Divorced from Justice
The Abuse of Women and Children by
Divorce Lawyers and Judges
BY KAREN WINNER
About Karen Winner
Each year more than one million marriages in the United States are dissolved in divorce court. Before these legal proceedings start, the husband and wife share one standard of living in their single household. Something strange happens, however, by the time the divorce decree is issued: the division of the household income between the two parties no longer remains equitable and the new arrangement is lopsided, almost always against women. These facts are startling to researchers because our country's divorce laws--known as equitable distribution and community property laws--were intentionally designed to financially protect women and children in divorce. Yet newly divorced women find that their standard of living has plummeted, on the average, by 30 percent, and mothers' and children's available income has fallen as much as 37 percent. Meanwhile, the standard of living for their ex-husbands has risen from 10 to 15 percent. Why is it that divorcing women overwhelmingly face economic hardship after being processed through the legal system, while divorcing men prosper?
To understand this puzzling question I turned to a seemingly obvious place to look for answers: in the lawyer suites and courtrooms where women go for their divorces. Lawyers and judges control the main events in the legal process of divorce and determine what is in the woman's final divorce decree. I have found that while their behavior as advice-givers and decision-makers crucially affects the outcomes of women's lives after divorce, they are often strongly influenced by factors other than the woman's needs.
What emerges from my research is that the present divorce court system is, in fact, a very lucrative industry run by lawyers and judges. This industry is buoyed by a fee-for-profit system benefiting lawyers and judges, often at the expense and welfare of clients. My findings show that practices specific to the divorce industry, and some others attributed to the legal profession as a whole, are cause for deep concern to divorcing women as well as for public officials. These findings are based on interviews with ethicists, jurists, lawyers, academicians, women's rights activists, and victims, as well as a review of divorce industry trade literature and court and government records.
To begin to understand the divorce industry and its hold over families in divorce, it is important to recognize that lawyers are in a different position from other professionals. What differentiates lawyers is that they exclusively control the public's access to the judicial branch of our government. For all practical purposes, a person cannot gain access to the court if she or he does not have enough money to afford a lawyer. The well-worn phrase that justice is for sale is as true in divorce as in other fields of law. Only the well-off can comfortably afford divorce lawyers; the rest have trouble getting through the courtroom door. In civil court, lawyers aren't usually appointed, so the only way to obtain legal representation is to hire a lawyer. Services like Legal Aid, meant to provide a safety net for poor people, are so typically understaffed that in some places, such as New York City, long waiting lists cause them to shut the door on divorcing people trying to get help. There aren't enough pro bono lawyers, but with those who do there are problems too. Technically speaking, anyone can represent herself, but she will be no match for an experienced lawyer.
We might expect poor and working-class women to have difficulty finding affordable, competent representation, but as these pages will reveal, well-off women who are at the end of their marriages may also find it hard to gain access to the court. That's because women, even professional, affluent women, typically don't control the family assets. Consequently, they often find themselves in the peculiar position of being cash-poor at the end of their marriages and at the beginning of the divorce process. This has a most dire consequence: If a divorcing woman can't afford a lawyer, she's left without representation or protection in a situation that will totally affect her life. There is no ceiling to lawyers' fees, but these women's resources (personal life savings, parental loans, etc.) are finite. That's just the beginning of an explanation of how formerly wealthy women find themselves impoverished through the process of divorce. Even worse, whether a woman can afford to hire a lawyer or not at the outset, all divorcing women stand an equal chance of being priced out of their lawyer. (There is much to be learned here that will be explained later.)
Injury piles on injury for those women thrust into divorce involuntarily. Not only may divorce be imposed on women by their husbands, but the legal apparatus and industry that are divorce court may force these women to face involuntary economic sanctions as well. These penalties start with the imposed high cost of having to hire a lawyer and culminate with having to abide by financial settlements in which the women's needs may not have been represented at all. The sad truth is that lawyers in the industry of divorce court use the woman's divorce as an opportunity to enrich themselves at her expense.
Several practices that are standard industry-wide enhance the lawyer's profit potential:
- Lawyers in most states are not required to provide clients with itemized bills, which makes it nearly impossible for the clients to know what they are paying for. Even when the bills are itemized, it does not preclude common abuses such as fee padding.
- Lawyers are permitted to hold their clients' files hostage if the clients refuse to pay, which can make it extremely difficult for clients to pursue their divorces. There is an ethical prohibition against retaining the documents in the file if damaging to the client's case, but this ethical code is poorly enforced.
- The legal establishment allows a judicial-selection process heavily tainted by politics.
- Lawyers are allowed to charge legal fees that exceed the amount of the marital estates.
- Lawyers in many states are allowed to force the sale of the family home in compensation for legal fees even if this leaves family members homeless.
As a result of these practices, women are subject to any number of economic and emotional assaults by their own attorneys, who may well collude with their husbands' attorneys to manipulate a settlement favorable to the lawyers. Vulnerable spouses are overcharged, coerced into trading off property rights for the right to keep custody of their children, and manipulated in various ways into conceding their rights.
Some of these practices, which will be described in detail, are unethical, others clearly illegal. There are also those vast, murky, gray areas that allow ethics and common decency to be evaded. On one hand, there are so many ethics rules, so many of them ill-defined and cast along such narrow technical lines, that what clearly seems like morally indefensible behavior to the lay person turns into a debate between lawyers over legal technicalities. Lawyers rest their argument on what's legal rather than what's right or wrong, unfair or equitable. For example, in a contemporary case, a matrimonial lawyer not only properly advised his affluent client that it was perfectly legal not to pay sufficient alimony if the judge agreed and ordered a low award, but then when the client decided to adopt this option, the lawyer agreed to take the case. All the while, the lawyer knew that without sufficient alimony the woman would lose all financial security and become destitute. Contrast this to what Abraham Lincoln told a prospective client whose legal claim to $600 meant bankrupting a widow and impoverishing her six children. "Some things that are right legally are not right morally," Lincoln said, refusing to take the case, and adding: "I advise a sprightly, energetic man like you to try your hand at making six hundred dollars in some other way." While appealing to common decency might sound naive or even laughable in these cynical times, Abraham Lincoln knew there was a court of higher justice, by which civilization need abide.
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