By: Joe E. Manuel a/k/a The ADR Professor 1
This thing we call the “LAW” forms the skeleton or framework (scaffolding) of the process that we call “divorce”. The external face of divorce that culminates in the ultimate Decree of Divorce is all about the “LAW”. However, the real work is within the internal portion of the divorce (an equitable distribution of the marital property; feeding, clothing and educating the children) and has little to do with the “LAW”. 2
As the states have retreated from the requirement of “fault” as a pre-condition to a divorce, much of the “law of divorce” has been bypassed. It is much like the famous Route 66 that was supplanted by the modern interstate highways and is now a historical footnote.
One must hasten to remember that the forum for divorce is legal (the courts) and that it remains an adversarial system. Indeed, one still commences a divorce by filing a Complaint for Divorce in the appropriate court. Although remnants remain of this backward looking, fault based divorce process, we have finally recognized that a no-fault divorce does not fit in a fault, based system.
This recognition has led to the rapid acceptance of the concept of Mediation, a forward looking, non-adversarial, consensual process, as more appropriate to resolve issues in divorce particularly Parenting issues. Indeed, Tennessee by statute requires Mediation of Parenting Issues if the parents cannot reach agreement. TCA § 36-4-131.
Once a Divorce is commenced, it quickly becomes apparent that there are two (2) main issues to be addressed: (1). An equitable division of property and (2). Parenting the parties minor children. In both instances the “law” requires that as nearly as practical, the parties divide their property and parenting time equally. Perhaps, the heaviest overlay of the law is the requirement to provide food, housing, and education for the minor children.
And then, we enter the realm wherein these tasks must be completed. However, the law provides little help for the “nuts and bolts” of these tasks.
An equitable property division is essentially an arithmetic problem. That is good because arithmetic problems are solvable, i.e., there is an objective answer. The bad news is that property issues are frequently wrapped in emotional issues. If the emotional overlay remains, it is an insolvable (who was wronged or whose fault it was) problem and will likely fester until a judge literally takes the draconian step of splitting the assets and the children.
The division of the marital estate upon the surface requires only 3d grade arithmetic (marital estate / 2 = Each Party’s Share). Although an “equitable division” does not always equate to a 50-50 division, it typically does approximate an equal division. However, the conversion of the whole into two approximately, equal halves can be complex because of valuation issues and the intertwined financial obligations of the parties to lenders of all varieties such as mortgage holders and credit card companies. It typically involves the valuation of the house; division of retirement accounts; equity or the lack thereof in the marital residence; credit card or health care debt; student loans, etc..
These thorny issues invoke the expertise of appraisers, realtors, accountants, bankers, and financial advisors rather than lawyers. 3 Hence, the division has everything to do with the reality of debt consolidation, refinancing, or financing and tax consequences of early withdrawals from retirement accounts and very little to with “divorce law”. Once these issues are addressed, splitting the assets is relatively simple.
The other major component of the divorce is “Parenting” the parties’ minor children. This Parenting is supposed to be driven by the “best interests” of the child. Unfortunately, there could hardly be a more subjective yardstick to guide lawyers or judges. Indeed, the ultimate subjective standard suggested by a Supreme Court justice for use in identifying pornography of “ I know it when I see it” appears easier to apply than the “best interests of the children”.
The Courts typically require a “Parenting Plan” that is the “blueprint” for their Parenting. And, a properly constructed Parenting Plan is an excellent device and does provide guidance to the parties. However, the information required by the Parenting Plan is driven not only by the “best interests of the child”, but also the reality of how the family lives its life.
Fortunately, loving parents do usually know what is in the best interest of their child. Unfortunately, in many instances, anger, hurt, or hostility toward the other parent obscures their ability to recognize it. And, the Court becomes the “tie breaker” and in many instances the Courts utilize a professional such as a child psychologist to “break the tie” and determine the “best interests of the child”.
Parenting issues frequently involve health & mental issues of the child or special needs. Judges are ill-suited to those decisions. Indeed, the assistance of professional counselors, therapists, physicians, teachers, psychologists, psychiatrists, etc. is required in many instances and hopefully illuminates the path to successful Parenting.
Does this article suggest the demise of the lawyer in the context of Divorce ? No, it is intended to suggest that we lawyers must transition from an adversarial role to a more collaborative/coordinator role to assist their clients in terminating the marriage, reaching an equitable division of the martial assets, but retaining a healthy relationship with their children.And, it should be good news for the parties because Divorce should not be about the “LAW”. Instead, their focus should be upon the real task of ending a marriage without destroying their children and maintaining their ability to move forward with their lives. If the parties let the Divorce be all about the “LAW”, then they will have lost sight of their goal and become lost in the “LAW”.
______________________________Even though most of the divorce is typically not about the law, I always recommend that parties retain a knowledgeable divorce lawyer or lawyers to advise them.
Joe E. Manuel, Attorney-at-Law © 2107
1 Joe Manuel is a Lawyer & Mediator in Chattanooga, TN. He is a Rule 31 TN Supreme Court Listed Civil & Family Mediator. He is one of the pioneers of Alternative Dispute Resolution in Tennessee and is the creator of the Online CLE Courses known as the “ADR Professor Series”.
2 I grasped this concept from Stephen K. Erickson, J.D of the Erickson Mediation Institute and his presentation in Chattanooga in 2016 entitled “Mediation: Changing the Paradigm for Family Conflict Resolution”.
3 I never said it was easy---just not much about the “Law”.