“The Ring of Fire” is one of Johnny Cash’s best known songs and while he was singing about falling in love, he could have just as easily been describing the experience of a litigated divorce. Litigation is a lethal force like a wild fire that consumes everything in its path: money, time, relationships, personality, children, friends, etc. A litigated divorce at best singes and at worst leaves nothing but scorched earth.
The legal process experienced by 50% or more of marriages in the United States is a process of destruction based in the English law system that defined women and children as chattel. Historically, the husband was the “owner” of the wife and the children thereby dictating their fate. The litigated divorce continues this practice by forcing the parties to prove that one of them is good and one is bad. When considering custody and access schedules, this mindset is particularly destructive as the parties attempt to prove that one is a bad parent and one is a good parent. The destruction that ensues leaves families with full thickness burns.
Numerous social changes have made the premise of litigation for divorce obsolete, yet we continue to use litigation as the main means of divorce. In our current society, parenting is more often a shared responsibility and roles are no longer gender specific. Women have developed their abilities and function in the work world as financial equals. Society no longer accepts male dominance as the norm.
In truth, the couple system rarely dissolves completely after divorce and clearly the family in terms of parenting does not come to an end. The process of parenting becomes more complicated, requiring clear lines of communication and decision making that may not have existed in the marriage. The parents are left with the task of developing two separate but interconnected families that must travel through life together. This new system is sometimes referred to as a bi-nuclear family.
In truth, when a couple desires to part and move in different directions, the family remains in existence whether or not they have children. Integral relationships have been built with in-laws, extended relatives and friends. Restructuring these relationships should be the work of the couple and not the court system that requires relatives and friends to choose sides, testify and too often exaggerate events to give one party the advantage in a pitched battle for resources and relationships. A litigated divorce is not seeking the truth; it is seeking victory for one party over the other. A litigated divorce does not recognize the importance of continued connection following the battle.
When children are present, our obligation to improve the divorce process and help families to create a new structure that will maintain the integrity of each parent and support continuing relational growth becomes even more critical. The numerous fires that are set in the course of a litigated divorce make this nearly impossible.
Our language and our processes have to change. Families need to find ways of restructuring themselves and not destroying themselves. In the rail yard when two cars are uncoupled, they continue to retain their individual integrity even as they move in different directions. In the court system when a marriage is dissolved, individual integrity is often destroyed as well. The family’s financial resources are often drained in the service of battle.
When a couple decides to go in separate directions, they move toward creating two new families that will continue to interface for the rest of their lives. New things get created. Parents need to focus on creating a bi-nuclear family that will enable their children to benefit from past and future relationships. The nuclear family must be transformed into a more complicated system that has room for new parents, new siblings, new places and new experiences.
One approach to helping families restructure themselves and stay out of court is the collaborative divorce process. In this process, the parties are supported by a team of professionals as they work to examine all of the parts of their relationship that need to be transformed. This team consists of lawyers experienced in divorce law who advise the parties and work together to educate the parties on the law as it applies to their specific situation. The team uses a financial expert who serves as a neutral person who meets with the parties to help them disclose all of their finances to each other, understand their finances in the present and the impact of their financial needs in the future. The team may also include a child specialist who meets with the children to identify the needs of the children and the sibling system in order to give the parents clear, objective information that they can use to develop parenting plans for the future. And the team includes mental health professionals who serve to coach each party on how to process and manage their feelings as well as identify their needs and interests as they build new lives in the future. Each member of the team is bound to avoid court. Even if the collaborative process breaks down and the parties begin litigation, none of the team members may be called to testify or produce any work product related to the collaborative process.
In the collaborative process the parties are given the responsibility of working together to transform their relationship and develop competent plans for the future. Each person is treated as valuable and important and the needs of each are considered side by side as plans and solutions for the future are developed. This process acknowledges that each of them has contributed to the need to separate and divorce. No one is good while the other is bad. They are asked to draw on their best selves to generate options for meeting the needs of the future and to recognize that they will continue to interface with each other in important ways.
Through the collaborative process, the couple often experiences an opportunity to heal their wounds and establish a better understanding of each other. As they appreciate the concerns that each has for themselves and their children, they develop a dialogue that leads to creating ways to meet those needs respectively. The attack/defend mentality of litigation is replaced with the explore/comprehend thinking that leads to creative problem solving. The families emerging from the demise of the marriage have the opportunity to grow into respectful neighbors creating a sense of safety and support for the children who will continue to move back and forth. No ring of fire. More of a ring of hope.