Thursday, December 6, 2012

Divorce Myths Uncovered

The 27 Most Common Divorce Myths

If you are getting your divorce advice at the corner bar, you will probably find many people who believe all of the following statements about divorce and marriage to be True. Joe the bartender may lend you a sympathetic ear, but for advice you are better off going to a lawyer.
Divorce myths are fictions people tell each other - the "conventional wisdom," as John Kenneth Galbraith once termed it. They are popular beliefs and notions, and they are wrong. Divorce myths thrive and propagate because some of them are comforting. These fictions work - that is, people believe them - because many of them often make a kind of intuitive sense. Some of them seem approachable via common sense; they are wrong nonetheless. People take comfort from them because they hold forth hope. In the human heart, hope does spring eternal.
What follows are an examination of a number of the most popular and enduring myths attached to divorce. Divorce myths perpetuate themselves because the sharp edges of divorce cut so deeply into the human condition.
1. It is OK to deny visitation if the other parent does not pay child support.

False. This situation comes up when the noncustodial parent, who is usually that father, falls behind in his child support, and the custodial parent, who is usually the mother, decides that his delinquency justifies shutting him out of his children's lives. This she cannot do. In the eyes of the judge, child support and child visitation are separate issues. Courts frown on parents even attempting to use one to leverage the other. Child support is not payment for the privilege of visitation. A custodial mother whose former husband fails to pay child support must go to court; she cannot take matters in her own hands with a lockout.
Denying visitation may make the equally ill-informed noncustodial parent feel justified about not paying child support.

2. By committing adultery you give up everything.

False. Increasingly, courts view divorce as the dissolution of an economic unit, and in many jurisdictions, bad conduct during the marriage - infidelity - is not even considered in the division and distribution of the marital estate. So if a couple is parting ways in a no-fault, no-contest action, adultery, even if it is the case, will not enter into the property settlement. In some states, judges may consider conduct during the marriage as a matter of judicial discretion, but bad conduct in this case usually deals with economic misconduct, that is, the dissipation or secretion of assets.
Some angry women may be tempted to use adultery as a ground for divorce, but most lawyers advise against it. Adultery, even when it is the case, must be proved, and if there is nothing to be gained, the effort is not worth it, particularly when there are children involved since the aftermath of such a court action is liable to be bitter.

3. A spouse can deny the other spouse a divorce.

False. In the old days before no-fault divorce, one spouse could make it all but impossible for the other to end the marriage. For a variety of reasons (usually related to money and social positions), loveless spouses in years gone by showed no end of ingenuity in ways to trap their partners in the shells of dead marriages.
Today, the liberalization of divorce, which began in 1970 in California, means that if someone wants out of a marriage, the other spouse cannot trap him or her. Put another way, no-fault in practice means that no one has to stay married if he or she does not want to.
This does not mean that divorce is easy. In the vast majority of cases, one spouse wants to end the marriage and the other does not—at least at the onset. And sometimes the reluctant spouse stalls the process of a divorce in the hopes of a change of heart or out of spite. But these dilatory tactics eventually come to an end.

4. The mother automatically gets the kids.

False. Mom does not automatically get the kids, but in 80 percent of the divorces, the mother ends up the custodial parent, and the father pays child support. In many cases, the divorcing spouses agree the children's best interest is with the mother. In contested cases, where both parents seek custody, the court refracts the question through the prism called the best interests of the child. That phrase means what a judge says it means. Despite enormous cultural changes, many judges remain in the sway of what is called Tender Years Presumption and the Maternal Preference, both of which work in favor of the mother.
Child custody disputes invite warfare between divorcing spouses. To win, one spouse must prove the other an "unfit parent." The contest becomes a zero-sum game, where the winner takes all.

5. You must have a lawyer to get divorce.

False. You do not need a lawyer to get a divorce. Everyone has a constitutional right to represent him or herself. And every state recognizes the right of anyone to appear in court pro se - for himself or herself. Some jurisdictions - those with summary or simplified divorce procedure - make it very easy for layman to file for an uncontested divorce. The necessary paperwork can be obtained online.
Pro se filing works very well in simple divorces - ones where there are no kids, no property, no arguments, and both spouses working.

