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Tuesday, December 11 , 2018, 12:20 am | Fair 46º


Brian Burke: About Your Divorce (Column 165) — Why Work of Family Court Judge is Dismaying

Having created an ideal (and imaginary) family court judge in the last few columns, I’ll explain why — as good as she is — her work is likely to be very hard, very frustrating and very discouraging.

We know from the Santa Barbara Divorce Study that if the court leaves the divorcing population of South County Santa Barbara to its own devices, only ~3.1 percent (say < 4 percent) will require a trial on any issue and only 12 percent will involve an appearance in a courtroom for any reason whatsoever.

In ~15 percent of cases the only document the court has received is the petition; nothing else is filed for at least six years.

There are cases that are qualitatively different from all others.

They are the ones reported in the media; they are the ones you talk about; they are the ones that require most of the court’s time and resources; and they are the ones that inspire legislation that imposes rules and requirements on all divorcing couples in an attempt to remedy the problems created by a very few.

These conflicts are the ones lawyers spend most of their time working on, and that work keeps them in business.

There are more than 50 lawyers practicing family law in South County. About 750 divorces are filed every year and < 5 percent are toxic.

Five percent of 750 is 37 cases for 50 lawyers; fortunately for them, each case has two sides and a change of lawyers in midstream is common.

Differentiating the toxic from the ordinary

Anyone who tries to understand what happens during divorce will probably search for an explanation that includes toxic divorces. They are the most visible, but they are very different from ordinary divorces.

The six-year longitudinal study of Santa Barbara divorce found the average interval between the date of separation and entry of judgment was 29.9 months.

A replication study of a comparable population found the average interval was 28.85, so these data are robust. During the two periods studied, the family law calendar was absolutely current, so judicial delay had nothing to do with the findings.

The cases were divided into four categories based on the duration of marriage: Long = 10 years + | Medium = 5-10 years | Short = 1-5 years | Very Short < 1 year.

The length of the marriage being dissolved was not a good predictor for how long the divorce would take. If the couple had a minor child at the time the Ppetition was filed, an extra 12 months was added to the interval.

For all the cases considered and for each of the four categories based on the duration of the marriage, the mean and median intervals were 18-36 months. This is the period during which ordinary divorces are ripe for settlement and the parties are able to come to terms with each other.

There could be other explanations for the time it takes to complete a divorce (at least in South County Santa Barbara), but one that fits the data is that divorce is essentially the psychological process of grief.

The process is the same as what the Yale Bereavement Project discovered about grief in the context of death. Their findings are reported in the Journal of the American Medical Association (Feb. 21, 2007).

The Yale study was the first to empirically validate the familiar Stage Model of Grief described by Elisabeth Kübler-Ross in her first book On Death and Dying in 1969.

I will have more to say about the way grieving works in divorce, but with respect to the toxic divorce, the grief process either doesn’t work well or it doesn’t work at all. For some reason, one or both parties are unable to grieve.

Although the term toxic divorce is not an accepted part of the divorce business vernacular, a seasoned lawyer can talk to a divorcing person for 10 minutes and will smell toxicity, even though he will describe what he suspects using different language.

Santa Barbara author and psychologist David Richo writes that loss throughout one’s lifetime is an existential fact and the ability to grieve loss is essential to sound mental health.

The Michael Douglas movie, The War of the Roses, is a superb example of a toxic divorce. While the behavior of Barbara and Oliver Stone is magnified, the story is courageously true to life; for this couple, the divorce cannot end until both are dead.

Have you met an older person who speaks of  “my husband” or “my wife;” yet, the marriage was terminated by divorce 20 years earlier, and the husband or wife in question died 10 years after that?

If not, you will — eventually. The Roses are fictional but true to life.

Daniel Broderick was alive until his former spouse, Betty, killed him and his new wife in their connubial bed — before all aspects of their divorce had been concluded. Marriage of Broderick was the worst divorce in recent California legal history.

The inability to grieve is why some divorces are toxic. Why someone cannot grieve is not always clear.

