Divorced from Reality
Rethinking Family Dispute Resolution
Families, Law, and Society
Published by: NYU Press
240 pages, 152.00 x 229.00 mm
- ISBN: 9780814708934
- Published: June 2015
Over the past thirty years, there has been a dramatic shift in the way the legal system approaches and resolves family disputes. Traditionally, family law dispute resolution was based on an “adversary” system: two parties and their advocates stood before a judge who determined which party was at fault in a divorce and who would be awarded the rights in a custody dispute. Now, many family courts are opting for a “problem-solving” model in which courts attempt to resolve both legal and non-legal issues.
At the same time, American families have changed dramatically. Divorce rates have leveled off and begun to drop, while the number of children born and raised outside of marriage has increased sharply. Fathers are more likely to seek an active role in their children’s lives. While this enhanced paternal involvement benefits children, it also increases the likelihood of disputes between parents. As a result, the families who seek legal dispute resolution have become more diverse and their legal situations more complex.
In Divorced from Reality, Jane C. Murphy and Jana B. Singer argue that the current "problem solving" model fails to address the realities of today's families. The authors suggest that while today’s dispute resolution regime may represent an improvement over its more adversary predecessor, it is built largely around the model of a divorcing nuclear family with lawyers representing all parties—a model that fits poorly with the realities of today's disputing families. To serve the families it is meant to help, the legal system must adapt and reshape itself.
1. Historical Overview 5
2. The Critique of the Adversary System and the New Paradigm as a Response 26
3. Expanded Courts with Diminished Legal Norms 37
4. The New Vision Meets the New Family 60
5. From Gladiators and Umpires to Problem-Solvers and Managers 83
6. The Influence of Comparative and International Family Law 110
7. Creating a Twenty-First-Century Family Dispute Resolution System 128
About the Authors 219
In this text, Professors Singer and Murphy have provided a concise but thorough examination of the developments in dispute resolution in private family law matters, especially parenting disputes. By taking a broad view of trends in family law over time and across jurisdictions through the lens of dispute resolution, the text highlights important insights into structural shifts and tensions in the law. This will be an excellent book for policy makers, students, attorneys, and judges looking for a clear overview of this rapidly evolving area of law. ~Barbara Glesner Fines,Rubey M. Hulen Professor of Law, University of Missouri Kansas City
Murphy and Singer present a fresh and insightful approach to resolving child custody disputes. They look to the past but emphasize the future with practical recommendations that both humanize the process and strengthen the new family. ~Sanford N. Katz,Boston College Law School
The most significant contribution of this text is its acknowledgment of the gap between the realities of family life for more and more families and a legal system that, while admirable in its goals to move beyond adversarial conflict, nonetheless practically serves only those families who fit an elite segment of society. ~Family Collective Review
This is an important book about a velvet revolution in the resolution of family law disputes over last thirty years that has taken place without much public attention. Singer and Murphy demonstrate that disputes about children and parents are different than auto accident or contract cases because they involve emotions and continuing relationships and that courts and lawyers can and should construct dispute resolution processes to recognize those differences. They detail ongoing changes in family law dispute resolution in court systemsfor example, the institutionalization of mediation and parent educationand describe how these processes must adapt if they are to continue to be of service to 21st century parents and children. ~Andrew Schepard,Max Schmertz Distinguished Professor of Law, Hofstra University
By focusing on how the new family court paradigm serves, and disserves, its litigants, Murphey and Singer have provided a powerful critique of our existing system for resolving family disputes. And, by suggesting new reforms, they persuasively show how to promote improved responsiveness.  The book leads to a deeper understanding of the potential role of family courts in helping families resolve conflicts. ~Journal of the American Academy of Matrimonial Law