Divorce Without Dishonor

This article is continued from Wednesday. 

Who’s Sane Here?

I offer the following as a rare judicial comment on the madness of this!

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.

About the Author E. Carroll Straus

Caroll Straus is a California lawyer whose experience reflects her global/holistic inclination, as she has worked for both “sides” of personal injury– Plaintiff and Defense, as well as three (yes three!) aspects of Worker’s Comp– injured workers, employers and as a consultant for all parties, and insurance defense subrogation.

In the area of Family Law, she has led the way in areas such as “unbundled services” and collaborative divorce. The common denominator in both of these was her conviction that the public was being ill served by limited (and costly) options and so she made better ones available long before they were accepted as mainstream.

Her current conviction is that the divorce system brings out the worst in people and this they need a legally savvy “coach” to assist them to remain (or become) sane before, during or after they find themselves caught up in it. I am about to launch her ebook called “Finding Your Way Home: Affirmations for Divorce Healing, Before, During or After.”

Continued from Monday. 

Wasted Resources

Angry, frustrated (and sometimes baffled) men – usually the high earners in the family unit, but the low “time share” parent after divorce–have formed some “Fathers Rights” groups. This is odd, when you see the studies that show that women as a group are left much worse off financially after divorce. Still, the men are always miserable paying “alimony”. Sadly, the end result of this is that men are paying money to women they no longer have intimate bonds with, and women are remain dependent on money from men they no longer respect. The bonds of the marriage are also then not quite ended, which has a psychic or spiritual cost.

But inevitably, even in cases where incomes are equal, families are torn apart and the children are invariably the innocent bystanders. We know this, yet the system pretends it isn’t so. The effects on children in adversarial conflict cases range from life long abandonment issues, to assuming that intimate relationships are temporary to being unable to BE married. Not to mention tnat children have no models for resolving conflict with love. (I know…you get the idea.)

In “traditional” divorce it is virtually impossible for the family to stay a family. Before it’s dome, both parents have, in most cases, done things they would not want on the 6:00 news. On some level, in some way, they have succumbed to the culture of ugliness, and done things they would not want done to them.

Many people accept as “received wisdom” that people going through divorce are – and must be – angry, hostile, and in what some call a “divorce trance.” They point to the visible ugliness seen in court cases (and lawyers’ offices) as proof.

Bad Habits

But to assert that bad behavior (the divorcing norm) represents acceptable behavior is like asserting that because we all feel like hitting someone sometimes it’s OK to do so. But it’s not, and we all know that. Spousal abuse used to be accepted – now it is not. Divorce dysfunction can also be seen as unacceptable. I predict it will be.

Grown Up and Childish

Christ — and Buddha, Mohammed, Hillel and Baha’u'llah—have all said to treat others as we would be treated. Not one said “except when they have upset you first.” Divorce is a loss, and we all experience loss as an event outside our comfort zone and outside our more usual coping mechanisms. But it is not a “get out of jail free” card for acting out our worst impulses. And quietly, outside the view of the courts and their neighbors, many divorcing couples avoid divorce court — and behave well. (I know…but I repeat myself.)

This group has been “off the radar” of the legal profession to a large degree, but they exist. They have always existed. They get past their anger, and some even deliberately choose to learn, to accept the reality that any relationship problems take both partners to create, and both partners to maintain. Still more are determined not to harm their children, no matter how much they may be disillusioned about one another — but need legal assistance to do it.

It’s time their options changed.

NEW FLASH! There are new options! No one has to be ground up in a court case. The sad truth is that the outcome of a traditional case is shaped by the tradition legal model – not the other way around. That is to say – the ugliness of most dissolutions as caused by a system which 1) presupposes it 2) amplifies it, and 3) does not have any focus on or mechanism for preserving the family (or changed –but still critical– relationships between parents.) Think about it; assuming unresolved emotional issues, “baggage” or wounds cause most divorces (not a stretch from where I sit) then it follows rather logically that these wounds/issues/baggage will come along into the process of dissolving the marriage,and be amplified if they are played out in an adversarial system.

Traditional litigation assumes that truth (reconstruction some past event which caused harm) will emerge from the clash of opposing viewpoints. This may well be true – but in a no fault divorce world—most states–marriage, divorce, and “family law” are not about “facts in the past.” (True, in large asset cases, these sorts of reconstructions may be a small part of the overall process – but the transaction costs of hiring experts to fight these things out is huge. I as told by one of his attorneys , oil Baron T. Boone Pickens’ divorce cost millions.) And what of the future of the entity which is not ending in most divorces — the family?

