Clients ask me about this a lot, and this article, "My Lawyer and Opposing Counsel Are Friends – Should I Worry?" by a Pensacola, Florida personal injury lawyer at idonotwanttobeyourlawyer.com, answers it very well.
A case always goes better for both clients if the lawyers are friends. Just as in sports, being friends off-the-field doesn't keep you from playing hard and playing to win. In fact it spurs it on. Many clients are suspicious of everything in the legal system, and wonder if I can advocate effectively with a lawyer who I'm friends with. Heck, yes. I don't know how you are with your friends, but being friends with someone makes me more likely, not less, to "call BS" on them when needed or even warn them if they seem to be doing something unethical.
Lawyers in a Collaborative Law group are especially likely to be friends. When I first started recruiting members to form our local collaborative group back in 2002, I went to friends of mine who weren't pushovers, who were civil, fair, creative but vigorous advocates for their clients as well as for the entire family. That is the kind of service I wanted the collaborative law group to give to clients. I knew that if the collaborative group was touchy-feely and airy-fairy instead of working out practical solutions for both clients' needs, it would reflect badly on me and would not reflect the kind of service I want to provide.
It also helps to understand that family law is different from the fields like personal injury and criminal law which give most people their impression of lawyers. Lawyers in those fields only represent one side: plaintiffs or defendants, the accused or the state. Each side has its own separate bar groups, and a significant number of such lawyers feel they have more to gain than to lose by looking like scorched-earth warriors who have no collegiality or comaraderie with the other side. In family law, nearly all lawyers represent both "sides" in different cases, however you define the "sides": men vs. women, leaver vs. left, richer vs. poorer, worker vs. drone, foreign vs. native, or as prominent Virginia lawyer Ilona Grenadier once summed up a case for a judge, "This time he's got the whiner and I've got the bastard". We deal with the same legal issues, client behaviors, and problems from all different "sides."
The best-written version of something many of us have known for years. More proof that “humorists” are the most serious, effective social critics and practical philosophers.
Looking back, I think my parents had more fun than I did. ... [Read More]
*Article originally appeared in Wall Street Journal, 2/26/15, adapted from Barry's new book,
"Today, surgeons deliver 'minimally-invasive' procedures that have folks in and out faster than a TSA security pat-down. So why do we still languish in the dark ages when it comes to the law? Why do so many people still rely on stone knives and bear skins when getting a divorce?" Collaborative Law is the equivalent of modern, "minimally-invasive" surgery for divorce, Plano, Texas lawyer Curtis Harrison writes in "The Minimally-Invasive Divorce?" on LinkedIn.com. It lets couples privately "work through and resolve every detail of a divorce or family dispute quickly, cost-effectively and in a dignified manner." It's "a safe environment that is characterized by confidentiality, mutual respect, and control over the outcome. Through a series of scheduled meetings with pre-planned agendas, the participants work their way through the gauntlet of substantive issues." Negotiations focus not on positions, accusations, and legal doctrines, but on people's real goals, interests and resources. Which the court system is not interested in, as it is designed for finding and punishing wrongdoing.
Curtis's article is a great overview of collaborative divorce, what it can do for you, and what it demands, with a fresh perspective. One bone to pick: I don't agree with the pejorative terms "renege" and "damages clause" for the situation in which the parties fail to reach a complete agreement and have to get new lawyers for litigation. That situation is rare, but it has to be a legitimate possibility in order for agreements to be freely chosen and sustainable. Collaboration is not a promise to reach agreement. No one is bullied into agreeing just for the sake of agreement; doing that would actually punish the more compromising person and vice-versa. (Agreements that clients feel "forced" and hurried to enter are actually common in Litigation, not in Collaboration.) Failure to reach agreement is not wrongdoing, and can still be done with mutual respect. And in my one experience with a collaborative case that "failed", it was. In that case, trying collaboration first was very good for both parties and for their litigation.
So if the Collaborative Commitment -- the lawyers' irrevocable disqualification from contested litigation between these two clients -- is not a "punishment", then what is it? It is more like a speed bump or a guardrail to keep a divorce from escalating into litigation. Now, in or out of collaboration, there's always substantial value to reaching a deal and great cost to going into litigation. The Collaborative Commitment adds slightly to that value and that cost, but honestly not much: people in heavy family-law litigation often change lawyers once or twice anyway. Lawyers are replaceable. What it really does is to give couples a way to signal to each other, in a shared vocabulary, that they are serious about negotiating a "good divorce". And they do that not with empty words about trust and good-faith, but with actions that give tangible reasons to trust each other's intentions and to behave collaboratively: contracting away the possibility of litigating with these particular lawyers; and contracting to share all relevant evidence. When negotiating with their collaborative team, they don't have to worry that the other spouse is really just maneuvering and preparing for litigation.
And that "Collaborative Commitment" is just the beginning. The lawyers and other professionals who choose this kind of practice mostly tend to be better negotiators; they often were recruited by other collaborators because they get along well with other lawyers, but not at the expense of advocating for their clients' interests; they have the several days' collaborative training and mediation training that's required for membership in their collaborative practice groups, and they continually seek additional training to do the job better. But perhaps even more important, I've discovered over my 12 years in collaboration that collaborative practitioners continually seek feedback on what works and what still doesn't work for clients, and they keep improving, innovating and simplifying to improve clients' experience of divorce.
