Our firm's tagline is "Helping Families Through Transition," and with this in mind, we are adjusting our practice to be more outcome-oriented. The Collaborative Process focuses on client participation in the divorce, leading to stronger and more permanent outcomes, while Litigation allows the Court to make the decisions for the clients, sometimes leading to years of post-decree motions and no final outcome in sight. The primary differences between Collaborative and Litigation divorce processes were discussed in a previous blog: https://www.zblaw.net/blog/2017/05/divorce-litigation-v-collaborative-process.shtml.
In our firm's experience, some couples navigate Litigation fairly smoothly, eventually accepting the end of the marriage, finding ways to work around all the changes and moving on in life. In general, the majority of our clients who followed the Collaborative path either adjust to the new roles of each parent and find new ways to communicate or they return to the process to iron out differences as they arise. None of these options require the Court's intervention.
A small percentage of Litigation couples get to the final divorce hearing or trial and receive their decree of divorce, then walk out of the Courtroom and, without missing a beat, continue to fight legal battles with the ex-spouse as if locked in a war of attrition. How to explain this? What makes people who are legally free of each other continue to pursue what amounts to the destruction of each other?
An article in Family Court Review, Vol. 55 No. 3, July 2017, tries to address this problem, building on the extensive research into high-conflict divorce and chronic parenting disputes. This article, "Entrenched Postseparation Parenting Disputes: The Role of Interparental Hatred?" (Bruce M. Smyth and Lawrence J. Moloney) takes a deeper look at the driving force behind the unending dockets that some divorced couples create for themselves.
Two types of hatred are discussed in this article, "reactive hatred" and "entrenched hatred."
Reactive hatred can be understood in terms of rationality. This type of hatred is responsive to violence or severe mistreatment by another person, or it can be the result of stress and pain from unexpected circumstances, such as a request from a spouse for a separation or divorce. It's hatred that "makes sense."
Entrenched hatred, however, makes no sense at all. It is pervasive and all-consuming. It's dysfunctional and destructive. Where time may heal reactive hatred, there's no healing to be had for entrenched hatred. Smyth and Moloney state clearly: "The willingness to accept personal suffering and even the suffering of one's children as a price for seeing the hated parent fail to prosper gives entrenched hatred a very different flavor to other highly charged conflicts or disagreements over children's care arrangements." And this psychological condition of hatred could be where the endless dockets come from.
What can we, as family law practitioners, do to assist clients who may feel this intense hatred toward the other parent? One important thing that may help is to frame our discussions around "the best interests of the child." Rather than the parents focusing on themselves and their needs, their rights, their desires, parents must be encouraged to redirect their energies toward their children. Smyth and Moloney: "Angry and even abusive responses can be shifted toward a dynamic in which the child genuinely becomes front and center in the parents' eyes."
In worst cases, however, this approach may fail. Courts, as institutions which serve children and parents, "have a right to see evidence of progress toward diminished, and ultimately an absence of, hatred." The continuance of interparental hatred creates a hopeless, possibly threatening, situation for children, and as a result, "courts need to seriously consider whether, at least at that time, an ongoing relationship with such a parent is in the children's best interests."
As mentioned previously in the blog on litigation/collaborative differences, the concept of "no-fault" divorce may set up the post-decree nightmare for some couples, because no one is ever blamed for the disaster the marriage becomes, nor does one side win, and the other lose.
"In many Western jurisdictions, for example, the removal of fault from divorce legislation during the 1960s and 1970s reflected a belief that most intimate relationships could be terminated with civility and that disputes could be calmly and reasonably resolved. Hatred does not fit easily into these aspirations."
The long-term ramifications of entrenched hatred in parenting situations cannot be dismissed, even as we find it very difficult to acknowledge and address.