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Published:September 29th, 2009 16:19 EST
Divorce: Literature Review of Procedural Concerns and Issues

Divorce: Literature Review of Procedural Concerns and Issues

By Roya Rohani Rad, MA, PsyD


This report will focus on improving the methods used in the family court system and relevant agencies, groups, and organizations dealing with family law, child safety, and divorce with a concentration in the State of Maryland. Its focus is on bringing more awareness and helping to bring ideas for making improvements.


In the last few years, higher-quality research which has allowed the "meta-analysis" of previously published research has shown the negative effects of divorce on children have been greatly exaggerated. In the past we read that children of divorce suffered from depression, failed in school, and got in trouble with the law. Children with depression and conduct disorders showed indications of those problems pre divorce because there was parental conflict pre divorce and there was no coping mechanism in place. Researchers now view conflict, rather than the divorce or residential schedule, as the single most critical determining factor in children`s post-divorce adjustment.


The children, who succeed after divorce, have parents who can communicate effectively and work together as parents. However, in some situations especially the ones where abuse, harassment, manipulation and power control are involved, this conflict is imposed by one party and the other party falls victim. It is for these people that the third parties can interfere greatly and implement prevention. This conflict can be reduced greatly by the third parties that somehow get involved into this system. If there is a biased view of victim blaming, or if the parties getting involved are careless having mind sets like they are getting divorce so let them deal with it " which has been reported in some of these cases, this can cause problems in which the perpetrator feels rewarded and intensifies his/her behavior and the victim feels helpless.


This paper focus on the role of victims vs. perpetrators and how that is viewed in the divorce proceeding. When it comes to divorcing parties, it seems like many want to look like the victim and even compete for the victim status. It has been reported that some family law attorneys may even encourage that in their clients whether consciously or unconsciously. While this could be confusing for the court, the court is sometimes blamed for its creation. This may be due to the fact that the victim stance is powerful. The victim is always morally right, neither responsible nor accountable, and forever entitled to sympathy. However, it is seen more and more that exploring the psychology of victims has become synonymous with blaming the victim.


Victims` healing lies not only in empathy and support but also, when appropriate, in helping them assume appropriate and realistic responsibility for what has happened to them. Victimization, as discussed in this paper, happens within a context of relationship and a certain environment or culture. Hence, each participant`s behavior must be understood within the context of the relationship and its legal, economic, political and social context. Participants in the victims-victimizers-bystanders dynamic assume, mainly unconsciously, mutually dependant and complementary roles. Intervention or change in the system can be initiated at any time by any participant.


Any change in behavior by one of the participants is likely to affect the others` behavior and may lead to a different outcome. The interaction within the victimizer-victim environment can lead to violence or to other options, such as non-violent or peaceful resolution. The non-violent options will alter the victim and victimizer roles and may include termination of the relationship. Third parties involved in the divorce including the family court can be both a significant factor that can promote victim-victimizer, violent or blame systems, or they can promote respectful relationships among its members who, in turn, make a sound commitment to resolve conflicts non-violently. Usually, some form of punishment for the perpetrator should come in place before any productive attempt for conflict resolution comes about.


Victim blaming takes responsibility away from the perpetrator and implies that they cannot control their actions. Perpetrators will often blame the victims to discourage them from pressing charges for assault or leaving an abusive situation. Perpetrators can act actively or in more severe cases passively which is harder to catch and creates more anxiety and confusion. They may deny any wrong doing, blame the victim, or manipulate the situation. Over time, this erodes the victim`s self-confidence. If the only victim blaming came from perpetrators, it would be simple for victims to avoid internalizing it and to find outside support to help them. However, victim blaming is a pervasive force in society and is reported by many who have experienced these in the divorce procedures.


Victim blaming even comes from other victims. Often it is a way for victims to take back power over their own lives: if they have control over the crimes done against them, then they have some control over their relationship and their fate. Victim blaming can also stem from a fear of being re-victimized: if the first attack was the perpetrator`s responsibility, then the victim is still vulnerable, but if it was the victim`s responsibility, she can protect herself from being attacked again.