6. You can get a same-day divorce in Las Vegas.

False. One spouse or the other must be a resident of Nevada for at least six week's before filing (which is one of the shortest residency requirements of any state), and it normally takes 60 to 90 days for the divorce to be final. However, unlike many jurisdictions, there is no waiting period to get married in Nevada.

7. You have to get a divorce in the state you married.

False. Normally, at least one of the spouses must be a legal resident of the state where the couple files. Jurisdictions often consider service members residents of the state for divorce purposes. Normally, a person becomes a legal resident of a jurisdcition by living there for a period of time, ranging from six weeks to a year, depending on the applicable state divorce laws.

8. You can take a smaller property settlement to avoid paying child support.

False. Property settlements and child support are separate issues. One cannot be used to leverage the other. Jurisdictions use a number of methods to calculate child support, such as income shares or percentage of income, and judges will permit deviation from these depending upon the unique circumstances of the case. However, child support is a moral obligation of the noncustodial parent, and no parent escapes his or her obligation to support the children in exchange for a smaller share of the marital pie.

9. The children get to choose which parent they want to live with.

In contested cases, the courts decide child custody based on the best interest of the child - the gold standard. In practice, this usually means that, unless there is a compelling reason to do otherwise, the mother becomes the custodial parent. In general, judges are unmoved by wishes of the children, particular when the children are young. Courts may consider the expressed wishes of older children in deciding custody, but this is a matter of judicial discretion.

10. Keeping the house in my name only means it will always be mine.

No, this is not necessarily True. For example, a man who owns a house at the time of his marriage but continues to pay off its mortgage with marital funds may give his wife an interest in the house he owns in his name alone. Also, just living in a home as a married couple may constitute the property to be classified as marital. Most couples put the marital home in joint names (tenants by the entirety), but property acquired during a marriage, including the a house in the name of only one spouse, is subject to division and distribution.

11. An engagement and wedding rings are marital property.

That symbol of a future commitment - the engagement ring --- belongs to the wife. Courts have held that the engagement ring belongs is her separate property. Wedding rings are gifts from one spouse to the other, and they seldom end up on the table and subject to distribution in a marital settlement.

12. Lottery winnings are marital property.

True. Much to the dismay of many an estranged husband who imagined that a lottery prize would be a ticket up easy street after a divorce, lottery winnings are marital property and subject to division and distribution.
Courts have brushed aside all other arguments. Prizes won by married couples during a marriage are marital property, regardless of which spouse purchased the tickets.

13. Most contested divorces are settled in court.

False. Only a tiny fraction of all divorce cases ever go to court. In many contested cases, lawyers prepare for trial even as they continue to search for a settlement. This is part of their strategy because divorce negotiations often involve jockeying for the best position.
Reputable divorce lawyers always try to work for a settlement rather than a trial because going to trial escalates the cost of a divorce geometrically and also introduces the element of surprise. Moreover, a couple who end their marriage in a trial will part ways with a lasting hatred of each other that makes effective divorced parenting all but impossible.

14. A divorcing woman can always count on alimony.

False. In most cases, most women do not get alimony at all. Generally, permanent alimony is awarded to stay-at-home mothers whose contribution to the marriage was child rearing, woman who have been out of the marketplace for a long time and whose stale job skills make it very hard for her to find employment. A young employed woman in a short-term marriage stands a very good chance of getting no alimony.

15. Divorces normally end in battles that leave both spouses angry and bitter.

False. One way to insure that is to turn a lawyer loose and tell him or her to go for the throat. Another way is for one spouse to act in bad faith - secreting assets, poisoning the well with a whisper campaign against the other spouse, making threats.
Divorce is never easy, and it is one of life's most painful and dislocating experiences. However, the way the spouses handle themselves goes a long way in determining how the marriage ends.

16. No-fault divorce makes it easy for men to escape marriage.

False. Today, women initiate two-thirds of all divorces. According to sources, "some of the reasons for this may be women's tendency to monitor the marriage relationship more closely than their husbands, and the likelihood that men are involved in problematic behaviors such as drinking."
Back in the 1960s, when pressure was building for divorce laws, many argued that liberalized divorce would be a free pass for man to walk out on marriage. It didn't turn out that way.