Orphans of the Family Court

Children seldom have a choice in these cases – and far less seldom are they pleased about them! Their parents are saying, “We don’t love each other any more…” (I have a different opinion about that, but that is the model most people buy into.) Then they are told “But we won’t stop loving you!” If you were that kid, would you believe this?

We, as adults, know there is a qualitative difference between intimate relationships and family relationships – but children do not. “I will stop loving Daddy but won’t stop loving you” makes no sense to a child. Nor does “I still love your mother” when the family is in turmoil. And worse yet, many well meaning parents end up seeking the comfort they gained from the lost spouse from the children. And many–  perhaps most– are implicitly asked to choose between parents. This is so destructive for a child it cannot be overstated. (And yes, I do speak from personal experience here!)

The Walking Wounded

So, the level of emotional maturity that it takes to rise above the wounds we have from ending our marriage (to avoid the wounds litigation leaves in its wake) seems to be more than most people can manage. And because of this, the accepted norm –bad feelings and bad behavior– is treated as a fact of life. Well – the bad feeling may be, for a time, a fact of life in divorce – but bad behavior is bad behavior, and is not excused – or made normative – by history. Sadly, this is accepted by may as the way things are. Some of us think it is toxic, at times sadistic — and needs to change.

This article is continued on Friday.

About the Author E. Carroll Straus

Caroll Straus is a California lawyer whose experience reflects her global/holistic inclination, as she has worked for both “sides” of personal injury– Plaintiff and Defense, as well as three (yes three!) aspects of Worker’s Comp– injured workers, employers and as a consultant for all parties, and insurance defense subrogation.

In the area of Family Law, she has led the way in areas such as “unbundled services” and collaborative divorce. The common denominator in both of these was her conviction that the public was being ill served by limited (and costly) options and so she made better ones available long before they were accepted as mainstream.

Her current conviction is that the divorce system brings out the worst in people and this they need a legally savvy “coach” to assist them to remain (or become) sane before, during or after they find themselves caught up in it. I am about to launch her ebook called “Finding Your Way Home: Affirmations for Divorce Healing, Before, During or After.”

Happy Beginnings

The following tidbit is not news, but there is a reason you are reading it. So—here goes.

Literally hundreds of thousands of people get married every year. Most are happy when they decide to wed, and when they marry, they are convinced they are going to be even happier. They buy expensive dresses, more expensive rings. They plan grand parties and splurge on lavish get-aways – and they vow their commitment to being “us.” They stop being individuals and become “a couple.” This has an irrevocable aspect.
And then…after a while…they are not always so happy. Misunderstandings set in. The person they wake up to is not the person the imagined themselves attaching their lives to. (Somehow this catches us by surprise. I know – I’ve been there.) Next stop—divorce.

Unhappy Middles

Getting uncoupled is no fun. Plans change. Dreams die. Uncertainty looms. Identities must change. But these changes can be dealt with. (I know – I did it.)

Moreover, many of these couples have had children in the years between “I do” and “I don’t.” They have become families. There are more actors in the play than there were at “I do.” And yet, there is no game plan, no budget, no insurance, to pay for the process called divorce. There is no easy solution when this occurs. Chaos reigns. And this occurs in half the marriages! This state of affairs is not seen as a crisis, because it is so common, but if this were a disease, the NIH would be putting warning labels somewhere!

Why does this statistic seem to be hovering near the 50% mark? Maybe because (despite the statistics) most people still expect to have stability in their primary relationships, and kids are part of the ideal image they have. Maybe because most of them want to be part of a family — maybe the family they never had—yet no one has taught them how. And for sure there are two sets of unspoken (and unmet) expectations in each marriage. Maybe times have changed too fast. Who knows?

What we do know is that an enormous number of these families, across the nation and across income groups and backgrounds, are families in which Mommy and Daddy are deciding (or have decided)  to end their marriages. (I know — I grew up in one.)

And all across America, hundreds of thousands of dollars are being spent on divorces. This is just the simple ones where the legal case technically ends when the judgment is entered. (What few realize is that the case actually continues until there are no more minor children. You are under a “life sentence” when you have kids, and you are divorced.)

But some people keep fighting, after the final court hearing. This is how case law is made, and some of these end up on the news. In every one of these cases that end up making new law (say, on when grandparents can be denied visitation, when parents can or can’t move away, when same sex couples are both parents and when one is not, when s child support is enough—the list goes on) many more hundreds of thousands of dollars are spent on appeals. Major financial resources are devoted to (theoretically) untangling conflict the family is engaged in — money that could have been spent to educate children, or start new lives. All this is the result of disputes about what happens to the family. But what scares me is that is all based on a delusion—that any judge can possibly know what’s best for YOUR child!