With such messages bombarding the victim from all sides, it is no wonder that it can be difficult for an abuse or assault victim to find the help and support s/he needs. We as a whole should find ways to learn and become aware of these facts and make sure perpetrators are not rid of their responsibility if we wish to protect victims from further harm. (Kimberly lorenz)


In addition, another focus should be on stereotyping. Stereotyping research suggests that traditional women (e.g., housewives) are seen as warm and weak, whereas nontraditional women (e.g., career women) are seen as lacking warmth but competent. We expected a nontraditional female abuse victim to be perceived as less warm than a traditional victim, and thus be blamed more in an abuse scenario. In an experiment, 118 Midwestern United States college students read a marital conflict in which the husband perpetrated high levels of psychological abuse. The victim`s gender role and reaction to the abuse each were manipulated. As expected, when the victim was nontraditional or she reacted negatively to the abuse (e.g., yelled back), she was rated more negatively and blamed more due to her lack of warmth. This is another factor being reported by educated women going through divorce about some biased pre made assumptions they felt during their experience.


State of Maryland, like other states within US experiences about 50% divorce rate. Most these families have children and this transitional stage and its effects can have long lasting effects on these future generations as well as the parties involved. Studies show that children who cope with divorce in healthy ways are not affected by it and may even be affected positively if the marriage was openly conflicted causing a distressful environment. How a family is divorced, how children and their loved ones are affected by the process, whether they are being empowered by the system or they feel a sense of not being heard or unjust, and how they can trust the system will all have a long lasting influence on these individuals.


What leads to the divorce and how it is caused has many root oriented explanations that is out of the boundary of this paper or that of the State and procedures related to the divorce. What matters is the fact that as a part of a community, a divorcing family is at its most critical stage and needs the most help for surviving this experience and going through readjustments. It is like a body part that needs healing and more attention to be cured. As mentioned, this adjustment phase can be significantly influenced in both negative and positive ways by all the third parties that enter into the system including the court system, the legal aspect of the case including the attorneys involved, and other third parties including family services and police department.


These groups have an overwhelming affect on the divorcing families whether they are fully aware of it or not. Usually during the divorce procedure the abuse/control issues intensifies since one party is very mad over the divorce, whether actively or passively. Many perpetrators use money or financial control hiring an aggressive attorney to make sure their behavior expresses itself in different shapes and forms, this time, using a third party. It is reported that it is mostly the perpetrator who is willing to hire a more aggressive and costly attorney since s/he is the one in control of the financial aspects of the family and has usually been planning the situation.


The divorce procedure by itself creates a system in which the divorcing families get involved with a number of other third parties. It is a transitioning system that needs third parties for protection and maintenance to go back to the optimal productivity while putting the pieces of life together. Like any other system, if the groups involved cooperate and work collaterally, there is benefit and healthy problem solving methods for reaching an optimum solution. However, if people get involved with pre made judgment that may or may not be tactful in nature, or if they are in any way biased, carelessness, or prejudice; not only would they not benefit the divorcing system but they will cause more harm.


Another scenario would be financial gains. There have been reports of cases in which the situation was made worse and manipulated by third parties including some of the practicing attorneys for what seemed like financial gain from the situation. These third parties by themselves create another system that holds within it the divorcing system. Like any other systems, the success depends on collateral work not the other way around. However, collateral work takes less time and more productivity and if the intention is to make money, this will not be a preferred method. Studies indicate that a successful system is a system that is organized and consistent, establishes and rewards best practices, integrates diverse elements, is build on standards, and creates incremental values. However, the current system in place for the divorcing families may seem to lack some of these components.


It may seem that these third parties and groups involving with the divorcing families may work either separately or even, at times, against each other rather than working collaterally causing a lot of unnecessary time, frustration, and miscommunication. There is also a lot of mistrust between each of the groups, for example, in some cases police against attorneys etc. It seems like in such system the whole is much less than the sum of its parts. It is like brains that have millions of smart neurons but no central nervous system. There are many smart people involved, but they are not connected. They do not work collaterally and there is no networking. This study will show why it is so crucial for the third parties to work collaterally focusing mainly on the involvement of attorney in the cases. It also focuses on how the court`s involvement in ordering the parties to work with collateral attorneys will reduce the chance of the divorcing families coming back to court again.


