Last week I attended a screening of the movie Divorce Corp. sponsored by the Massachusetts chapter of the National Parents Organization. My expectations were low, given that the movie was produced by a pissed off divorced guy, Joseph Sorge.

One theme of the movie is the extent to which everyone in the $50 billion/year divorce industry benefits from keeping the plaintiffs coming, making the stakes as high as possible, and making the process as complex and drawn-out as possible. The movie often presents this as an explicit conspiracy but doesn’t explain why it has to be a conspiracy. Just one or two assumptions is sufficient to generate the divorce industry as shown in the movie. One is that children are best served by a customized outcome, e.g., 55 percent time with one parent as opposed to 50 percent. The other assumption is that litigation doesn’t harm children, so if it takes $500,000+ in legal fees and a huge investment of time and energy by both parents to get to that 55/45 percent split instead of 50/50, the children are just as well off as if no litigation had occurred. With those two assumptions in place, the system that we have is superior to the Danish system where everything is rule-driven, formulaic, standardized, and therefore fast and cheap.

There are some candid interviews with divorce litigators. Jerry Nissenbaum of Massachusetts is on screen asking rhetorically “Am I worth $700 per hour? I don’t know, but that’s what I charge.” Another litigator explains how “the truth isn’t relevant” in divorce court. What is important is a story and it is always the same story: “There is a victim and a victimizer. Then you need a third person, a rescuer, which is sometimes an attorney and sometimes a judge.”

The movie itself illustrates that litigator’s point. The filmmakers could have highlighted the dry facts, e.g., statistics regarding how divorce lawsuits are decided or what motivates people to file divorce lawsuits (e.g., ten years of data from Nebraska or Brinig and Allen’s study of the correlation between child support obtainable and lawsuit filings). But instead they found the most extreme and heart-wrenching stories available. Want to find out about the generic two-income couple with a house and two kids? Who gets the house? Does the court give the kids to just one parent, reducing the other to a “visitor”? How long did it take? How much money was spent on legal fees? You’re out of luck. Instead you’ll get a story about children who have spent years without seeing one of their parents and oftentimes the filmmakers don’t explain how one parent won such a complete victory. Everyone knows that this isn’t a typical outcome and therefore it isn’t that interesting.

The film has interviews with a couple of seemingly competent women whose children have lost all access to them. The suggestion is that this outcome is primarily due to the fact that the women annoyed or insulted a judge, but the backgrounds of their cases is only barely sketched. When the filmmakers show children who have lost access to their father it is usually because the mother has accused the father of abusing her and/or of sexual abuse of a child. According to the movie, this is the most rational strategy for a plaintiff to pursue because it might result in a 100 percent victory and if the allegations are false there won’t be any penalty. When there is not enough evidence to obtain an arrest or criminal conviction, the filmmakers suggest that yet a divorce court judge may well rely on an allegation to rule in a devastating manner. At a minimum, alleging abuse is very effective for a woman seeking to obtain “temporary” sole use of the marital home, which then gives her a leg-up in obtaining sole custody of the children, after which the case is over (see below).

The filmmakers portray the courts’ usage of supposedly independent custody evaluators and Guardian ad litems as a farce. According to the movie, these folks get paid $25,000 to $70,000 to crank out a report that may simply be based on personal connections to one side’s attorneys or what they think the judge wants to hear (so that the judge will reappoint them). A cop turned private investigator gives the movie most of its best lines, pointing out in a colorful way that the system depends on people who are lying and motivated by the potential for financial gain.

The movie has one interesting statistic, but no source is cited. The claim is that despite more equality of the sexes in earning power and despite a lower divorce rate, the amount of money transferred as child support and alimony has gone up 30 percent (in constant dollars) over the last 20 years. The filmmakers cite a “2000% increase” in the number of divorce litigators in California, tying that increase to the rise in housing prices and the ability of attorneys to place a lien on a divorcing couple’s house (California Family Code Section 2033). The film implies that a major driver of divorce litigation is the existence of assets that can be transferred into attorneys’ pockets, but the point is not convincing because it could also be more aggressive plaintiffs or more determined defendants and the film simply assumes the greedy lawyers are to blame. (Why would divorce plaintiffs be more aggressive today than in previous years? A woman in the audience pointed out “Collecting child support is more profitable than it used to be. To collect child support in the old days you had to take care of children. There weren’t a lot of commercial care options. Now the judge who orders the father to pay for child support separately orders the father to pay for day care or a nanny. So a woman can go to work or the country club, do almost no child care, and still collect child support as though she were a stay-at-home mom.”)

The movie covers several of divorce lawsuit defendants who’ve been sanctioned by judges, threatened with a complete loss of their parental role, and/or imprisoned for writing private Facebook posts or public Weblog entries regarding their experience in the family court. The First Amendment is useful for the New York Times but the film suggests that it affords little protection for the ordinary citizen who is writing about the judiciary itself.

The movie is strong on the easy stuff. The filmmakers found some parents with sad stories to tell and the production values are reasonably high. The filmmakers included YouTube footage of a family court judge in Texas beating his disabled daughter and then noted that the man continued to serve on the bench (cnn.com). The movie is weak on proposed remedies. The main change suggested by the film is that divorce defendants should have the right to a trial by jury instead of the present system where a single judge decides all questions of fact, e.g., whether the children should have one parent or two, how profitable the children should be to the winning parent, who should get the house, etc. The filmmakers argue that a jury would be less susceptible to corruption by cozy relationships with divorce litigators. (In patent infringement cases there is a right to a jury trial despite the fact that the questions typically require specialized technical background to understand. I asked an experienced patent litigator why it wouldn’t make more sense to have judges decide patent cases, particularly judges with technical backgrounds. How was a jury able to decide which of two PhD chemists, experts on opposing sides, was delivering the correct analysis? He said “Juries are great at figuring out who is telling the truth, which expert is answering naturally and which is shading his testimony.” It does seem kind of odd that the Seventh Amendment guarantees a right to a jury trial if Joe is trying to get more than $20 out of Sally by a “suit at common law” but that if Joe wants to get two children and $1 million per year in child support out of Sally she is not entitled to a jury because divorce court is an “equity” court.)

