December 30, 2010

Are there Tactical Limits in Illinois Dvorce?

icon-DVD.png CNN is running a story today that discusses the use by a litigant of a "sex tape." The tape itself seems to be of the husband and the wife, and the anchor of the news program is taking calls to poll the audience as to how far the gloves need to come off, when a husband and wife are divorcing. One of the spouses wishes to use the private sex tape as "ammunition" in the divorce.

Part of my practice is aggressive litigation, and the other part collaborative practice and negotiated settlements. I am a trial lawyer, and have been since the first days I was a lawyer, in the 1980's. I am always comfortable employing any evidence that I feel will benefit my client's reasoned goals in a case.

Is having a sex tape useful? My guess is that, in most cases, it is not. Illinois does not assess the conduct of the parties in dividing assets and liabilities. Sexual behaviors of a parent may or may not be a factor with respect to a custody issue in the case. Certainly, a sex tape made by the parents, expected to be held private, likely makes the 'leaker' of the tape look bad. Revenge is a dish best served cold, as the adage goes, but revenge really has no place in a divorce case, unless as a litigant you wish to have more stress, acrimony, and spend more money on legal fees. No one wants that.

My view is that a 'sex tape" of one of the parents may be a factor in a custody issue. Certainly, a 'sex tape' made with a paramour is suggestive of poor judgment, poor impulse control, high risk behavior, and possibly psychological or personality disorder issues.

As in any litigated case, having evidence is just one consideration...the value and probative quality of the evidence is of more importance. So, if you're divorcing and angry, don't threaten to disclose a private sex tape made with your spouse. You won't receive any more assets from the judge, and you may earn his or her scorn by publishing something that most of us would consider a private, non-evidentiary item.

December 14, 2010

Newly Divorced at Christmas Holidays?

The end of the calendar year brings the holidays into view, and for newly separated and divorced parents, the arrival of the holidays brings anxiety, not cheer. This is all the more true for parents who will not be seeing their children on the traditional holidays. What approach can a newly divorced parent take now that the holidays are here? A few suggestions:

1. Try to see the changes in your life as opportunities, rather than challenges. I've suggested to clients through the years to buy the December issue of "Chicago Magazine" and find activities to do alone, if necessary, and new holiday activities that can be shared with the children. Visit one of the hotels in Chicago to see the holiday displays...do something, anything, that is new and different. The key is to let go of how the holidays used to be in the marriage and to create new adventures...for yourself and the children.

2. Establish new traditions, rather than lamenting the loss of old traditions. Instead of being sad that the children weren't with you to pick out the holiday tree, take a day that you do have the children, and ride the train into Chicago to visit the Daley Center's German Christmas Market. Buy an ornament that the children select from one of the Market's vendors, and take it home and place it on the tree.

3. Many clients report that during holidays the other spouse's family was the host family for most holiday activities. This holiday, reconnect with your siblings, or cousins that you lost track of during the marriage, and plan to visit with these family members. Take the children with you, if you can. Many parents find it easy to reconnect with family that may have been neglected somewhat during the marriage.

4. Project enthusiasm and happiness in these new activities with your children. Many kids are unsure how to feel in a new environment, and depend on their parents for "cues" as to how to perceive a new event. If you're in a new event or activity, don't lament how good things used to be; stay in the present, celebrate, and express happiness, and the feeling will be contagious.

5. Finally, take care of yourself. Use the time off during the holidays to reconnect with friends, or to make a list of new activities or places to see and experience in 2011. Not having your children with you every day is a terrible loss, but replace this feeling of loss with a sense of opportunity....use the "free" time to cultivate new opportunities for your physical, emotional, or spiritual growth. Plan new, "outside the box" ideas for yourself and the children.

Finally, keep in mind that greatest gift that you can give your children at the holidays is a sense of comfort and stability. Project a feeling of wellbeing when you are with them. Smile. Feel free to laugh. Let your kids know, through your smile and enthusiasm, that despite the changes, the holidays, and the future, seem worth celebrating.

December 1, 2010

Illinois Divorce: Personality Disorders and the New DSM

Personality Disorders affect the quality of marriages, and when the conflict and distortions in a marriage lead to a divorce and custody case, the harmful elements of the personality disorder can be raised and inflamed in the divorce case: intense anger, blaming, targeting, false allegations, parental alienation.

As Bill Eddy (expert and author of Splitting) has described, probably the most prevalent personality disorder in family court is Borderline Personality Disorder (BPD) -- more commonly seen in women. BPD may be characterized by wide mood swings, intense anger even at benign events, idealization (such as of their spouse -- or attorney) followed by devaluation (such as of their spouse -- or attorney). Also common is Narcissistic Personality Disorder (NPD) -- more often seen in men. There is a great preoccupation with the self to the exclusion of others. This may be the vulnerable type, which can appear similar to BPD, causing distorted perceptions of victimization followed by intense anger (such as in domestic violence or murder, for example the San Diego case of Betty Broderick). Or this can be the invulnerable type, who is detached, believes he is very superior and feels automatically entitled to special treatment.

It is then notable that the study committee on the DSM-5 is considering doing away with the NPD diagnosis, along with four other traditional DSM diagnoses. The committee seems to feel that the new DSM should create a "menu" of traits, and require the clinician to focus on the traits, rather than naming the cluster of traits as a specific diagnosis.

Diagnosis is helpful in psychology, as these diagnostic terms give a framework for treatment and can be helpful in assessing, for example, the fitness of a parent in a custody case. How these traits affect the ability of a parent to co-parent is an important consideration in a custody case.

The new DSM is due to be published in 2013. It will be interesting to see how the debate over the elimination of NPD and other disorders is continued by clinicians over the next few years. I will continue to track these debates and developments, recognizing that the advancements (and reversals) made in the field of psychology are important to the understanding of parenting qualities that meet the best interests of children in contested divorce and custody cases.