In addition to the previously reported, it is important to address why it may be more important for the parties involved including the court system to look beyond how parties present themselves based on past history and the facts of the story and to the hard evidence rather than how it is being presented. The reason could be what is being reported as the acting school training some of the perpetrators may go through. It may seem at times that the abusers are experiencing less anxiety and again, more control, because they usually are the ones in control of the financial aspect of the family as well giving them the ability to hire more aggressive lawyers as it is known and having more training sessions. It has also been reported that many people wonder why it is that what they term as bullying " may not be a condemned act in the family law system (ext. attorneys), and may even looks at as a positive thing, perhaps a sign of power. For example hiring an attorney that nails your partner can be seen as a powerful thing. It seems like for the victim the cycle repeats itself, s/he is feeling anxiety and a sense of helplessness and overwhelm which is brought out by the process itself.


     It is also worth noting that usually the abuser, controller, and manipulate is the one who reports being happy in the marriage while the one experiencing anxiety, sadness, and helplessness during the marriage reports having a difficult marriage which by itself may be viewed differently in some court hearings. Some report that this has been viewed in the opposite way looking at the perpetrator as the victim who wants his/her marriage to work out. Our study will present evident as to why the court, in some cases, might want to reconsider how the parties present themselves in court and go deeper looking at the intentions and the psychology behind the behavior. This by itself needs an actual training and education related to factual information related to psychology.


Finally, the following should be considered for families going through the divorce:


That everyone;

Be treated with dignity, respect, courtesy, and sensitivity.

Receive emergency help as needed.

Be advised of law enforcement services available to protect victims & witnesses from harm.

At trial be provided a waiting area apart from the accused.

Be informed of any available financial assistance of social services.

Receive help with expenses occurring as a result of the crime.

Be assisted with prompt property return.

Be informed of restitution procedures and information.

Receive speedy handling of the case in which they are involved.


Some of the Potential Recommendations:

1. A system should be placed in which the children are heard in a safe environment loud and clear without having any attorneys involved. For example, a child advocate who is a volunteer who spends a lot of personal time with the child alone and him/her parents interacting, during the one year of separation, rather than a few sessions.


2. A system in which psychologists, counselors, social workers specifically certified or experienced with divorce cases can come in and implement plans and give ideas and recommendation on an extensive multi dimensional aspect. A system in which entities are separate but work collaterally (to decrease observer`s effect in which one just agrees with another because they are colleagues). A system that makes it easy for these groups to communicate together openly and effectively.


3. There needs to be more options for families to choose from when it comes to counseling help.


4. Child protective services should have special counselor trained in divorce situations in place to respond to situations of divorce where control/abuse and manipulation issues are involved. It is reported that abuse/manipulation/control significantly increases during the period of divorce for the hope of frustrating the victim to go back to the marriage.


5. Police departments should have special units that are knowledgeable in divorce, abuse, manipulation, harassment etc related to this specific subject to deal with during a divorce procedure.


6. There should be experts in place working directly with the court rather than with the attorneys involved to testify on particular subjects. These experts should be available for parties involved.


7. There has to be a stronger and more ethical attorney grievance office in place to punish the attorneys who want to take advantage of a system at its most vulnerable time. Victims report having to change a number of attorneys due to financial issues or incompetence which go hand in hand in some ways.


8. There should be an organization in place that becomes like a bridge between families and the court without the attorneys being involved to give people a chance to let their true story out without any third parties trying to change or affect the story, imposing fear, or charging a large sum of money for such matters.


9. The court should have a system in place ordering the parties to hire collateral attorney`s that work together to share what is involved fairly and relatively.


10. Mediation and parenting seminars that are in place should improve and there should be more options.