Understanding Divorce Conflict: The Myths of Divorce
2019 Kenneth H. Waldron, Ph.D. Allan R. Koritzinsky, J.D.
This is another article in the series of articles that focus on divorce conflict, a problem in search of a solution. In order to solve as complex a problem as divorce conflict, we need to fully understand the factors undergirding it.
Our series, “Understanding Divorce Conflict” is based on the application of a branch of mathematics, Game Theory, and the research that has resulted from the introduction of Game Theory. Game Theory is the application of mathematics to what choices people make. The research has shown that by analyzing the rules and payoffs, one can predict the choices people will make and by shaping the rules and payoffs, one can shape the behavior of the players and their choices. Well that is as much theory as will be in this article. Our purpose was to clarify that the articles in the series are based on sound scientific and mathematic principles, not just the opinions of The Divorce Doctors.
There is a myth regarding winter, but is it a valid theory? Long ago, Hades, the god of the underworld, kidnapped and raped Persephone, the goddess of Spring. Demeter, mother of Persephone and goddess of the earth and agriculture, negotiated a deal with Hades for the release of her daughter. Although released, Persephone had to return to Hades once a year for marital service. Whenever Persephone was in Hades, Demeter became sad and commanded the world to become cold and bleak so that nothing would grow.
This was the Greek explanation for winter. Such ideas about reality persisted through most of the history of our species. It was not until the Period of Enlightenment that modern science truly began, when explanations for our experiences had to meet strict standards. This exploded rules-of-thumb, mythology, declarations that were true only by the authority of those declaring them, old wives’ tales and so on, which salt and peppered our history and misled us. With the dawn of the enlightenment, particularly what is known as the British Enlightenment, mysteries began to be solved, and progress began to be rapid and increasingly rapid to our time on earth. Myths have persisted and only slowly are being dispelled by knowledge. As our understanding has improved, solutions have been found to many of life’s problems.
We are your “Divorce Doctors.” See: www.thedivorcedoctor.net.
We are also the authors of two books: Game Theory and the Transformation of Family Law and Winning Strategies in Negotiation and Mediation. Both books are available at www.unhookedbooks.com, where your authors define in great detail a non-competitive approach to negotiations and mediation processes aimed at positive long-term outcomes for both parties, and when children are involved, for the children.
Dispelling myths has been a slow process and goes on to this day. This is as true in the practice of psychology and divorce law as it has been with the understanding of gravity and time. As examples of myths in psychology, we remind the reader that homosexuality was considered a mental health disease until recent years; attention deficit disorder was considered the result of what children ate; and schizophrenia was thought to be the result of certain parenting practices. As examples of myths in divorce law, mothers were considered fundamentally superior as parents to fathers; “broken homes” condemned children to be delinquents; and fathers were “disposable.”
Let’s address two related examples. First, the broken homes myth. The “broken homes” explanation for delinquency began to be challenged as a myth in the early 20th century. Studies began to conclude that other explanations for delinquency held up, but that coming from a broken home did not. Second, the arrest rate myth. The myth was that arrest rates were substantially higher for children of divorce than for children living in homes with intact marriages. Initially, this supported divorce as a risk factor for delinquency. However, careful studies discovered that children living in homes with intact marriages engaged in the same behaviors as children from broken homes. Interestingly, these studies revealed that children from intact marriages were brought home to parents rather than arrested. Initially, police believed that children from broken homes needed to be arrested, rather than taken home for punishment. Finally, it was the world view of the police that caused the difference in arrest rates, not differences in the children. Dispelling myths is indeed a slow process.
Myths still abound in psychology and divorce. In future blogs, we plan to discuss other “myths of divorce.” We start with a few, as they are the gateway myths:
One myth in divorce is that people can get a successful divorce without attorneys. Only if spouses have no children, little or no debt and no need for income sharing could this be true. [We define a “successful divorce” as one having a Plan to help both parties reach long-term goals for themselves and for their children.]
Another myth is that divorcing spouses are in a “dispute,” requiring competitive negotiations, and potentially litigation, for each to get the largest share of limited financial resources and time with their children. This myth in particular infects the entire family law legal system and is for the most part an assumed and unquestioned belief.
An additional myth is that there are cookie-cutter solutions for the division of property, debt and income and the raising of children post-divorce, and that imposing those solutions is good for all involved.
A modern myth in psychology and divorce is that social science research can give us those cookie cutter solutions for all families.
In science, an important measure of a theory as a legitimate explanation is called “reach.” Explanatory theories that have “reach,” even when such theories are untestable and explain phenomenon beyond what we can observe, are considered more probable. For example, if Demeter’s sadness caused winter, “reach” would suggest that it must be winter everywhere on the globe, and perhaps in the universe, at the same time. Because that does not hold up regarding winter, the belief is not a valid theory.
We will never be able to observe all of the bodies in the universe to determine if gravity applies, but Einstein’s theory of gravity has “reach,” which leads us to believe that it applies to all bodies in the universe. Social science research informs us that, on average, children who have the involvement of both parents in their lives do better than those who have only a “single parent.” This appears to suggest that physical custody schedules should be shared, and some would argue should be equal time with both parents. However, this does not apply to all divorce cases. Therefore, social science research cookie cutter solutions do not have “reach.”
If a judge asks a psychologist, what should we do with this two-year-old, the psychologist can say with confidence, give the child an opportunity to attach to both parents, have the parents provide high quality parenting, have the parents cooperate and provide very similar experiences in each of their homes, build and maintain good support systems, play with the child and have fun. If the judge responds, “Yes, but what physical custody schedule should I order,” the only answer that has any common sense might be, “As long as the child is safe and the parents do the above, your guess is as good as mine.” That expert testimony does not have reach.