17. Mediation means that the divorcing spouses still must hire lawyers to file the divorce.

False. Mediation may make it easy for a divorcing couple to file pro se.
Legal advice and strategy when couples cannot come to agreement about the terms and conditions of their divorce are the most expensive parts of what divorce lawyers provide (often because advice and strategy entail what is called discovery). Mediation means the husband and wife work out the terms and conditions of the divorce by themselves, with the help of the mediator. If a couple can come to agreement themselves, they can often file the divorce papers obtaining the forms online. Filing the paperwork is the least challenging part of divorce.
Mediators generally do not file divorce paperwork, although they may assist in its preparation. And sometimes, even with a mediator, some resolved issues may require the services of a lawyer, such as drafting highly specialized court orders associated with the property settlement.
In general, mediation reduces the amount of work a divorce lawyer has to do.

18. Equitable distribution means that both of the spouses get half and equal shares of the marital estate.

False. Equitable distribution means that the division of the property will be fair. That does not necessarily mean half or even equal. Equitable distribution takes into account the financial situation of each spouse. Equitable distribution is more flexible, and in many jurisdictions judges exercise a great deal of discretions in dividing the marital pie.
For example, in one common situation, a court may award the custodial mother the marital home and give her husband cash assets even when that distribution is not equal.
Courts can use equitable distribution to take into account liabilities that may accrue to one partner by virtue of the length of the marriage. For example, a court may favor a stay at home mother whose long years out of the workforce have made her employment problematic.

19. It's easier to be single because the freedom to come and go means less stress and more money for yourself.

False. "Married people are healthier emotionally and physically and they have more wealth too," says Dr. Diana Kirschner, writing in Agenda Magazine. "Study after study has shown that love relationships have a huge impact on our psychological, economic, and physical well being. Having a life partner can create a high sense of self-worth, provide intimacy and emotional support, which fulfills the deepest human need for connection, and lead to greater wealth and economic stability.
"As a result, married people may be happier, live more satisfying lives, and have fewer psychological problems, including depression. Many factors lead to better physical health, greater health-seeking behavior, and lower rates of alcoholism. Here's the big take away: for over 100 years studies around the world have shown that married people live longer and enjoy a higher quality of life than those who aren't partnered."

20. Second marriages are more successful than first marriages.

Probably the most popular divorce myth in constant circulation concerns the durability of second marriages. It goes like this: "Because people learn from their bad experiences, second marriages tend to be more successful than first marriages." That seems to make sense. Moreover, since three-quarters of the men and woman who end marriages spin the roulette wheel of romance again within three years, it offers hope that the second time around the promised land of wedded bliss is at last in sight. Unfortunately it's wrong. "Although many people who divorce have successful subsequent marriages, the divorce rate for remarriages is in fact higher than that of first marriages," says David Popenoe, who heads the National Marriage Project at Rutgers University. Popenoe, who has codified many of the popular divorce fictions, says the divorce rate for second timers jumps to 60 percent and for those going to the altar again a third time, 73 percent.
Even before the grind of daily living begins, marriage, "the second time around," as the song goes, comes freighted with problems and liabilities. And even before that, people contemplating a second marriage seem particularly prone to selecting a new partner without thinking through what happened the first time. "Going into a second marriage without realizing why the first one failed is like NASA building another rocket before finding out why the last one exploded," observes one social commentator. In lieu of honest soul searching, very often former spouses assign blame to the first partner, and they think that the secret to marital happiness is simply a matter of finding Mr. Right or Mrs. Wonderful, mythical creations that exist nowhere except in their imaginations.
Very often, the monotony of daily living, which is a fact of life, includes the demanding management of unfinished business from the first marriage, for example, when a new husband stumbles in his perhaps unsought role of stepfather to his second wife's children, or when a mother finds herself in a tug of war between her children from the first failed marriage and the expectations of her new husband. When a second marriage begins with one or both partners having minor children from a first marriage, heroic adjustments must be made. This becomes even more complicated when additional children enter the picture. The Brady Bunch ("yours, mine and ours") looks funny on television; in real life, the success of a stepfamily demands hard work of all involved.
In second marriages, the climb becomes even steeper when a spouse finds himself caught, for example, between the financial demands of a former wife, who is the custodial mother of his children, and his new wife, who believes the first wife is just being greedy. Moreover, the management of money may not reflect the same level of trust had in the first marriage. In the first marriage, the partners think his money and her money is their money. This does not always happen in second marriages. Money management and agreement about it are fundamental to all marriages. When trust is absent, the marriage heads for trouble.
And finally, divorce the second time around does not hold the fear that divorce the first time does. As bad as divorce is, people do survive it. The "two-time loser," as one twice divorced woman put it, describing herself, "knows the ropes."

