In terms of legal history, divorce is a relatively new concept. Only after the gradual acceptance of marriage as a civil contract (as opposed to a religious undertaking), were divorce legal systems developed in the civil courts. Before then, marriage matters were ecclesiastical in nature.
American divorce law was not part of the common law; in England, divorce could only be granted by an Act of Parliament. It was not until 1858, long after the American Revolution, that divorce could be granted by English courts. Applying religious law or doctrine, ecclesiastical courts could only grant annulments (as if the marriage never happened) or separations that did not allow parties to remarry.
The first divorce statutes in the United States were developed beginning in 1870. No-fault divorce was not introduced in the United States until 1969 in California. Washington's no-fault divorce statute was adopted in 1973. Prior to the adoption of no-fault laws, divorces could only be granted on proof of reasons for divorce, such as adultery, cruelty, or abandonment.
The concept of fault as a ground for divorce was a key factor in placing divorce decisions in the courts. Courts were deemed well-positioned to weigh the evidence to determine if there was adequate proof of "fault" for which the divorce could be granted. Using courts for the newly-created remedy of divorce was perfect for the morals of the late 1800s.
While perhaps adequate at determining fault -- "guilt," as it were, for divorce -- courts were never designed to restructure families. Neither judges nor lawyers were generally trained in family systems, instead focusing on making standardized decisions based on the mores of the time.
Although history and society has changed, legal decisions concerning divorces with the courts, even though fault-based systems have long been abrogated. Yet, despite divorces becoming more routine, and society changing, inherent structure of the divorce court has not changed since first established, even if the laws have.
In the United States, the structure of courts is adversarial -- the theory being that both sides present their cases, and the court is to determine the truth based on those presentations. Unfortunately, the structure of the adversarial system is less than conducive to helping people through what has become a normal, routine, life transition, and makes it difficult or impossible for attorneys to act in sufficient coordination to contain conflict and thereby assist parties in providing a better resolution.
One of the responses to the structural limitations of the adversarial legal system for divorce has been the development of Collaborative Law. Collaborative Law contains an institutionalized recognition that clients are in crisis and will therefore necessarily experience intense emotions as they restructure their families. Generally, the Collaborative process focuses the clients on their highest long-term goals, helps them obtain and understand the information needed to make good decisions, and then ushers them to productively and jointly work towards satisfying those interests. Collaborative Law is a formal process in which both clients are represented by attorneys who are trained in the process and its procedures to allow clients to safely move through their normal emotions and dynamics to a successful outcome, while also thoroughly addressing the legal, parenting, and financial issues. The measure of success is a durable agreement, which necessarily means that relationships important to the client be preserved.
Currently, there are only a handful of law schools that offer Collaborative Law as part of their curricula. For most of us, the process and techniques that are used in Collaborative Law lie outside our prior legal training and experience. While knowledge and skills in substantive law and court procedures are needed in Collaborative Law practice, conventional legal training and experience does not prepare attorneys to work within the formal Collaborative Divorce process structure.
For more information about Collaborative Divorce, visit www.mark-weiss.com