Longtime Brooklyn / Manhattan family law attorney Chaim Steinberger was complaining about people calling him asking for quickie second opinions. People replied that he sounded arrogant and controlling: why should people be bound in medieval faith and fealty to their lawyers, and why do we scoff at them for doing things we ourselves would do? He gave a wonderful reply, summing up, in a way non-lawyers can appreciate, so much that clients get wrong about how to work with lawyers and courts. First, here’s one of the best of the initial responses to him:
Clients may trust their lawyer, but it doesn't hurt to get a second opinion. After all, none of us is infallible. And for the lay client it’s hard to tell the difference sometimes between a smooth talking lawyer and someone who is not so smooth but has the wisdom of experience.
Yes, someone can come in with all of the pleadings, motions and other litigation papers, review all of the aspects of the litigation and get a second opinion. Akin to coming into a second doctor with your x-rays and MRI results and asking for a second opinion.
I would, however, doubt that a competent doctor would render a second opinion over the phone without an opportunity to review the patient's medical history and current medical charts. Or when the patient says, "I take three medicines every day, two white pills and one blue one. But that's not important because I'm not asking you about that; I just want to know what to do about the pain in . . . ."
What I'm railing about is a person who has a lawyer, who says he's satisfied with his lawyer and not looking to change counsel, who naively thinks you can get a simple answer to a complicated situation; that in one 15 minute phone call, I can give him a secret formula how to win a certain aspect of his case.
As I imagine it is with medicine, everything affects everything else. So you cannot litigate one aspect of a case without knowing, considering, and planning for, each other aspect. Moreover, the practice of law is not mathematical--I can make the same argument four other lawyers have made and I'll win even though the other four were thrown out on their arses.
So I agree with you. A litigant who calls seeking a second opinion, who comes in with all of the documents and does the hard work of going through it all to get a second "informed" opinion, is fine. A person who calls and says, "I have a lawyer, and all I want to know is how do I win [this one aspect of the case in which you have expertise]" is unrealistic and unreasonable.
I'm so proud and lucky to be training to work as a divorce lawyer and mediator with couples in discernment counseling. It fills a generations-old need so fundamental that people have turned to all kinds of crummy substitutes over the years with demoralizing results -- marriage counseling that turns into divorce counseling and leaves one spouse feeling that that's what it was all along; "trial separations" that do the same and escalate the divorce conflict, mediations where the spouses and mediator have five different ideas of what they're meeting for. "DC" gives a safe space where people can weigh both options without getting into actions, threats and misunderstanding that drive people apart and quickly make divorce inevitable and nasty.
March 18th Webinar - Discernment Counseling for Couples on the Brink with Dr. Bill Doherty!
Learn about an innovation in working with couples on the brink of divorce where one spouse is leaning out of the marriage and the other wants to save it. This is a common presentation to marriage therapists, clergy and divorce lawyers, but there have been few protocols for helping these couples. Discernment counseling is a structured way to help "mixed agenda" couples decide whether to work on preserving their marriage or move toward divorce, based on a deeper understanding of what has happened to their relationship and each person's contributions. Bill Doherty has developed discernment counseling protocols for couples therapists (five sessions) and for clergy (one session and referral), plus an "ambivalence" protocol for family-friendly divorce lawyers and mediators.
In some cases, it's pretty simple. The child will still have two parents if one parent gets primary custody, but not if the other parent does. That factor does not outweigh some even more horrible things that sometimes happen to children, but it outweighs most other factors such as which parent and which home does some parenting tasks better, or is what the child is already used-to.
The Australian judge and lawyers in the story below described such a move as "drastic". But it's not that drastic, in my experience in the U.S. Changing custody requires first, a relevant, material change of circumstances, and then a wide-open evaluation of what's in the child's best interests under current conditions. That should include: what example do the parents set for the children about how to treat other people and what to prioritize? Should the children learn that alienating, vicious, deceptive borderline-personality behavior works to meet one's goals? Is it healthy for a parent to lie to kids about the other parent to manipulate their emotions? And most important of all, is it better to grow up with two parents, or one manipulative, shortsighted, selfish, immature parent?
One big caveat: When there are abuse accusations, the time to diagnose and counteract parental alienation is AFTER investigating and resolving the abuse issue. And alienation, likewise, should be proven before it's punished. Fortunately, in most cases it's obvious and the alienating parent doesn't try hard to hide it, and may even proclaim it.
Lawyer Beverly Willett of the Coalition for Divorce Reform offers a snapshot of the various current marriage and divorce trends that provide the context for the Census Bureau's upcoming decision on whether to keep asking about marriage, divorce and marital status in the "American Community Survey" (ACS), the current name of the "long form" sent to about 3.5 million households a year. ACS and similar data is used for most non-governemntal studies of marriage and divorce, and for very valuable analyses issued by the Census Bureau itself. As Willett reminds us, marriage is at an all-time low, divorce rates have recently been revealed to have been higher than anyone thought, and the current reduction in divorce rates is confined to a younger and well-educated demographic.