21. Living together before getting married provides a better chance of staying married.

Right after the myth of second marriages comes the myth of cohabitation. "Living together before marriage is a good way to reduce the changes of eventually divorcing." This idea, which has become very popular, appeals to common sense. Living together before marriage means fewer surprises for the couple later when they tie the knot. When people live together, the couple get used to one another. Some analogize cohabitation more prosaically: no one buys a pair of shoes without trying them on first.
For a variety of reasons, couples that at one time might have married now live together in informal and fluid cohabitation. While many couples eventually marry, many do not, and thus it is difficult to keep track of cohabitation relationships. Some couples cohabit for practical reasons and do not foresee marriage.
No one can doubt the surge in the number of co-habitating couples. Between 1960 and 1998, the number of unmarried, cohabiting couples increased from 439,000 to 4.2 million - a tenfold increase, and greater than the rates of marriage and divorce. These informal unions come into existence and dissolve much more easily than marriages and divorces. The formation and dissolutions increase the fluidity in American life. About half of the couples that first cohabited eventually marry, however.
A number of studies strongly suggest that those who live together before marriage have higher separation and divorce rates than those who do not. "The National Survey of Families and Households indicates that "unions begun by cohabitation are almost twice as likely to dissolve within 10 years compared with all first marriages: 57 percent to 30 percent." One study suggest that living in a non-marital union "has a direct negative impact on subsequent marital stability" perhaps because living in such a union "undermines the legitimacy of formal marriage' and so ‘reduces the commitment of marriage."
Of couples whose cohabitation ends without marriage, one writer suggests that those who cohabit "drift from one partner to another in search of the ‘right' person." So a caveat is in order. Evidence suggests that "when cohabitation is limited to a person's future spouse, there is no elevated risk of divorce."
Marriage is a whole that is greater than the sum of its parts. Cohabitation typically does not bring the benefits—health, wealth and emotional well-being - that marriage does. Popenoe suggests "people who cohabit may be more skittish of commitment and more likely to call it quits when problems arise."

22. Children typically fair well during and after a divorce.

One of the more popular divorce myths goes like this: "Divorce may cause problems for many of the children who are affected by it, but by and large these problems are not long lasting and the children recover relatively quickly." From this, people unhappy about their marriages drew several postulates and corollaries. "When parents don't get along, children are better off if the parents divorce than if they stay together." And from that, "If I'm not happy in my marriage, my children may do better if I divorce, because they will be better in life if I am not so unhappy."
Until the liberalization of divorce in the 1970s, many couples unhappy about their marriages stayed married "for the sake of the children." Many spouses decided to endure a bad marriage to prevent children from growing up in a broken home.
The truth is, divorce hurts children, and even under the best conditions, it is traumatic for them.
Judith Wallerstein, the author of The Unexpected Legacy of Divorce: A 25 Year Landmark Study, suggests that children, once thought very resilient to the dislocations of their parents' breakup, struggle for a lifetime with the residue of a decision their parents made.
Wallerstein's 2000 study tracks a group of 131 children over 25 years. According to her, "If the truth be told, and if we are able to face it, the history of divorce in our society is replete with unwarranted assumptions that adults have made about children since because such assumptions are congenial with adult needs and wishes. The myths that continue to guide our divorce policies and politics today stem from these direct attitudes."
Some qualification is in order. Most therapists and counselors differentiate between what are called high conflict and low conflict marriages. In both, the partners are unhappy. High conflict marriages, however, are those where the home atmosphere is actually dangerous to wife and mother as well as the children. Most authorities agree that high conflict marriages must and should end. Low conflict marriages, the ones heading for the rocks because the partners cannot get along, sometimes can be turned around if the spouses want to save the marriage.
Cathy Meyer, who writes about marriage and family issues, suggests that the happy parent-happy children idea objectifies children. Unhappy parents fail to understand that, though they may be unhappy, "their children are probably quite content and don't care if their parents don't get along as long as their family is together."
"A child's happiness is not dependent on their parent's happiness. A child's happiness stems from routine, having a home, two parents, friends to play with, school activities to be involved in and being able to count on these things being constant day in and day out," Meyer writes.

