Divorce litigation has been called “the ugliest litigation” because it can be filled with emotional rancor, distortions of personalities and of life events and can create an intense bitterness which serves to enhance the acrimony between the parties.1 Even in cases were matters have settled within a legal pre-trial process, there is often the win/lose feeling, as the resolution results in one person feeling that they have been forced to “give up” or “lose” due to their perception that the system does not recognize their interests or needs (rightly or wrongly) or that financially, pursuing the matter is not feasible.
From a psychological perspective, what often occurs in a high conflict divorce case is that the parties negatively reconstruct the spousal identity of the other. This can often occur during the litigation stage of a divorce. This phenomenon is characterize by the tendency of one spouse to cast the other in a vilified image, for example, “He’s a rotten, selfish bastard” or “she’s a lying bitch”. These negative polarized characterizations become immutable over time and form the basis of how each party frames their position before the court.2 These negative images are entrenched in the pleadings and affidavits which serve to further rigidify their unyielding positions.
Separation and divorce makes people feel vulnerable and wounded and they rely on the legal system to make things “better” for them. Their expectations are that when their stories are heard by a judge, justice will be done and their position will prevail. There is tremendous appeal to the clients, who are entangled in acrimonious proceedings, of the notion that there will be an end to their suffering once the “judge hears their story.” The fact that the courts consider matters objectively and apply certain standards, that may seem unfair to them, is difficult for clients to accept.3 A client’s belief in what is morally right and wrong is often not consistent with the objective standard that will be applied by the court. The parties often have accepted the model of justice that gives them the expectation that the justice system will impartially sort out the facts in dispute to provide a deductive reading of “truth.” They expect the legal process to take their problems seriously and understand the emotions that drive them. They expect vindication of the position that they have adopted.4
The adversarial system authenticates what were early theories of child and marital problems, i.e. cause and effect relationships. It was always believed that dysfunctional marital relationships caused dysfunctional behaviour in children. Children were viewed as innocent victims of a “bad” parent or a “bad” relationship between parents. Early psychological theories were focused on identifying and treating dysfunctional parents in order to help the children.5 These parents have become winners or losers, not only in the eyes of the law, but also in how they are perceived by themselves and their children. However, these disputants must carry on with the upbringing of their children and must somehow learn to deal with the aftermath of the legal battle. The parent who lost the legal battle will be viewed as the “loser,” and therefore, the “bad” parent. The children must be sheltered by the “good” parent i.e. the “winner” who has secured a custody order which gives them the right to make all decisions regarding the children.
Current psychological theories no longer focus on treating the “bad” parent6 yet the adversarial process continues to focus on punishing the “bad” or “loser” parent by stripping them of any say in the up bringing of their children. Notwithstanding the fact that most matters are settled prior to trial, families still suffer much devastation as a result of the mandatory pre-trial proceedings.
Taken from my Master of Laws, Major Research Paper - Resolving Family Law Disputes– A Critical Look at the Impact of Lawyers on Family Law ADR Processes. Osgoode Hall Law School.
1 D. T. Saposnek, C. Rose, “The Psychology of Divorce” In D.L. Crumbley and N.G. Apostolou, eds. Handbook of Financial Planning for Divorce and Separation. New York: John Wiley, 1990. available online. This is an excellent article and a must read for both professionals and parties involved in the divorce process.
at 6.
2 Ibid, at 6.
3 Ibid, at 15.
4 W.L.F. Felstiner, A. Sarat, “Negotiation Between Lawyer and Client in an American Divorce”. In Robert Dingwall and John Eekelaar, eds., Divorce Mediation and the Legal Process. Oxford: Clarendon Press, 1988. at 37.
5 D. T. Saposnek, C. Rose, “The Psychology of Divorce” .Supra Note 1, at 1.
6 Ibid at 1. Saposnek also indicates that more recent psychological theories have demonstrated that a more circular system of family dynamics exists wherein the family is conceptualized as a cybernetic system in which the actions of each member influence the actions of each other member reciprocally.