What do Divorce and the World Cup have in common?

The answer is Goals! But not the goals you're thinking of.

I heard an interesting theory on why the United States will never compete with the top soccer teams in the world on ESPN Radio's The Herd with Colin Cowherd . Colin's theory is that kids in the U.S. have too many other options. The best athletes in the U.S., for the most part, grow up to play football or basketball or baseball. In contrast, the best athletes in other countries all grow up to play soccer.

The United States is an underdog in the World Cup because our best athletes don't play soccer (no offense to Landon Donovan but he's no Lebron James).

What does this have to with Divorce? Well, life is all about priorities and goals. U.S. athletics, parents, and children have not made soccer a priority and so, not surprisingly, we are not as competitive as countries where soccer is king.

A Divorce is also all about goals as well. The things that you choose to focus on and make the most important will be reflected in the outcome of your divorce. Are you focused on making sure that your children will experience the least negative impact possible, or are your focused on how much money you will have after the divorce? Are you focused on whose fault the divorce is, or are you focused on what your life will be like after the divorce?

Although, these types of questions are not legal questions, knowing your priorities can help you decide how your divorce case should proceed. I always ask my clients what their goals are, before I try to tell them what I can do in their divorce case. Because I need to know whether your goals are realistic, and also because your goals could change how I handle your case. If you don't tell your attorney or your mediator what is most important to you, don't be surprised if you are unhappy with the results of your divorce.

Similarly, don't be surprised when a country that makes soccer a priority wins the World Cup.

Why doesn't my agreement say [fill in the blank]?

I recently updated by iTunes software and saw the following warning:

"You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design manufacture or production of missiles, or nuclear, chemical or biological weapons." (iTunes EULA: Section 10, Paragraph 8)

Apparently, Apple is worried I am going to use my newest edition of iTunes to manufacture my own MIRV's. (There's an app for THAT?!) I suppose it's possible to figure out a way to launch a first strike from an iPhone (it can do practically everything else), but the likelihood of me trying, or even wanting to is, as we say, de minimus.

A good lawyer will go to great lengths to make sure that his client is protected, but sometimes, we fail to distinguish between "what might possibly happen" and "what will probably happen". A good attorney should not try to insulate you from every abstract contingency; rather, he or she should assist you in identifying risks, then recommend the things you can do to minimize those risks without the need for cumbersome arrangements or worse, confusing and unenforceable agreements. Keeping a legal solution simple and straightforward does not mean leaving you exposed to risk, loss or harm - it means making sure you are protected and still able to improvise, adapt and overcome what life throws at you after your case is complete.

The Sanctity of Marraige

A recent tongue-in-cheek blog post by fellow attorney and blawger, Gabriel Cheong, describes his support for the 2010 California Marriage Protection Act.

The 2010 California Marriage Protection Act, a proposed amendment available at http://rescuemarriage.org/2009/08/22/2010-california-protection-of-marriage-act/, takes Proposition 8 one step further by banning divorce in the state of California.

Support of the 2010 California Marriage Protection Act demonstrates the hypocrisy of attacking gay marriage for being detrimental to the sanctity of marriage when the state allows divorce. Divorce, after all, is the ultimate attack on the sanctity of marriage.

Although this is the classic slippery slope argument, the method can hardly be questioned by those who claim gay marriage will lead to people wanting to marry their pets.

This leads to the question: What does it really mean to protect the sanctity of marriage?

Sanctity is defined by the Merriam Webster Dictionary as 1. the holiness of life and character, or 2. the quality or state of being holy or sacred.

So when you hear pundits, politicians and protesters telling you that the sanctity of marriage is being attacked in the United States, they are right. But it isn't under attack because homosexual couples want to get married. The sanctity of marriage has been under attack since the first time one spouse cheated on their spouse, lied to their spouse, or otherwise disrespected the bonds of marriage.

The fight to keep marriage sacred is not a fight that can be won by the writing of laws, or restricting certain people from enjoying that bond. The fight to keep marriage sacred is an ever vigilant effort by a spouse to support, love and respect their spouse, and it takes two spouses willing to make that effort.

Forcing people to stay in marriages where their spouse is unwilling to make that effort is just as silly as refusing to recognize that homosexuals also have the ability to participate in a sacred bond of support, love and respect with their partners (whether or not the laws support them).