This article will be continued on Wednesday.

About the Author E. Carroll Straus

Caroll Straus is a California lawyer whose experience reflects her global/holistic inclination, as she has worked for both “sides” of personal injury– Plaintiff and Defense, as well as three (yes three!) aspects of Worker’s Comp– injured workers, employers and as a consultant for all parties, and insurance defense subrogation.

In the area of Family Law, she has led the way in areas such as “unbundled services” and collaborative divorce. The common denominator in both of these was her conviction that the public was being ill served by limited (and costly) options and so she made better ones available long before they were accepted as mainstream.

Her current conviction is that the divorce system brings out the worst in people and this they need a legally savvy “coach” to assist them to remain (or become) sane before, during or after they find themselves caught up in it. I am about to launch her ebook called “Finding Your Way Home: Affirmations for Divorce Healing, Before, During or After.”

To say that I was impressed and pleased at what you have created is indeed an understatement. I found the book easy to read and jam-packed with insights, information and guidance, the likes of which I have yet to see anywhere else. 

I have been practicing custody litigation for over 27 years and I am a Certified Family Law Specialist here in California (so certified by the California State Bar Board of Legal Specialization) and I have, quite literally, seen it all in this area, as I suspect you have as well. You have created a resource I plan on sending my clients to as often as possible. 

Your book should be required reading for anyone with children, whether divorce or custody litigation is looming in their future or not.  This is a valuable read for parents, period. 

It helps us to understand the depths of the emotions and consequences that our behavior as adults and parents in these difficult situations can have on our children and their children’s children, and so on, quite literally for generations to come. 

The resources you provide are clear and even-handed.  You have created a road map for successful parenting that should become a staple in every custody lawyer’s library and a recommended resource on every courthouse web site.  I will continue to use, refer to and recommend this invaluable resource and I look forward to being able to direct my clients and my colleagues to a website where they can buy this book. 

Thank you Mike for writing this book. I can see that it has a lot of “you” in it and your candor, wisdom and guidance has already helped me as a parent and as a custody lawyer. You should be very, very proud of this work.

Marshall E. Waller, Certified Family Law Specialist

Dr. Phil “Best of the Best” Child Custody Attorney

“STOP Fighting Over the Kids”, by Attorney Mike Mastracci, will become a
classic, to be added to the shelves of all professionals who work with separating and divorcing families. It is a personal and comprehensive work which is both inspirational as well as practical. Attorney Mastracci pulls no punches. He speaks directly to parents, reminding them of their highest obligation, which is to keep their children safe, secure, well cared for and healthy.

This direct, no-nonsense, sometimes colorful, approach is effective because he weaves his personal experiences with his professional ones; every word hits the right note. The lists of Do’s and Don”ts at the end of most chapters will become easy reference guides for parents. I can see myself printing out some of those lists to hand to particular clients; they are that practical and realistic. Buy this book by the dozen and start handing it out to your clients now.

Attorney Rita S. Pollak

Rita S. Pollak is the Past-President of the International Academy of  Collaborative Professionals (IACP), Past President of the Massachusetts Collaborative Law Council (MCLC), and Past President of the Massachusetts chapter of the Association of Family and Conciliation Courts (AFCC).

You can visit her on the Web at www.collaborativepractice.com.

In the spirit of Christmas, I would like to share with you the following email I received from a friend. It’s about compassion, love, humanity, helping those less fortunate than ourselves and the choices we make in our everyday lives.  

Have a Shay Day! 

At a fundraising dinner for a school that serves learning-disabled children, the father of one of the students delivered a speech that would never be forgotten by all who attended. After extolling the school and its dedicated staff, he offered a question: “When not interfered with by outside influences, everything nature does is done with perfection. Yet my son, Shay, cannot learn things as other children do. He cannot understand things as other children do. Where is the natural order of things in my son?”

The audience was stilled by the query. The father continued. “I believe that when a child like Shay, physically and mentally handicapped, comes into the world, an opportunity to realize true human nature presents itself, and it comes in the way other people treat that child.”

Then he told the following story:

Shay and his father had walked past a park where some boys Shay knew were playing baseball. Shay asked, “Do you think they’ll let me play?”  Shay’s father knew that most of the boys would not want someone like Shay on their team, but the father also understood that if his son were allowed to play, it would give him a much-needed sense of belonging and some confidence to be accepted by others in spite of his handicaps.

