Law, Recommended

Divorce and the ‘Silver Bullet’

Divorce is almost always an ugly and painful experience. But for parents with children, there are additional heart-rending realities to confront. No loving parent wants to be absent for their kids’ many firsts and bests—the first tooth falling out, the first goal scored, and so on. Countless goodnight kisses will be missed, and at crisis moments when they need you most (and for the many moments when they don’t need anything more than knowing you’re close by), one parent will not be there to provide advice, compassion, and comfort. Also hanging in the balance are hundreds of thousands of dollars of shelter and vehicles and toys and books and worthless junk priceless only to you.

These stakes drive people to lie. Lies are at the messy heart of divorce, almost by definition. Sometimes the lies are so large and consequential that lawyers and judges are pressed into service to officiate a death match of he-said-she-said. But there is a lie among lies that practically guarantees child custody, optimal parenting time, the money you’re sure you deserve—and maybe even the family dog. And you don’t need a shred of evidence to back it up.

Two years ago, Johnny Depp and Amber Heard’s marriage dissolved amid allegations by Heard of abusive behaviour by Depp. Last month, Depp finally responded by alleging that Heard had got the truth exactly backwards and that it was he who had been the victim of abuse. In a similar fashion, during Angelina Jolie and Brad Pitt’s divorce, Jolie accused her then-husband of criminally abusing their son Maddox on a private jet. Pitt was eventually exonerated and Depp is presumably hoping for a similar result. The truth of these allegations and counter-allegations can be almost impossible to unravel, but the dynamics are similar to those at the center of the millions of divorces every year that do not involve celebrities. The false allegation of physical or sexual violence is an off-the-shelf divorce hoax so effective that it has earned the nickname “the silver bullet.”

It goes like this: At the inception of a divorce, one parent falsely accuses the other of abusing them or their children and claims they believe it will happen again. Depending on the country and jurisdiction, it might only take an affidavit of a couple of pages. No evidence or corroborating witnesses are needed, due process be damned. Now the police will arrive and haul the targeted parent out of the matrimonial home with protective orders, offering scant access to immediate legal recourse. What he or she says in their own defence is rarely of any significance. From this point forward, they are unlikely to see their children again for days, weeks, months, and sometimes years.

The targeted parent is now struggling in the tar pit at the center of a Venn diagram where the circles of family and criminal law intersect, hemorrhaging money for legal fees on two fronts simultaneously. Barring celebrity money, they might be living on a friend’s couch and contemplating bankruptcy. They are not only in danger of losing their children, but also their home and their liberty. And they’re in danger of gaining a criminal record that will follow them the rest of their lives. Roll credits.

The magic frosting on the silver bullet is that it succeeds even when it fails. Why? Because it doesn’t matter all that much if the story falls apart over the subsequent weeks or months; it just needs to stand up long enough to provide an instant and massive advantage at this crucial inflection point of a divorce blitzkrieg. Unlike the laundry list of criminal charges Jussie Smollett recently managed to dance around, rarely are there legal issues to sidestep for the perpetrator of this kind of hoax.

In the back rooms of the sausage factories where divorce is made, the silver bullet is an open secret. Some unscrupulous divorce lawyers even recommend it to their clients. False allegations may be employed by either parent, but, given the prevailing winds of culture, the gun is far more often in the hand of a woman. Such a claim might be controversial to some, but not among many lawyers working within the system.

“It’s almost as if the Constitution is suspended in family court,” says Melissa Isaak, a veteran family lawyer in the state of Alabama who heads a firm that specializes in defending men embroiled in contested divorce. “People don’t understand that in the family law arena, domestic violence is used as a tool. Essentially the silver bullet is the best way to destroy your opponent and win the game…and women use this far more than men, in my experience.”

Unfortunately, good data to back up the claim are hard to find for a few reasons. Firstly, it’s difficult to differentiate between deliberately false allegations and unsubstantiated claims due to misinterpretation. Secondly, the data that do exist are rarely split by sex. That said, this Texas law review is one of many sources that suggest there is a problem and it’s on the rise. In the US alone there are 820,000 divorces a year. If you multiply that number by the estimate of false child sexual abuse allegations during divorce in one study covered by the Texas review, it’s clear that one can make a safe bet that every week hundreds of families throughout the West detonate with the help of this relatively simple manoeuvre.

