This is the final summary.
More words from Jed Abraham
The fourth law you have to change is equitable distribution. This Robin Hood rule underwrites your wife to divorce you.
There is historical irony here. Under the early common law, a married woman could not generate separate property; her earnings belonged to her husband. The granting of separate property rights to a wife was considered a great advance. We have now come nearly full circle. Now, a husband cannot generate property, either. The capitalization of a wife’s homemaker contribution into an economic claim to potentially all her husband’s earnings strikes a blow to marital stability because all she has to do is stake the money and run.
The fifth law you have to change is the domestic violence code. It stimulates too many false, self-serving accusations in custody battles. Litigants know that judges will bolt at the prospect of placing children in the custody of an accused abuser. When the accusation cannot be corroborated, its effect may linger on in a denial of custody to the accused.
The antidote is three-fold. First, courts must be reminded that the vast majority of divorcing parents are not abusers. Therefore, when judges yield to the exaggerated emotions of an abuse hearing, they inevitably end up punishing many innocent people: parents, by denying them custody, and children, by denying them parents. Denials of custody or joint custody to parents who are accused but not found guilty of abuse must therefore be held to strict scrutiny on appeal. The presumption on appeal must be that the trial judge may have been prejudiced by the unproven abuse charge. Second, in the context of a custody case, the law must require a higher standard of proof than a preponderance of the evidence, especially when there is the prospect that the court might issue protective orders that yank the accused away from his home and children, and result in delivering control of the custody case to the accuser. Finally, intentionally false allegations of abuse should result in strong presumption against awarding custody to the accuser.
The sixth law you have to change is the rule allowing a court to ignore the provisions of pre-nuptial and divorce settlement agreements governing custody and child support. This rule presumes that parents, who are postured as adversaries at divorce, will routinely seek to maximize their respective post-divorce outcomes at their children’s expense. This is too cynical a view. When parents are allowed to maintain normal contact with their children after divorce, they continue to care deeply about their children’s welfare, and they can be expected to be as financially forthcoming and altruistic as their married counterparts. The posturing of divorcing parents as adversaries and the wrenching of fathers away from their children are themselves are products of the law’s meddling, so naturally the law seeks to escape responsibility by blaming the parents. The supervisory role of the court in pre-nuptial and divorce settlement agreements concerning custody and child support should at least be limited to ensuring “reasonable” outcomes, similar to the situation now with regard to alimony. Agreements between divorcing parents should as much as possible be enforced as the bona fide contracts they are.
Outcast Superstar has now completed the 50 part series of “What Divorce Law is Doing to Marriage”.