Divorce Corp. movie review

Last week I attended a screening of the movie Divorce Corp. sponsored by the Massachusetts chapter of the National Parents Organization. My expectations were low, given that the movie was produced by a pissed off divorced guy, Joseph Sorge.

One theme of the movie is the extent to which everyone in the $50 billion/year divorce industry benefits from keeping the plaintiffs coming, making the stakes as high as possible, and making the process as complex and drawn-out as possible. The movie often presents this as an explicit conspiracy but doesn’t explain why it has to be a conspiracy. Just one or two assumptions is sufficient to generate the divorce industry as shown in the movie. One is that children are best served by a customized outcome, e.g., 55 percent time with one parent as opposed to 50 percent. The other assumption is that litigation doesn’t harm children, so if it takes $500,000+ in legal fees and a huge investment of time and energy by both parents to get to that 55/45 percent split instead of 50/50, the children are just as well off as if no litigation had occurred. With those two assumptions in place, the system that we have is superior to the Danish system where everything is rule-driven, formulaic, standardized, and therefore fast and cheap.

There are some candid interviews with divorce litigators. Jerry Nissenbaum of Massachusetts is on screen asking rhetorically “Am I worth $700 per hour? I don’t know, but that’s what I charge.” Another litigator explains how “the truth isn’t relevant” in divorce court. What is important is a story and it is always the same story: “There is a victim and a victimizer. Then you need a third person, a rescuer, which is sometimes an attorney and sometimes a judge.”

The movie itself illustrates that litigator’s point. The filmmakers could have highlighted the dry facts, e.g., statistics regarding how divorce lawsuits are decided or what motivates people to file divorce lawsuits (e.g., ten years of data from Nebraska or Brinig and Allen’s study of the correlation between child support obtainable and lawsuit filings). But instead they found the most extreme and heart-wrenching stories available. Want to find out about the generic two-income couple with a house and two kids? Who gets the house? Does the court give the kids to just one parent, reducing the other to a “visitor”? How long did it take? How much money was spent on legal fees? You’re out of luck. Instead you’ll get a story about children who have spent years without seeing one of their parents and oftentimes the filmmakers don’t explain how one parent won such a complete victory. Everyone knows that this isn’t a typical outcome and therefore it isn’t that interesting.

The film has interviews with a couple of seemingly competent women whose children have lost all access to them. The suggestion is that this outcome is primarily due to the fact that the women annoyed or insulted a judge, but the backgrounds of their cases is only barely sketched. When the filmmakers show children who have lost access to their father it is usually because the mother has accused the father of abusing her and/or of sexual abuse of a child. According to the movie, this is the most rational strategy for a plaintiff to pursue because it might result in a 100 percent victory and if the allegations are false there won’t be any penalty. When there is not enough evidence to obtain an arrest or criminal conviction, the filmmakers suggest that yet a divorce court judge may well rely on an allegation to rule in a devastating manner. At a minimum, alleging abuse is very effective for a woman seeking to obtain “temporary” sole use of the marital home, which then gives her a leg-up in obtaining sole custody of the children, after which the case is over (see below).

The filmmakers portray the courts’ usage of supposedly independent custody evaluators and Guardian ad litems as a farce. According to the movie, these folks get paid $25,000 to $70,000 to crank out a report that may simply be based on personal connections to one side’s attorneys or what they think the judge wants to hear (so that the judge will reappoint them). A cop turned private investigator gives the movie most of its best lines, pointing out in a colorful way that the system depends on people who are lying and motivated by the potential for financial gain.

The movie has one interesting statistic, but no source is cited. The claim is that despite more equality of the sexes in earning power and despite a lower divorce rate, the amount of money transferred as child support and alimony has gone up 30 percent (in constant dollars) over the last 20 years. The filmmakers cite a “2000% increase” in the number of divorce litigators in California, tying that increase to the rise in housing prices and the ability of attorneys to place a lien on a divorcing couple’s house (California Family Code Section 2033). The film implies that a major driver of divorce litigation is the existence of assets that can be transferred into attorneys’ pockets, but the point is not convincing because it could also be more aggressive plaintiffs or more determined defendants and the film simply assumes the greedy lawyers are to blame. (Why would divorce plaintiffs be more aggressive today than in previous years? A woman in the audience pointed out “Collecting child support is more profitable than it used to be. To collect child support in the old days you had to take care of children. There weren’t a lot of commercial care options. Now the judge who orders the father to pay for child support separately orders the father to pay for day care or a nanny. So a woman can go to work or the country club, do almost no child care, and still collect child support as though she were a stay-at-home mom.”)

