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  • Some family court judges are skeptical about urging couples to reconcile when they're in the process of divorcing. Tweet This
  • These judges who handle divorce cases say they don't want to act as social workers or advocates. Tweet This

“An ounce of prevention is worth a pound of cure.” Years of research suggest that this adage is true not just for physical health but for relationship health. That is, programs to strengthen romantic relationships have larger and more lasting effects for couples early in their relationship or marriage than for those whose marriages are already in trouble (Harrison, et al., 2011Roberts, 2002). Asking couples who have already started the divorce process to consider reconciliation might seem even less promising.

However, at least a few such couples are potentially open to reconciliation. This is evidenced by a Minnesota data set showing that just over 10 percent of divorcing couples with children checked boxes on a form indicating they would be interested in reconciling (Hawkins, et al., 2012Doherty & Willoughby, 2011). This finding inspired me to conduct a study to investigate barriers to reconciliation prior to the finalization of a divorce (Roberts, 2013). The following section provides an overview of findings from one component of that study: discussions with judges who oversee divorces.

Methods. We conducted two focus groups comprised of lead family court justices in Oklahoma’s two largest counties. Participants were asked a series of semi-structured questions about the “divorcing system” (attorneys, court rules, active or passive judicial styles, adversarial dynamics, context, etc.) and observations they had made during their tenure about potential barriers to couples’ reconciliation. They were also asked their opinions about adding policies to give couples time to reconsider divorce, or think about reconciliation.  Each focus group lasted approximately 1.5 hours.1

Results. Judges expressed anxieties related to any policy changes for reconciliatory purposes, and all expressed concern at adding any additional work to their already overloaded positions. They opposed mandatory counseling and voiced concerns about domestic violence at every turn. Further, they used the phrase “social work” frequently and were clear they wished to stay out of that role. In one judge’s words, “I think so many parts of what we do are having social supports or work added that I have a concern about that, that the judicial side is getting weighed down with social work program issues.” Nevertheless, many admitted taking on the task of social work when they saw the need.

A pervasive mindset among the judges was that couples are far beyond the possibility of reconciliation by the time they’re in court (“Ninety-nine percent of the couples, before I see them on the temporary order, have already separated—[the] wife has moved out…wife and children have moved out”). They did discuss very rare instances where they observed a couple reconcile after completing almost all the steps required by law to end their marriage. And they agreed across the board that they do follow up or explore the possibility of reconciliation if they see any glimmer of hope during proceedings. “I think we do everything we can to give people an opportunity to reconcile if they’re going to—I was hoping that it truly wasn’t necessary to get something else in place in order to get people to do that,” one judge said.

Judges also mentioned the power of outside influences on couples’ decisions: “I can tell you; I see lots of outside influences, family involvement, friend involvement, that…empowers them to go forward with the divorce.”

Some of their dialogue revealed not only anxieties about the extra work required to fill a social work role, but the philosophical notion that it is outside of their scope of practice. Fundamentally, they believe the role of judge changes if they are expected to be advocates rather than referees:

The ones that should be open to reconciliation are maybe the invisible. Our role is not to encourage reconciliation. It’s to encourage a fair and impartial process to solve the problems. If there are attorneys involved—we have an obligation to speak up, but for…I don’t believe it’s my role to encourage reconciliation.

Both sets of judges discussed the lack of parity within the divorcing population. They expressed concerns that the judicial system is biased against low-income couples, whose lack of resources makes it harder to navigate the process of a divorce and to have the opportunity for reconciliation.

Another major theme was the feeling of strong pressure to push cases through the courts amid continuous budget cuts forcing them to do more work with less money. “How quickly we get cases to temporary order has changed,” one judge observed. “It used to be that 9 months in, only 40% of the cases had a temporary order, but now four to six weeks in, 80 to 90% of the cases do.” They attributed some of the struggle to attorneys slowing down a system the judges are supposed to be speeding up:

Frustrating for us…I believe, like [name omitted], that half of our cases are motions to modify [a couple’s arrangement]… Lingering fights are the worst. While an attorney’s job is to continue this work, we’re left with orders that were agreed or ordered two years ago, and they’re a mess—and they weren’t thoughtfully modified.

These personal stresses on judges mean they have little energy for what they believe to be less critical issues such as reconciliation within a divorce court proceeding.

The final major barrier to couples’ reconciliation that judges mentioned was “extra parties”: children and those appointed to safeguard their welfare in the divorce process. The judges acknowledged that children are harmed during divorce: “A child doesn’t have to be harmed physically to be harmed; you don’t have to see any physical scars… In approximately the 50-74 ongoing cases we have at any time, we see child concerns…in almost all of them.” But they found that involving extra people in the process is sometimes a problem. Because each additional person in the courtroom complicates cases further, it follows that there is less time or possibility to focus on the couple and putting the marriage back together when the couple has children.

Conclusion. Family court judges feel that opportunities for reconciliation are rare by the time they see a couple in their courtroom, and they are more concerned with the safety and well-being of children or a vulnerable spouse than adding “social work” to their already excessive duties.

These findings should provide support for including judges’ input in any potential divorce-related policies, whether they involve local court rules, new statutory language, or interventions such as divorce education services. Additionally, new unpublished data on reconciliation components within divorce education indicates that a certain percentage of couples do change their mind during the process (Ron Cox, personal communication, Nov. 12, 2015).2 As soon as these findings are published, they should be widely distributed through the judicial conferences.

It’s clear from their perspectives that judges have the potential to facilitate or impede any reconciliation efforts for couples who pass through their courts. Listening to judges’ concerns early and often is sure to help potential policy changes be more successfully implemented.

Kelly Roberts, Ph.D., LMFT, is a marriage and family therapist and assistant professor at the University of North Texas.

1. The data were coded in iterative passes, using a phenomenological approach.  After two stages of intensive data review, open then axial coding were completed using NVivo-9 software. Judges were then provided with a copy of the results. All participants concurred with the results, although a few follow-up communications were conducted in order to clarify questions; no modifications or changes were suggested.

2. Ron Cox is an associate research professor and extension specialist at Oklahoma State University.