Dr. Richo says, “Everyone comes with a grieving program; it has to be installed. This happens naturally by the modeling of the same sex parent.”

Sometimes, however, that doesn’t happen. In an attempt to objectively identify cases that were likely to be toxic, I created a questionnaire/inventory that listed all the characteristics common in the toxic divorces I’ve observed.

Some answers were indicative of a toxic divorce and were given positive weight; other answers were indicative of ordinary divorce and were given negative weight. I asked a few questions where the answers didn’t affect the score.

The inventory can be completed and scored and a full explanation of how it was designed can be found by linking to online legal education classes available to the public without charge.

Most, possibly all, divorces where court intervention is sought present a psychological problem disguised as a legal issue. Judges are not therapists and a legal solution to a psychological problem is not likely to be satisfactory.

When a couple with an ordinary divorce gets a taste of the judicial process, they are not likely to want more of the same.

If it’s a toxic divorce, no matter what the intervention and no matter who the interventionist, the effect of the intervention is unpredictable.

When anyone becomes involved in a toxic divorce (judges, lawyers, mental-health professionals, family members and well-meaning friends), no matter what they say or do, the couple will react in a way that’s usually negative and always unexpected.

If it’s the intent and perceived function of the family court judge to ease the way of a couple having a hard time with the death of their marriage, the frustration results from the fact that the cases demanding the most attention are the most resistant to any kind of help.

For these, like the Brodericks and the Roses, it’s a struggle to extinction.

They will stay within the legal system until they exhaust its resources or run out of the money necessary to feed it. Then they will continue in some other forum, typically the family where their children face the challenge of coping with their parents’ pathology.

In terms of family system theory, the dysfunction is within the family of origin, which requires each member of the family to come to terms with or to suffer from the pathology originating inside a group that may be spread around the globe.

Years ago, I was in bed for some minor ailment and read several books by James Lee Burke, mostly because we have the same last name.

The books in the Dave Robicheaux series always involve murder, tragic characters and sickness. They are set in an area around Baton Rouge where I once saw, and I have never forgotten, segregated bathrooms in a Sears store.

The story unfolds in a miasma that’s both atmospheric and psychological. I gave one of the books to my wife to read, and she couldn’t finish it.

After I recovered from my physical ailment, I still felt terrible and sat around the house reading my James Lee Burke books and complaining.

Eventually, I asked my wife if she thought it was possible the depressing content of the books was having a depressing effect on me.

Until then I don’t think she thought it possible that I was not aware of such an obvious cause and effect, and the silence of her reply was eloquent.

Contact with toxic divorce is even more depressing than reading a dozen books by James Lee Burke in as many days.

I spent four months creating the inventory and the classes to explain how it worked. I started in October, as the days were getting shorter, and finished in December, maybe on the solstice.

I can’t recall a time in my life that was so consistently “dysthymic.” I thought it had to do with the decreasing light, but I’ve made it through many, many fall seasons in the past without difficulty.

I had absolutely no contact with any of the cases I was writing about, but I felt their negative effects, especially, the enormous relief when I finished the project. Maybe a little of the same will happen when I finish this article.

A family court judge never finishes with these cases. As soon as one drops off her calendar another will take its place.

I created a judge who had the best qualifications I could think of — both personal and professional — to do something useful in the face of determined resistance.

As she gets to know the other judges on the bench, she’ll realize she is the one who is best suited to preside over the family court and the one with the best chance of helping at least some of those who appear before her.

Accordingly, she’ll resist reassignment even though it’s hard to find satisfaction with work she feels so suited and equipped to perform.

The next column will describe how Janet Johnston and Linda Campbell have tried to diagnose what’s going on inside in order to prescribe interventions into the worst of the worst divorces.

In the following column, I’ll explain why the Judicial Council’s determination to put divorce cases on a conveyor belt set to run at an arbitrary speed is an instance of an uninformed governmental intrusion on people’s lives that has had consequences unintended but predictable.

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail [email protected]. Click here to read previous columns. The opinions expressed are his own.

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