Shay’s father approached one of the boys on the field and asked (not expecting much) if Shay could play. The boy looked around for guidance and said, “We’re losing by six runs and the game is in the eighth inning. I guess he can be on our team and we’ll try to put him in to bat in the ninth inning.”

Shay struggled over to the team’s bench and, with a broad smile, put on a team shirt. His father watched with a small tear in his eye and warmth in his heart. The boys saw the father’s joy at his son being accepted. In the bottom of the eighth inning, Shay’s team scored a few runs but was still behind by three. In the top of the ninth inning, Shay put on a glove and played in the right field. Even though no hits came his way, he was obviously ecstatic just to be in the game and on the field, grinning from ear to ear as his father waved to him from the stands. In the bottom of the ninth inning, Shay’s team scored again. Now, with two outs and the bases loaded, the potential winning run was on base and Shay was scheduled to be next at bat.

At this juncture, do the boys let Shay bat and give away their chance to win the game? Surprisingly, Shay was given the bat. Everyone knew that a hit was all but impossible because Shay didn’t even know how to hold the bat properly, much less connect with the ball. However, as Shay stepped up to the plate, the pitcher, recognizing that the other team was putting winning aside for this moment in Shay’s life, moved in a few steps to lob the ball in softly so Shay could at least make contact. The first pitch came and Shay swung clumsily and missed. The pitcher again took a few steps forward to toss the ball softly towards Shay. As the pitch came in, Shay swung at the ball and hit a slow ground ball right back to the pitcher.

The game would now be over. The pitcher picked up the soft grounder and could have easily thrown the ball to the first baseman. Shay would have been out and that would have been the end of the game. Instead, the pitcher threw the ball right over the first baseman’s head, out of reach of all his team mates. Everyone from the stands and both teams started yelling, “Shay, run to first! Run to first!” Never in his life had Shay ever run that far, but he made it to first base. He scampered down the baseline, wide-eyed and startled.

Everyone yelled, “Run to second, run to second!” Catching his breath, Shay awkwardly ran towards second, gleaming and struggling to make it to the base. By the time Shay rounded towards second base, the right-fielder had the ball – the smallest guy on their team who now had his first chance to be the hero for his team. He could have thrown the ball to the second baseman for the tag, but he understood the pitcher’s intentions; so he, too, intentionally threw the ball high and far over the third-baseman’s head. Shay ran toward third base as the runners ahead of him circled the bases toward home. All were screaming, “Shay, Shay, Shay, all the way, Shay!”

Shay reached third base because the opposing shortstop ran to help him by turning him in the direction of third base and shouted, “Run to third! Shay, run to third!” As Shay rounded third, the boys from both teams and the spectators were on their feet screaming, “Shay, run home! Run home!” Shay ran to home, stepped on the plate and was cheered as the hero who hit the grand slam and won the game for his team.

“That day,” said the father softly with tears now rolling down his face, “the boys from both teams helped bring a piece of true love and humanity into this world.”

Shay didn’t make it to another summer. He died that winter, having never forgotten being the hero and making his father so happy, and coming home and seeing his Mother tearfully embrace her little hero of the day!

I was touched by this story and the thoughtful words of the original sender: “We all send thousands of jokes through email without a second thought, but when it comes to sending messages about life choices, people hesitate. The crude, vulgar and often obscene pass freely through cyberspace; but public discussion about decency is too often suppressed in our schools and workplaces. We can all make a difference. We all have thousands of opportunities every single day to help realize the ‘natural order of things.’ So many seemingly trivial interactions between two people present us with a choice: Do we pass along a little spark of love and humanity or do we pass up those opportunities and leave the world a little bit colder in the process?”

A wise man once said, our society is judged by how we treat the least fortunate amongst us. It’s a good lesson for each of us and a good lesson to teach our children. Merry Christmas! Have a Shay Day!

Do you believe that you have you been screwed by your ex, your divorce lawyer, a judge, the system?

Please share your story on this thread. The purpose is not just to create a meaningless "complaint department." It is intended to help "new-bees" (those new to the divorce process) realize that litigation does not usually end in a positive outcome, especially when children are involved.   People need to realize that much more time and effort needs to be spent in trying to avoid going to court rather than preparing to "prove your case" in court.  While there are times when litigation is needed, more often than not, hindsight says otherwise.  What do you think?

Help others by posting your comments to the "Hall of Shame."  Post your comments here. Thank you for sharing!

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