People are Rational and Generally Make Good Choices: But They Can Be Tricked: Ten Tricks in the Traditional Family Law System

Yes!  You might remember Monty Hall and “The Price is Right”.  At end the of the show, the contestant who had won the most money was shown three doors, behind two of which were some cheap junk but behind one was a big prize – maybe a fancy car.  They were to choose a door and receive whatever was behind it.  But, after they chose, there was one more step.  Say she chose door #1.  She knew her odds were 1 in 3 that she chose the car.  Then Monty would tell the assistant to open one of the remaining doors, say door #2, and sure enough, junk.  Remember, Monty knows which door has the car.  Now it was down to two doors.  This is the first trick: creating the illusion that now the odds had improved and were 1 in 2.  Next Monty asked if she would like to stay with door #1 or switch to door #3: this is the second trick.  People feel loss more intensely than they feel gain.  If the car is behind door #1 and she switches, she will feel that she had the car and lost it- a more intense feeling than if she stays with #1 but the car is behind #3.  “I blew it” is a worse feeling than “too bad.”  Most contestants stayed with their first choice.  What is the trick?  The odds never changed: the odds that #1 has the car are 1 in 3, so the odds that the car is behind #3 are 2 in 3.  She should always switch, because feeling bad is “better” than feeling she blew it.

What does this have to do with family law?  We argue that the traditional legal system unintentionally tricks divorcing spouses into making bad choices.  The first trick is distracting spouses from their goals.  Lawyers live in a world in which legal outcomes complete the case and getting to those outcomes is the task. Legal outcomes are the lawyer goals.  People coming into the system are tricked into thinking that legal outcomes must be their goals too.  More specifically, the following are the ten tricks in the family law system:

1. Trick #1: In the traditional family law system, the parties are directed to and often pressured to focus on legal outcomes, not life goals.
2. Trick #2: The traditional family law system turns Non-zero Sum games              (e.g., raising children and financial planning) into Zero Sum Games (e.g., dividing the children’s time and dividing property, debt and income
3. Trick #3: The traditional family law system assumes that disputes exist and  that the interests of the parties are in conflict.
4. Trick #4: Children are treated as property in the traditional family law system.
5. Trick #5: Selfish strategies permeate the traditional family law system.
6. Trick #6: Winning on legal outcomes is most important.
7. Trick #7: Escalating anger and blame, rather than resolving sadness, permeates the traditional family law system.
8. Trick #8: Deductive decision-making and bargaining is encouraged from the beginning of a divorce in the traditional family law system.
9. Trick #9: The day of the final Judgment of Divorce is the end of the case for the spouses, as well as for the attorneys, mediators, judges and other professionals involved.
10. Trick #10: The attribution of fault and blame has a long history in the traditional family law system.

The questions lawyers ask their clients to begin a process that takes them down a very slippery slope:  “What kind of custody schedule do you want?” “Do you want spousal support?”  “How much are you willing to pay?” Spouses are distracted from their own life goals and begin to think that divorce is the process of achieving favorable legal outcomes.  Legal outcomes should be tools that help parties achieve their life goals, not goals themselves. After all, the spouses still have children after the judgement of divorce is issued. The lawyers close their files and move on to the next case.

Perhaps lawyers should start with questions about life goals:  “What kind of financial position would you like to be in 10 years from now?” “Tell me how you would like your children to look back at their childhood family experience after the divorce?”  In future blog postings, we will be describing additional “tricks” in the traditional family law system that inadvertently lead people into self-defeating choices and offering some solutions to avoid being tricked.  These solutions are part of a goal-based planning process. Stay tuned!