23. Children of divorced parents are more likely to get a divorce.

The pain and suffering of first divorces, which does not improve the odds for second marriages, appears to have no transfer value to the children of broken marriages. In fact, the reverse is true; parental divorce also reduces the odds of marital success for the children of divorce. Many people believe that living through a marital failure as a child improves the odds for that child in his or her marriage as an adult. This divorce myth goes this way: "Because they are more cautious in entering marital relationships and have a strong determination to avoid the possibility of divorce, children who grow up in a home broken by divorce tend to have much success in their own marriages as those from intact homes."
According to David Popenoe at Rutgers, this intuitive observation, though comforting, is wrong. "Marriages of the children of divorce actually have a much higher rate of divorce than children from intact families. A major reason for this...is that children learn about marital commitment or permanence by observing their parents. In the children of divorce, the sense of commitment has been undermined."
"Divorce does not doom children, but children have a leg up on life if their parents have a reasonably healthy marriage and make it work," says Scott M. Stanley of the University of Denver and the author of The Power of Commitment: a Guide to Active, Lifelong Love.
Stanley suggests that divorce raises the risk of "various negative outcomes for children by a factor of two or three. For example, the likelihood of children from intact homes having behavior problems is 10 percent while it is roughly 30 percent for children from divorced homes. So, most children of divorce do not exhibit behavior problems but the odds are significantly greater that they will."
Children of divorce have "more difficulties, especially in the relationship with the father: 70 percent of the children of divorced parents report having a poor relationship with their father" against 30 percent of the children from intact homes.
Stanley says the children of divorce have a "[g]reater difficulty believing their own marriage will last, not matter how much they want it do..." His numbers appear to support his argument. When one marital partner is a child of divorce, the odds of divorce in his or her marriage double. "When both partners are children of divorced parents, their odds of divorce are nearly triple that of other couples."
Popenoe suggests that divorce appears to be a learned response and that when faced with marital problems, the children of divorce respond the way they have seen their parents respond. Seen this way, divorce in families could almost be seen as an inherited behavior response.

24. Children are better off in step-families than single families.

According to sources, some 1300 new stepfamilies are launched each day, yet despite the hopes of the second timers who make these new ventures, the marriages of these new partners fail even more frequently than first-time couples. Yet despite this, many people believe this divorce myth: "Following divorce, the children involved are better off in stepfamilies than in single-parent families."
"Stepfamilies tend to have their own set of problems, including interpersonal conflicts with new parent figures and a high risk of family breakup," said Popenoe of Rutgers.
Elizabeth Einstein, a marriage and family therapist and the co-founder of the National Stepfamily Resource Center, suggests that many couples "need to slow down the marriage train" until the new partners resolve critical issues about the blended family. "People bring emotional baggage that's never been dealt with, and that only gets more complicated" in the stepfamily. Unresolved loss, grief and anger, jealousy over the new person in the house and disagreements about discipline work against the stepfamily and the second (or third) marriage that supports it.
"While many families manage it pretty well, the evidence is pretty convincing that, on average, children often do not fare better in step or blended families," says Prof. Stanley.
Stepfamilies are not like nuclear families, and stepparents are not replacement parents. This statement contains dynamics that make step parenting, even under the best of conditions, very difficult.