The movie covers several of divorce lawsuit defendants who’ve been sanctioned by judges, threatened with a complete loss of their parental role, and/or imprisoned for writing private Facebook posts or public Weblog entries regarding their experience in the family court. The First Amendment is useful for the New York Times but the film suggests that it affords little protection for the ordinary citizen who is writing about the judiciary itself.

The movie is strong on the easy stuff. The filmmakers found some parents with sad stories to tell and the production values are reasonably high. The filmmakers included YouTube footage of a family court judge in Texas beating his disabled daughter and then noted that the man continued to serve on the bench (cnn.com). The movie is weak on proposed remedies. The main change suggested by the film is that divorce defendants should have the right to a trial by jury instead of the present system where a single judge decides all questions of fact, e.g., whether the children should have one parent or two, how profitable the children should be to the winning parent, who should get the house, etc. The filmmakers argue that a jury would be less susceptible to corruption by cozy relationships with divorce litigators. (In patent infringement cases there is a right to a jury trial despite the fact that the questions typically require specialized technical background to understand. I asked an experienced patent litigator why it wouldn’t make more sense to have judges decide patent cases, particularly judges with technical backgrounds. How was a jury able to decide which of two PhD chemists, experts on opposing sides, was delivering the correct analysis? He said “Juries are great at figuring out who is telling the truth, which expert is answering naturally and which is shading his testimony.” It does seem kind of odd that the Seventh Amendment guarantees a right to a jury trial if Joe is trying to get more than $20 out of Sally by a “suit at common law” but that if Joe wants to get two children and $1 million per year in child support out of Sally she is not entitled to a jury because divorce court is an “equity” court.)

[The attorneys in the audience were skeptical that a jury system would streamline family court. One lawyer said "If you add a jury but leave in place the laws that make getting custody worth $1-5 million, you'll have the same number of trials."]

After the movie, there was a panel discussion and then the audience broke up into small groups. Ned Holstein, the founder of the National Parents Organization, gave an epically bad mushy motivation speech/attempted pep talk. It was easy to see why groups of defeated men like this one have been ineffective politically. Holstein spoke enthusiastically about the 200 or so people in the room changing the world right after a movie that showed they are up against people who are banking $50 billion each year in fees that depend on the system staying the way it is.

The audience discussion was more interesting. About half of the folks who attended were drawing their income from the divorce industry, either as divorce litigators or mediators. Inadvertently these folks proved the filmmakers’ point that money drives peoples’ perception of fairness. A $450/hour participant said that the film’s examples, mostly from California, Texas, and the Midwest, were ugly but lawyers and judges in Massachusetts were full of integrity and sincerely doing their best for children. The attorneys in the audience nodded their heads in agreement. A mediator criticized the film for not showing that mediation was the answer and that all problems could be solved if the government paid mediators to work in the courthouse. The mediators cheered. A “second wife” who is tired of turning over half of her paycheck to lawyers and a non-working “first wife” suggested that the system could be improved if there were a cap on attorneys’ fees in divorce lawsuits. The defendants in the audience clapped while the lawyers gasped in horror.

The “mediation is the answer” idea was challenged by another mediator, who had been quietly shaking her head. “Mediation as in ‘compromise’ is not rational for a woman in Massachusetts. She’ll be able to get sole custody from the judge 99 percent of the time, and a very profitable stream of child support to go with it. There are very few women who will leave money on the table in order to preserve a cooperative relationship with the father. The only thing that has worked in my practice is getting the father to pay as though the mother were the sole parent, but he’ll take care of the kids half the time. I start my work by having a private session with the man. I tell him that divorce in Massachusetts is not about creating ex-husbands. It is about creating ex-fathers. As soon as his wife decided to divorce him he became an ex-father and that unless his wife is a prison inmate, a Massachusetts judge will give her sole custody. I tell him that he has a narrow window of opportunity to buy his way back into fatherhood by giving the mother whatever cash she wants. If he can’t pay her off right now in mediation, she’ll be in court next month. She is going to convincingly tell a judge that she is ‘afraid’ for herself and her children. Nobody will care that there was no previous record of domestic violence. The judge will order him out of the house and cut the kids’ time with him back to about a day a week. He will never be able to recover from that first temporary order. Then I sit down with the woman and tell her that she’ll end up with more cash if she mediates because her husband will have to feed just her lifestyle, not hers plus the lawyers’ on both sides. Typically I can’t persuade her to stay in mediation unless I can convince her that she will end up with more money than if she litigated.”

