Recently, a Kansas man made national news when he proposed an alternative means to resolve his ongoing custody dispute. Mr. Ostrom claimed that his wife had already “destroyed (him) legally,” so he requested to meet his ex-wife and her attorney “on the battlefield” to engage in a sword fight. He then asked the judge for 12 weeks “lead time” so he could obtain Japanese samurai swords. The winner (the last person left alive) would be rewarded with custody of the children….

I enjoy a good joke just as much as the next person, but when I finally finished laughing at the absurdity of his proposal, I began to reflect on our “imperfect system” for handling divorces and custody disputes. I don’t pretend to have the answers, but I would like to begin a discussion about rethinking this process.


Our emotions are the reasons for marriage and divorce

According to a recent Pew Research report, 90 percent of married people said love was a major factor in their decision to exchange vows. We can probably agree that the majority of people select their spouse for a combination of emotional, psychological, and interpersonal reasons. And although the number of millennials requesting prenuptial agreements has increased in recent years, I would guess that less than one percent of marriages in the U.S. are primarily driven by legal concerns.

When a marriage no longer works and one or both partners believe that divorce is the best solution, it’s typically not because of legal issues. I’m sure that we can once again agree that a combination of emotional, psychological, and interpersonal reasons are what leads a couple to their breaking point.


The opposite of love is not hate

It’s important to recognize that the opposite of love isn’t hate, which is an equally strong emotion. The opposite of love is indifference, or no emotion.

The intensity of the emotions that are associated with both loving and conflict-based relationships is a commonality that should not be ignored or dismissed. However, society is much more comfortable with people displaying strong, positive emotions than with people displaying strong, negative emotions. Yet strong, negative emotional states are often long-lasting (evolutionary psychology explains the importance of anger for survival).  And, they are so strong that they can fuel a contentious divorce spurred on by overly-litigious attorneys.


Divorce is a billion-dollar industry

When people divorce, the first thing they typically do is hire a divorce attorney. The attorney will commiserate with their new client and promise them justice. Even when divorce is amicable, the legal process takes time. When a divorce is contentious, the legal process can take years. Throughout that period of time, attorneys send their clients monthly bills for every phone call they make, email they write, and court appearance they attend.  Suddenly, each person has blown through tens, or hundreds, of thousands of dollars.

When a couple gets divorced, the only people who really win are the lawyers. By the time the papers are signed or the judge has made their ruling, the lawyers have made a lot of money off of their client’s misery.  And unfortunately, the real issues that caused the divorce are rarely discussed or addressed through the legal system.


We’re doing it wrong

When a divorce begins by addressing the legal matters rather than the raw and powerful emotions of the couple, minor issues can become a major battle. The underlying personal and interpersonal issues that fueled the desire to get a divorce are often taken advantage of during the legal process. This results in both parties coming to a legal decision-point with scant attention to the real issues that ended their marriage. Placing disproportionate attention to minor issues at the direct expense of addressing the real issues fits the definition of psychotic thinking.


Rethinking the divorce process, starting with the emotional needs

Imagine a system where both parties are required to first address the strong, raw emotions, as well as the personal and interpersonal factors that drove them to divorce. Each person would receive one-on-one therapy before they began therapy together. At the end of the therapeutic process, they will have resolved the majority, if not all, of their major and minor issues. By the time they speak with an attorney, the couple will have resolved most of their negative thoughts and feelings towards one another, and the remaining legal issues can be addressed civilly. Attorneys will still make a profit.

This approach will not work for every couple going through a divorce. For example, the emotions connected to abusive marriages will not be resolved through joint therapy. The victim requires therapy from a mental health professional with specific training in domestic violence. And abusers, especially narcissists, are typically unable to admit that they’ve done anything wrong or need to change anything about themselves.


In conclusion

I recognize that my proposal is a grave financial threat to the matrimonial industry. But the industry preys on the emotional suffering of their clients, draining their bank accounts and leaving many of them, like Mr. Ostrom, feeling completely destroyed.

While it won’t work for everyone, this seems like a far saner starting point than the system we use now.