist History

Frankly, I don’t know the psychological term for it.  Maybe revisionist history is appropriate.  I seem to remember that the term “incongruence” may play into it.

But, whatever it is called, there is an odd (but predictable) event that frequently happens with divorcing couples.  Let’s call it the “contamination effect”. 

When a couple decides to separate, the disharmony of the tail end of the marriage somehow contaminates the rest of the marriage.  Sometimes one or both spouses look back on the whole marriage through the same lens that they view the separation or divorce.  The emotions of the very end of the marriage retrospectively color their view of the entire marriage.  Some couples even start playing the marriage over in their head looking for reasons to convert good memories of moments in their marriage to bad memories.  The phenomenon is displayed visually in this video.

This often becomes more prevalent as the legal fighting ramps up through adversarial negotiation and court battles.  In my experience, the worse the divorce gets, the more the couples’ view of their marriage is likely to be distorted.

And that phenomenon creates a lot more unnecessary destruction.  There are enough tough repercussions of divorce.  Couples should not have to lose the positive memories of their marriage in a divorce.  In fact, I suspect that this kind of thinking is what causes many people to give up on marriage once they have been divorced.

That is just one more reason why it is important that each couple make an educated decision about their divorce process.  Choosing a divorce process that does not create more hard feelings can be very important.  Honoring the years of marriage while creating a plan for each party to move forward can help couples leave a marriage without having to entirely revise their memories of the past. 

Update on Wednesday, October 12, 2011 at 11:12AM by Tre' Morgan

Interestingly enough, I had a discussion with my dental hygienist yesterday on this very topic.  (And yes, it is hard to do that while you're having your teeth cleaned.  I had to speak very quickly between rinses and suctions.)

The interesting part to me was that she was very surprised at my contention that a marriage does not have to last forever to be considered successful.  My point was that if a marriage is good and healthy for 20 years, but then ends, then I would hate to call that marriage a failure.  What about the 20 years of good marriage?  Where did that go?

Which leaves me to wonder whether we as the public believe that only marriages that last the rest of our lives can be considered successful?

North Carolina Custody Case Makes Big News

North Carolina’s courts have made big news this week.  Durham County District Court Judge Nancy E. Gordon recently entered a child custody order based at least in part on the mother’s diagnosis of Stage IV breast cancer.

As this segment from the Today Show explains, Alaina Giordano lost primary physical custody of her two children because she has breast cancer.

However, the local legal grapevine has revealed some other alleged factors that were not revealed in most news reports.

One important piece of information is that a mental health expert allegedly told the judge that her belief was that the kids were better off with the father so that they could enjoy a more “normal” life.  This, in my experience, would be a hugely relevant factor in the judge’s decision.  In complicated cases like this one, most good judges want to hear from experts like the one involved in this case.  The expert rumored to be involved in this case is very well regarded and very experienced in child custody evaluations.  Perhaps the expert’s report indicated that a “normal” life for the children was more important than maximizing their time with their mother while she is still here.

Also, rumor has it that each spouse made allegations of abuse against the other during the proceedings.  In that situation, the judge is left to weigh the credibility of each party’s evidence and decide which one is telling the truth (assuming either one of them was being truthful).  If either or both spouses’ allegations were proven to be unfounded (or even malicious), then that spouse’s credibility may have been damaged in the judge’s eyes.  If that happened, then the judge may have viewed all of that party’s testimony skeptically.

While the initial reaction to Judge Gordon’s decision has been outrage, her decision may seem more reasonable as the facts slowly emerge to the public.  Or, perhaps the facts will only fuel the outrage.

But, don’t expect to find out all of the reasons for her decision in the Custody Order.  A judge must put information in the order to help justify her decision to the Court of Appeals if Ms. Giordano appeals the ruling (although the order itself will likely be drafted by the father’s attorney and simply reviewed and approved by the judge).  But, there may be reasons for the decision that never make it into the order.  So, we may never know exactly why Judge Gordon believed that the children were better off with the father.

In the end, this judge was forced to make a very difficult decision about these kids.  As is typical in custody litigation, it looks like everyone will lose, including the kids. 

This case further highlights why parents may not want to leave decisions about their kids in the hands of the courts.  

Heart-Breaking Custody Case from California

A California judge decided a unique child custody case this week.  The judge was required to decide whether a paralyzed and disabled mom who cannot speak should see her children. 

As chronicled in this heart-breaking article, Abbie Dorn was paralyzed during the delivery of the triplets that are at the center of this case and has remained severely disabled. 

The children’s father argued that Ms. Dorn is no longer capable of being a mother.  Ms. Dorn’s attorney countered that Ms. Dorn can contribute to her children’s lives even without the ability to move or speak.

I do not know what the laws of California say about this matter.  I suspect that, like most states, California’s courts put the best interest of the children at the forefront of child custody rulings. 

I suppose reasonable arguments can and have been made for both sides.  However, it seems to me a dangerous precedent for a court to determine that a parent’s value to their child’s life is solely dependent on the parent’s physical abilities. After all, this is the only mother these kids will ever have.  

Perhaps for these reasons, the judge ruled that even if the mother cannot interact with her children, her children can interact with her.  The judge then ruled that the children should see their mother for a set period of time every year.  

There are some legal intricacies in this case that are of interest to lawyers only. 

But, it seems to me that the real lesson of this case is that whatever limitations you believe that your spouse may have as a person and a parent, the courts know that each parent has value to their children (abusive and dangerous parents aside).  And, the courts will work very hard to foster a child’s relationship with each parent. This court required cross country travel just so the kids could be with their mom, touch her and see her smile.

That is something to think about the next time you get frustrated with the other parent of your child and think about going to court.

New Mandatory Mediation for Wake County Contempt Actions

There are two basic documents that can be used to resolve the legal issues of divorce, separation, custody issues and cash flow issues:  Separation agreements and court orders. 

The former is a contract between the parties.  The latter is a decree by a judge.

A party can enforce a separation agreement by filing a breach of contract lawsuit.

A party enforces a court order by asking the court to hold the non-compliant party in contempt. 

A contempt action is appropriate when one party is not doing what the court ordered them to do (or is doing something that the court ordered them not to do).

Contempt actions have become increasingly common.  Parties that cannot get along frequently file contempt actions against each other as a continuation of the fighting that led to their divorce or custody battle.

In fact, so many contempt actions have been filed in the last few years that the Wake County family courts have been swamped. 

In response, the Wake County family court has instituted a mandatory mediation program for all contempt actions. 

Now, every time someone files a contempt action against the other parent or their former spouse, both parties will have to attend mediation in the courthouse without attorneys. This mediation takes place at their first court date for the contempt action. 

This program is further evidence that the courts lack the resources to serve as the primary dispute resolution option for family law matters. 

It also shows that even the courts value and appreciate non-court processes for resolving family law disputes.

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.