[The attorneys in the audience were skeptical that a jury system would streamline family court. One lawyer said “If you add a jury but leave in place the laws that make getting custody worth $1-5 million, you’ll have the same number of trials.”]

After the movie, there was a panel discussion and then the audience broke up into small groups. Ned Holstein, the founder of the National Parents Organization, gave an epically bad mushy motivation speech/attempted pep talk. It was easy to see why groups of defeated men like this one have been ineffective politically. Holstein spoke enthusiastically about the 200 or so people in the room changing the world right after a movie that showed they are up against people who are banking $50 billion each year in fees that depend on the system staying the way it is.

The audience discussion was more interesting. About half of the folks who attended were drawing their income from the divorce industry, either as divorce litigators or mediators. Inadvertently these folks proved the filmmakers’ point that money drives peoples’ perception of fairness. A $450/hour participant said that the film’s examples, mostly from California, Texas, and the Midwest, were ugly but lawyers and judges in Massachusetts were full of integrity and sincerely doing their best for children. The attorneys in the audience nodded their heads in agreement. A mediator criticized the film for not showing that mediation was the answer and that all problems could be solved if the government paid mediators to work in the courthouse. The mediators cheered. A “second wife” who is tired of turning over half of her paycheck to lawyers and a non-working “first wife” suggested that the system could be improved if there were a cap on attorneys’ fees in divorce lawsuits. The defendants in the audience clapped while the lawyers gasped in horror.

The “mediation is the answer” idea was challenged by another mediator, who had been quietly shaking her head. “Mediation as in ‘compromise’ is not rational for a woman in Massachusetts. She’ll be able to get sole custody from the judge 99 percent of the time, and a very profitable stream of child support to go with it. There are very few women who will leave money on the table in order to preserve a cooperative relationship with the father. The only thing that has worked in my practice is getting the father to pay as though the mother were the sole parent, but he’ll take care of the kids half the time. I start my work by having a private session with the man. I tell him that divorce in Massachusetts is not about creating ex-husbands. It is about creating ex-fathers. As soon as his wife decided to divorce him he became an ex-father and that unless his wife is a prison inmate, a Massachusetts judge will give her sole custody. I tell him that he has a narrow window of opportunity to buy his way back into fatherhood by giving the mother whatever cash she wants. If he can’t pay her off right now in mediation, she’ll be in court next month. She is going to convincingly tell a judge that she is ‘afraid’ for herself and her children. Nobody will care that there was no previous record of domestic violence. The judge will order him out of the house and cut the kids’ time with him back to about a day a week. He will never be able to recover from that first temporary order. Then I sit down with the woman and tell her that she’ll end up with more cash if she mediates because her husband will have to feed just her lifestyle, not hers plus the lawyers’ on both sides. Typically I can’t persuade her to stay in mediation unless I can convince her that she will end up with more money than if she litigated.”

The litigators said that even when mediation was successful, the work of mediators in Massachusetts was often short-lived. “I worked on a case that was originally mediated. The women had $500,000 per year in income, wanted sole custody, and wanted to move with the children to a foreign country. The father caved in on everything, quitting his job and following her abroad so that he could spend about one third time as visitation. Because her income was so much higher than his and because he caved in on the move, she agreed to share the children’s actual expenses rather than collect child support. It worked great for a couple of years, but then her income fell to about $400,000 per year and she sued him for child support based on the fact that she has sole custody. He makes $90,000 per year.”

A psychologist present said that “people recover better from the death of a child than from losing a custody lawsuit. A death is final and a parent can begin to heal. These custody and child support lawsuits drag on for years, get re-tried every few years until the kid turns 23, and mostly one parent never had a chance to begin with but the judge isn’t supposed to tell him that. False hope can be worse than no hope.” A lawyer responded that Massachusetts custody cases were typically over after just a few weeks, but only the lawyers and the judges knew it: “The mom gets a Temporary Order awarding her the house and the kids. The dad is cut back to every-other-weekend visitation. We tell him that he can pay us to fight this case through the trial but in 20 years I can’t remember a case where a man was successful in overcoming that first order. We tell the woman that she has to keep paying us, but really at that point she could go pro se.” Another lawyer suggested that because the first order typically determined the children’s future it should not be decided based on attorney representation: “In 99 percent of cases the plaintiff’s lawyer is either lying or repeating lies. The standard should be an immediate evidentiary hearing before the house and kids are given away to one parent. It would be tough to pull it all together in a couple of weeks but it would be a lot better than the current system where the attorney representations cannot be challenged or subject to cross-examination.”

The final comment that I can remember was from a divorce litigator who challenged the movie’s title. “The child support plaintiffs that I’m seeing these days were never married so it is a mistake to talk about ‘family court’ and ‘divorce’ as though they were synonyms. The kids that are the ostensible subject of the demands are the product of relationships that lasted sometimes just one night. Oftentimes the kids are not even born yet but the future mother wants to get an agreement to begin collecting at the top of the guidelines [$40,000 per year, tax-free] or higher. What happens to kids who were created for their cash value and whose parents are total strangers? It bothers me sometimes, but then the attorney on the other side and I collect our fees, both of us tapping into the father for anywhere from $50,000 to $100,000, and I move on to the next case.”

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