Miau

The legal process of separation and divorce involves three main steps: filing for divorce, making financial arrangements, and if children are involved, deciding on child custody. If both partners agree on every- thing, the process is reasonably simple and straightforward. Given the emotional nature of divorce, however, it is more likely that the legal process is complicated, costly, and lengthy.

Filing for divorce. The first task is to file for divorce in family law court. To do this, the divorcing couple must find out which court has

jurisdiction for their particular case and what its requirements are. Ju- risdiction is tied to residency requirements, which vary across states. In most states, residency requirements range from three months to one year. Nevada has the shortest residency—only six weeks. In California, a person must have lived for at least six months in the state and at least three months in the particular county in which he or she intends to file. The original divorce petition can be filed in a number of ways. Many people hire a lawyer or paralegal service to write the petition and file it for them with the court, but it is also possible to file the petition in court oneself. Filing the petition involves a fee, which is paid to the court. Whoever files the petition, either husband or wife, is called the “petitioner”; the other spouse, who has to respond to the petition, is called the “respondent.” The easiest and least costly process is when the couple agrees on all important matters; if not, a judge will make the de- cisions and the couple must abide by the court orders. If the initial fil- ing is not contested by the other party, the divorce is granted at the end of the waiting period, which varies in most states from six to twelve months. Nevada’s waiting period, again six weeks, is the shortest.

Financial arrangements. In the past, marital property laws were biased in favor of the husband, who held title to the couple’s assets. Un- der English common law, wives were unable to hold and dispose of property until about , when statutes were passed to protect the rights of married women. At present in the United States, most states use traditional laws that vest all property to the husband. To achieve equity, however, judges may use their discretion to make an “equitable distribution.” In nine states, judges use the concept of “community property” to determine the division of possessions. Community prop- erty designates ownership of property or debt acquired during mar- riage, including all income earned during marriage and all property ac- quired with that income. Property owned before the marriage and any income from such property remains separate and apart. Inheritances or gifts specifically made to one spouse during the marriage or personal injury awards are also treated as separate property. Contractual agree- ments may also be made by the couple before the marriage (prenuptial) or during it (postnuptial) to allow them to maintain individual prop- erty.

to provide equitable treatment for both parties, it is not easy to divide the assets. Couples may not agree on what constitutes community property: after several years of marriage it is often difficult to prove who owned what before the marriage and to separate assets brought into the marriage from those acquired during the marriage. If there is disagreement, the process of discovering “who owns what” can itself become costly and time-consuming and may not always end equitably. It is also difficult to reach a fair division of property because of in- equities in what men and women want and need after divorce. Women often want to have the children and the house—because it is difficult to find a new more affordable place and because they want to maintain stability for the children—but both the house and the children mean a considerable financial burden and no possibility for financial gain. Meanwhile, the man’s “deal” leaves him largely free of obligations (mortgage payments, real estate taxes, child care) and more able to earn income—but “homeless.”

One obligation some men still have is to pay spousal and child support. Not so long ago, it was common for men to be ordered by the court to pay their ex-wife alimony ’til death did them part. Nowadays, spousal support is limited in amount and duration—if it is awarded at all.31 _{Most support is ordered for a relatively short time—a few} years—and there is a strong expectation that the supported spouse will be self-supporting after this transitional period. The no-fault divorce law basically eliminated permanent support for middle- and upper- class women; it certainly eliminated a level of support that would allow them to live in the style to which they were accustomed. If and how much spousal support is awarded depends on a number of factors. It is most likely for a husband to be ordered to pay spousal support when the couple had a high standard of living, the marriage was of long du- ration, the husband has a much greater earning capacity than the wife, the wife requires a period of time to become self-supporting, she has more needs than the husband (for example, the need to complete col- lege in order to become self-supporting), she has more responsibility for the children, and she is unable to work without adverse effects on the children.

Child custody. Decisions concerning child custody and visitation can be even more complicated than the financial arrangements. Both

parents want to remain involved with their children, but neither one necessarily wants to bear the entire burden and responsibility of being the sole parent; everyone needs some time for himself or herself. Both parents want to have some control over their children’s lives and want to be free of the other parent’s interfering, but each would probably like some encouragement from the other parent for their efforts. Working out this delicate balance between cooperation and control is tricky. If parents can come to a decision about custody, the court will respect it. If they cannot, the judge steps in and makes a decision based on “the best interests of the child.” (The issue of child custody is dis- cussed in detail in Chapter .)

