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We Should Change the Adversarial Language of Divorce

Words shape our thinking, trigger emotions, and affect our behavior in divorce.

When spouses enter a divorce, they enter the legal justice system. This is rather puzzling, as no crime has been committed. Most states now have “no fault” divorce. While they are not on the “criminal side” of the courts' proceedings, they can end up in the same building and rooms, although at different times as people who have committed crimes. It can make the process seem like an all-out war to win.

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Cairns mark the way when the path is not clear.
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In legal proceedings, people are not called “people.” They are called “parties.” This is dehumanizing and also mystifying to me. Words shape our thinking, trigger our emotions, and affect our behavior. It is time to look at how we talk and think about divorce. I would like to propose some new, more humane language that might help foster a cooperative relationship between people who are ending their relationship. This matters because the language we use, and the adversarial setting of the court system, does not support a healthy recovery or successful co-parenting. We know that conflict during and after divorce damages relationships and hurts children. Yet the system in which divorce takes place frames it as an adversarial process. Perhaps changing the words we use can soften the transition.

Mediation and Collaborative Divorce are options that encourage less adversarial negotiations. And yet, even in mediation and Collaborative Divorce, language is used that connotes damage, negativity, competition, winners and losers. In California (and other states) when one person files a divorce “petition” with the court, the other person receives a “summons” which states, right at the top, “You have been sued.” Perhaps the “respondent” knows that the summons will be served, but often it is a shock. A process server shows up at one’s home or workplace with the summons, and even if it is expected, it is almost always upsetting, and sometimes embarrassing. From this moment, the divorce is set up as an adversarial process. I would like to see divorce taken out of the legal system and handled in a cooperative fashion, in a different kind of social system. I realize this statement is provocative, and unrealistic at this point. But let’s start that dialog.

Attorneys, even attorneys who do not consider themselves adversarial, will refer to their counterpart, the other spouse’s attorney, as “the other side” or “opposing counsel,” as if there is a battle to be fought and won. Couldn't they say that they are “working with” the other attorney to help spouses come to a resolution? This would imply a more cooperative relationship between the attorneys, and would sound different, and more gentle, to the spouses. Attorneys also speak of “settlement negotiations,” which also sets up an “us vs. them” mindset. I propose that “discussion of options for possible solutions” is a much more accessible and friendly way to frame the problem-solving and decision-making of the divorce process.

We talk of “custody” of the children. “Custody” is something we do with suspects—we take them into custody and put them in jail. This is not child-friendly. Sometimes we talk of the parent who “gets visitation.” This does not value the parental responsibility of both parents, their love for their children, nor the attachment that children need to have to both parents. My suggestion is to use the term “timeshare” or “sharing parenting time” with the children.

Rather than talk of percentages, as in “I want 50% custody” I think we foster more positive connections when we look at the needs of the children, and the ways we can “maximize each parent’s time” with the children. My divorcing clients often say “It’s my day with the kids.” What if parents would say “It’s the kid’s day with Dad” or, to the children, “It’s your time with Mom this week,” rather than “It’s Mom’s week.”

Another area of conflict during the divorce process is “(spousal) support” or “alimony.” These terms carry negative meanings. The payer often resents paying his or her ex, and sees the ex as exploiting them in some way by trying to “get as much as s/he can.” Even “child support” does not recognize the sharing of raising children, or co-parenting. I prefer to talk about “income sharing” so that both homes feel like homes to the children.

In divorce negotiations, people often say “I just want it to be fair,” or “It should just be equal.” However, we all have a different sense of what is “fair,” and the conflict does not get resolved by focusing on “fairness.” The term “equitable” often feels more reasonable and acceptable to divorcing spouses.

Parenting plans or Marital Settlement Agreements often include the phrase “right of first refusal.” This mandates the on-duty parent to offer care of the children to the other (off-duty) parent before bringing in a babysitter. The off-duty parent has the option to agree or “refuse” to care for the children. The term is “legalese” to most people, and needs to be explained carefully. I prefer to say “right of first care” which supports the idea that the parents are cooperatively sharing the care of the children.

Other words I’d like to change: “Mom’s house” should be “your home with Mom,” and “Dad’s house” should be “your home with Dad.” This is child-centered language. Instead of “broken home,” I prefer “one family under two roofs.” “Broken home” implies that there is permanent damage, but my clinical experience tells me that children can (in the absence of parents’ conflict) adjust to the emergence of a restructured family and thrive after a divorce. Sometimes children gain resilience and new strengths after a divorce. It almost always comes down to whether the parents can minimize or eliminate their conflict.

Changing our divorce vocabulary can help take the adversarial tone out of the relationship between the former spouses. There are likely many other terms that seed conflict rather than cooperation. Let me know in the comment section if you can think of any more.

© Ann Buscho, Ph.D. 2019

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