the law office of mark a. criss
So before you select your legal fabrics and start cutting and sewing, join me in a walk down memory lane. The subject is divorce law in Pennsylvania. For older practitioners, this may be a fond (or not so fond) reminiscence. For many of you, it will be like stories about silent movies were to my generation, quaint but not especially interesting. For my youngest readers, born after the adoption of the Divorce Code of 1980, there may be some problem relating to this antediluvian tale at all. Close your eyes.
The year is 1977. A tumultuous time to be alive. The Cold War, high interest rates, and Disco (Donna Summer excepted) are vying with one another to end civilization as we know it. Thomas Wolfe famously labels it the time of the “Me Generation.” As the pace of communications and travel accelerates, so too does the rate of divorce. Marital relationships, once sacrosanct, are becoming increasingly easy to discard, as no fault divorce sweeps the nation. But in Pennsylvania, the levees are stout and, for the moment, divorce trends are in abeyance.
Getting a divorce in Pennsylvania in 1977 was pretty much the same as it had been since 1780. There were three parties; Husband, Wife and the Commonwealth. That’s right, the State. The state was deemed to have an interest in the sanctity of marriage – really, the integrity of households – because the taxpayers didn’t want to have to support indigent ex’s as public charges. Did I mention there was no alimony, except for the institutionalized insane? So you had to have “grounds” for divorce.
Frankly, grounds were plentiful; incurable impotence (if known to the impotent party and concealed at the time of marriage), bigamy, desertion, adultery and cruel and barbarous treatment to name a few. But the leading ground for divorce, probably by a 50:1 margin over all the others put together was indignities. Who, practicing in 1977, can forget the soaring prose of that era? The Complaint charged that “the Defendant has engaged in a course of conduct whereby he/she has committed such indignities to the person of the Plaintiff, the injured and innocent spouse, as to render his/her condition intolerable, and life burdensome.”
Well, on the surface of things, that sounds pretty much like your average marriage on a bad day, when somebody leaves the toilet seat up or burns the vanity top with her curling iron, and you feel like a victim. But bear in mind, if he left the seat up, and she burnt the vanity, neither was innocent and injured; ergo, no divorce. So, to prove indignities in 1977 we needed to go beneath the surface and deal with the real human drama in the marriage.
We would explain to the client that, in general terms, “indignities consists of everything that annoys you about your spouse.” There were specific, useful guideposts abundantly available in the caselaw. To this day, 32 years after they were last dusted off for use at trial, these timeless phrases come effortlessly to mind: intentional incivility, habitual contumely, settled hate and estrangement, vulgarity, malignant ridicule, studied neglect and unmerited reproach. Good stuff.
Now, if you were the defendant, you had quite a few cards to play, regardless of the merits of the plaintiff’s case, because all you had to do to win was play for a tie. If the plaintiff was as big of a boozer, jerk, fornicator, or whatever, as you, he/she couldn’t be “innocent and injured.” Or, if you just called her a “GD *expletive* *expletive* only once then, again, no divorce, because indignities involved a “course of conduct,” not a single incident. And there were specific defenses, like recrimination: “he did the same thing to me;”or condonation: “she readmitted him to her conjugal embraces with knowledge of his infidelity.” You get the picture, wheels within wheels, and a lot of moving parts.
It followed that, if your client was accused of indignities, you needed to know what the specific allegations were before you went to trial. So you praeciped for a Bill of Particulars. And this is where it really got good; you got chapter and verse on whatever perversions your client had perpetrated or repeatedly threatened. Did he photograph her in the shower and show the pictures around the Elks club? Did she run screaming from the house and threaten suicide when he tried to have sex with her, then return to the marital bed with her mother and a young girl in a continued effort to repel his advances?1
Picture yourself, daydreaming in your office three weeks after serving your praecipe. The secretary taps on the door and enters with the afternoon mail. On top is a somewhat bulky, carbon smudged envelope with a return address you recognize. Is this it? Yes, it must be! Back then, you may have lit a cigarette, savoring for a delicious moment or two, the suspense of not quite knowing, and the impending joy of finding out. Finally, fingers trembling slightly, you slit the envelope and spread the Tales of Degradation upon your desk. Sometimes, there was just a routine litany of swearing, drunkenness, public humiliation and name calling.
Occasionally though, if your adversary was a truly artistic practitioner, the Bill of Particulars became a real page turner, containing morsels of salacious detail, while hinting at carnal acts so unspeakably licentious as to prevent the writer from, in good conscience, spreading them upon the public record “at this stage.” The bodice, in such cases, hung by a thread, in jeopardy, but intact until trial. It was a great era for drama.
Confronted with the often sordid, always censorious tale of their bad acts and shortcomings, clients predictably reacted with emotion. They cried, denied, lied, defied, and heatedly replied. Just like real people in real relationships. Was it really so bad to require people to vent about and thrash through their conflict before they got their divorce?
Apparently it was, because in 1980, the Legislature adopted the Divorce Code, and spoiled all the fun, supposedly, to:
(1) Make the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience.
(2) Encourage and effect reconciliation and settlement of differences between spouses, especially where children are involved.
(3) Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.
(4) Mitigate the harm to the spouses and their children caused by the legal dissolution of the marriage.
(5) Seek causes rather than symptoms of family disintegration and cooperate with and utilize the resources available to deal with family problems.
(6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.
