It may sound appealing, the notion that a judge, an official smart person, will decide who gets what, making your spouse pay, literally, for all the unhappiness she wrought. But for the vast majority of us, the court is the worst place to go to figure out a divorce or separation.
As family law reformers continue to point out, since the first family court was created in Ohio nearly 100 years ago, the adversarial system has proven a disaster for families. Fighting in court over child support or visitation hurts children. The so called “final orders” handed down by a judge tend to not be so final; your kids' wants and needs change over time, and a settlement hammered out in seething resentment can look downright crazy once the fog clears.
Also, courts are overcrowded and family judges often tapped out. There have been huge advances in the family court, as I write about in Splitopia, including self-help centers and court navigators. But budget cuts to the courts are shrinking these programs, and legal scholars see court-based resources as seriously inadequate.
The courtroom itself can harden bad feelings into hate. Judge Robert Hyatt, whom I interviewed for my book, describes the courtroom as cold, alienating, and a place that can make you want to “punch your way out of it.”
Housing divorce in court is a remnant from the pre-no fault days, back when divorce was a punishment one spouse sought against the other for a crime, such as adultery or abandonment. Under no fault law, divorce is more akin to a family reorganization.
You're seeking to restructure your family in the best way possible, given the end of your marriage. There's no reason to be planning your children's future alongside desperate citizens seeking restraining orders against violent abusers—and exposing your children to the stress of the court at this time, in this way.
Divorce need not be a disaster for kids, but how you do it matters.
At the Resource Center for Separation and Divorcing Families in Denver, since transformed into the Center for Out of Court Divorce, I met couples who'd entered the center fighting, but left something more like friends, or at least partners in parenting. The out-of-court idea is holistic; couples get financial and legal education, therapy if they need it, workshops for their children, a mediator to help them decide and divide. It's a cooperative, teamwork approach to helping a couple come apart. The couples I met gained more knowledge about the law and themselves through the divorce process as well as a clearer understanding of their financial situation and a separation agreement and parenting plan that felt fair and logical. They left with optimism about their future as unmarried individuals, and as co-parents.
To read more about the out of court divorce, see this piece I wrote about the Resource Center and other efforts to improve the divorce process (after Gwyneth Paltrow's announcement of her intention to part in a positive, constructive way).
Want to get involved in improving family life? Learn more about the Center for Out of Court Divorce.
* This post originally appeared Wendy Paris's website, wendyparis.com.
Wendy Paris is the author of Splitopia: Dispatches from Today's Good Divorce and How to Part Well (Simon & Schuster/Atria, 2016). Splitopia and her work on divorce have been covered by The New York Times, Real Simple, The Washington Post, The New York Post, The Globe & Mail, Psychology Today, The Houston Chronicle, Salon.com, Parents.com, Family Law Quarterly, PsychCentral.com and radio and TV shows nationwide. She has an MFA in creative nonfiction writing from Columbia University, and is an advocate for family law reform. She is divorced, and lives in Santa Monica, California, a few blocks from her former husband, with whom she has a warm co-parenting relationship.