Response to "Is It Time For A National Divorce Law Too?"

Posted By Mark Baer || 7-Aug-2015

On July 12, 2015, Laurence Kotlikoff published an article in Forbes titled "Is It Time For A National Divorce Law Too?" In that article, Mr. Kotlikoff describes just how arbitrary our laws are from state to state and how that impacts people who are divorcing, for example. He demonstrates how spousal support that would be awarded in the exact same case varies from state to state with regard to both amount and duration.

In 2012, I attended a program conducted by Neil Denny, at the International Academy of Collaborative Professionals Annual Networking and Educational Forum. The attorneys who attended that program were from all over the United States and abroad. In order to demonstrate the distinction between "legal justice" and "fundamental fairness," Neil had attorneys from each state and country describe how spousal support amount and duration was calculated in their jurisdiction. The results were extremely eye opening.

When the attorneys from Texas described how spousal support worked in their jurisdiction, all of the attorneys from outside of Texas commented on it not being "fair" to them. The same was true when lawyers from Louisiana, Ohio, California, Washington, Illinois or anywhere else described how spousal support amount and duration was calculated in their jurisdiction.

What became abundantly clear very quickly was the fact that we tend to confuse the laws in place in our particular state or country with "fundamental fairness." In actuality, "fair" is a 4-letter word that starts with "F" because it is subjective. Therefore, it is impossible for laws to be "fundamentally fair." I have actually written a great deal on this subject and one of my articles is titled "The Grave Mistake of Confusing Concepts of Justice and Fairness with the Law."

I agree with pretty much everything that Mr. Kotlikoff said, except that I realize that I can't imagine such a change actually taking place, especially considering all of the "State's Rights" advocates out there."

Regardless, the laws are not just arbitrary in how they are written in each jurisdiction, but also in how they are applied. On January 14, 2012, I published a blog titled "Judicial Bias - A Variable That Is Often Overlooked in Family Law Litigation," which was later edited down into my Psychology and Family Law column.

This topic has since received a great deal of attention. In fact, on September 24, 2014, this topic was addressed at the Pasadena Bar Association Family Law Section's monthly lunch meeting. I had the pleasure of hearing Gretchen W. Taylor, Commissioner of the Superior Court (Ret.), Los Angeles present on "How To Prepare For Mediation." During her presentation, she made it abundantly clear that ALL JUDGES ARE BIASED. Commissioner Taylor told us that she used to teach at the Judge's School that all newly elected or appointed judges are required to attend. She told us that they distribute a hypothetical question to the "students," without advising them that the half of them have a fact pattern where the facts are identical, except that the genders are reversed. She informed us of the Bell Curve produced from the results. There is a VERY clear bias in favor of women and against men with regard to spousal support, whereby men receive virtually nothing if the shoe is on the other foot.

Please don't be mistaken into believing that judicial bias is limited to spousal support with regard to gender because that is just one of an infinite number of examples.

In any event, in his article Mr. Kotlikoff talks about "a fair divorce." Considering that fairness is subjective, what on Earth is "a fair divorce?"

Query: WHAT BIASES DO YOU WANT THE NEUTRAL JUDGE (OR ARBITRATOR OR EVALUATIVE MEDIATOR) TO HAVE WHEN DECIDING YOUR CASE? I, for one, would prefer not to have a BIASED "neutral" deciding my case!

Maybe, you should consider resolving matters on your own through negotiation, mediation or collaboration. When you resolve your issues based upon your individual needs, interests, values, goals and fears, and those of your spouse, at least the subjective nature of the resolution is specific to the parties themselves. That being said, don't make the mistake of allowing your attorney or anyone else impose their concepts of fairness onto you because their concept of fairness may likely be very different from yours.