The litigators said that even when mediation was successful, the work of mediators in Massachusetts was often short-lived. “I worked on a case that was originally mediated. The women had $500,000 per year in income, wanted sole custody, and wanted to move with the children to a foreign country. The father caved in on everything, quitting his job and following her abroad so that he could spend about one third time as visitation. Because her income was so much higher than his and because he caved in on the move, she agreed to share the children’s actual expenses rather than collect child support. It worked great for a couple of years, but then her income fell to about $400,000 per year and she sued him for child support based on the fact that she has sole custody. He makes $90,000 per year.”

A psychologist present said that “people recover better from the death of a child than from losing a custody lawsuit. A death is final and a parent can begin to heal. These custody and child support lawsuits drag on for years, get re-tried every few years until the kid turns 23, and mostly one parent never had a chance to begin with but the judge isn’t supposed to tell him that. False hope can be worse than no hope.” A lawyer responded that Massachusetts custody cases were typically over after just a few weeks, but only the lawyers and the judges knew it: “The mom gets a Temporary Order awarding her the house and the kids. The dad is cut back to every-other-weekend visitation. We tell him that he can pay us to fight this case through the trial but in 20 years I can’t remember a case where a man was successful in overcoming that first order. We tell the woman that she has to keep paying us, but really at that point she could go pro se.” Another lawyer suggested that because the first order typically determined the children’s future it should not be decided based on attorney representation: “In 99 percent of cases the plaintiff’s lawyer is either lying or repeating lies. The standard should be an immediate evidentiary hearing before the house and kids are given away to one parent. It would be tough to pull it all together in a couple of weeks but it would be a lot better than the current system where the attorney representations cannot be challenged or subject to cross-examination.”

The final comment that I can remember was from a divorce litigator who challenged the movie’s title. “The child support plaintiffs that I’m seeing these days were never married so it is a mistake to talk about ‘family court’ and ‘divorce’ as though they were synonyms. The kids that are the ostensible subject of the demands are the product of relationships that lasted sometimes just one night. Oftentimes the kids are not even born yet but the future mother wants to get an agreement to begin collecting at the top of the guidelines [$40,000 per year, tax-free] or higher. What happens to kids who were created for their cash value and whose parents are total strangers? It bothers me sometimes, but then the attorney on the other side and I collect our fees, both of us tapping into the father for anywhere from $50,000 to $100,000, and I move on to the next case.”

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11 Comments

  1. jerry

    January 25, 2014 @ 3:02 am

    1

    “There are some candid interviews with divorce litigators. Jerry Nissenbaum of Massachusetts is on screen asking rhetorically “Am I worth $700 per hour? I don’t know, but that’s what I charge.” Another litigator explains how “the truth isn’t relevant” in divorce court. What is important is a story and it is always the same story: “There is a victim and a victimizer. Then you need a third person, a rescuer, which is sometimes an attorney and sometimes a judge.”

    One reason lawyer fees are a crock is that there truly is no free market in setting fees. One day you’re a father. The next day you face the prospect of losing your kids, forever, and perhaps being indebted and ruined. How much will you pay a lawyer to help you out? And in my experience, divorce lawyers did not give free 15 minute, or 60 minute consultations, they charged their regularly hourly rate. So how many divorce lawyers can the average parent interview before having to make a choice? Given that, is it a free market if your kids are on the line and you have average means and you cannot walk away from the transaction?

    Many of the comments in your piece spoke exactly of the situation I faced in California. That was ten years ago, and it’s never over. A couple of times every year I get served with papers so that we can litigate some new issue, or rather relitigate some old issue. And it’s never over for other reasons too, namely birthdays, holidays, vacations, and every event I would like to share with my kids. And yeah, all of that certainly effects life, relationships, health, and careers.

