Divorcing husbands and wives look to the law for answers. Moreover, they not only expect that they will be given the right ones, but that those answers will also be clear. As a lawyer would put it, the law must provide an appropriate balance between equity and certainty.
To be guaranteed that their answers will be the right ones, our adversarial legal system insists on two things. First, they must be judged by a legal yardstick. Second, they must employ a particular method of validation. The measuring must be done by separate lawyers rather than one. Its justification for this is that the two of them have what it refers to as conflicting interests. It is those conflicting interests, so it claims, that render it inappropriate for one lawyer to do the measuring.
Unfortunately, the answers that the law provides are not clear. Its method of validation is enough to guarantee that. But suppose that they were not right either. Suppose that it is not possible for the law’s construct and the rules that it employs to give expression to that construct (what it refers to as our equitable distribution laws) to do equity. In other words, suppose that the most that the law can do is tell us what the wrong answer is, not the right one. Where would that leave us?
It would leave us where we now are, with neither clear answers nor right ones. This book argues that the very nature of our adversarial legal system and its method of validation is such that it necessarily favors equity over certainty. Ironically, since it is not possible for the law to give us the right answer, what it leaves us with is neither. In other words, the law fails divorcing husbands and wives on both counts. It does not help them to get it right. And it does not help them get it done. For that reason the sad legacy that our adversarial legal system has bequeathed to divorcing husbands and wives is simply to have given them false levels of expectation that are then inevitably followed by equivalent levels of disappointment.
An appreciation of the law’s failure here would cause us to re-examine our attitude toward the law. If it cannot provide us with equity, it should at least provide us with greater certainty. This, in turn, would cause us to question how divorcing husbands and wives obtain information about the law. If the only thanks that they will get if they employ the law’s method of validation is to be left with different answers to the same question, then they must be permitted to pose those questions in a way that will leave them with an answer, or at least a narrow range of answers, not just a debate going nowhere as to what that answer is. That is the new vision of the law called for in this book.