[Update: It's nice to see our opinions confirmed, with much more understanding, context and background, by an eminent statistician and demographer, Justin Wolfers, in the New York Times! "Census Bureau’s Plan to Cut Marriage and Divorce Questions Has Academics Up in Arms" (12/31/14)]
[Update: It's great to see my opinion confirmed, with much more understanding, context and background, by an eminent statistician and demographer, Justin Wolfers, in the New York Times! "Census Bureau’s Plan to Cut Marriage and Divorce Questions Has Academics Up in Arms" (12/31/14)]
Practicing what I preach, I have sent in my comments on the Census Bureau's proposal to stop collecting information on marriage and divorce. The deadline is tomorrow, Tuesday, Dec. 30. (In case you missed what this is about, see my original posting, "Census will stop studying marriage, divorce; Dec. 30 public comment deadline").
December 29, 2014
Departmental Paperwork Clearance Officer,
Department of Commerce,
1401 Constitution Ave., NW, Room 6616,
Washington, D.C. 20230
Re: Comment on Proposed Changes to American Community Survey
Dear Ms. Jessup:
Your notice in the Federal Register classified the ACS questions on marriage and divorce as low-cost, but “low value”. On the contrary, they are of very high value to our society, to the public, the press, students, researchers, legislators and parts of the executive branch.
Social and public usefulness of these statistics
I have been a family-law attorney for 19 years and for almost as long I have operated a divorce statistics web site. In its current form it is called the Divorce Statistics and Studies Blog, at http://familylaw.typepad.com/stats. From doing that work, I have been able to observe that the public, the media, students, academic researchers, and state and federal policymakers all have a widespread, lasting interest in marriage and divorce, and in current statistics on them of a kind which only the American Community Survey provides. Anyone writing an article, research paper, or presentation on marriage or divorce wants to use statistics in it. Any legislator proposing a bill related to either topic wants accurate, current statistics to frame his or her argument. Although I put a great many statistics and studies on the blog, I frequently get calls, e-mails and letters asking for more statistics.
The public rightly considers marriage and divorce to be extremely important subjects, and people overwhelmingly assume that the government keeps detailed, up-to-the-minute statistics on them, far more than is the case even now. People have been hearing about divorce statistics for many decades now, and most people I deal with simply could not comprehend that the government was no longer keeping them. If I told them that, they would keep looking, use outdated numbers, or just make something up that they thought was what they heard somewhere.
The ACS-based statistics are also very useful to parts of the federal government. Two examples:
Why ACS statistics are crucial
Most private and academic studies of marriage and divorce are based on information from the ACS and its predecessors. The Census Bureau has also produced very important studies of marriage and divorce based on the ACS and its predecessors, including generational-cohort studies and probability projections. These are where we get the kind of numbers that actually answer the questions people wonder about: What are our overall chances of divorcing, ever? How long do marriages last? What about second and third marriages? How many children grow up without one parent? What is the divorce rate for people of my age, educational level, etc.? And what can we do about it?
The other source of marriage and divorce statistics is the National Center for Health Statistics (NCHS), which collects annual totals of marriages and divorces reported from county courts to state vital statistics offices. But this information, by itself, is not very useful to governments or to the private sector. It yields such measures as “3.6 divorces per 1000 population per year”. I.e., 0.72% of the population gets divorced each year. That does not tell people anything that sounds relevant to their lives. Also, NCHS divorce numbers are much more useful when compared to a count of the married population, which comes from the Census. And they are incomplete: California and several other states are not included.
This proposed change was not widely publicized. A very broad cross-section of the general public, media, academia and policymakers are affected by it, and so the eventual disappointment from the elimination of these survey subjects will be much more widespread than the comments you receive will indicate.
[Update: It's nice to see my opinion confirmed, with much more understanding, context and background, by an eminent statistician and demographer, Justin Wolfers, in the New York Times! "Census Bureau’s Plan to Cut Marriage and Divorce Questions Has Academics Up in Arms" (12/31/14)]
Day care and babysitting have changed a lot in the past few years, and such change is badly needed. In family law cases I commonly deal with, instead of finding people they (sort of) know, parents find babysitters online, everywhere from Craigslist to agencies that do thorough background checks. Parents work early mornings and evenings, sometimes unexpectely, and on-call services have evolved to fit those needs. Parents also have overnight business travel, sometimes working as consultants at a distant client site for days at a time, flying home sometimes only for weekends. Now there's another new development:
"The Obesity Fix", by David L. Katz, MD, MPH, President of the American College of Lifestyle Medicine, is a very powerful, short, beautifully written article on its own terms. But as a longtime divorce lawyer, I find that everything in it speaks just as powerfully -- cries out just as desperately -- about marriage and divorce. We badly need a prevention-based public health approach, which is being pioneered by just a few small groups, such as Smart Marriages, The Doherty Relationship Institute, The Dibble Institute, the Coalition for Divorce Reform, and the new Marriage Opportunity Council. Katz writes:
If we simply committed to seeing, and treating, health more like wealth- it would go a long way toward fixing obesity, and the metabolic mayhem that follows in its wake. We respect wealth. We aspire to it. We hope to bequeath it to our children. We invest in it, and work for it. We care about it both for our own sake, and the sake of those we love. We recognize most get-rich-quick proposals as scams; we are sensible about money. We don’t spend everything we have today; we think about the future, and save for it. We get financial guidance from genuine experts, not just anybody who had a piggy bank once.
Obesity need not be a disease to be medically legitimate. Drowning is not a disease, and it suffers not at all for want of legitimacy. Drowning victims are reliably treated as the state-of-the-art allows when they show up in our emergency departments.