    National Parents Organization has one thing absolutely right, that I am surprised wasn’t spoken of at the screening, or that perhaps you didn’t recognize the importance of, and that is working to create a rebuttable presumption of joint shared custody of the kids.

    No fault divorce was a reform that eliminated private detectives peeking into windows and made many divorces a lot less bitter and a lot less expensive. But for many parents what it did was shift the battlefield to the children.

    I don’t know why my ex-wife sought to eliminate me from my kids’ lives. But she did, and so do many former wives. And the battle now is often framed in a winner take all manner. The person with the majority of physical custody gets to dictate so much and that can be seen in that the person with the minority of physical custody doesn’t get “parenting time” but gets “visitation time.”

    Because parents know going into divorce court that the system is set up to give either 100%/0% time or “the standard deal” of 80/20 time (two weekends a month and Wednesdays) they are set up for a bitter, expensive, acrimonious, salt the earth, vicious battle. And set up to pay for one litigation after another and set up for all sorts of court experts and it’s crap.

    A law that resets the default to a rebuttable presumption of joint shared 50/50 custody would reform this last battlefield and assure both parents that the court is not there to take children away from parents. That while the marriage is over, the relationship with the child is not.

    When these reforms are proposed, Feminists, NOW, and lawyer groups (ABA) can be counted on to lobby against them and try and defeat them. For NOW, it’s clear it’s because NOW understands the huge bias favoring mothers, and for the divorce lawyers, it’s because they know their fees are on the line.

    Anyway, thank you for your review.

  2. jerry

    January 25, 2014 @ 5:37 am

    2

    https://www.nationalparentsorganization.org/recent-articles?id=21549

    DR. LINDA NIELSEN ON THE VALUE OF SHARED PARENTING AND HOW MOTHERS AND COURTS THWART IT
    January 24, 2014 by Robert Franklin, Esq.

    This summary of research compiled by the excellent Dr. Linda Nielsen is a must read. No family court judge should be allowed to be a judge, no family lawyer should be allowed to practice family law and no elected officeholder should be allowed to vote on family legislation without reading it and being able to demonstrate a thorough knowledge of its contents.

    It’s entitled Divorced Fathers and Their Daughters: A Review of the Recent Research, and, as the title indicates, it’s mostly about the relationship between fathers and their female offspring. But don’t be fooled; Nielsen’s analysis covers all the high points of social science as it relates to fathers and their children and the parts the divorce system plays in damaging those father-child relationships. In the latter part of it, Nielsen goes into how best to cure what ails family relationships, and I’ll deal with that in a future post.

    In a nutshell, up-to-date research shows that during marriage, but particularly during and after divorce, the legal system and mothers’ anti-father bias leads to a drastic breakdown in father-daughter relationships. That breakdown leaves fathers emotionally shattered and daughters struggling long into adulthood and often unsuccessfully to establish stable, trusting romantic relationships with men. Read the first eight pages of Nielsen’s summary of the scientific literature, and a clear picture emerges of a system that could well be called a “perfect storm” of social dysfunction. There’s a kind of evil genius at work that alienates children from their fathers and results in daughters growing up to be suspicious of men and fathers; they go on to have children themselves, get divorced and repeat the cycle. Meanwhile, girls growing up without fathers (or those insufficiently involved in their lives) demonstrate all the usual anti-social behaviors we’ve come to know go hand in hand with fatherlessness.

    So, in the United States, 80% of the children of divorce spend only 10% – 15% of their time with their fathers, a fact that happens to have been borne out by the recent data out of Nebraska I’ve reported on. Some 25% spend none at all.

    More at the link

  3. jack crossfire

    January 25, 2014 @ 6:26 am

    3

    Seen fortunes lost to lawyers through years of divorce proceedings, with neither side getting anything. For heterosexuals, our culture marries people based on stuff they need, not what they have in common. The partners are usually opposites with large age differences, large cultural differences, large health differences, but who need stuff from each other, so their marriages usually fail. The only winners are the marriage industry & the divorce industry. Homosexuals don’t seem bound by the same rules. They organize based on what they have in common.

