“High conflict” divorce, or continued abuse?

It’s just over three years now since I accidentally found out that my husband was planning to serve me with divorce papers in less than two weeks. On 15 December 2008, I stumbled onto evidence of my husband’s conversation with others, talking about how “we” were waiting until after the holidays, but that “we” would be separated by 2009.

Once a divorce case passes the two-year mark, it is officially a “high conflict” divorce. The term’s implications are fully supported by the family-court system: Both parties are deemed equally guilty of being combative. The fact of the extremely high overlap between “high conflict” cases and cases involving domestic abuse is generally swept under the rug as being irrelevant or unrelated.

Indeed, I’ve read of a case in which, during the same court appearance in front of the same judge, a woman was granted a restraining order (due to her husband’s abuse of her and her children) and was then loudly condemned by the judge for “alienating the affections” of the children for their abuser (by having gotten a restraining order so as to protect the children).

Somehow, as soon as the abuse victim is involved in a divorce case, the power-unequal abusive relationship is converted into a power-equal conflictual relationship. It doesn’t matter that nothing the victim does (other than dying) will ever be good enough for the abuser. The fact that the abuser won’t accept anything less than a continuation of his control means that he will drag things out as long as he can. And his victim is blamed.

She is told that she needs to “start negotiating in good faith”, as though her abuser were trustworthy and honorable. She is told that she needs to “be willing to compromise” with somebody who is making impossible demands. The ideal of “splitting things down the middle” leaves her in the position of trying to protect herself (and being condemned) or else “compromising” by relinquishing her rights. The philosophical basis is the mediation model, but even proponents of mediation flatly state that it won’t work in a power-unequal environment.

The “meeting in the middle” model is a nice idea. Unfortunately, it fails in practice because it assumes a parity which does not exist.

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