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To Court, To Family Court?

Posted Jan 17 2008 11:21am

Court is a place to determine peoples' guilt or innocence.

Not matter on which side of the divorce complaint you reside, no one wants to be judged, nor should we be. I contend that Family Court is no place to formally dissolve a marriage, especially in high conflict cases, involving children, which are the ones that most often end up in front of the judge.

There is no "family" in this court process. There is no recognition of potential changes as the children grow older and circumstances, mostly unforeseen, occur. There is no room in the current system to respond to anticipated needs, or unanticipated issues facing the parties.

Additionally, in all other walks of life, past behavior is considered a good predictor of future behavior. So we shouldn't expect that either party will "change"; and if s/he does, there's no telling if it will be for better or worse. Certainly, a couple who arrives at court seeking a divorce shouldn't be expected to change, at least when it comes to dealing with each other. Yet, these factors are ignored in place of a "clean slate". Since when is a high conflict divorce "clean"?

The following comments are reserved for high conflict divorces because the game of control (aka Power) and disingenuous financial disclosure are commonplace. Lip service is paid to the "best interests of the child(ren". Interestingly, a quick Google search reveals that I am not the first or only person to come to similar conclusions. Experts in the field have proposed similar concepts, so maybe a public discourse will promote changes:

MONEY/ASSETS: Wasting time filling out CIS (case information statements) is simply an exercise in futility. It is more often an effort to boost or disguise the truth or an effort to seek a perceived advantage.
Instead, since the goal is to create an actual financial picture: a compilation of information taken from that past 3-5 years: Bank/investment statements, charge card statements, and tax returns collectively provide an unbiased and legally acceptable base from which to work.
Certainly, a number of divorcing couples used the services of an accountant who filed tax returns, or maybe sought the advise of a financial planner. An accountant will know the economics of the marriage, and the lifestyle of the family: facts like income, savings, and investments and expenses. I would propose that an accountant could best divide assets and create a financial plan that takes into account the realities of raising children in 2 households.
Let the cold hard cash and impact of a change in finances drive decisions regarding the marital home, child support and alimony. However, I contend that it is always in the best interest of the children to stay in their home, and that this should be viewed as a primary goal, rather than a purely "equally divided" effort. There is no pure or equal. Let's call a spade, a spade. The children should get the house unless it is substantial enough that a sale would permit both parents to buy homes.

CUSTODY: Determining how and when the children will see both parents is currently colored by economics.

We lock families into a schedule based on a moment in time. Instead, there should be a process by which the schedule is revisited so all parties can weigh in on how it's working, especially in the first year. I suggest that neither judge nor attorneys are equipped or qualified to suggest a parenting schedule.
A high conflict divorce should be assigned to a qualified child therapist who can consider the best parenting schedule for the children. The schedule should be reviewed every year or so, since we cannot predict the future, and we know that children's needs change and evolve with age. It is both senseless and ludicrous that we formulate a parenting schedule, forged under duress, and with lawyers pressuring quick decisions, that is suppose to remain in effect infinitum.

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