Nor does drowning invite fractious debate about personal responsibility. Rather, we tacitly acknowledge- by our actions- that personal and public responsibility are complementary, and both required. Parents need to watch their children at the pool’s edge or beach, and are well advised to teach them to swim. But there are lifeguards just the same. There are fences around pools.
And, of course, we don’t focus on the ex-post-facto treatment of drowning. We focus on prevention. Drowning is too common if it happens at all; but it is very much the exception. The rule is prevention, by application of the combined defenses born of personally and publicly responsible action.
If we treated drowning like obesity, we would have no lifeguards at the beach. We would not teach our children to swim. We would allow signage at a shore with notorious rip tides to read: “come on in, the water’s fine!”
If, instead, we treated obesity more like drowning, we would tell the truth about food. We would not market multicolored marshmallows to children as part of a complete breakfast. We would not willfully mislead about the perilous currents in the modern food supply. We would not look on passively as an entire population of non-swimmers started wading in over their heads.
Until or unless we choose to see things differently, McKinsey & Company is quite right: fixing obesity won’t be easy. That’s because the fix is in, and we are all OK with it. We apply the terms “junk” and “food” to the very same ingestibles, adopting a “nudge, nudge, wink, wink” coyness- even as formerly adult-onset diabetes engulfs our children. We line up for an endless succession of fad diets, while glibly asserting that our entire country runs, essentially, on donuts.
If we treated wealth like health, we would all be gullible, indigent, and likely homeless. If we treated drowning like obesity, our ERs couldn’t keep up with the demand for resuscitations.
But if, instead, we treated health like wealth, and obesity like drowning- we could fix what ails us. It might even be easy. For in our collective and righteous might, no force could oppose us. Collectively, we are culture.
Washington, DC and Fairfax, Virginia trial lawyer Trey Mayfield brought this New York Post item to my attention. There may be major facts missing from the article, but it makes it sound like Mr. Zipper filed for a restraining order because he couldn't quit making up with his ex-girlfriend and ending up sleeping with her. He did that as late as September, shortly before filing for the restraining order, and the only allegation that sounds anything like domestic violence is the lady's threat to burn his boat, back in July. On that occasion "she began throwing vases and ashtrays and all kinds of nice stuff in the pool" -- but not at him. (He was running away in his pajamas at the time, so he wasn't in the pool.)
But there are men -- and women -- every day who get hit with at least temporary restraining orders based on claims like these, which range from at best borderline to downright absurd.
The only truly actionable behavior (the threat to burn his boat, assumably but not expressly with him perhaps on board, although he wasn't on it at the time, because he was running out of the house in his pajamas) was long before the repeated makeup sex, and the filing. That kind of delay does, in my experience, discourage judges from being so alarmed by it that they will grant a permanent restraining order. But they still could and often do. After all, we hear very often, and quite legitimately, about women who are afraid to leave their abusers and only do so long after the actual, and very severe, violence has been temporarily replaced by threats which are bone-chilling even when unspoken.
Last month when Pope Francis held a Synod of Bishops on family and sexual issues, there were news reports of a sudden liberalization of attitudes on divorce and sexual preference. Others such as Glenn Stanton, after reading the Synod's report, assured us that "it is unspectacular, affirming a thoroughly Catholic and biblically faithful sexual, marital and familial ethic." ("The Catholic Synod on Family’s Final Report – No Reason to Freak".)
I've read it, and I say it is news.
First, the liberal elements of the Church's position on family and sexual issues, though they may not be new, would still be news to many people who think they know what the Church says and does. The document emphasizes meeting people where they are, and describes the difficult and demoralized family situations that they are often in. And that homosexuals should be treated with equal dignity and non-discrimination. It is very specific and urgent in calling for acceptance and pastoral care specifically geared to cohabiting, separating, divorced and remarried people, and their children.
Second, the document indicates that there will be further and more specific action in line with its principles at the "Ordinary General Assembly" next October, and possibly before.
Third, non-Catholics like me will always be surprised, in ways that are both refreshing and unsettling, at how the Church approaches the world and its problems. This report gives a deeply loving and insightful assessment, from a very different perspective and background, on family problems and how to begin to heal them. It includes crucial concepts that I've never heard of, such as "affectivity".
There is much fresh wisdom in the report, and much brokenness and suffering in the world's families, which all of our professions and policies have not come anywhere close to resolving. Here are excerpts I think are especially compelling and relevant, as a family-law attorney who is concerned with family breakdown individually and in society as a whole. I generally have left out parts that seem internal to the church's own doctrines and structure, as this blog is about families, not Christianity.
Within the family are joys and trials, deep love and relationships which, at times, can be wounded. The family is truly the “school of humanity”, which is much needed today.
At the Extraordinary General Assembly of October, 2014, the Bishop of Rome called upon the Synod of Bishops to reflect upon the critical and invaluable reality of the family, a reflection which will then be pursued in greater depth at its Ordinary General Assembly scheduled to take place in October, 2015, as well as during the full year between the two synodal events. These proposed reflections, the fruit of the synodal work which took place in great freedom and with a spirit of reciprocal listening, are intended to raise questions and indicate points of view which will later be developed and clarified through reflection in the local Churches in the intervening year leading to the XIV Ordinary General Assembly of the Synod of Bishops, scheduled for October, 2015, to treat The Vocation and Mission of the Family in the Church and in the Contemporary World. These are not decisions taken nor are they easy subjects.