The vehicle chosen to convey us to this Valhalla was, of course, no fault divorce, with an expanded menu of economic rights. After the adoption of this well intentioned law, which unfortunately did nothing to change human nature, some new trends in divorce practice became evident. Practitioners came to explain to clients that the law of divorce is not concerned with the physical and emotional torture to which they and their kids have been subjected; judges don’t attach much weight to even flagrant adultery; and putting their spouse’s name on that inheritance, or using it to pay marital bills, was a big mistake, in hindsight.
All of my readers, as collaborative professionals, know that no fault divorce as practiced in Pennsylvania has not reduced or eliminated conflict associated with divorce. The law has redefined which aspect of the conflict – money – the courts will deign to adjudicate. In the days when divorce was a moral drama, the goal was nothing less than freedom. Under no fault, freedom is a given, the contest is just about money and control. It has reached the point where practitioners have become uncomfortable with clients normal emotions, counseling against even thinking of “finding fault.” Somehow, despite the legislative attempt to dispel fault from our consciousness, divorcing parties still haven’t come to perceive the law of divorce as a fair way to resolve conflict. How odd.
The public is not entirely happy. Seemingly, some citizens refuse to be educated about how lucky they are to live in an era of no fault divorce. Practitioners are unsettled by client’s inability to appreciate even excellent (monetary) settlements or judgments. “What do you mean, you aren’t happy?” Into this unsatisfactory world, in 1990, collaborative practice was formally imagined by Stuart Webb, and since then has been fashioned and refined by Webb and countless others.
Leisure Suit or Little Black Dress?
In the Metropolitan Museum of Art, in Manhattan, my wife and I stopped to behold an armless statue of Aphrodite, the Greek Goddess of Love. The placard purported to depict the sculpture’s original form in which Aphrodite’s arms are crossed in what was suggested to be a pretty half-hearted effort to cover her female parts. My wife stared intently at this iconic work for what seemed a long time, then pronounced her verdict: “Aphrodite had a muffin top.”
Now, let it be admitted, my wife is no art critic. But was she on to something? Was Aphrodite simply trying to hide the slight bulge in her midsection? As an advocate, I can make a case: Aphrodite wasn’t a prude. She roamed around naked all the time. She was the Goddess of Love, for crying out loud! Why suddenly get modest when some random sculptor wanders by? Isn’t it more reasonable to give her credit for covering up just what she wanted to cover up?
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Granted, if my wife had lived in the 15th century, and happened upon Botticelli’s depiction of Venus (Aphrodite by her Roman name), when plenty of flesh was considered a sign of health and prosperity, she probably would have ached for the poor underfed model. Attitudes change.
And that’s the thing. In New York the fall fashions have just come out. You may love them or hate them, but you are going to be exposed to what’s trending in fashion one way or another. And you are going to have a reaction.
In law, what’s trending is collaborative practice. And people are reacting. The growth of collaborative law, especially in family law is extraordinary. According to IACP, there were 5000 fully certified collaborative sculptors as of September 10, 2012. And, in designing each collaborative experience, like the artist or designer, we are challenged to decide what to reveal and what to conceal. I am deliberately suggesting, of course, that what we are doing is creative, an art form, if you will.
But it is a science, as well. Art and science are not dichotomous. Sculptors and painters must study anatomy in close detail. They understand light reflection and refraction, and pigments, and geometric perspective, the way clothing designers understand fabrics and patterns. You don’t become the founder of a “new school,” like Picasso or Yves St. Laurent, without first learning all the elements of your craft, and how those elements have been assimilated and displayed in the past. Without the proper context, departing from the fashion norms of your time is just rebellion, not revolution.
The genius of collaborative law lies partly in its understanding that, while conflict is universal, each conflict is unique. Like our mediation brethren, we study conflict as a threshold subject to be deeply understood, not pushed aside in an effort to reach a “decision.” The study of brain science as it relates to conflict is becoming a matter of importance to every serious collaborative practitioner. This approach has contributed to a continuously evolving palette of techniques for managing individuals in conflict, without denying the individuality of their conflict.
Still in its infancy, collaborative law manages to strike a balance between wallowing in the emotional conflict of divorce, as we did in 1977, and the no fault era’s futile attempt to classify as unacceptable or irrelevant, certain typical human responses to relational conflict. Collaborative professionals acknowledge and deal with the emotional issues present in the conflict. Without that acknowledgment, there would be no point to our technique of challenging clients to aspire to their highest and best selves, and put aside their shadow selves, in settlement conferences.
Collaboration can be differentiated from traditional litigation, by its goal and expectation of far deeper conflict resolution. The pace at which the collaborative movement is advancing, albeit too slowly for many, is extremely dynamic, in comparison to the labored way change usually occurs in the legal world. The energy and success of each collaborative experience stimulates not only the practitioner’s appetite for more of the same, but a desire to innovate and experiment, as befitting a movement so young. Finally, we are inspired to share our experiences, innovations and experiments with our fellow collaborative professionals, as well as colleagues not yet initiated. From the perspective of an old timer, who has been on the firing lines of divorce litigation for 35 years, I am convinced that collaborative practice is truly what it claims to be – a paradigm shift – a new and superior approach for addressing conflicts having legal implications, a constantly evolving discipline which will become the norm within the next generation. The business of this committee’s newsletter, then, will be to chronicle The Trend.
© 2012 Mark A. Criss. All rights reserved