Let's take a look at how fairness, winning, and punishment fit into a system of courts and law. Fairness and winning are two of the most abused words in divorce court. Most of the time when someone says “It's not fair” that person really means “I didn't win,” because most people define fairness as getting the results they want. However, courts deal with justice and with decisions. Justice means properly applying the law to the facts before the court; a court decision means resolving the issues you and your spouse presented in your papers. Nobody wins in divorce court. Beware those who tell you otherwise! There is no more fairness in court than there is in life.

At the Beginning

Suppose you go to see a lawyer to begin the divorce process. You tell her you've been through hell in your marriage and now you want out. You want a fair result — and by “fair” you really mean you want to win, and you want to punish your spouse for all you have suffered. You want the lawyer to draft court papers that will make your spouse feel bad, look bad, get his deserved punishment, and be forced to reform.

You may well be able to make your spouse feel bad. After all, you'll feel pretty bad yourself, remembering and reliving all the ugly pieces of the marriage. Plus, your spouse can respond to your papers with his version of the marriage, which, in turn, probably won't make you feel very good. It will probably make you darned mad, and you'll want to file more papers with the court in response to your spouse's papers. Then your spouse will respond. Then you'll respond. On and on you go, generating more legal fees and hostility with each exchange.

Paper Merry-Go-Round

The papers you and your lawyer prepare and file with the court may well make your spouse look bad, but a judge doesn't care much. The judge's job is to implement the law, and the law has little to say about good and bad. So what you've gained, after expending a significant amount of energy — all negative — taking paper potshots at your spouse is a massive pile of paper for the judge. You've run up large legal fees, made yourself good and mad, and destroyed any possibility of having a civil relationship with your spouse following your divorce.

Remember, you're hoping this paper mountain will lead to a judge shaping up your spouse. The judge has your papers, but she also has your spouse's papers, denying he is a louse and pointing out that you're no angel, either. The judge doesn't know you two. And if she did, she couldn't ethically hear the case. All the judge knows about you is what's in your papers. The law doesn't empower the judge to shape anybody up. Besides, if you weren't able to do it, why do you think anyone else will be successful?

Judge from Another Planet

The judge issues an order based upon the papers in the file, setting the rules to be followed while the divorce is in process. When you read it, you wonder what planet the judge lives on. The order bears absolutely no relationship to the reality of your life. Furthermore, no one is motivated to reform, and the possibility of reasonable negotiation between you and your spouse has become extremely unlikely.

“It's not fair!” you cry.

Unrealistic Expectations

Think about the papers you and your spouse filed with the court. What was in those papers? They contained selective information about your lives and character designed to persuade the judge to make certain decisions. You compiled your list of complaints about your spouse, carefully editing out any information that might be construed in a positive light. Your spouse responded with another list of horrors.

Suppose you have children and one of the issues before the court is a temporary arrangement for their care. After you and your spouse have told the judge all the terrible things about each other you can remember (or create), the judge has precious little information to devise a workable parenting plan. The parents, who have all the information, give the judge — a stranger — only selected bits and pieces. The judge can't fill in the blanks that you left. The judge can't always determine who's lying and who's telling the truth. As a consequence, the judge's order often doesn't work and increases your frustration and misery. That means you've just spent a lot of money to obtain this unworkable order.

Separating the Law from Your Emotions

Too often divorcing couples have mistaken expectations of what the court process is about. The court process deals only with the legal part of a divorce, that is, the part addressed in laws. But divorcing couples are often much more concerned with the emotional part of the divorce. The emotional part of the divorce is just as important as the legal part, to be sure. However, the legal system is the wrong place to address emotional issues. Judges and attorneys work with the laws enacted by the legislature. They don't have the skills and training to do therapy and should not be entrusted with this important piece of the uncoupling process. Most communities have skilled therapists who truly can help the parties address the emotional issues of the divorce. They, not the court, should deal with the psychological impact of getting divorced.