Faithful to Christ’s teaching, we look to the reality of the family today in all its complexity, with both its lights and shadows. Anthropological and cultural changes in our times influence all aspects of life and require an analytic and diversified approach. The positive aspects are first to be highlighted, namely, a greater freedom of expression and a better recognition of the rights of women and children, at least in some parts of the world. On the other hand, equal consideration needs to be given to the growing danger represented by a troubling individualism which deforms family bonds and ends up considering each component of the family as an isolated unit, leading, in some cases, to the idea that a person is formed according to one’s own desires, which are considered absolute.
There is also a general feeling of powerlessness in the face of socio-cultural realities which oftentimes end in crushing families. Such is the case in increasing instances of poverty and unemployment in the workplace, which at times is a real nightmare or in overwhelming financial difficulties, which discourage the young from marrying. Families often feel abandoned by the disinterest and lack of attention by institutions. The negative impact on the organization of society is clear, as seen in the demographic crisis, in the difficulty of raising children, in a hesitancy to welcome new life and in considering the presence of older persons as a burden. All these can affect a person’s emotional balance, which can sometimes lead to violence. The State has the responsibility to pass laws and create work to ensure the future of young people and help them realize their plan of forming a family.
Many children are born outside marriage, in great numbers in some countries, many of whom subsequently grow up with just one of their parents or in a blended or reconstituted family. Divorces are increasing, many times taking place solely because of economic reasons. Oftentimes, children are a source of contention between parents and become the real victims of family break-ups. Fathers who are often absent from their families, not simply for economic reasons, need to assume more clearly their responsibility for children and the family. The dignity of women still needs to be defended and promoted. In fact, in many places today, simply being a woman is a source of discrimination and the gift of motherhood is often penalized, rather than esteemed. Not to be overlooked is the increasing violence against women, where they become victims, unfortunately, often within families and as a result of the serious and widespread practice genital mutilation in some cultures. The sexual exploitation of children is still another scandalous and perverse reality in present-day society. Societies characterized by violence due to war, terrorism or the presence of organized crime are witnessing the deterioration of the family, above all in big cities, where, in their peripheral areas, the so-called phenomenon of “street-children” is on the rise. Furthermore, migration is another sign of the times to be faced and understood in terms of its onerous consequences to family life.
Faced with the afore-mentioned social situation, people in many parts of the world are feeling a great need to take care of themselves, to know themselves better, to live in greater harmony with their feelings and sentiments and to seek to live their affectivity in the best manner possible. These proper aspirations can lead to a desire to put greater effort into building relationships of self-giving and creative reciprocity, which are empowering and supportive like those within a family. In this case, however, individualism and living only for one’s self is a real danger. The challenge for the Church is to assist couples in the maturation and development of their affectivity through fostering dialogue, virtue and trust in the merciful love of God. The full commitment required in marriage can be a strong antidote to the temptation of a selfish individualism.
Cultural tendencies in today’s world seem to set no limits on a person’s affectivity in which every aspect needs to be explored, even those which are highly complex. Indeed, nowadays a person’s affectivity is very fragile; a narcissistic, unstable or changeable affectivity does not always allow a person to grow to maturity. Particularly worrisome is the spread of pornography and the commercialization of the body, fostered also by a misuse of the internet and reprehensible situations where people are forced into prostitution. In this context, couples are often uncertain, hesitant and struggling to find ways to grow. Many tend to remain in the early stages of their affective and sexual life. A crisis in a couple’s relationship destabilizes the family and may lead, through separation and divorce, to serious consequences for adults, children and society as a whole, weakening its individual and social bonds. The decline in population, due to a mentality against having children and promoted by the world politics of reproductive health, creates not only a situation in which the relationship between generations is no longer ensured but also the danger that, over time, this decline will lead to economic impoverishment and a loss of hope in the future.
The great values of marriage and the Christian family correspond to the search that characterizes human existence, even in these times of individualism and hedonism. People need to be accepted in the concrete circumstances of life. We need to know how to support them in their searching and to encourage them in their hunger for God and their wish to feel fully part of the Church, also including those who have experienced failure or find themselves in a variety of situations. The Christian message always contains in itself the reality and the dynamic of mercy and truth which meet in Christ.
Jesus looked upon the women and the men he met with love and tenderness, accompanying their steps with patience and mercy, in proclaiming the demands of the Kingdom of God.
Jesus himself, referring to the original plan of the human couple, reaffirms the indissoluble union between a man and a woman and says to the Pharisees that “for your hardness of heart Moses allowed you to divorce your wives, but from the beginning it was not so”(Mt 19: 8). The indissolubility of marriage (“what therefore God has joined together, let no man put asunder” Mt 19:6), is not to be understood as a “yoke” imposed on persons but as a “gift” to a husband and wife united in marriage. In fact, Jesus was born in a family; he began to work his signs at the wedding of Cana; and announced the meaning of marriage as the fullness of revelation which restores the original divine plan (Mt 19:3). At the same time, however, he put what he taught into practice and manifested the true meaning of mercy, clearly illustrated in his meeting with the Samaritan woman (Jn 4:1-30) and with the adulteress (Jn 8:1-11). By looking at the sinner with love, Jesus leads the person to repentance and conversion (“Go and sin no more”), which is the basis for forgiveness.
In accepting each other and with Christ’s grace, the engaged couple promises a total self-giving, faithfulness and openness to new life. The married couple recognizes these elements as constitutive in marriage, gifts offered to them by God, which they take seriously in their mutual commitment, in God’s name and in the presence of the Church. Faith facilitates the possibility of assuming the benefits of marriage as commitments which are sustainable through the help of the grace of the Sacrament, offering them assistance to live their faithfulness, mutual complementarity and openness to new life.
The Second Vatican Council wished to express appreciation for natural marriage and the valid elements present in other religions (cf. Nostra Aetate, 2) and cultures, despite their limitations and shortcomings (cf. Redemptoris Missio, 55). The presence of the seeds of the Word in these cultures (cf. Ad Gentes, 11) could even be applied, in some ways, to marriage and the family in so many societies and non-Christian peoples. Valid elements, therefore, exist in some forms outside of Christian marriage — based on a stable and true relationship of a man and a woman. With an eye to the popular wisdom of different peoples and cultures, the Church also recognizes this type of family as the basic, necessary and fruitful unit for humanity’s life together.
The Church is conscious of the weakness of many of her children who are struggling in their journey of faith. “Consequently, without detracting from the evangelical ideal, they need to accompany with mercy and patience the eventual stages of personal growth as these progressively occur. [...] A small step in the midst of great human limitations can be more pleasing to God than a life which outwardly appears in order and passes the day without confronting great difficulties. Everyone needs to be touched by the comfort and attraction of God’s saving love, which is mysteriously at work in each person, above and beyond their faults and failings”.
In considering a pastoral approach towards people who have contracted a civil marriage, who are divorced and remarried or simply living together, the Church has the responsibility of helping them understand the divine pedagogy of grace in their lives and offering them assistance so they can reach the fullness of the God’s plan for them.The Church turns with love to those who participate in her life in an incomplete manner, recognizing that the grace of God works also in their lives by giving them the courage to do good, to care for one another in love and to be of service to the community in which they live and work.
The Church looks with concern at the distrust of many young people in relation to a commitment in marriage and suffers at the haste with which many of the faithful decide to put an end to the obligation they assumed and to take on another. These lay people, who are members of the Church, need pastoral attention which is merciful and encouraging, so they might adequately determine their situation. Young people, who are baptized, should be encouraged to understand that the Sacrament of Marriage can enrich their prospects of love and they can be sustained by the grace of Christ in the Sacrament and by the possibility of participating fully in the life of the Church.
In this regard, a new aspect of family ministry is requiring attention today — the reality of civil marriages between a man and woman, traditional marriages and, taking into consideration the differences involved, even cohabitation. When a union reaches a particular stability, legally recognized, characterized by deep affection and responsibility for children and showing an ability to overcome trials, these unions can offer occasions for guidance with an eye towards the eventual celebration of the Sacrament of Marriage. Oftentimes, a couple lives together without the possibility of a future marriage and without any intention of a legally binding relationship.
In accordance with Christ’s mercy, the Church must accompany with attention and care the weakest of her children, who show signs of a wounded and lost love, by restoring in them hope and confidence, like the beacon of a lighthouse in a port or a torch carried among the people to enlighten those who have lost their way or who are in the midst of a storm. Conscious that the most merciful thing is to tell the truth in love, we go beyond compassion. Merciful love, as it attracts and unites, transforms and elevates. It is an invitation to conversion. We understand the Lord’s attitude in the same way; he does not condemn the adulterous woman, but asks her to sin no more.
This work calls for not stopping at proclaiming a message which is perceived to be merely theoretical, with no connection to people’s real problems.Proclamation needs to create an experience where the Gospel of the Family responds to the deepest expectations of a person: a response to each’s dignity and complete fulfillment in reciprocity, communion and fruitfulness. This does not consist in merely presenting a set of rules but in espousing values, which respond to [people's] needs.
The synod fathers repeatedly called for a thorough renewal of the Church’s pastoral practice in light of the Gospel of the Family and replacing its current emphasis on individuals. For this reason, the synod fathers repeatedly insisted on renewal in the training of priests and other pastoral workers with a greater involvement of families. They equally highlighted the fact that evangelization needs to clearly denounce cultural, social, political and economic factors, such as the excessive importance given to market logic which prevents authentic family life and leads to discrimination, poverty, exclusion, and violence. Consequently, dialogue and cooperation need to be developed with the social entities and encouragement given to Christian lay people who are involved in the cultural and socio-political fields.
Preparation for Marriage
The complex social reality and the changes affecting the family today require a greater effort on the part of the whole Christian community in preparing those who are about to be married. The importance of the virtues needs to be included, among these chastity which is invaluable in the genuine growth of love between persons. In this regard, the synod fathers jointly insisted on the need to involve more extensively the entire community by favouring the witness of families themselves and including preparation for marriage in the course of Christian Initiation as well as emphasizing the connection between marriage and the other sacraments. Likewise, they felt that specific programmes were needed in preparing couples for marriage, programmes which create a true experience of participation in ecclesial life and thoroughly treat the various aspects of family life.
The initial years of marriage are a vital and sensitive period during which couples become more aware of the challenges and meaning of married life. In this regard, experienced couples are of great importance to be of service to younger couples.
Pastoral Care for Couples Civilly Married or Living Together
While continuing to proclaim and foster Christian marriage, the Synod also encourages pastoral discernment of the situations of a great many who no longer live this reality. Entering into pastoral dialogue with these persons is needed to distinguish elements in their lives which can lead to a greater openness to the Gospel of Marriage in its fullness. Pastors ought to identify elements which can foster evangelization and human and spiritual growth. A new element in today’s pastoral activity is a sensitivity to the positive aspects of civilly celebrated marriages and, with obvious differences, cohabitation. While clearly presenting the Christian message, the Church also needs to indicate the constructive elements in these situations which do not yet or no longer correspond to it.
The synod fathers also noted in many countries an “an increasing number of people live together ad experimentum, in unions which have not been religiously or civilly recognized” (Instrumentum Laboris, 81). In some countries, this occurs especially in traditional marriages which are arranged between families and often celebrated in different stages. Other countries are witnessing a continual increase in the number of those who, after having lived together for a long period, request the celebration of marriage in Church. Simply to live together is often a choice based on a general attitude opposed to anything institutional or definitive; it can also be done while awaiting more security in life (a steady job and income). Finally, in some countries de factomarriages are very numerous, not because of a rejection of Christian values concerning the family and matrimony but primarily because celebrating a marriage is too expensive. As a result, material poverty leads people into de facto unions.
All these situations require a constructive response, seeking to transform them into opportunities which can lead to an actual marriage and a family in conformity with the Gospel. These couples need to be provided for and guided patiently and discreetly. With this in mind, the witness of authentic Christian families is particularly appealing and important as agents in the evangelization of the family.
Caring for Broken families (Persons who are Separated, Divorced, Divorced and Remarried and Single-Parent Families)
Married couples with problems in their relationship should be able to count on the assistance and guidance of the Church. The pastoral work of charity and mercy seeks to help persons recover and restore relationships. Experience shows that with proper assistance and acts of reconciliation, though grace, a great percentage of troubled marriages find a solution in a satisfying manner. To know how to forgive and to feel forgiven is a basic experience in family life. Forgiveness between husband and wife permits a couple to experience a never-ending love which does not pass away.
The necessity for courageous pastoral choices was particularly evident at the Synod. Strongly reconfirming their faithfulness to the Gospel of the Family and acknowledging that separation and divorce are always wounds which causes deep suffering to the married couple and to their children, the synod fathers felt the urgent need to embark on a new pastoral course based on the present reality of weaknesses within the family, knowing oftentimes that couples are more “enduring” situations of suffering than freely choosing them. These situations vary because of personal, cultural and socio-economic factors. Therefore, solutions need to be considered in a variety of ways.
A special discernment is indispensable for pastorally guiding persons who are separated, divorced or abandoned. Respect needs to be primarily given to the suffering of those who have unjustly endured separation, divorce or abandonment, or those who have been subjected to the maltreatment of a husband or a wife, which interrupts their life together. To forgive such an injustice is not easy, but grace makes this journey possible. Pastoral activity, then, needs to be geared towards reconciliation or mediation of differences, which might even take place in specialized “listening centres” established in dioceses. At the same time, the synod fathers emphasized the necessity of addressing, in a faithful and constructive fashion, the consequences of separation or divorce on children, in every case the innocent victims of the situation. Children must not become an “object” of contention. Instead, every suitable means ought to be sought to ensure that they can overcome the trauma of a family break-up and grow as serenely as possible. In each case, the Church is always to point out the injustice which very often is associated with divorce. Special attention is to be given in the guidance of single-parent families. Women in this situation ought to receive special assistance so they can bear the responsibility of providing a home and raising their children.
A great number of synod fathers emphasized the need to make the procedure in cases of nullity more accessible and less time-consuming. They proposed, among others, the dispensation of the requirement of second instance for confirming sentences; the possibility of establishing an administrative means under the jurisdiction of the diocesan bishop; and a simple process to be used in cases where nullity is clearly evident. Some synod fathers, however, were opposed to this proposal, because they felt that it would not guarantee a reliable judgment. In all these cases, the synod fathers emphasized the primary character of ascertaining the truth about the validity of the marriage bond. Among other proposals, the role which faith plays in persons who marry could possibly be examined in ascertaining the validity of the Sacrament of Marriage, all the while maintaining that the marriage of two baptized Christians is always a sacrament. In streamlining the procedure of marriage cases, many synod fathers requested the preparation of a sufficient number of persons — clerics and lay people — entirely dedicated to this work.
Divorced people who have not remarried, who oftentimes bear witness to their promise of faithfulness in marriage, ought to be encouraged to find in the Eucharist the nourishment they need to sustain them in their present state of life. The local community and pastors ought to accompany these people with solicitude, particularly when children are involved or when in serious financial difficulty.
Those who are divorced and remarried require careful discernment and an accompaniment of great respect. Language or behavior which might make them feel an object of discrimination should be avoided, all the while encouraging them to participate in the life of the community. The Christian community’s care of such persons is not to be considered a weakening of its faith and testimony to the indissolubility of marriage, but, precisely in this way, the community is seen to express its charity.