Divorce law dictates having a “schedule” of when children are with their parents, but not how the parents are involved with them. A child who lives mostly with one parent for reasons of logistics, but whose other parent is actively involved (independent of the schedule) and where the parents are flexible in this regard, is more likely to do well than a child in a rigid 50/50 schedule, with parents who never talk to one another.
No one tells married people how to organize their parenting roles or how to structure types of involvement with their children. Married people do not competitively negotiate or litigate when they have a disagreement, for example, when one parent wants to take the child camping and the other parent thinks it is too cold. Judges, attorneys and mental health professionals, who do not love the children of the parties involved, and who will not be around when the children are 25 and 30 years old, and who cannot really know the information that the parents have about themselves and each other, are in a poor position to make decisions about the family that will achieve good long-term outcomes for everyone in the family.
However, judges, attorneys and mental health professionals are in a good position to make decisions about safety for children. Thus, when a case has issues of safety involved, such as domestic violence issues, addiction, neglect and incapacitating mental health disturbance, the traditional family law system can be very helpful.
We have focused mostly on divorce that includes children, but much the same can be said for the financial aspects of a divorce, including divisions of property, debt and income. The law seeks cookie cutter solutions, such as an equitable division of property and debt, child support formulas based on a physical custody schedule and spousal support based on a list of statutory or case law factors. However, those cookie-cutter solutions, while perhaps making it
easier for judges and attorneys to get a completed divorce, might have little to do with the post- divorce financial well-being of the parties.
Like with minor children, the courts can be a good arbiter of safety, making sure one selfish party does not take financial advantage of the other vulnerable party at the level of doing real harm. However, the assumption of a “dispute” in all cases, including competitive negotiations and litigation, is fundamentally wrong and often a disservice to the parties involved. In scientific language, such an approach does not have “reach,” because it does not apply to all cases.
The application of a cookie cutter approach does not predict that divorcing spouses will always reach long-term financial goals for themselves. In many cases, an “equitable” division of property might be the best way for parties to reach financial goals, but in many other cases, an “inequitable” division might be a better plan. The cookie-cutter theory of equitable division does not have “reach,” and therefore, is not a good theory.
Another Myth: The assumption that there is a dispute is a myth, but it seduces parties into competitive strategies that can leave them in a conflict-ridden post-divorce relationship.Another assumption is not a myth; that parties have similar, if not identical long-term goals for their children. There should be a further assumption that both parties want to reach long-term financial goals and a sense of well-being for themselves and their children. There will be selfish, self-serving parties and parties with mental health problems, but they should be seen as outliers, not the expected norm. Parties might disagree about some issue with the children, or about some aspect of their financial plan, but a disagreement about how to reach mutually agreed- upon goals is not a legal dispute. It is merely a problem to be solved.
Attorneys can be very helpful in this process; this is not a myth. Attorneys often have a good deal of experience and have seen creative solutions to difficult challenges, with ideas they can share with clients. Attorneys have a good understanding of the legal and financial implications of decisions, and when necessary, can draft agreements in ways that protect both parties. Good attorneys have been educated and trained in specific healthy approaches to normal disagreements, who can help parties. whose approach to disagreement is less healthy. Finally, attorneys can help clients focus on their futures and not get side-tracked by emotions about the past.
Conclusion: Unless divorcing parties have little or no property or debt, no children and limited but relatively equal income, they should hire attorneys, or at least a mediator, to help them develop a financial and family plan to reach long-term goals. Attorneys can also help parties interface with the legal system, preparing settlement agreements that complete what the parties are trying to accomplish. Negotiations should focus on a Plan that helps both parties reach long- term financial and family goals, not a competitive Zero-sum negotiation process. Even “value added” negotiations (integrative negotiation) often focuses on short-term interests of the parties and not long-term goals.
Attorneys should not assume that the parties have a dispute, but rather assume that they both share long-term goals for their children and for themselves. However, there might be disagreements regarding how to reach those goals, and so negotiations must include a process for healthfully resolving disagreements, not a process of one or both parties trying to “win” the disagreement. Litigation should only occur when issues of safety for children and/or financial safety for parties are at stake.
Recall the first myth: that people can get a successful divorce without attorneys. This might be seen by our readers as the most controversial. It might even be seen as a promotion of hiring attorneys. Your authors have a combined history of nearly 100 years of practice in the family law arena. We understand that complaints about divorce lawyers have led to the decreasing use of attorneys and the increasing wave of self-representation. We find this development unfortunate, while acknowledging the complicity of the traditional family law system in this development. Attorneys have much to offer, and if done well, can be worth the cost.
For our promotion of hiring attorneys to be a positive development, attorneys must dispel their own myths about divorce in a different way. Collaborative Divorce and Cooperative Divorce might be steps in the right direction, but only if the attorneys involved have a completely different mindset from traditional family law. The model proposed by your authors in our books, cited earlier, describes in detail that different mindset and includes both the theory and techniques undergirding the approach.
To repeat an old adage, we advise the attorneys: “try it; you might like it.” And if this occurs, we are confident that the parties will say: “We tried it; we liked it.”
Allan Koritzinsky, JD, is a retired partner with Foley & Lardner LLP in Wisconsin. Mr. Koritzinsky focused his law practice on divorce law, alternative dispute resolution and has authored or co-authored numerous articles and books and lectured in lawyer and judicial continuing education seminars throughout his career.
Kenneth Waldron, PhD, is a clinical psychologist in Monona, WI. Dr. Waldron has published research on topics related to children of divorce and provides training to judges, lawyers and mental health providers in the U.S. and internationally. He provides forensic services, including custody evaluations and expert testimony on divorce-related issues.
Dr. Waldron and Mr. Koritzinsky are co-authors of the following books:
