The Way We Divorce in America/Martin Rosenfeld

Posted on October 15, 2013


The following discussion is an excerpt from an upcoming op/ed piece in the aftermath of the news about rabbis and coerced divorces:

The legal system of our country is a source of great pride. Yet some aspects of the system are not working well. Divorce courts today allow for divorces to be processed, but not without exacting a toll. The “business” of divorce is often long, demeaning, and costly. I often counsel parties to a divorce about the mediation option by reminding them of one truism. Often the only parties who profit from a divorce are the attorneys. I will give one vignette to back up this statement. In order to support a woman going through a divorce, I attended a motion that she was required to attend. I was there, in Court, as a spectator. The issue was where her husband should be standing when he picked up the children for his visit with them. Should he be at Wife’s door, in the hallway, or in the street. The hearing got out of control and after 90 minutes or so the Judge announced he would take the matter under advisement. I saw that judge later that evening. He asked me if I could believe the waste of time that I had witnessed. He implied, that such an event is a frequent occurrence if his courtroom. We have allowed litigation to take precedence over the more helpful option of two attorneys picking up a phone and saying “We can work this out”. A search for solutions is less profitable than the opportunity to seek a remedy via a timely motion. A motion is likely to cost a client thousands of dollars. A phone call might run to a few hundred dollars. Is the temptation to litigate lessened or increased by the economics of the situation? I will let that question go without providing additional comment.

Divorces harm children in many ways. How many states mandate mediation attempt before litigation may proceed? Very few. How many attorneys have training in social theory or alternate dispute resolute principles? Not enough. How many court proceedings are brought for no productive reason? Too many.

President Reagan once said that many problems have simple solutions but they do not have easy solutions. The way we get divorced in America, with an emphasis on litigation and little emphasis on mediation, is not a source of pride. In civil matters, attorneys often work on a basis where they receive a percentage of the recovery. They have a motivation to move the matter along. In divorces, the plodding movement of cases does benefit the attorneys; in no way does it benefit the clients. The system is broken. The solution is simple but it is not easy. Mediation should be required in all cases. In cases where a party brings a motion to resolve a matter that was ripe for resolution via a chat by attorneys, the moving party should be assessed court costs.  Pre-trials of divorce matters should be held with a mandate to expedite the trial process and minimize the harm that might be done to children and the parties by unduly long divorce processes. Let’s put the needs of the parties ahead of the needs of the various professions who benefit from length divorce processes.

Rabbis know that coercive activities are not proper. But they also know that people who desire a divorce are prepared to go to great lengths, and great expense, to obtain it. This lesson comes not from the Talmud but from our very own experiences in the Divorce Courts of our country. Don’t take my word for this. Listen to the words penned by Family Court Judge Bruce Peterson of Minnesota: “The worst feature of the current system is the conflict it generates. We call it an adversary system, but a better term would be a coercion system. The parties bash each other in order to persuade the judge to coerce the other person to do something they don’t want to do.”

The way we divorce in America is less than adequate. The rabbis who violate our societal norms may have learned the wrong lesson from these courts. The “coercion system” is unacceptable. Yet it is in practice on a daily basis in virtually all of our State Family Courts. If you carry a “coercion system” to an extreme, you might even resort to cattle prods. The solution to this situation is not an easy one but it is a simple one. We need to humanize the way we get divorced in this country.