The synod father also considered the possibility of giving the divorced and remarried access to the Sacraments of Penance and the Eucharist. Some synod fathers insisted on maintaining the present regulations, because of the constitutive relationship between participation in the Eucharist and communion with the Church as well as the teaching on the indissoluble character of marriage. Others expressed a more individualized approach, permitting access in certain situations and with certain well-defined conditions, primarily in irreversible situations and those involving moral obligations towards children who would have to endure unjust suffering. Access to the sacraments might take place if preceded by a penitential practice, determined by the diocesan bishop. The subject needs to be thoroughly examined, bearing in mind the distinction between an objective sinful situation and extenuating circumstances, given that “imputability and responsibility for an action can be diminished or even nullified by ignorance, inadvertence, duress, fear, habit, inordinate attachments, and other psychological or social factors”.
Persons with Homosexual Tendencies
Some families have members who have a homosexual tendency. In this regard, the synod fathers asked themselves what pastoral attention might be appropriate for them in accordance with the Church’s teaching: “There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God's plan for marriage and family.”Nevertheless, men and women with a homosexual tendency ought to be received with respect and sensitivity. “Every sign of unjust discrimination in their regard should be avoided” (Congregation for the Doctrine of the Faith, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, 4).
Exerting pressure in this regard on the Pastors of the Church is totally unacceptable: this is equally so for international organizations who link their financial assistance to poorer countries with the introduction of laws which establish “marriage” between persons of the same sex.
Having and Raising Children
Today, the diffusion of a mentality which reduces the generation of human life to accommodate an individual’s or couple’s plans is easily observable. Sometimes, economic factors are burdensome, contributing to a sharp drop in the birthrate which weakens the social fabric, thus compromising relations between generations and rendering a future outlook uncertain. Openness to life is an intrinsic requirement of married love. In this regard, the Church supports families who accept, raise and affectionately embrace children with various disabilities.
Pastoral work in this area needs to start with listening to people and acknowledging the beauty and truth of an unconditional openness to life, which is needed, if human life is to be lived fully. This serves as the basis for an appropriate teaching regarding the natural methods for responsible procreation, which allow a couple to live, in a harmonious and conscious manner, the loving communication between husband and wife in all its aspects, along with their responsibility at procreating life. In this regard, we should return to the message of the Encyclical Humanae Vitae of Blessed Pope Paul VI, which highlights the need to respect the dignity of the person in morally assessing methods in regulating births. The adoption of children, orphans and the abandoned and accepting them as one’s own is a specific form of the family apostolate (cf. Apostolicam Actuositatem, III, 11), and oftentimes called for and encouraged by the Magisterium (cf. Familiaris Consortio, III, II; Evangelium Vitae, IV, 93). The choice of adoption or foster parenting expresses a particular fruitfulness of married life, not simply in the case of sterility. Such a choice is a powerful sign of family love, an occasion to witness to one’s faith and to restore the dignity of a son or daughter to a person who has been deprived of this dignity.
One of the fundamental challenges facing families today is undoubtedly that of raising children, made all the more difficult and complex by today’s cultural reality. The Church can assume a valuable role in supporting families, starting with Christian Initiation, by being welcoming communities. More than ever, these communities today are to offer support to parents, in complex situations and everyday life, in their work of raising their children.
How Marriage Matures and Fulfills Us
Affectivity needs assistance, also in marriage, as a path to maturity in the ever-deepening acceptance of the other and an ever-fuller gift of self. This necessitates offering programmes of formation which nourish married life and the importance of the laity providing an accompaniment, which consists in a life of witness. Undoubtedly, the example of a faithful and deep love is of great assistance; a love shown in tenderness and respect; a love which is capable of growing over time; and a love which, in the very act of opening itself to the generation of life, creates a transcendent mystical experience.
Every so often one of my colleagues re-posts "The 5 Best And Worst States For Getting A Divorce" by Brittany Wong in The Huffington Post; based on, and referencing, the full charts titled "Compare Divorce and Family Laws" at findthebest.com. Lawyers' empty blogging for the sake of visibility and perceived expertise helps make this purported advice an enduring part of the conventional "wisdom" that well-meaning friends and those in the "helping professions" uncritically repeat to those beginning the divorce process.
The chart uses filing fees to gauge the cost of divorce. But filing fees range from the tens to the low hundreds of dollars, while the actual cost of divorce is somewhere in the five figures for most people, four figures for those with simple and amicable cases, and six figures for really hellish cases, which alas are not uncommon.
Then the chart takes the legal waiting periods, most of which are separation periods before a divorce is filed, and adds them to other procedurally required periods to get something called "processing time". Playing right into people's fantasy that a divorce is something that one simply registers with some kind of bureaucratic office which then takes care of "processing" it. That's one of the reasons people jump into divorce just as ignorantly and optimistically as they jump into marriage.
Actually, in a divorce, people have to either work out all the financial and child-related details of their separation, or have a court decide them in a trial -- and the litigation process that leads up to that can take from one to two years. Negotiation, on the other hand, can happen during physical separation, or ideally, before it. The faster you can go to court and start a case without having negotiated a complete agreement, the uglier and more expensive it can get, and the longer it might ultimately take. So what really matters is not what state you live in, but how simple your personal and economic lives are and whether the two spouses can work out a practical agreement on everything.
People facing divorce are so starved for useful information that they actually take such articles seriously. So this kind of throwaway journalism can do real damage.