Doing Divorce Differently
Is “Zeal” Appropriate In Family Law?
We must realize that divorce is not purely a legal problem, but one with legal implications. We should honor and recognize all the elements involved legal, psychological, emotional, and financial. With more than 50 percent of marriages ending in divorce, isn’t it time to rewrite the script and dance within these dynamic parameters, rather than around them?
Neuroscience is a cutting-edge approach in understanding the conflict of divorce. Survival is the name of the game to that complex and amazing organ known as the brain. The brain’s prefrontal cortex is the center of rational thought, memory, sensory, as well as the amygdala, which is part of the limbic system. Emotional memory is processed in the limbic system and that is where a fight or flight response is triggered.
Relationship changes can create a lot of fear, and we humans are hard-wired to survive. The fight or flight response is natural when we are in conflict. When engaged, the amygdala shuts the prefrontal cortex down and rational thought falls prey to basic survival instinct. While fear or anger may help us in a life-threatening situation, it’s not helpful in resolving relationship conflicts.
The common societal attitude is that divorce is equal to war, and opposing counsel prepares for battles with a take-no-prisoners attitude. Zealous advocacy works for the legal profession, but is it at the expense of the individuals mothers, fathers, children, siblings, grandparents, friends and neighbors? To ask a simple question, is zealous advocacy appropriate in family law?
Merriam-Webster defines zeal as “eagerness and ardent interest in pursuit of something.” Advocate is defined as “one that pleads the cause of another; specifically: one that pleads the cause of another before a tribunal or judicial court.” Used together, these two simple words create a term that has been the standard held by many practicing attorneys when defending a client in court. Zealous advocacy is the backbone of litigation.
Lord Henry Brougham is considered the “father” of zealous advocates. His representation of Queen Caroline in 1820 when King George IV accused her of adultery and sought a divorce is legendary. His actions set precedence that still prevails today. Brougham said, “To save the client by all means and expedients, and at all hazards and costs to the other persons is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may ring upon others.” He is said to have no qualms about presenting proof of the rumors that George had previously wed a Catholic, which would force the king to give up his crown and possibly destroy a monarchy.
Let’s take a long look at the adversarial divorce process and how it has been conducted in the court system. It’s not a pretty picture. The idea that the only concerns of attorneys are for those of his clients is prominent in the legal world. It is commonly believed that as long as legal representations and ethics fall within the boundaries of the law, attorneys have no moral responsibility or culpability in third party fall-out and destruction.
Is it possible, or morally probable, for an attorney to provide zealous advocacy in a matter of family law? Or a better question yet, can zealous advocacy of a client’s interests be at the detriment of a child’s best interest? Sadly, yes. But, shouldn’t the more important question be: Are we putting our children first? If not, shouldn’t we?
There are some who stick to the single-minded principle of zealous advocacy. One example is Raoul Felder in his 1972 memoir, Divorce. A man of some renown and considered by many a matrimonial expert who achieved in his career a near celebrity status, Felder states emphatically that he was justified to zealously advocate for his clients. Even in a custody case where Felder openly discusses his representation of a mother whose mental illness was evident and who may have been abusing her child, he chose to go against her doctor’s advice that this woman should be institutionalized. He considered it his duty to win her case and not to get her committed.
Was this decision in the child’s best interest? Felder believed that zealous advocacy trumped the welfare of his client’s child. Are the ethical responsibilities of today’s lawyers so narrowly scoped that the welfare of parties, other than their clients, is of no concern? Is the moral ambiguity of the letter of the law a convenient, if not blatant, scapegoat in an arena fraught with emotional, psychological, and financial damage that can be severe and have long-term repercussions?
The effect of such thinking has left deep wounds, scarring generations of children who suffered through their parent’s difficult and tumultuous divorces. Isn’t it time for the no-holds-barred game to be replaced with a better solution? Especially in the delicate area of family law. We need to learn to ask the right questions, look at the big picture, and take to heart the idea of sustainable resolution. For families, it’s not over when the divorce decree is filed; it’s a long-term commitment that must be balanced with civility and respect.
There are four distinct emotional stages people go through during divorce: deliberation, decision, transition, and healing. While deliberating whether or not to divorce sometimes brought on by a stressful circumstance that impacts the marriage it isn’t uncommon to rewrite the marriage history, whether consciously or not. Even when a decision has been made and voiced, the final outcome is still in doubt and wrought with hurt, pain, recrimination and guilt. Proceeding into the transition phase can push one or both parties into crazy behavior when faced with having to let go. Emotional pain can be as devastating as physical pain, the grieving process in divorce as difficult as dealing with death. To even reach the healing stage can seem insurmountable, even impossible in scope. But if each couple is given the proper tools to navigate through the difficult course, the end result would be more positive and less devastation visited on broken families.
Divorce is much more than a litigation process; the emotional and psychological needs are the building blocks to personal growth and acceptance. But one cannot ignore the financial aspect when splitting one household into two. An equitable settlement agreement and sustainable parenting plan can lay a strong foundation for separated families, enabling them to be happy and thrive. Couples supporting one another’s needs is imperative in resolving differences to achieve what’s in the best interest of children and provide them with a safe and secure environment. If not, it is likely children of divorce will harbor residual negative feelings in their own adult lives.
The pursuit of justice is a process of seeking truth. But how often is the truth known, yet undisclosed merely for the sake of winning at all costs? Are these tactics dated?
We have a problem and it’s time for a new conversation to take place. The old saying, “If you always do what you always do, you always get what you always get,” holds true.
Change is on the horizon. The ABA Model Rule 1.3 no longer contains the word “zeal,” rewritten and adopted in 1983 (though the comments still do use the word). It’s a step in the right direction. Are we finally headed into an era where civility and responsibility are on the rise among legal practitioners?
Collaborative law has made its mark and mediation is a common alternative to battling it out in court. Each has its merits, each has its flaws. Perhaps it’s time for a hybrid solution, one that encompasses the legal aspects, collaborative and mediation strengths, yet addresses the emotional and financial concerns of divorce, as well. As Mahatma Gandhi said, “A lawyer’s true purpose is to unite parties driven asunder.”
There are 5 million Google searches for divorce every month, about 750,000 for divorce lawyer and only 35,000 for mediation. We need to educate ourselves and find better alternatives. It’s time to take the counterproductive aspects out of divorce and be proactive. We must stop thinking of divorce as a purely legal matter, and address the underlying issues to heal suffering hearts. Let’s put our children first and put the love back into families, whether they reside in a single household or two.
Let’s do divorce differently.