Inconvenient Gender Symmetry

Domestic violence is a societal ill that can have horrific consequences. Men are undeniably more violent than women, making up as much as 80 percent of all convicted violent criminals in America. Thankfully, abhorrence of spousal and child abuse is now central to Western morality, and we have developed strong legal mechanisms that provide police and others with the necessary latitude to protect women and children from dangerous men. As a result, domestic violence rates have been declining for decades. In the US, rates of serious intimate partner violence against women fell by 72 percent between 1994 and 2011.

However, the dynamics of intimate partner and family violence are as surprising as they are sensitive. The data indicate that women are as likely as or more likely than men to introduce violence into a relationship. For example, recent surveys have found that an equal percentage of men and women reported being the victim of partner violence in the past year. Uni-directional violence is directed at men 70 percent of the time. Mothers kill their children at about the same rate as fathers.

In today’s social climate, many readers will find this relative symmetry so counterintuitive as to be unbelievable. Many factors contribute to making these numbers difficult to contend with, and it would take a separate essay to explore them with the care they require. I will spotlight just one data point that might help ameliorate our cognitive dissonance: While men are much more violent (and tend to cause greater injury in a violent encounter due to greater strength and size and other factors), the vast majority of male violence is inflicted on other men, often in the service of the protection of women and children. This is what the average man’s biological nature calls for. According to the numbers, the safest living arrangement for a Western mother and her children involves a home with the biological father. The more social scientists study intimate partner violence, the clearer it becomes that it is best tackled as a human problem, not a gender one.

A happier statistical story is that Western women have achieved parity in much more positive ways. In the US, for example, 57 percent of women now participate in the workforce, compared with 69 percent of men. Many more women are graduating high school and college. Sixty percent of college undergraduate degrees and 52 percent of PhD degrees are earned by women. The biggest work challenge we face today is how to level the playing field for working mothers, who, for reasons that cannot be overcome by force of will and social engineering, are better equipped for the very first months of a child’s life. Given these new realities, we might reasonably expect to see something approaching parity between the sexes when it comes to child custody in divorce. But this isn’t the case. In the US, for example, mothers initiate divorce 69 percent of the time (for educated women it’s 90 percent) and wind up with custody of the children at least 82.5 percent of the time.

There is also growing gender symmetry in finances. Today more than 66 percent of US families are dual income, and the woman makes more than her spouse in 37 percent of families. Additionally, proper scrutiny of the wage gap shows that it has closed to the point of being negligible. Yet, despite this financial parity, fathers continue to pay more than 85 percent of child support, and when mothers are ordered to pay, they fail to do so more often.

The no-fault divorce laws that swept through most of Western society in the 1970s and ‘80s made divorce much easier and fairer for women. But these laws had another effect. Today, an estimated one in three American kids live without their biological father in the home. In 1960, eight percent of children lived in a home with only their biological mother and today more than 23 percent do.

These numbers raise an interesting question: Does this level of fatherlessness matter? The answer is indisputably that it does. According to dozens of official sources, these children are at a greater risk of having more difficult lives according to just about every measurable metric. They are more likely to misuse drugs, experience abuse, or go to prison. They are twice as likely to drop out of high school and live in poverty. They are seven times more likely to become pregnant as a teen. This is just to name a few of the effects.

The latest research shows that equal time with both parents is, except in extreme cases, the best scenario for kids—even those who until recently were considered too young to be away from mothers. In 2000, United States Supreme Court Justice Ruth Bader Ginsberg famously stated, “Women will only have true equality when men share with them the responsibility of bringing up the next generation.” Today, many Western fathers and those who love them believe that those working in family law must have missed the memo.

Putting Our Children Last?

Families throughout the West are living through an overcorrection in divorce law. Starting in the 1960s, we correctly set about making things equal and safer for women and we overshot. Critics of divorce systems throughout the Western world say they are gender biased from top to bottom in favour of mothers, which is what makes it possible for some to game the system in ways as egregious as false allegations. Critics believe countless aspects of divorce law need to change in order to reduce the adversarial nature of a system that pits one parent against another on a tilted playing field. Despite growing awareness, change is painfully slow.

“Problems of bias in family court are ubiquitous throughout Western countries and solutions are still light years away because a whole industry has built up around it with money and jobs at stake,” says Dean Tong, a forensic trial consultant with decades of experience who has worked court cases in all 50 states and who is also the author of multiple books about about criminal allegations in US court. “For the mainstream media, this is a hot potato issue because the radical change needed would start a revolution.”

