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Over twenty years ago, I was a newly elected judge and my first assignment was in divorce court, even though I had no prior experience, personal or professional with divorces. I didn’t have children then and was still married. In my professional life, I had practiced mostly criminal law and my last job was as a prosecutor.
So, why, when I was elected, did I get assigned to divorce court? Because I was a beginner! The truth is, if they can, most judges hot foot it out of divorce court as soon as they get seniority. Divorce court is stressful not only for the litigants but for the judges as well. So, when people are fighting about things in divorce and think, “I’ll just let the judge decide”, they should keep that in mind. The judge that they are appearing in front of may have no more experience with divorce than they do!
Eventually, I rotated out of divorce court, only to return many years later to a family law division. Because my own situation had changed (I had had a child, and gotten divorced myself) I was actually looking forward to hearing some of these cases. I thought I would be bringing a bit of life experience to my job. I also thought that things were less stressful in divorce court: that with mediation, parenting classes and streamlined family law rules, perhaps divorce was not as acrimonious as I had remembered.
So you can imagine my dismay when I saw that despite all the attempts to minimize the adversity in divorce court, I was still seeing the same stuff come through the courtroom. The only thing that seemed to have changed (other than the mandatory mediation and parenting) was the legal fees – they got higher!
I realized that some people were coming into divorce court thinking that it was reality TV. People felt like they had to tell their story, even though with no fault divorce, there was no legal reason to do so. And most of the litigants who wanted to tell their stories were women. I don’t have any statistical support for this premise, only anecdotal evidence. But with two tours of duty in divorce court, that’s a lot of anecdotes. It seemed to me that even if a woman initiated the divorce, when she came to court she wanted to recount every detail of the marriage/divorce and what she had suffered.
I understand this: when I went through my own divorce, I saw myself as a victim and I wanted the judge to recognize this. I wanted to walk out of the courtroom sanctified, blessed by the judge’s opinion. But I couldn’t.
Not that there is any rule against judges filing their own cases; but I knew that anything I might put in a divorce petition could wind up on the evening news. Now, if your idea of highbrow entertainment is finding out the “baby daddy” maybe you want to be on tv. But I didn’t. It’s not good for re-election and I knew I needed to keep my job, I wasn’t getting child support.
This turned out to be a good thing. I was not going to “air my dirty linen” in court, no matter what. I also knew that divorce court would not go through all the wrongs in my married life to make them right. So, how did I resolve my angst? Venting! To my friends, to the counselor I was seeing and especially to the mediator.
As far as reasons to get divorced, the all-time classic was the woman who claimed that she filed for divorce because her husband threw her “dildo” out the window. Now, even if that happened, would you tell anybody? Or worse, pay a lawyer to tell somebody?
When I first started in divorce court in the late 80’s, mediation was in its infancy – used mostly for landlord/tenant disputes. Then I met a family law mediator who was one of the first in the state of Florida. She had visited all the judges and talked about the pluses of mediation, both for the divorcing couple and the children. One day, when I was in court listening to this couple for the third time in as many weeks, it came to me “why not try that new mediator, give her a chance”? I sent the couple to her and I never heard from them again. I thought I was on to something, no more stressful hearings. Better for the couple, better for the children and really good for the judge.
Contrary to that first experience with mediation, when I sent the next case to the mediator, I actually heard back from one of the parties. The couple had had an ongoing dispute about child support. Dad had remarried and the litigation had started up again. Funny how that works! Post divorce hearings can be nastier that those before the divorce. After a successful mediation, Mom wrote me a letter, and thanked me for the referral. Believe me, as a judge in divorce court you rarely get a letter of appreciation. In fact, I think that was the only one. Of course I wasn't permitted to answer her, but from then on, whenever I could, I sent cases to mediation.
Mediation is an excellent vehicle to assist couples in finding resolution for their issues. Typically, mediation is a confidential process with someone who is neutral. It should be non-adversarial, in a controlled environment where each party has the opportunity to express himself/herself without fear of repercussions. When mediation first started, basically the couple simply went to the mediator and, if an agreement was reached, the mediator would send a memorandum to each attorney and the attorney would review it with his/her client, draw up a settlement agreement and proceed with basically an uncontested divorce. All of the mediators at that time were mental health professionals. Mediation not only worked with the resolution and the issues of the ongoing divorce, but also with the satisfaction rate in post-divorce problems. I found that couples who had negotiated their own solutions were less likely to come back into court after the divorce was finalized. There’s evidence for my observations. In one of the best long term studies of mediation, the overwhelming conclusion was that mediation kept families out of court. (The Truth about Children and Divorce, Robert E. Emery, PhD. ) And for the most part, that remains true.
Yet, when I returned to divorce court, it seemed as though that many couples still were coming into court after attending the now mandatory mediation session. I couldn’t understand it, what had changed? In the interim between my two tours of duty in divorce court, one of the main things that happened was that many lawyers also became certified mediators. Lawyers saw this as an adjunct to their law practice. Now, this is not to suggest that lawyers cannot be good family law mediators. In fact, one of my favorite family law mediators is a lawyer. But, in general, it seemed as though the couples who went to a mental health professional fared better in the mediation process than those who went to lawyer. I'm not aware of any studies on this particular issue, so the previous statement is just my personal observation.
Still, mediation, either with a mental health professional or an attorney, is the best first step for divorcing couples. Mediation has been shown to not only solve the present problems, but facilitate a continuing relationship between parents and children, post-divorce. (The Truth about Children and Divorce, Robert Emery, PhD.)
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Judge Susan Sexton is a sitting judge and is available for select presentations throughout the United State. Copyright © 2012