  4. philg

    January 25, 2014 @ 9:49 am

    4

    Jack: http://en.wikipedia.org/wiki/Age_disparity_in_sexual_relationships provides some statistics. A plurality of married heterosexual couples are less than one year apart.

    http://www.nytimes.com/2012/06/13/world/europe/13iht-letter13.html says that “across the member countries of the O.E.C.D., 40 percent of couples in which both partners work belong to the same or a neighboring earnings bracket, compared with 33 percent two decades ago, a 2011 report by the agency shows. Nearly two-thirds of couples have the same level of educational attainment (in 15 percent of the cases, the wife is more educated than her husband). Doctors used to marry nurses. Now doctors marry doctors.”

  5. lelnet

    January 25, 2014 @ 11:25 am

    5

    “There are very few women who will leave money on the table in order to preserve a cooperative relationship with the father.”

    If she wanted a cooperative relationship with the father, she wouldn’t be paying a lawyer to toss him out of her life and her kids’ lives…she’d keep her promises and stay married. Assuming that a woman seeking divorce is capable of or interested in cooperation is kind of like assuming that a convicted embezzler is an ideal candidate to manage your finances for you.

  6. nameless

    January 25, 2014 @ 9:30 pm

    6

    Great Review. This movie is just the beginning. There will hopefully be more to follow to cover whatever was not gone into enough depth.
    And of course I am kicking myself. Welfare mothers were prevented from having four children with four fathers and getting paid for any more than one child for more than 2 to 5 years, depending on which state you live in with payments just enough to clear the poverty line (about $12K annually plus free health insurance, sliding scale rent, some subsidy of utilities, and food stamps that I can go redeem as the nearest 7-11 and buy something small and get the rest back in cash. I didn’t know that any one else could have four children with four men in relationships lasting as brief as the encounter and get paid $40K annually for 2 decades (to age 23 in Massachusetts) for each kid, I could have laid flat on my back a few times instead of spending my adult life actually working.
    Let’s get these scams out in the open.

  7. Mark

    January 25, 2014 @ 9:48 pm

    7

    More than anything else, this whole sordid mess is an indictment of the entire divorce system in many states.
    And it seems to overlook the reprehensible fact that lots of claims are pure falsehoods designed for monetary gain and not one thing more.
    Sad. It makes me want to throw up.

  8. bottom.half.boi

    January 26, 2014 @ 4:40 am

    8

    Ah, the problems of rich people. Maybe not the “one percent”, but certainly top five percent. Losing millions in child support demands, people with $500,000 incomes. I think a the vast majority of people are a lot safer from this because they have $20 an hour jobs or $50K a year salaried positions. Good luck with these demands. Honey, please take the underwater house, you don’t even have to ask.

  9. nameless

    January 26, 2014 @ 4:12 pm

    9

    Don’t you wish $40K annually child support demands were only for salaries over $500,000 – actually they are for salaries of about $240K. That is $240,000 calculated from the annual salary to be imputed to you (if the judge thinks you are capable of earning this and “underachieving” by earning less, including overtime and any other source of income imagineable to the judge and the attorney for the other side.

    A $50K year salary can be garnished for whatever child support is awarded, as well as $20/hr wages by court order, without your permission or your ability to stop the money from being sent. Your employer is obligated to comply with court ordered salary garnishment and will not stop until the court (not you) says so.

  10. suzanne goode

    January 26, 2014 @ 4:39 pm

    10

    Bottom.half has a good point, but Mick Jagger/ Rupert Murdoch/ Eric Schmidt /NBA-NFL player/ Hollywood alone are enough to keep the divorce industry humming. Add to that the humdrum divorces among the affluent couples in my area. In the golf community of Avenel in Potomac, Maryland (Mike Tyson is a former resident), I have encountered several women who clearly are living off the proceeds of a divorce, in the $3 million home, with middle & high school kids still in residence. Their daily schedule appears to be spinning class, Pilates class, sauna/steam room/shower, and then which salad or Japanese restaurant they should choose for lunch. Clear they have no interest in/need for gainful employment. Their only constraint is to be a presence in the late afternoon/evening, although they rely heavily on hired hands should they want to go out on dates/out with gfs. I guess they’ll hit hard times once the kids hit age 23.

  11. leslie

    January 26, 2014 @ 9:44 pm

    11

    This is a PROBLEM in our country; the facts speak for themselves. The judges and attorneys are the ones getting rich off of unfortunate situations. It is a matter of civil rights .Take the money away and watch how quickly they would encourage mediation. Children are the ones who suffer. It’s time to end the abuse of powers in these courts!!!

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