Ten Traps Series – Trap #10

In prior blogs in this series, we wrote about the natural desire to prevail against perceived rivals and the potential use of game theory to understand obstacles in the current legal system as it takes families through separation and divorce.  We next focused on how the legal system begins to trap people into self-defeating patterns of decision-making.  We then addressed Trap #1, distracting people from their life goals into thinking that legal outcomes are goals; Trap #2– treating divorce as a zero sum game; Trap #3: assuming disputes and seducing parents into thinking the same; Trap #4: treating children as property; Trap #5, acting as if selfishness is the best strategy; Trap #6, believing that winning is critical; and Trap #7: thinking that being angry is better than being sad; Trap #8, building a marital settlement agreement deductively, rather than inductively; and Trap #9, presenting a divorce as the end of a relationship.

Trap #10 arises from a long tradition in law, the attribution of fault.  It is believed that society has an interest in keeping families stable and marriages intact, and there is a long religious tradition that once married, people should not divorce.  As a result, when dissolving a marriage, proving fault found its way into attitudes and law, creating an accuser, whose attorney was to prove fault, and a defendant. Prior to no-fault divorce, a spouse had to prove fault on the part of the other spouse or admit to fault on the part of oneself in order to have the divorce sanctioned by law.  To have the divorce sanctioned by the Catholic church, further steps had to be taken to prove that the marriage was improper from the beginning. In the late 1960’s and early 1970’s, having to prove fault was stricken from law in most jurisdictions.  No-fault divorce was introduced when legislators recognized that establishing the burden of fault led to highly contentious and very damaging family consequences. However, attitudes did not die an easy death.  Getting favorable legal outcomes most often rested on the accuse/defend dynamic.  Wanting to be primary parent meant proving that the other parent was somehow deficient, or even dangerous.

It is into this pervasive legal tradition that spouses enter when they file for divorce.  By the time many spouses file for divorce, they have been locked into the same process of finding fault with one another with blame taking a major role.  Thus, the legal system fit hand-in-glove with the marital dynamic, only now they could hire professional blamers (i.e., lawyers) to assist them.

Asserting and proving fault is generally irrelevant to the legal tasks involved, at least and certainly for the parties to reach their ultimate goals for their children and financial lives post-divorce. Notwithstanding, finding fault with one another often dominates the process, distracting the spouses from a healthier approach to their divorce and, if they have children, establishing a healthy family with separated parents.  The legal system can trap them into a perpetual blame-game that often continues full force into their futures.

In the co-parenting blog category, we are going to provide antidotes to the traps in the legal system.  Some of those will be obvious, given the nature of the trap, and the reader can probably create other antidotes, once the traps are understood.  Helping divorcing spouses and never-married separating parents avoid succumbing to the traps, focusing on long-term goals rather than legal outcomes, can be a valuable service of mediators and lawyers.