12/05/2011 12:35 EST | Updated 02/03/2012 05:12 EST

Is Divorce Getting Nicer?

While it is true that there is less fighting these days in law offices and in court about some topics, there is, I would submit, more fighting than ever on others.


Brahm Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. He is here to answer your questions on all aspects of family law. Write to him at

Someone recently sent me an article in the New York Times called "The Good Divorce" (Oct. 28, 2011) by Susan Gregory Thomas. Its main thrust is that for the most part, Generation Xers (born between 1965 and 1980, which includes yours truly) are doing divorce "differently." By "differently," she means more civilly, with less conflict and with more focus on the children.

I agree with her, but only to a point. While it is true that there is less fighting these days in law offices and in court about some topics, there is, I would submit, more fighting than ever on others.

Thomas refers to the rise of joint custody as an example of how things are now done differently. She cites the number of states in the USA which now uphold joint custody versus 30 years ago and the rise of collaborative family law.

And she's right. In my practice, I have seen a dramatic rise in the number of cases now settled by joint custody versus sole custody, compared to 10 years ago. In my view, this is due to the following factors:

  • Fathers taking an increased interest in caregiving, previously the exclusive domain of mothers, including making sacrifices at work for the benefit of their children;
  • Mothers taking an increased role in the workforce, with better paying careers than in the past, requiring more responsibility and time away from home; and
  • Judges, many of whom were experienced family lawyers prior to their appointment, understanding both of these points and being unwilling to marginalize one parent by making the other sole custodian.

I find that lawyers and judges go out of their way to convince clients that joint custody is the ideal and something they should agree on, even if it is clear they do not get along at times. Judges are often quick to point out that joint custody simply means the parties must agree on any change of anything significant dealing with religion, health or education, and that most of the time most parents agree on these key tenets. In my experience, while we still see the occasional battle for sole custody, they are usually limited to cases involving:

  • Absent parents or parents who have had historically limited involvement in their child's lives;
  • Violence against the parent and/or child;
  • Substance abuse issues in one of the parents;
  • Mental health issues; and
  • Parents who historically have shown a complete inability to communicate or co-parent.

In contrast to battles for sole custody, which seem to be on the decline, battles over reviewing and changing child and spousal support seem to be -- again, at least in my office -- on the rise. Often after a drastic change in income due to a job loss or a large bonus, large swings in income cause major headaches for clients, lawyers and judges who must then figure out what income should be used for child and spousal support on an ongoing basis, what income should be applied retroactively and to what extent should the former spouse and children be allowed to share in post-separation earnings or lack thereof.

Complicating factors include a pre-existing agreement, which may be vague or hard to interpret or which didn't forsee certain changes, cases where payors change careers or take lower-paying jobs and are accused of doing so to frustrate their former spouses' entitlement, and situations where one-time payouts like cashing in options or large bonuses create big "blips" in income that the other wishes to share in.

In future columns we'll delve into some specifics of these situations. For now, suffice to say that while certain aspects of family law are "done" differently than in the past, there are still many hot-button areas where conflict rears its ugly head on a daily basis.

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