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Divorce misery-can it be mitigated? Part Three

Posted by attorney Edna Straus

Who's Sane Here?

I offer the following as a rare judicial comment on the madness of this thing called "divorce" (litigated model)!

DaSilva v. DaSilva, C.A. 4th No. G032410

JOSE DaSILVA, Appellant, v. SHARON DaSILVA, Respondent. In the Court of Appeal of the State of California, Fourth Appellate District

"California's child support statutes are a legal world unto themselves." (In re Marriage of Hall (2000) 81 Cal.App.4th 313, 316.) When making a child support order, trial courts are faced with a "rigid algebraic formula" found in Family Code section 4055. The actual text of section 4055 would probably not be called the Legislature's most lucid work by anyone. It is . . . a ' glorified math problem.' One doesn't so much read it as plug numbers into the basic equation. ("CS = K [HN-(H%)(TN)]" -- There, we trust that's perfectly clear.) The statute virtually beckons the eyes to glaze over." (Id. at p. 317.) (Emphasis mine.)

Yet this is how we want our worst, most painful problems solved? By a stranger interpreting an insane formula? I think this is madness! We are used to it, but step far enough back and its sheer lunacy seems starkly clear.

Bridal to Battle

How do two people go from having a "going concern" to having a never-ending battle? I think the legal system is a large part of the problem. Yes, it's true - hurt and pain and age regression and trauma and misunderstandings are present in divorce. There is no way the decision by one spouse to dissolve a marriage can be painless for the other. But unmarried people manage to end relationships and grow apart without spending thousands of dollars and years of their lives doing it.

So, does a family have to be a casualty of divorce? No, not if we do two things. First, we have to remember that the family exists before and after a divorce, and then we need to give the parents (or spouses) tools and choices which encourage, nourish, and enable this family focus.

Does the battle have to follow the confusion?

The best way to do this is using "ADR" - "Appropriate Dispute Resolution." This means staying outside the courtroom, at a minimum. For some couples, that might mean using the California Summary Dissolution process. (This is only available for couples with short marriages no kids and no real property.) for some, it could be mediation, which is suffice for couples who are in full agreement on how they wasn't their family to be after divorce, but need expert help with the "how." But for many, if not most couples, who need help with many aspects of the family reorganization - financial, emotional AND legal - this would only be possible in the "Collaborative Divorce" model.

Why Haven't I Heard?

Recently this model has begun to receive media coverage, thanks to a few brave sols who were willing to "go public" with their stories. You will hear more and more about it in the coming year. Most family law Judges are enthusiastic about it, and some courts are sending letters recommending couples seek "ADR" and mentioning Collaborative Practice as one option.

The Bottom Line

What's the bottom line? Couples need to know that their divorce from each other should not, nor does it have to, mean they divorce their kids, and lose any semblance of family. This new model works for families, and it works for all the professionals who have watched in horror as the legal system of adversarial combat left no survivors. It has now been discussed on the Today Show (January 19th) and Talk of the City on KAPPA in Los Angeles February 9, 2005. But you may have to ask for "Collaborative Divorce." Don't take no for an answer.

As they used to say on "The X Files," the truth is out there!" And the truth is - divorcing your spouse no way means you have to divorce your family.

Additional resources provided by the author

The Internet. Books. Your local collaborative group.

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