“Divorce Corp” Review by a Divorce Attorney

divorce attorney in bedford“Divorce Corp.” is a documentary released in late 2013, narrated by radio and television personality Dr. Drew, that focuses on addressing the issue of the cost and time involved in divorce. From its initial publicity campaign it positioned itself as a hatchet piece on the judicial process. I finally got around to obtaining a copy. These are my thoughts. Naturally, as a divorce lawyer in Bedford and Fort Worth, Texas, you might consider my views incredibly biased. Perhaps they are. However, I am not anti-alternative dispute resolution nor necessarily in favor of taking divorces to trial. I do believe that each divorce is unique. At any rate, this is my opinion as a professional in the divorce arena. You are free to give it the value you find suitable.

Overview of Divorce Corp

The movie is a poor narrative about how the judicial system is horrible for divorces with no serious solution. Although some legitimate criticism exists, the majority of the content pieces together isolated incidents of really bad divorces. It’s not much in the way of meaningful content. Lawyers, judges and other professionals who deal with the legal system are a minority source of content. The quality of content is so poor it takes away from the rare meaningful criticism that peppers through the movie.

The main thrust presented is that the whole system is a corrupt financial scheme. The fault, seemingly, for all hostility in divorces comes from the lawyers. It ignores that the broken marriage preceded the divorce and how much the spouses manufacture needless hostility. The alternative through the movie is we could dispense with judicial resolution of divorces if we were just more Scandinavian. Yes, if we were a society with less focus on property rights and more focus on gender equality then perhaps we could handle many things differently; but we have different social norms and legal rights  so it’s not as easy as changing a few court rules. We don’t really know what that path is to be more Scandinavian. We should just be it.

Honestly, this movie isn’t very far from asking some co-workers or friends who have been divorced what they experienced. That is basically all the movie presents. Oh, and be more Scandinavian.

More detailed breakdown of Divorce Corp

The documentary begins with a brief history of no-fault divorce (prior to the 1970s one had to prove particular reasons existed for a court to grant divorce) and how the change to a no-fault system made divorce easier to request but not any easier to complete. Afterwards, it jumps immediately into attacking the judicial system as excluding certain constitutional rights in family courts. The silly part of this introductory material is that it features multiple lawyers talking about the fees they have collected on divorce proceedings but when we get to the discussion of constitutional rights, suddenly we get more non-lawyers than lawyers explaining that. Not exactly building credibility with that. As an aside, one of the complaints raised includes that family courts deprive individuals of their right to jury; but in Texas our family courts do subject divorces to juries if requested.

The documentary then turns to a laundry list of complaints about the family court system and how unhelpful it is to parties without divorce attorneys. Legitimate complaints exist about fairly minor points; but the real thrust is just that the system is too complex and too hard. It isn’t, really. The Texas Family Code is actually one of the most user friendly areas of the law. The family courts are far more forgiving to pro se parties than most others. The Texas Supreme Court, for example, ordered the production of simplified forms for uncontested divorces. The family law clerks are far more familiar with pro se parties than say, the civil court clerks, and have a lot more patience for helping people out (at least around here).

However, all that said, there is some good reason for a certain level of complexity. The family code and family courts deal with far more important issues than what the documentary gives them credit for. A divorce is far more complex than a marriage. There is typically property division that can invoke both federal and state law across multiple areas of law. New parenting relationships must arise The court orders child support and mechanisms must exist to ensure the children receive financial support There can be high risk situations with abuse. This isn’t just hitting the rewind button on your marriage video.

Criticism of divorce attorneys

Of course, if you’re going to hit the courts then you have to turn on the divorce lawyers, too. The documentary trolls out high end attorneys who charge $600-950 an hour for family law work. Sure, those lawyers are probably way over priced no matter how good they are but the reality is that most family law attorneys (heck, most attorneys period) do not charge close to that amount. I handle far more complicated litigation for much less per hour than that. But it isn’t as dramatic if you find lawyers who charge reasonable fees. Yes, some lawyers are greedy.

Then the documentary blames all the hostility in the divorce on the attorneys, who make a lot more money on the adversity than cooperation. The latter is true but the earlier isn’t always the case. Hostility usually exists before involving lawyers. If there wasn’t hostility then what’s causing the marriage to end? This is a mixed problem. Some lawyers love to get nasty right away because it’s their strategy. Often the parties want the nastiness because it makes them feel like they are hurting the other person.

Personally, I don’t mind being nasty in litigation but I make sure my clients know it’s the most expensive and rarely the most effective way to win a divorce. It’s usually cheaper and more effective to be strategic and leave the hostility. I prefer that approach but sometimes it just doesn’t make the client feel satisfied. Some people want that TV court kind of experience where they air out all the things they hate about their spouse but don’t deal with the legal issues, like property division and child issues. If you don’t want to feed the hostility then don’t hire an attorney who advertises that he or she is “aggressive” and don’t tell your lawyer you want them to be aggressive.

Custody proceedings in divorces

Next, the documentary discusses the role of children and custody in divorce proceedings. The attack is first levied on the “best interest of the child” policy adopted by the Texas Family Code and other states. This statutory policy allows the judge broad, but not infinite, scope to hear evidence and determine what custody decisions are in the best interests of the children. Although the documentary paints it as a limitless and nebulous policy, at least here in Texas we have some contours defined as to what the court should consider in making its decision.

