Trick #10

by Kenneth Waldron / Thursday, 05 October 2017 / Published in Game Theory Blog

In prior articles, we wrote about the natural desire to prevail against perceived rivals and the potential use of game theory to understand obstacles in the current legal system as it takes families through separation and divorce. We next focused on how the legal system begins to trick people into self-defeating patterns of decision-making: Trick #1 – distracting people from their life goals into thinking that legal outcomes are goals; Trick #2– treating divorce as a zero sum game; Trick #3: assuming disputes and seducing parents into thinking the same; Trick #4: treating children as property; Trick #5, acting as if selfishness is the best strategy; Trick #6, believing that winning is critical; and Trick #7: thinking that being angry is better than being sad; Trick #8, building a marital settlement agreement deductively, rather than inductively; and Trick #9, presenting a divorce as the end of a relationship.

Trick #10 arises from a long tradition in law, the attribution of fault. It is believed that society has an interest in keeping families stable, and there is a long religious tradition that once married, people should not divorce. As a result, when dissolving a marriage, proving fault seems to find its way into attitudes and law.

Prior to no-fault divorce, a spouse had to prove fault on the part of the other spouse or admit to fault on the part of oneself in order to have the divorce sanctioned by law. To have the divorce sanctioned by the church, further steps had to be taken to prove that the marriage was improper from the beginning. No-fault divorce was introduced when legislators recognized that establishing the burden of fault led to highly contentious and very damaging family consequences.

Family law was not the only arena in which establishing fault was a key legal concept. In some civil matters, for example, not only is an attempt made to establish fault, percentages of fault become important in determining punishments or awards. Criminal law is perhaps most obvious as a process of attributing fault. Branches of family law, other than marriage and divorce, also hinge on establishing fault. The termination of parental rights, for example, is based on establishing fault on the part of a parent that reaches certain legal standards.

It is into this pervasive legal tradition that spouses enter when they file for divorce. By the time many spouses file for divorce, they have been locked into the same process of finding fault with one another in a blame-game. Thus, the legal system fits hand-in-glove with the marital dynamic, only now they have professional blamers to assist them.

Asserting and proving fault is generally irrelevant to the legal tasks involved, at least and certainly for the parties to reach their ultimate goals for their children and financial lives post-divorce. Notwithstanding, fault seems to dominate the process, distracting the parents from a healthier approach to their divorce and, if they have children, to establish a family with separated parents. The legal system tricks them into a perpetual blame-game that often continues full force into their futures.

In our next installments, we are going to provide antidotes to the tricks in the legal system. Some of those will be obvious, given the nature of the trick, and the reader can probably create other antidotes, once the tricks are understood. Helping divorcing spouses and never-married separating parents avoid succumbing to the tricks can be a valuable service of mediators and lawyers.