Bench-Bar-& Beyond

Family is the basic economic unit of our culture. Earlier columns have examined the breakdown of family and problems related to assignment of family disputes to an adversarial judicial system. Problems related to child and spousal support epitomize the unanticipated difficulties of the transition to no-fault divorce administered by an adversarial judicial system. The traditional family was the ultimate consumer. Food, clothing, housing, transportation, and all of the basic requirements for life are a part of the family budget. The purchase of those necessities has been the bedrock on the entire economic system.

Difficulties with the management of money are a major cause of marital breakdown. In the traditional family before the breakdown in the second half of the Twentieth Century, law discouraged divorce. Economic forces within the family itself created pressure to make the family budget work. The policy of government and law did not encourage either parent to make decisions based on selfish economic interests. When marriage became just another contract, suddenly, the non-fungible, incommensurable duties of parents that included love, nurture, participation in moral formation, education and other responsibilities that do not lend themselves to monetary evaluation were assigned monetary value.

In the present day adversarial legal market for divorce, either party can readily obtain an evaluation of prospects for child support and spousal support. While spousal support is evaluated on somewhat equitable principals including the age, condition, station in life, length of the marriage, contributions to the marital estate and the like, child support is simply based on the prospective income of the two spouses. The system assigns a monetary value to things that can’t be bought.

The excellent intentions of law makers in requiring every parent to be responsible for the economic needs of their children is admirable, but when a system is created that allows economic motivation for divorce to be thrust into the core of every marriage with children, the unintended results are scary. The conversion of the responsibility of parenting to a monetary sum inserts a conflict of economic interest into every marriage that involves children. The appearance of an economic advantage is not limited to those marriages that would likely have ended in divorce anyway. The monetary child support obligation applies not just to the irresponsible parent-it applies to every parent.

The non-custodial parent is forced to pay child support. The custodial parent is not really accountable for the disposition of the child support that he or she receives. In a society in which drugs are problematic, and are not the only unhealthy possibility for the unattached custodial parent, the lack of accountability is a real problem.

The temptation to legally require accountability from the custodial parent is not a viable answer to the problem. An already overburdened court system could not take responsibility for managing the financial affairs of every family that undergoes a divorce, and impose and enforce some type of fiduciary responsibility, like that of a guardian, on the custodial parent. In the traditional family the wife and husband exacted some accountability of each other. To solve the accountability problem, we must again harness some of the energy that naturally brought the parents together in a bonded relationship and caused them to bond with the children in the first place. Without forcing incompatible couples to endure each other, we must discourage the animosity generated in our present adversarial system. We must create a system that encourages parents to work together for the best interest of the children. The support of extended family, community and church is needed. A new morality for grandparents needs to evolve, that is not shaped by the culture of adversarial divorce.

A widespread practice of pre-litigation mediation offers promise, for these and other problems related to the adversarial system of divorce. Without involving lawyers and the adversarial system of the courts, a mediator could meet with both parties and help to reach a successful voluntary solution. Then the parties could seek disinterested advice, and one of them could file for an uncontested divorce.

Use of pre-litigation mediation could be a stepping stone to a non-adversarial approach to divorces. Let’s look briefly at one possible alternative to the present system. Parties get their marriage license from the probate court. Perhaps mediated divorce agreements should be filed there, without involving the courts in which adversarial litigation is the ultimate solution. Carefully mediated agreements could explore new, creative roles for extended family, church, or other positive community organizations and forces. These natural forces might exercise creative influence in the resolution of marital problems.