It seems like you would always want the court to consider the best interests of the children and have flexibility to make a specific decision connected to each unique case but some of the criticism is valid. Sometimes the policy’s broad limits allows the court to come up with some eyebrow-raising decisions.

However, that’s where your lawyer should be working hardest as your advocate to help shape the decision around the important issues and drive the court to make a rationale decision. Unfortunately, it doesn’t always work that way.

Other parties to a Texas divorce

The documentary next turns its awkward gaze at the third parties invoked by the courts to help determine the best interests of the children. In Texas, these can be several different positions, including attorneys ad litem, amicus attorneys, guardians ad litem and various social workers and psychologists. Sometimes these people fit meaningful roles. The judge doesn’t have the time or staff on hand to investigate every child caught up in a divorce or custody dispute. Instead, these third parties can provide meaningful guidance for the judge. The documentary takes the position that these positions add unnecessary costs from unqualified sources.

The documentary brushes with too broad of a stroke but generally I agree. Sometimes there are unique child issues that can benefit from involvement of psychological experts or the parents are so self-centered that the children really do need their own advocate. Then the documentary turns to discussing a small number of bad apples and then tries to paint the picture that this guy was the rule, not the exception. Not an honest picture.

Criticism of divorce court judges

Tying this issue back to the court, the documentary makes a point about how the judges approve the fees for these third parties and often the third parties and lawyers make election contributions to the judges, so it’s sort of a fox guarding the hen house situation (and makes reference to one particular judge here in the Dallas/Fort Worth area). I don’t entirely disagree here but again, the documentary is painting with too broad of a brush. Judges are not all absolutely corrupt as the documentary seems to suggest.

However, the documentary then asks who is overseeing the courts. It takes a brief swipe at California’s agency that oversees its court before going back to complaining about the “collusion” between judges and lawyers. For the valid points here, the documentary does an awful job of producing a well-investigated, meaningful argument. It’s just divorced people complaining about what allegedly happened to them, from their own perspective.

Alternate divorce resolution methods

With things looking bleak, the documentary sets up its alternative to the judicial process with a trip to Sweeden and Iceland, where divorces are not commonly handled through a judicial process. The magic of their process, apparently, is that they treat the spouses as equals and do not expect one spouse to pay for the other after the divorce. The documentary flashes back to the US, where it alleges judges put on the hook for alimony for life. At least here in Texas, that can only happen by contract between the parties. Texas has very limited legal spousal support provisions in the Texas Family Code that typically only apply when one spouse is disabled or has not developed job skills due to the high income of the earning spouse and the spousal support is extremely limited.

So maybe the documentary is just referring to states with broader spousal support laws? No, suddenly there are swipes taken at all support laws, including child support, and how “complicated” they are because they try to calculate the actual resources that could be paid as support to determine a more fair number. I guess some fairly simple math is “complicated” if your idea of an “expert” on a divorce is the “judge” from the TV show “Divorce Court”.

Key differences

Now let’s go back to that comparison to Scandinavian countries. The documentary tries to define these countries as very similar to the United States but actually these societies have some key differences. They are far less litigious because they do not have the near-absolute belief in the primacy of property rights and they are less terrified of government regulation. A divorce with property division by some distant bureaucrat is not exactly the ideal process for many Americans.

Even if people were comfortable with that idea, you would need to make a lot of changes to basic legal issues in our country to make that work. You can’t just wash over social and cultural norms, the legal rights at the center of the American civil system and a far more liberal approach to governance to make divorce a little easier. I mean, I guess you can if you think TV personalities are experts as the producers seem to think.

Using custody and child support as negotiation points in a Texas divorce

Next the documentary takes on child support and how the children become pawns to gain money. Again, there are some truths to these arguments. The documentary makes some exaggerated claims that would not apply here in Texas (if anywhere) but really takes issue with the idea that support is based on income rather than the needs of the children. This isn’t as bizarre as the movie makes it sound. If the two parents lived together, the children would have the benefit, for needs and wants, of the pooled income.

When the parents divorce, the adults lose the pool but the children are both parents’ obligation. The law permits them to continue to enjoy the benefit of the pooled income. That is among the purposes for that calculation. A major problem with support based solely on need is the custodial parent has a burden to prove every need. It’s essentially a punishment for taking custody of the child. It would require parsing every expense as a need versus want. Is it necessary for the kids to have play things or extra-curricular activities? It’s certainly not a life-or-death issue but these are things that are generally part of a childhood. Is it an efficient to head into court to dispute whether Johnny needs that soccer ball or braces? Probably not.

The documentary goes back to Scandinavia to show how that doesn’t have to be the case. If you want to radically reform key elements of our society then, sure. We could make those changes to the family courts.

Divorces with domestic violence

The movie then slides into criticizing the involvement of the family courts in domestic violence allegations in divorces. The documentary seems to suggest domestic violence allegations are almost always lies concocted for strategic purposes. I won’t argue that untrue domestic violence claims never occur; but domestic violence often does occur before or during a custody dispute or divorce. No counterbalancing evidence appears to assert an argument about how often domestic violence occurs. More lazy and one-sided reporting.

Ultimately, the message we get is that the judicial system is really bad and the fix is…be more Scandinavian? There’s no alternative presented. We just get vague statements about the need for reform, whatever that might be.

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