There are a lot of myths surrounding parenting, divorce, and parenting after divorce. These myths are propagated by our culture and carried into our court rooms. These myths need to be removed from our judgement as a society. They often encourage bad behaviour that is contrary to the the stated goals of creating new family units that everyone can thrive in. They encourage decisions that just might not be right if it weren’t for these myths. I am not using statistics for this discussion. We all have had enough people in our lives experience divorce or raising kids in separate households to know what the outliers are. Stop assuming that there is some society so different from the one you live in that exists in the USA that is so divergent that these behaviors are allowed to thrive. There really isn’t one, and the few places that might turn a blind eye are not representative of the norm. I originally planned on this being a single post, but it became way too long. I have made it a series. One that I will likely be adding to over time. I will try and remember to update the links below for all parts of the series.
Abuse Is Common
This myth comes up whenever you talk about divorce. Abuse is cited as a reason for so many of the laws that affect divorce. The myth is that most divorces involve a cowering woman who has survived vast amounts of abuse over the years, and has finally found the courage to leave her husband, and needs the protection of the court and police to keep her alive. According to the myth nearly half the men who get married will beat their wife at least a little bit, and half of them will do so to the point of risking her life. This myth is so strong that when you hear about a divorcing woman, it is a first inclination to worry about her safety by many people. This myth feeds the “White Knight” or “Prince Charming” characters in all of us, who want to protect the weak from evil.
The myth encompasses physical abuse, emotional abuse, psychological abuse, financial abuse, and marital rape. There are other things that have been cited in more extreme cases, but these are enough. The laws are written to protect women from all of these. They are written with the assumption that a woman wouldn’t be leaving a perfectly good relationship and the security it provides unless something horrible has happened. We have the entire history of man to show that women rely on pair bonding relationships to protect themselves, so they wouldn’t abandon this protection, unless the protector is worse than the other possible risks they face without the protector. It is hard for a happily married or idealistic young man to stomach the kind of horrors that some women might face, and they desire to do their part to protect these women in ways their own husbands have not.
This myth is so strong that the standard forms in most states for filing for divorce are mostly related to protection from abuse. There is often a checkbox and a couple lines to fill out to get an order of protection and an emergency hearing right away. To blow up your family and to put children through this trauma is unthinkable by most people, unless there is a monster lurking in the shadows. The story of a violently abusive husband behind closed doors, and a stable businessman and community member in public has been sold to our culture for a very long time. Behind closed doors all men are possibly a closet sociopath.
The truth is that in most relationships there has been some physical aspect to altercations. It might be pushing, slapping, grabbing, or simply pounding on a wall or table. It isn’t the norm for most people to fight like this regularly, and for most the type of contact doesn’t present any more risk than playing frisbee. The couples where this is the norm, it is also generally not just one partner doing these things or even initiating them all of the time. When physical altercation is the cause of divorce, it is usually the first one. Most people in abusive relationships stay there. They are sympathetic to the abuser. No one should live like this, but there is a more complicated psychological reaction to what is happening in these relationships than just the abuse. I won’t claim to understand it, but I will claim that those who stay after abuse generally believe in some way that the abuse is justified or not their partners fault. This is broken thinking, but it is also thinking that keeps them from leaving. The domestic violence laws, well intentioned or not, are misguided. They take away the core principle of American justice, that a person is presumed innocent until proven guilty. It allows the family court to dispense justice without proving fault. It has become a tool for ensuring that women can get what they want in divorce without having to negotiate. This isn’t only a problem for those who have been accused, but for all men going through divorce. There is a concept of “negotiating in the shadow of the law.” This means that in the shadow of how the court is likely to view things based on prior cases, men are not negotiating from a position of equal footing. They are negotiating for something better than they hope for in court, but not for their equitable share of things. This is especially true when it comes to things regarding the children. Lawyers like this system. It allows them to control the amount of conflict and maximize their income. The law saying one thing, and the reality of the process being another thing will allow both the husband’s and the wife’s lawyers to utilize the system to pad their pockets.
Domestic violence is horrible, but the kind of ongoing domestic violence that these laws are written to handle is not the norm. It is the bar that all men going through divorce are faced with proving they are not one of those guys. The domestic violence laws really just need to be repealed. In a no fault divorce world, domestic violence should have nothing to do with the results of the case. I say this with an understanding that partner abuse has not been a demonstrator of child abuse or future child abuse, so it shouldn’t play a role in deciding what happens with the children. I do think there should be an emergency process for women and men of abuse to use to protect themselves as they head out for divorce. I think there should be a simple process for someone lower than a judge to hear the initial part of a case. The person leaving needs to vacate the house, unless they agree otherwise, and an equal time share with the kids needs to be established right away, unless there is agreement otherwise or a significant compelling reason not to do so. If the person leaving was unable to retrieve their personal items, then police can assist in ensuring there isn’t conflict while retrieving these things. Any other items should be protected with an order not allowing either of them to dispose of, destroy, or sell them. There should be directions to the courts not to take initial possession of the house as a precedent as to who should be allowed to keep the house. I don’t want the advantage to shift to the alleged abuser, but neither should they automatically lose everything based on allegations that haven’t passed any legal test at this point. As I have said in previous posts, the assets of a marriage should be divided by agreement, or the court should force the sale of the items and then the proceeds divided equally by the parties. The court should not decide who gets a home, car, heirloom, or other items. If you rember the story of King Solomon and the women who argued over the baby. His solution was to cut the baby in half. He then gave the baby to the mother who wouldn’t let the child be cut in half. There are two lessons in that story for us in these situations. One, is that it is clearly not the courts role to judge on things of family. The court has no insight no matter how hard they try to find it. Two, that the person who is most aggressive in wanting the child is most likely to allow harm to come to the child for the sake of winning. Our courts routinely ignore this second lesson I also think that fault divorce should be a viable option for the victims of domestic violence. Criminal charges should be filed, and some form of guilty finding or plea would imply fault in the divorce case. This should be the only way to divide the property in an inequitable way.