Articles Posted in Divorce Trends and Developments

Henry Gornbein, a family lawyer in Michigan, wrote a recent article about the trauma of divorce for the Huffington Post. Gornbein discusses appropriately the ramifications of the threat of divorce and the actual divorce process. In reflecting on his article, I am brought back to the idea that divorce is appropriate and necessary in many cases, though all efforts should be made to save marriages that have a proper basis for being preserved. In the event that the marriage has broken down, the parties are no longer compatible, or there is mental illness affecting the health and safety of the spouse and children, or domestic violence, divorce can be a healthy intervention. The key to a healthy divorce in many cases is the Cooperative Divorce or a divorce that avoids the high conflict of ‘out of control divorce,’ and focuses on the emotional and financial wellbeing of the parties and the children.

“A divorce can be many things. It is a legal proceeding to end a marriage. Divorce laws differ from state to state regarding the requirements and reasons or grounds for a divorce. The mechanisms and procedures for obtaining a divorce differ from state to state as well. In every state there is a legal requirement that a divorce proceeding be filed to end the legal marriage between a couple.

A divorce is a weapon. It can be a legal weapon. It can also be a verbal weapon which too frequently is used by an unhappy spouse who will hurl a threat: “If you do not do this, I will divorce you.” This often is a means of control. It is also dirty fighting. Sometimes this threat of a divorce is a means of keeping someone in a marriage. To me, it is a statement that the marriage is in trouble and could perhaps end in a divorce unless the parties go into counseling.

For another consecutive year, Law Offices of Michael F. Roe, PC’s Illinois Divorce Law Blog has been named one of the Top 50 Divorce Blogs in the country.

Mindy Smith wrote an interesting article in the Huffington Post last year on the “Ten Signs Your Marriage is Headed for Divorce.” I may not agree completely with her Top 10 List, but I include it for interesting reading. She listed the following:

RED FLAG #10: If your spouse is facebooking with his or her high school sweetheart on a daily basis, you may be heading for a divorce.

RED FLAG #9: If you spouse has gained more than 20% of his or her body weight, you may be headed for divorce.

The American Bar Association’s Section of Family Law adopted standards of civility for Family (Divorce and Custody) Attorneys. The ABA recognized that civility is important in family law practice. As a litigant and client, why should lawyer civility be important to you?

In my divorce and custody practice, there is a time for negotiation, and there is a time for aggressive representation of my client’s interests. Aggressive representation, however, does not suggest inflammatory or reckless litigation. In my 25 years of litigation experience, as a prosecutor and trial lawyer, the most successful approach to litigation is aggressive, focused civility. Lawyers that treat their clients with respect and care, who treat opposing lawyers with a measure of civility, and who show respect for the Court, get the best results.

Why, as a trial lawyer, act with civility? It saves you, the client, time and money, lowers the stress of the case, and gets the best results. If you hire an angry, reckless, “bulldog” lawyer for your case, you’ll spend more, have more anguish and stress, and your results will likely be far lower. Judges typically don’t respect the generalist “bulldog” lawyers.

Excerpted from the Huffington Post from an Article by HP writer Nancy Fagan (The Divorce Reporter) on attachments that continue after divorce. http://www.huffingtonpost.com/nancy-fagan/cut-the-marital-cord-alre_b_1018650.html

Michael Roe’s comments immediately below:

Nancy, a very interestin­g and legally sound article. Illinois has been a part of a trend toward requiring judges to do all that they can to terminate the connection­s with former spouses, once they are divorced. However, as there is also an expressed trend toward joint and shared parenting and permanent maintenanc­e (also known as alimony), in reality, the cord does not get completely severed in divorce. In Illinois, divorced parties of long term marriages are bound to each other through their duty to co-parent and through years of maintenanc­e and support payments.

Divorce is a very difficult life transition. Divorce is known to be one the highest stress events of a person’s life, especially when the divorce was unexpected or involves dramatic changes to the children in the marriage.

My job as a divorce and custody attorney is to help my clients navigate the divorce process as successfully as possible. Divorce is a difficult process, but it should not be a “war.” Wars, as we all know, end with casualties on both sides, cost a lot of money, and leave wounds that do not heal.