As this brief discussion implies, the legal road to divorce is not an easy or obvious one. Most people quickly realize that they are poorly prepared for the challenges of the legal process. They blindly hope that an experienced judge will see their perspective clearly, recognize their needs, and make an order that will settle affairs in their favor. The real- ity is quite different. The court is a world with its own authoritarian rules based on the “adversarial model” of adjudication, a concept de- rived from English law. This model presumes that it is best if the par- ties to a dispute openly present their different views to an impartial third party, the judge, who listens and eventually decides what should happen. It is presumed that fairness will result when both parties are al- lowed to examine the meaning and accuracy of each other’s claims. Difficulties arise because the presentation of evidence demands very detailed and strict rules. Typically, attorneys know how to handle this; the client, however, is likely to get lost in the rules and the legal lan- guage. It is particularly difficult if one side has an advantage over the other—for example, if one side is represented by an attorney and the other is not, or if one side has a more skilled attorney than the other. When this happens, outcomes may be biased in favor of the advan- taged party. This is a huge problem; any mistakes in the legal setting can have severe and long-lasting consequences—a fact that many go- ing through divorce realize only belatedly. In one recent study, re- searchers found that although many participants entered the divorce process expecting a fair and reasonable experience and outcome, only  percent of them ended the process believing that they had a positive experience.32_{Instead, they felt a complete lack of power and control}

over the outcome. When people feel the legal process is unfair, more- over, the negative consequences spill over onto their views of the out- come. Perceived inequities in the court process lead people to be less satisfied with the final divorce decree and the child custody order.33

So should individuals hire a lawyer to help them navigate the shoals of divorce and get a better deal? Lawyers are not necessary for di- vorce. From a legal standpoint, it is possible for a couple to initiate and handle the entire process by themselves. But often lawyers are involved because spouses do not communicate well with each other, because the issues they are dealing with are complex, and because the legal pro- ceedings are intricate, involving legal forms and terms, detailed rules, and deadlines to observe. It seems easier to have a lawyer take care of things. Many people also feel angry and hurt or they are afraid that their children will be taken away; therefore, they feel a strong need for legal counsel. Unfortunately, the lawyer’s role in divorce is ambiguous, and his or her training may be inappropriate for expediting the di- vorce. Only a small number of lawyers are family law specialists, and even those who are trained in family law may be programmed to argue for their client’s position, right or wrong. It is not their job to be con- ciliatory, to negotiate, or to decide what is right or best. Their role is to win the case. This adversarial style can magnify ill will and increase hostility between husband and wife.

People assume that lawyers know what they’re doing and how to handle divorce best. Still, not all lawyers are competent, and they can be careless at filling out forms and following procedures. They may leave some issues unresolved—like who will take care of the children, where the children will be educated, and whether there is life insurance to cover the children. They may also strike bargains with the opposing attorney or the judge that are convenient for them but turn out not to be so good for their client. In one study, fifty-three of the fifty-six women who dealt with lawyers during their divorce had strong com- plaints about them.34 _{The most common complaints were that the} lawyers had not informed them about the legal process; they had made mistakes that cost the women money, time, and grief; and, most telling, these women claimed, the lawyers were not interested in their problems. In another study, researchers found that lawyers’ actions of- ten raised the emotional level of the divorce dispute.35_{These findings}

are disappointingly consistent with research done three decades ago. In a study of divorcing couples in the mid-s, researchers found that the majority of court clients were dissatisfied with the legal system; they found that their attorneys gave them advice to act in ways that re- duced their chances of reconciliation and also encouraged them to lie or make trumped-up statements to the judge.36

An alternative to using a lawyer to fight a battle in the courtroom is to use a mediator. The goal of mediation is negotiation, not winning a battle. Mediators are trained to defuse conflicts and achieve win-win solutions (see Chapter ). Some couples are able to resolve their differ- ences with a mediator’s help and avoid a courtroom scene. If going to court is unavoidable, however, would-be divorcers should prepare for the legal process. They should gather information about finding and working with a lawyer, about legal terms and legal documents that need to be filed, about their rights, about child custody and support rules, about what it’s like to go to trial, and about alternative dispute resolution procedures. They should understand the motions their lawyers file and should help the lawyer prepare arguments and evi- dence. It is essential in going through the divisions of divorce that peo- ple have realistic expectations and make reasonable demands. They should think through their true needs from a long-term perspective and decide how these can be served by decisions about child custody, property, and spousal and child support. If each party’s position is to grab as much as possible for themselves in the division of children and assets, a long legal and emotional battle is likely.

Summary

Divorce is a complex, drawn-out process. The decision to divorce may take years as individuals engage in cost-benefit analyses and vacillate between staying and leaving. Women are more likely than men to see problems in the marriage and to initiate the divorce. The period im- mediately after the actual physical separation is usually characterized by high levels of distress—more stress than the actual divorce. Loneli- ness and coping with living alone are key stressors, and physical and psychological health problems are common. Divorcing people must face a series of challenges and decisions pertaining to legal procedures,

child custody, financial and living arrangements, spousal and child support, and single parenting and single life.

The psychological tasks of separation include accepting the fact that the marriage has failed and processing the loss. Parents are faced with the extra challenge of having to provide reassurance and care for their children at a time of turmoil. Moreover, they must establish a functioning coparenting relationship with the other parent. Divorcing individuals also experience changes in their social networks. They typ- ically lose some of the friends they had as a couple and need to make ef- forts to rebuild their social network with new friends. The challenges of coping with the legal system arise when couples cannot agree on the postdivorce arrangements and decide to seek third-party help. Dealing with legal procedures adds complex demands that are costly in terms of finances, time, and emotions. In sum, the time leading up to the di- vorce decision and the actual separation are transitional periods in which spouses need to make important, life-altering decisions, manage the multifaceted challenges resulting from the decisions, and cope with the stresses of adjusting to single life and single parenting.

4

Adults in the Aftermath