Divorce Corp. Review, Part 2: Babies and Bathwater

This is part two of a five-part review of Joseph Sorge's documentary, "Divorce Corp." See also:

As I mentioned in Part 1 of this review, Joseph Sorge has manipulated facts to paint a far more appalling picture of the family law system than is warranted. The conclusion that he reaches from this picture is that the U.S. family court system must be discarded and replaced with a system more akin to what is found in Scandinavian countries. In his exchange with Mark Baer, Sorge wrote, "[W]e are advocating that divorce be an administrative procedure no more difficult than filling out a form."

Divorce in Scandinavia is not that simple.

In fact, even in the Scandianvian countries that Sorge idealizes, the divorce process is not necessarily that simple. For example, Sweden provides for judicial resolution of divorce disputes by a single judge or panel of judges in the District Court. Swedish divorce law contemplates that there might be disputes over spousal maintenance, child support, and property division. Disputes over property are to be decided by a "marital property administrator," and there is a process for appealing the administrator's decision. (Query what substantial difference there is between a single justice and a single administrator...)

Divorce court serves a purpose.

Moreover, I suspect that virtually every American family law professional will agree that some divorces belong in court. A form-based administrative process is not suited for divorces involving spousal or child abuse, hidden assets, or any number of other problematic situations. In fact, I would suggest that the divorces Sorge highlights in Divorce Corp., which involve highly contested custody disputes and allegations of abuse, fall precisely into the category where court intervention might be appropriate. One of the couples in Divorce Corp. took eight years to get divorced, making it a particularly exceptional case. In my experience, a contested divorce that goes to trial in Massachusetts will take less than three years, while a separation agreement can be negotiated and brought to final judgment in just a few months. It would have been far more compelling if Sorge had presented some more typical divorces as the basis for his arguments, although I do not think those arguments would have been nearly as compelling if he had done so.

Injury implies collusion?

Part of Sorge's argument for dissolving the family court system is that lawyers, judges, and custody evaluators are colluding to drag out cases, to reach decisions against clients' best interests (or their children's best interests), and to maximize their own profits. His protagonists describe their cases forcefully and emotionally, and with the dramatic music swelling in the background, it is easy to believe they are right. But that does not necessarily mean they are right.

A brief anecdote to illustrate my point. A while back, I represented a client in a contested divorce that very nearly went to trial. The primary sticking points were financial, and we ultimately had to present one issue to the judge for guidance (i.e., to get a sense of what the judge might decide if the case did go to trial). My client did not enter the courtroom for the brief hearing on the issue, in which the judge indicated the issue should be decided in the spouse's favor.

Several weeks later, after I wrote to remind the client of an outstanding bill, the client replied as follows:

I don't think I'll ever believe anything other than you and [the spouse's attorney] acted as judge and jury, went into an empty room without a judge, and came back pretending like the judge actually ordered something so unfair.

In so many words, the client accused me of colluding with opposing counsel, much as the characters in Divorce Corp. accuse their lawyers, judges, and custody evaluators of collusion. I assured the client that I never stopped being a zealous advocate, and the client could request a recording of the hearing if any doubt remained. The accusation never came up again.

Does collusion in the family courts exist? I am sure it does, and the cases in Divorce Corp. may well be examples of that. But does collusion occur on such a scale that the family court system should be discarded? I am sure it does not. More often, I suspect that clients experience an outcome that they think is unfair, and assume that their injury is a result of systemic corruption, rather than simply being on the "wrong" (for lack of a better word) side of the facts or the law.

Reductio ad absurdum

Even if we assume that widespread corruption and collusion in the family court system exist, it is a tremendous leap in reasoning to advocate for the total dissolution of the existing system. Typically, when a system that we value and rely upon has flaws, we try to correct those flaws before throwing out the entire thing. If we were to follow Sorge's logic and do away with any institution where collusion or corruption has been a problem, here are some other valued American systems that would be on the chopping block:

  • Education
  • Financial markets
  • Criminal courts
  • Law enforcement
  • Organized sports

I am sure this list could be made much, much longer.

The point is, while the family court system is absolutely in need of reform, we cannot throw out the baby with the bathwater. We need our family courts – even Scandinavian countries have them – and the protections they provide. That is why, although Divorce Corp. does raise important points about flaws in the family court system, it falls far short of offering any kind of meaningful alternative. This shortcoming makes the film, in the words of one prominent ADR professional I spoke with, "a tremendous wasted opportunity."

Keep reading: Divorce Corp. Review, Part 3: Questions, Questions, Questions