Couples Take Divorce Out Of The Courtroom And Reinvent The Way It's Settled

Posted: March 15, 1999

One of the most important changes in the 20th century is the growth of divorce as a social institution.

Don't we know it, though? Lately, a slew of high-profile, multimillion-dollar divorce battles - Jerry Hall vs. Mick Jagger, Ronald Perelman vs. Patricia Duff, Carl Icahn vs. Liba Trejbal Icahn - remind us of the worst that can happen when couples fail.

Once upon a time, we're told, marriage was for life. Only very compelling reasons could justify separation, annulment or divorce. The spouse who wanted a divorce had to prove ''faults'' so devastating - desertion, adultery, cruelty - that they justified the breaking of the bond.

In the United States, divorce progressively became more accessible throughout the century until, in 1969, the legal foundation for divorce changed when California enacted no-fault legislation. All 50 states have followed suit. Now no one need be at fault to end the marriage - just unhappy, fed up, or in love with another. Many have called it ''divorce on demand'' or ''unilateral divorce.''

Now that divorce is a constant, certain consequences need to be reconsidered. Divorce is not just a legal matter. Children's lives remain in the balance, and new kinds of families have been created. The 21st century needs to consider that even when marriages fail, families remain.

Nothing makes this clearer than the celebrity divorces now being waged in the media. That between Perelman and Duff has drawn the most attention, possibly because of the money involved. Even Manhattan Supreme Court Justice Franklin Weissberg, assigned the case, is impressed: ''We're in uncharted waters here. There aren't many cases where a billionaire and a multimillionaire slug it out.''

The Perelman-Duff war is an object (abject?) lesson in what can go worst in custody battles. Parents don't seem to get it. Their hatred toward each other often supersedes their love for their children. It's the fight and the anger that count.

All those zeroes at the end of the dollar amounts requested by Duff add an air of unreality to this guerrilla theater. She says she can't get along on a paltry $1.8 million a year. She can't put up with her present $30,000-a-month suite and needs to move into a $40,000-a-month one.

And then there are ballet lessons for 4-year-old Caleigh. She's the forgotten one here.

Caleigh is involved, but only as a pawn in divorce chess. According to the Wall Street Journal, what may be holding up settlement are such matters as what types of extracurricular activities Caleigh may be able to pursue in the future. It's not clear that she has much say in whether she wants to take ballet or tennis lessons or, heaven forbid, no lessons at all.

These and other issues, trite, expensive and outrageous, flap in the public breeze. I can't imagine what the child will think if she reads the court transcripts someday.

What is a child to think, after all, about two individuals incapable of sitting down in a rational manner and focusing on parenting issues? Petty, depressed, short-tempered, vengeful: Is that the image you want your child to have of you?

Here's the point: Fights such as these don't belong in a court. Court is where you wrangle over property - not over family. Let's revamp the legal system so child-custody issues can be determined by parenting experts and other professionals rather than paid gladiators and experts who fight for their cause rather than for the child.

Florida is trying a program, Focus on the Children, in which post-divorce parents attend a program on communicating with each other about parenting issues. Such programs aim to take the parenting process out of the courts and have mental-health professionals guide parents in learning to negotiate and communicate. Parents get a firsthand view of what their children are thinking. We need more programs like that.

Lawyers who practice family law need to understand that raising the stakes in this arena doesn't help children. Social workers, psychologists, psychiatrists, school counselors and clergy need to brainstorm ways to take custody fights out of the court system.

As narrator for this new story, I propose Baby Mikey of Look Who's Talking: ''Hey, guys, remember me? You're both my parents, and I love you. Don't make me choose. And by the way, if you care about me, stop acting like kids.''

Gayle Rosenwald Smith is a domestic relations lawyer practicing in Philadelphia. Her e-mail address is gaylersmith@msn.com

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