25. Is there such a thing as a "friendly divorce"?

The idea of the "friendly" divorce seems plausible to people who have never been divorced. Sometimes couples married a year or so realize they made a mistake and more or less agree to end it - or at least they agree to jointly in a summary divorce. Or, long-married couples decide, correctly, that fighting and conflict between them worsens the divorce trauma on their children, so they make a special effort - at least at the onset - to avoid conflict with each other. Hence, the idea of a "friendly" divorce.
Very often, the search for the friendly divorce becomes the pursuit of a mirage. "Divorce, at it's best cannot be considered an amicable process. No matter how hard we try there will be bad feelings," writes Cathy Meyer.
When there are children, bad feelings infiltrate the divorce process. "One or the other parent is going to feel betrayed and hurt. Those feelings will trickle down to the children no matter how hard we try to conceal them. To think that all will be fine as long as the divorce process goes off without a hitch is unwise for all involved."
Of course, divorcing spouses can take steps to avoid a nasty divorce. Keeping a lawyer on a tight leash means that he or she won't use the slash and burn tactics that so often escalate and make divorce more difficult.
However, the search for the "friendly" divorce very often disguises the quest of a painless divorce. No such animal exists. Even the simplest divorces - no children, no significant property, no alimony, both spouses working - entail pain and suffering. In truth, a "friendly" divorce is an oxymoron, like "friendly fire." A man or woman who made a good faith commitment and good faith effort finds it very difficult to not take a divorce personally.
Under the best conditions and outcomes, couples can manage a civil divorce, which is the more reasonable way to think about ending a marriage.

26. Once a marriage is destine for divorce, there is no turning it around.

Most married couples come to know that the road of marriage goes uphill and downhill. For them, even the word divorce never passes their lips. Others, however, accept the divorce myth of unhappiness. This one goes like this: "Being very unhappy is a good sign that the marriage will end in divorce." In the chemistry of married life, for many spouses who don't divorce the memories of the rough stretches - the uphill climbs - very often, in hindsight, make the marriage and the commitment that goes with it even more worthwhile.
"All marriages have their ups and downs," says Popenoe. He cites recent research using a large national sample that found that 86 percent of the people who were unhappily married in the 1980s, "and stayed with the marriage." Five years later, three fifths of the formerly unhappily married couples rated their marriages as wither "very happy" or "quite happy."
This 2002 study by University of Chicago sociologist Linda Waite challenged what is termed the "divorce assumption," that is, "that a person stuck in a bad marriage has two choices: stay married and be miserable or get a divorce and become happier."
Waite's researchers also found that two-thirds of the unhappily married spouses reported that their marriages were happy five years later. In addition, the most unhappy marriages reported the most dramatic turnarounds: among those who rated their marriages as very unhappy, almost eight out of 10 who avoided divorce were happily married five years later."
"The study found that on average unhappily married adults who divorced were no happier than unhappily married adults who stayed married when rated on any of the 12 separate measures of psychological well being. Divorce did not typically reduce symptoms of depression, raise self esteem, or increase a sense of mastery...Even unhappy spouses who had divorced and remarried were no happier on average than those who stayed married."
Says Waite, "Staying married is not just for the children's sake. Some divorce is necessary, but results like these suggest the benefits of divorce have been oversold."
In a general way of course, married people who divorce are unhappy, but the outcome of divorce is not necessarily the end of unhappiness, let alone the beginning of happiness. No married person who contemplates divorce can foresee the avalanche of changes a marital breakup causes -- "processes and events over which an individual has little control that are likely to deeply affect his or her emotional well-being." These include the response of one spouse to divorce, reactions of children, disputes and disappointments about child custody, support and visitation, and financial worries and woes.