At a time when modern fathers are bombarded by messages about the deeply corrosive effects of “toxic masculinity,” they are confronted with a family law system rife with outdated gender ideas every bit as sexist as those faced by women in other arenas, past and present; a system that sometimes seems downright hostile to their efforts to be active and effective dads. Many fathers now gaze upon the growing excesses of the #MeToo movement on college campuses and in corporate boardrooms and wonder why no one listened as they sounded the alarm about the weaponization of #believewomen in the family courts. Similarly, while journalists rightly alert us to policies like the American immigration laws causing the split of a few hundred migrating families at the country’s southern border and urge us to empathize with the psychological trauma of parent-child separation, there seems to be much less interest in family laws doing the same to hundreds of thousands of parents and children as a matter of course.

So how do we ensure better results for mothers, fathers, and children? One legislative solution is called the “equal shared parenting presumption.” Under these laws, a divorce between parents starts from the default presumption that what is in the best interests of children is for both parties to share parenting equally. Deviations from this baseline demand more explanation by the judge, effectively circumscribing the state’s freedom to make arbitrary assessments about which parent is “better” than the other, and making it more onerous to justify an outcome other than a 50/50 time split.

There are dozens and dozens of groups pushing tirelessly for this change. One such organization is Leading Women for Shared Parenting. Their statement on divorce and parenting reads, in part: “Parental separation should not spell the end of a relationship between a child and one of its parents. Forced separation from one’s own flesh and blood in the absence of abuse is morally wrong and socially irresponsible.” A shared parenting bill just passed the Missouri House. Another bill authored by Senator Karin Housley passed the Minnesota Senate Family Care and Aging Committee last month. “There is nothing more sacred than the parent-child relationship,” Housley said. “This bill is to protect children who have loving, responsible parents who are ready, willing and able to share equally in the responsibility of raising them.” The first shared parenting law passed in Kentucky last year and there are now more than 20 states with bills trying to do likewise. If the idea grows like no-fault divorce has, I believe it will be a good thing for families everywhere—and not just nuclear families. When we deny our children a parent, we are also denying them a whole village of loving people, including grandparents, aunts, uncles, and cousins.

This is just the beginning of the change that is needed. Today, tools built as shields for women are too easily fashioned into bullets that are literally killing men. Suicide statistics must be treated with great care, yet no numbers tell the story more starkly. American men kill themselves almost 4 times more than women in regular circumstance. But fathers who have become ensnared in the divorce system kill themselves eight times more. That appalling figure is worth repeating: For every child who loses their mother to suicide during or after divorce, eight children lose a father. We need to be honest with ourselves about the conditions driving such despair. And we need to ask ourselves as a society: If the ratio was flipped eight-to-one in the direction of mothers, would the situation be considered anything less than a state of emergency demanding political triage? After all, these numbers represent our brothers, sons, and fathers.

A silver bullet heralded my own divorce. In the end, the charge against me was dropped, but the betrayal changed me forever. My ex-wife and I spent more than $250,000 on lawyers to fight one another over our children’s right to have equal access to both of us. She believed what was best for our children was for them to live with her 42 weeks a year. I didn’t care for that proposal and had to claw my way back to the 50/50 time with my children that should have been ours from the start. The process was cruel and embarrassing for everyone, but I learned a lesson that may bear repeating here.

If you truly know your relationship is doomed, then for the love of all that is good, put it out of its misery humanely. Lay down the gun with the silver bullet in the chamber. Sit with your no-good spouse and a mediator and a large pot of coffee and work out your complicated future in an afternoon. This way, you might walk away with some dignity, if not the dog. You’ll know you gave the respect due your children and the good times you surely shared.

And if you do decide to unleash something vicious, keep in mind that lies are like bullets—they often make unintended victims of the innocent. Sometimes they even ricochet and pierce our own scared, disappointed hearts.

Correction: The original version of this article claimed 40 percent of men reported being the victim of serious partner violence in the past year. This was incorrect. This has been changed to “an equal percentage of men and women reported being the victim of partner violence in the last year.” A statement about female to male intimate partner murder was also retracted. We regret the errors.

James C. Coren is a pseudonym. He can be reached here.

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