A Response to "What Triggers Violence in Custody Battles in the United States?"

A colleague in California, Attorney Mark B. Baer, recently wrote a post discussing some horrific and recent tragedies of domestic violence that have occurred during the process of divorce or child custody court cases.

Attorney Baer points out that our courts are not designed to deal with all of the emotions that come with a divorce, or a child custody dispute, and neither are most attorneys. Attorney Baer then posits a direct connection between these cases of violence in divorce or child custody disputes, and concludes that the family law system in the United States is to blame for that violence.

We respectfully but strongly disagree. The frustrating delays and other inefficiencies of the court system are not the cause of domestic violence. Abusers, making their own choices, are the cause of domestic violence.

The following response was written jointly by Jonathan Eaton, Esq. and Justin Kelsey, Esq. as a reaction to Attorney Baer's article:

Attorney Baer's post describes two problems: (1) frustration borne from an extended court process and (2) domestic violence. He then assumes that one can lead to the other, and that therefore the alternatives to one (alternative dispute resolution instead of the traditional court process) would be an effective way to prevent or solve the other problem (domestic violence, particularly extreme cases of domestic violence). Attorney Baer's rationale is faulty because frustration with the court process is not the root cause of domestic violence.

Domestic violence is on the extreme end of the spectrum of controlling behavior. It occurs when one partner in a relationship desires to control the other, which may escalate to acts of emotional or physical violence. Although frustration with the court process could trigger a specific act of violence, simply avoiding court does not remove the underlying problem.

Furthermore, in cases where the controlling behavior has been an issue prior to the start of the divorce process, alternative dispute resolution could be used to continue a pattern of intimidation and abuse.

Mediation and collaborative divorce are voluntary, consensual processes. They require open and honest participation and if either individual is dissatisfied with the process, he or she may end it at any time. If an emotionally controlling individual is feeling that he or she is not getting his or her way in mediation or in the collaborative law process (in other words, feels as if he or she is not in control), then that process is likely to fail. If control is more important than resolution to a spouse, then they will revert back to their controlling behavior, regardless of the process being used.

Child custody battles can be the most emotionally charged family law disputes. Attorney Baer illustrates three examples of child custody disputes ending when one parent allegedly murdered the other (and sometimes the children and bystanders). It is impossible to know for sure whether any of these tragedies would have been avoided had the respective couples engaged in alternative dispute resolution, but it is unlikely that a person who is willing to resort to murder when they don't get their way was going to be satisfied with compromise. It is far more likely that an abuser would take advantage of alternative dispute resolution to get their way. Allowing abusers to control a situation so as to avoid outbreaks of violence is not a solution, it is tantamount to condoning their behavior and perpetuates the pattern of control.

Attorney Bear is correct that for many cases alternative dispute resolution can greatly increase the likelihood of a peaceful resolution, and successful co-parenting plans. However, in cases where there is a history or risk of domestic violence, the delays and frustrations of the court system are far outweighed by the protections that the court can provide to abuse victims (such as orders from protection from abuse).

Like Attorney Bear we encourage potential divorce litigants to consider the alternative ways to get divorced, but at the same time we feel it is very important to recognize that his article significantly misrepresents the causes of domestic violence:

The court does not create abusers, and there is no excuse for domestic violence.

At Kelsey & Trask, P.C., we pride ourselves in our mediation and our collaborative law practice, and we hope that it becomes more widespread as more individuals become aware of the alternatives to the traditional litigation track. In general, we feel that it is the most effective forum for accomplishing what is in the best interests of the children. However, we recognize that it is not "one size fits all."

In Massachusetts, our probate and family courts have become so backlogged with cases that clerks and registers have cut their hours working with the public in order to allocate more of their hours to performing the administrative work necessary to move the existing cases along. The traditional litigation process is too long, and often very frustrating for people already transitioning through a difficult period. If you and your spouse are willing to participate openly and honestly in mediation or collaborative divorce, then we encourage you to learn more about these processes.

But if you are a victim of domestic violence, your first priority should be the safety of you and your children. You should explore all of your options, including the protections offered by the court. If you or someone you know suffers from Sexual or Domestic Violence, call the National Domestic Violence Hotline at 1-800-799-SAFE, or if you live in Massachusetts check out these resources available on the Massachusetts State website, and seek help.