27. Having children helps preserve or maintain a marriage.

One of the most enduring myths is that the arrival of children shores up a failing marriage. This myth, according to Popenoe, goes like this: "Having a child together will help a couple to improve their marital satisfaction and prevent a divorce."
On its face, this seems intuitively reasonable. According to Popenoe, many studies have shown that the most stressful time in a marriage is after the first child is born. "Couples who have a child together have a slightly decreased risk of divorce compared to couples without children, but the decreased risk is far less than it used to be when parents with marital problems were more likely to stay together ‘for the sake of the children.'"
Dr. John W. Jacobs, a doctor who writes about what he calls the lies of marriage, puts it more forcefully: "Children are an enormous threat to your marriage. It's very, very difficult to admit that the children you love so much can drive a wedge into your life as a couple, especially if one of the reasons you got married in the first place was to have a family.
"Even when you love your children fiercely, even when you thought you were prepared for the tremendous dislocation they would cause...your natural devotion to your children will tear your marriage down to its bedrock.
Jacobs puts it bluntly: "If you want to preserve your marriage, your children cannot always come first. As counterintuitive as it may sound, in your marriage, your spouse must come first, not only for your sake but also so that your children can grow up within an intact family."
The stresses of child rearing cannot be ignored, particularly "[i]f you have a child with any kind of additional difficulty –a physical or mental disability, a challenging temperament, ADHD..."
And yet, the parents of autistic children, who once faced reports of an 80 percent marital failure rate, seem no more prone to divorce than the parents of non-autistic children, according to a recent study. The study suggests that there "really weren't any significant differences in terms of family structure when you consider children with autism and those without," says Brian Freedman, clinical director of the Center for Autism and Related Disorders at the Kennedy Krieger Institute in Baltimore.
On balance, the arrival of children who are welcomed by their parents probably makes a strong marriage better. But the patter of little feet in lives of a couple who think the child will do for them what they cannot do for themselves is often a preliminary to divorce.


Conclusion

Divorce myths, like all myths, are part of the culture, and rightly or wrongly they give people hope because without it, life dead-ends in the box canyon of failed experience. Divorce, which is among life's most painful experiences, is a bad outcome to marriage, which rewards most people who give it a good effort. Life, after all, is very tough, and most people don't want to go through it alone. And it's wise to remember that there are always exceptions. Many second marriages do work very well; many stepfamilies function beautifully; some couples do end their marriages cleanly and civilly; sometimes a child does save troubled marriage. It is the exceptions, however, that engender the myths.

Saturday, December 1, 2012

Technology can lift Canadian courts out of the dark ages. So where is it?

Technology can lift Canadian courts out of the dark ages. So where is it?

