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.  

Unexpected Costs of Child Custody Battles

There are many costs involved in fighting a custody battle in court.  Some of these costs are obvious;  attorneys’ fees, delays in reaching resolution, acrimony and stress for parents, families and children are par for the course in a child custody lawsuit.

But, as Halle Berry’s recent custody battle highlights, custody fights can take a toll on all areas of the parents’ lives, including their careers.  

Berry recently left the set of a movie she was filming due to her custody battle.  While we can’t know for sure, I would venture to guess that she gave up a large sum of money when she left that set. 

Berry has the luxury of leaving a high paying job to manage the stress, work and trauma of a custody battle. She will easily find jobs in the future and she will hardly miss the income from this one movie. 

But, most of us cannot afford to sacrifice a job to keep up with a custody lawsuit.  Therefore, we have to manage the stress, time demands, emotions and financial costs of a custody battle while also trying to keep our jobs.   Many parents find this very difficult, but only discover the difficulties of litigation after they are neck deep in the quicksand of a lawsuit.

Before you decide whether to resolve your child custody dispute in court, analyze whether you can afford all of the potential costs.  If you have any doubts, I would encourage you to investigate non-litigation options before filing a lawsuit.

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.  

The Six Ways to Dissolve a Marriage

One of the most prominent myths that new client bring to an initial meeting is that getting divorced means going to court. That is not true. In North Carolina, it is entirely possible to get a divorce and resolve the related legal issues of a divorce without ever stepping foot in a courthouse. While only a judge can divorce a couple in North Carolina, the legal issues surrounding a divorce (financial support, property division, co-parenting) can be resolved in at least six different ways.

Couples can resolve these issues through direct negotiation, Collaborative Law, attorney negotiation, mediation, arbitration or litigation.

I have listed these options in descending order of client control; that is, the client has the most control over the outcome in direct negotiation with their spouse/ex-spouse and the Collaborative process, and the least control over the outcome in arbitration and litigation.

Direct negotiation occurs when the parties simply try to resolve their legal issues themselves without the help of attorneys, judges or other third parties. Most couples are unable to do this effectively because of the emotions involved and the lack of substantive knowledge about the issues at hand. Even couples that are able to effectively negotiate with each other face legal traps that can present problems. Direct negotiation has the advantage of placing control over the outcome the parties' hands. But, its disadvantages typically make it impractical or impossible.

Collaborative Law is very similar to direct negotiation in that is places almost all of the control over the outcome in the hands of the parties. But, it has distinct advantages in that it involves attorneys and other experts that have the substantive knowledge of the law, finances, taxes and other areas necessary to fully address the issues. And, the Collaborative process provides a structure for the negotiations so that the parties can communicate more effectively. In addition, Collaborative Law is generally less expensive than the other options. Perhaps most importantly, the Collaborative process teaches the parties to communicate in a productive, respectful and reasoned manner. This benefit cannot be overestimated, especially for clients that will be co-parenting children in the future.

One of the most historically popular means of resolving a case is through attorney negotiation. In this process, each party hires an attorney to negotiate for them. The lines of communication between the parties is broken by the attorneys. Each party provides directives to their attorney. The attorneys then negotiate with each other on behalf of their clients. Because the attorneys are communicating, and not the clients, the parties lose some control over the end product. Tone, emphasis and other important aspects of the clients communication get lost by the time it reaches the opposing attorney's ears. And, because attorneys are involved, the cost of each email, letter and phone call increases the cost to the parties. Further, this process does not teach the parties to communicate effectively because they are using their attorneys to communicate for them.

Mediation was the first attempt to reduce the amount of litigation in family law and divorce cases. This process remains very popular today, and is mandatory for many cases filed in North Carolina. Mediation involves a conference in which the parties and their attorneys meet with a "mediator" to try to reach a resolution of the legal issues. The mediator is typically another independent attorney. Mediation places most of the control over the resolution in the hands of the party. In fact, no one is required to agree to anything at mediation. However, typically, the attorneys and the mediator conduct most of the negotiation at mediation. The mediator's role is to help encourage the parties to resolve the legal issues by pointing out the benefits of a settlement and by pointing out the strengths and weaknesses of the parties' arguments. The mediator does not and cannot decide anything for the parties. While mediation is a vast improvement over litigation, it still involves indirect communication between the parties. Therefore, it does not teach the parties to communicate with each other. While mediation can and frequently does solve the immediate legal issues, it does not lay the foundation for productive future communication between the parties. In fact, mediation typically involves the kind of strong arm negotiating tactics that create bitterness and resentment.

Arbitration is essentially an informal trial. Instead of a judge, a neutral third party (usually an attorney selected by the parties) makes decisions for the parties. This process is designed to save a lot of the time and expense involved in a formal court case. Arbitration is a good option when the parties are totally unable to communicate, but do not want to spend the time and money that a court battle requires. However, arbitration take control over the resolution out of the parties' hands, and places it in the hands of the arbitrator. The arbitrator does not know the parties, their children, their history, their personalities or any of the other things that should be considered in resolving family disputes. The arbitrator only knows the facts that are presented in the hearing. Like litigation, a stranger makes decisions for the parties and their families.

Litigation takes control of both the resolution and the process out of the parties hands and places it in the hands of another stranger, a judge. No matter how well educated, experienced or well meaning a judge, the judge is still a complete stranger to the parties and their family. Further, the judge's main concern is fairness, as opposed to what works best for a particular problem. A judge has at most a few days to learn everything they can about a family before making a decision. In my experience, even the "winners" in these cases leave the courtroom unhappy because of the inconvenience and disruption that a judge's decision creates. The only benefit to litigation is that a decision is made and the process (usually) comes to an end. Litigation leaves attorneys wealthy, clients poor and families unhappy.

A very small percentage of my clients choose litigation or arbitration to resolve their family law issues when they are presented with the above options. Most choose attorney negotiation or mediation. However, a growing number of people across the country are choosing Collaborative Law, and reaping the long term benefits of their decision.