Why the Jolie-Pitt divorce won't be like Kramer vs. Kramer
By Jane C. Murphy
Sep 30, 2016 | 10:40 AM
Brad Pitt and Angelina Jolie will divorce after two years of marriage
The only thing the public loves more than news of a celebrity romance is the prospect of its ugly disintegration. No sooner had news broken of Angelina Jolie's intent to divorce Brad Pitt than headlines began to fly about the "bruising" and "ugly" court fight ahead. As a family law teacher and scholar, I expect that those anticipating a grisly courtroom showdown will be disappointed.
Angelina Jolie has filed for divorce from Brad Pitt in the Los Angeles County Superior Court. The brief length of their marriage and California's community property laws will make the financial issues relatively easy to resolve. And Angelina has asked for joint legal custody — meaning she and Brad will share all major decisions regarding their six children.
But Angelina also checked the "sole physical custody" box on the complaint for divorce. She wants an order stating that the children, ranging in age from 8 to 15, will live with her. This is where the much anticipated "battle" comes in.
Media reports have been preparing fans to watch as Angelina, determined to reduce Brad to a "visitor" in the life of his children, offers details of their private life in court filings and testimony that casts her ex-husband-to-be as an unfit father. And, to get a sole custody order over Brad's objection in a court battle, Angelina would have to demonstrate that his temper and judgment make shared physical custody inappropriate and not in the best interests of the children.
But the chances that any mudslinging will take place in a public court battle are extremely low. Given their wealth, their desire for privacy and, one assumes, their concern for their children, Brad and Angelina are unlikely to resolve this family conflict in court. Families with money can now choose when and how much the state will be involved in their breakup and reorganization.
As Brad discovered during his 2005 divorce from Jennifer Aniston, you can indeed buy "justice." Although the fact of the couple's split was widely publicized, the divorce itself was completely private.
California and several other states permit couples seeking a divorce to ask a court to refer them to a private judge. The court delegates full power to such a judge to apply the law and to make a decision that, once rubber-stamped by the court, is binding on both parties. The cost to the divorcing couple is steep — up to $1,000 an hour. But it all happens without any of the loss of privacy and control that comes with traditional court processes.
The options for private justice have expanded since 2005, particularly in divorces involving children. There has been a major paradigm shift in child custody cases that began in the 1970s, driven largely by research demonstrating the detrimental impact of adversary processes on children. Relying on traditional court processes at best fails to mitigate parental conflict and at worst exacerbates and prolongs discord. When a custody case does go to trial, the evidence and counter-evidence of bad behavior and deficient parenting typically introduced fuels hostility and engenders long-term mutual distrust.
The focus, therefore, is now on agreements negotiated by third parties outside the court system, and a wide range of options are now available to couples like the Jolie-Pitts. Although traditional lawyer-directed negotiation still accounts for many settlement agreements in family law, mediation is increasingly the preferred option to resolve divorce-related parenting disputes. In mediation, a neutral third party helps disputants articulate their interests, improve their communication and reach an agreement about co-parenting children after a divorce. Families with resources can choose the mediator and take the time they need to reach a detailed "parenting plan" designed to fit their family.
A variety of other processes also have developed to address particular stages in the separation and post-divorce parenting process. These include "early neutral evaluation," which gives parties an objective assessment of what will be good for their children and what is likely to be ordered by a court.
Choosing a "collaborative" divorce is yet another option to avoid court. In a collaborative divorce, parties and their attorneys sign a "four-way collaborative participation agreement," in which all participants commit to resolving the dispute out of court and agree that the lawyers must terminate their representation if the parties do end up in court.
Of course, all of these new, out-of-court processes involve expensive lawyers or other experts or both. Most of these approaches remain out of reach to the vast majority of American families. But for wealthy couples like Brad and Angelina, a non-court-based option will provide them what all families in transition should get — support, healing and the peaceful resolution of disputes.
Jane C. Murphy is the Lawrence M. Katz Professor of Law at the University of Baltimore and the co-author of "Divorced From Reality: Rethinking Family Dispute Resolution" (NYU Press, 2015). She can be reached at email@example.com.