What basic advice can I give to help divorcing parties manage the stresses of divorce?

Divorces cost too much. I have practiced long enough in Illinois to understand that the process in the Illinois Court system of divorcing and reaching custody determinations takes too long, and costs the divorcing parties too much. My fees for divorce cases, including those that reach trial are always a fraction of that of my opponent’s fees, and I work hard to keep costs down for my clients, but I still feel that the present system promotes delay, stress and cost for families. Why is this so, and how can all of us in the system work to change it?

First, the process itself is inefficient. Divorce cases are filed, and the courts set lengthy periods in which the opposing parties appear to set case management schedules. Then there is the endless march of discovery: Marital Interrogatories and lengthy and cumbersome Requests to Produce Documents, subpoenas of bank and credit card records that the parties won’t produce voluntarily, depositions, motions, hearings over temporary issues: all of this activity which is billed to the client by the hour.

If the case can’t settle, there is trial preparation. Finally, months later, the trial date, whereupon the judge sets a pretrial conference in chambers and the lawyers and judge work toward settlement with the judge’s input. The lawyers then go out into the courtroom hallway and work with their clients under the pressure of the trial setting and try to settle the case.

Virtual Visitation and Out of State Removal of Children

“Virtual visitation” is a term that is gaining relevance in Illinois divorces. It refers to using online video programs like Skype to create a visual and audio connection by which physically distant parents can connect online with their children.

A recent New York divorce case granted a mother’s request for permission to move with her children to Florida, despite the fact that the children’s father would continue to live in New York. As a condition of the removal order, the mother had to agree to allow the children to visit with their father via Skype, an Internet service that allows for live videoconferencing. The New York judge noted that economic conditions justified the move, as the parents’ house was underwater, employment prospects were dim, and the mother had supportive family in Florida.

Personality Disorders affect the quality of marriages, and when the conflict and distortions in a marriage lead to a divorce and custody case, the harmful elements of the personality disorder can be raised and inflamed in the divorce case: intense anger, blaming, targeting, false allegations, parental alienation.

As Bill Eddy (expert and author of Splitting) has described, probably the most prevalent personality disorder in family court is Borderline Personality Disorder (BPD) — more commonly seen in women. BPD may be characterized by wide mood swings, intense anger even at benign events, idealization (such as of their spouse — or attorney) followed by devaluation (such as of their spouse — or attorney). Also common is Narcissistic Personality Disorder (NPD) — more often seen in men. There is a great preoccupation with the self to the exclusion of others. This may be the vulnerable type, which can appear similar to BPD, causing distorted perceptions of victimization followed by intense anger (such as in domestic violence or murder, for example the San Diego case of Betty Broderick). Or this can be the invulnerable type, who is detached, believes he is very superior and feels automatically entitled to special treatment.

It is then notable that the study committee on the DSM-5 is considering doing away with the NPD diagnosis, along with four other traditional DSM diagnoses. The committee seems to feel that the new DSM should create a “menu” of traits, and require the clinician to focus on the traits, rather than naming the cluster of traits as a specific diagnosis.

I receive calls and email every week from individuals about divorce mediation. These calls remind me that it is important for divorcing parents to understand what mediation is in Illinois, and how mediation fits into the divorce process in Illinois divorce courts. Mediation in Illinois can cover both the financial planning issues in divorce as well as the parenting issues. Illinois mandates that all divorcing parents with a custody dispute mediate these custody issues before they can litigate custody and visitation.

If you are required to mediate, what does mediation entail? Well, much depends on the parties and the mediator that is chosen. Among trained and experienced mediators, we recognize distinct styles of mediation: Facilitative, Evaluative and Transformative. When I am mediating a custody issue, I use a “Facilitative” approach with some elements from the Evaluative and Transformative models.

Facilitative: The mediator is helping the two parties make their decisions based on their individual definitions of fairness. I help the parties find common ground, and propose alternative parenting approaches. I can provide information and guidance but do not give recommendations or opinions. A divorce mediator in this model is helping the parties create a parenting plan that meets legal requirements, as well as that family’s needs.