MONTREAL - Technology is transforming the legal landscape in many countries, cutting down on lawyers' fees, saving time for just about anyone who sets foot inside a courthouse and making justice more accessible.
But in Canada, most courts are still stuck in the dark ages, buried in mountains of paper and only now beginning to wake up to the digital world.
"The state of court technology is abysmal," said Ontario Superior Court Justice Fran Kiteley. "We're decades behind other sectors."
A fellow Superior Court judge, David Brown, caused a bit of a stir in the legal community with a recent decision bemoaning the lack of technology in courts.
"From the perspective of the members of the public who use this court, delays caused by our antiquated, wholly inadequate document management system impose unnecessary, but all too real, costs on them," he wrote.
"What if our court had an electronic case management system," Brown mused.
"Yes, Virginia, somewhere, someone must have created such a system, and perhaps sometime, in another decade or so, rumour of such a possibility may waft into the paper-strewn corridors of the court services division of the Ministry of the Attorney General and a slow awakening may occur."
A recent conference in Montreal by the Canadian Centre for Court Technology, a group Kiteley heads up, could perhaps be considered the "slow awakening" for which Brown hopes.
There are pockets of innovation from Canadian courts — British Columbia is widely touted as the leader — but for the most part the glimpses of how modern the courts could be come from south of the border.
A county in Texas started a project that made jury duty more convenient for residents, and the results were startling. People who received jury notices by mail could go online to fill out their questionnaires and select a time that they would be available to report for jury duty.
Only about 50 per cent of people who receive notices show up for jury duty in the U.S., and in some areas it can be as low as 10 per cent, said Jim McMillan, with the National Center for State Courts based in Williamsburg, Va.
Meanwhile, Travis County saw 90 per cent of people show up at their personally selected time, he said. The county also won an environmental award as it was estimated they saved 160,000 kilometres in car trips.
McMillan's proposal to electronically schedule some court appearances elicited oohs and excited nods at the conference. In certain levels of court dozens of cases are scheduled to be heard at 9 a.m. Then, as the judge or justice of the peace works their way down the list, it may take several hours — meaning several hours in lawyers' fees for some — before a case is briefly heard.
"We could do things like reserve times, things like, you know, we do with restaurants and almost everything else in our lives," he said. "We don't make everybody come to the restaurant at 6 p.m. and say, 'Well, you're 400th in line.'"
Instead, McMillan said, what if people checked in at a kiosk and were given a time of 11:20 a.m., for example? They could go run a few errands then return, he suggested.
As for the reams of paper each court case generates, it will, by all accounts, be a while before courts can go completely paperless. But the paperless projects that are being touted are generating interesting results.
In Manatee County in Florida, they set out to determine just how much money they could save if they switched entirely to electronic documents. They found that when court documents were filed electronically and then printed by court staff for use and storage — an intermediary stage at which most Canadian courts find themselves — it cost 57 cents per page.
But when documents were filed, used and stored electronically it cost 11 cents per page.
"We can now take these numbers, give them to our funders and say 'Look, we are running six and seven times more expensively than we could potentially," said McMillan.
In B.C., a recent appeal case was run entirely electronically, saving hundreds of thousands of pages that would have had to have been printed for the five sets of lawyers and the five judges, said Andrew Clark, the project manager for B.C.'s e-Court program. Done electronically, the size of all the appeal documents was 1.8 gigabytes.
The lawyers involved found that it saved them a lot of time and money, savings that they were then able to pass on to their clients.
"We're talking about...a huge reduction in, particularly, public money," he said. "It reduced the cost of litigation."
The only downside those involved in the e-appeal reported? One of the judges quipped that he would have to start going to the gym more often because he wasn't lugging around massive binders.
It's hard to argue with cost savings, but it costs money to implement court technology projects. Governments generally haven't shown great interest in investing in the justice system, instead directing spending to politically popular areas such as health, suggested Kiteley.
"Between more money for justice and more money for MRIs, MRIs win hands down," she said.
Public demand for more modern courts could be what pushes governments to fund new projects, said Ontario Superior Court Justice Larry Whalen.
"When you look at our lives, we're surrounded by technology...so I think government has a responsibility of investing in technology to facilitate justice," he said.
People who choose to represent themselves in court cases perhaps have the most to gain from technology in court, said Whalen.
Nova Scotia created a website, with federal funding, dedicated to helping people through family law proceedings. Forms to file emergency applications, contacts for community agencies, steps toward mediation and information on what happens when children are taken into care are all easily found on the homepage.
That province has also webcasted Appeal Court cases, which allows anyone who can get on the website to watch a full court case.
Online court access expands exponentially south of the border, particularly in the U.S. federal court system. For a fee, people can search for case filings, motions and decisions. There are currently one million users of the system, said McMillan, and last year the courts received $41 million in fees.
The caveat, depending on one's viewpoint, is that more than 90 per cent of that revenue comes from commercial data aggregators, McMillan said.
"These commercial entities are in our courts now anyway, collecting this information whether it comes from manual input or whatever," he said. "It doesn't bother me that if they're reselling and making nice profits off that that they shouldn't help us facilitate (electronic access)."
The idea clearly leaves Kiteley unsettled, though.
While credit bureaus already send people to sift through court files and take note of who has judgments in areas such as bankruptcy against them, it might not be good for everyone to provide easy online access, she said.
"Do we want to have data aggregators reviewing every single application for divorce?" she said. "Say Jane Smith and Bob Smith are getting divorced and here's their addresses and here's the names of their children and the schools their children are at and do we want a data aggregator to send to these now separated spouses online dating information?
"Do we allow that to happen even though that would give money back to the courts?"
The judges involved with the Canadian Centre for Court Technology say that not only does the government need to provide funding, but the judiciary needs to show some leadership on the issue if any progress can be expected.
Kiteley suggested what put B.C. ahead several years ago was a "triumvirate of leaders," in the deputy attorney general, the B.C. Supreme Court chief justice and the provincial court chief justice.
McMillan, who has worked on court technology projects all over the globe, said Singapore is probably the world leader. He named South Korea as a close second. As for Canada?
"It's not terrible," he said.