A Conversation between Joe Sorge and Mark Baer Regarding ‘Divorce Corp.’: Part 7 of a Series

This is the seventh of a series of articles wherein I share a conversation I had with the executive producer and director of “Divorce Corp.” wherein we discussed the 58 reasons why I was unable to endorse the film. Since my last article covered points 26 through 30, I will start this article with my 31st point. In an effort to eliminate any possible confusion, the items in italics are my responses to Mr. Sorge. They are in italics because those responses were never sent to him.

Mark Baer:
“Thirty first, I agree with all of the problems you mentioned regarding the appellate process. ‘We lose control over the outcome when we allow the matter to be decided by a judicial officer. Judges or juries are responsible for deciding factual issues and then judges are expected to properly apply the law. At a great expense, a person can successfully appeal a judicial ruling if he/she is able to establish that the judicial officer failed to apply the law properly. However, judges are given a great deal of discretion and factual findings are not reversible by the appellate court. Unless the facts are undisputed and the law is very clear on the issue, how likely is it that an attorney can accurately assess the outcome of a case? Research shows that lawyers are overconfident in their predictions, regardless of their years in the profession.

It is a mistake to ignore the fact that judges attended the exact same law schools as those lawyers who argue before them, and are therefore in the same deficient situation when it comes to problem-solving skills.’”

Joe Sorge:
Agreed.

Mark Baer:
“Thirty second, I agree that judges are rarely, if ever, punished for bad behavior. Furthermore, I posted the following on Facebook recently: “Attorneys urged to report on judges” is the title of an article by Saul Sugarman that was published in the October 11, 2013 edition of the Los Angeles Daily Journal. “Misbehavior in the courtroom shouldn’t be tolerated, judicial watchdog tells lawyers. Victoria B. Henley, the chief counsel and director for the state Commission for Judicial Performance joined two panelists on October 10, 2013 at a State Bar convention in San Jose to discuss what happens when judges misbehave and what lawyers can do about it…. The panel served as a pseudo-therapy session for many attorneys who attended. One audience member suggested judges ‘get away with murder,’ particularly when they are in chambers and the discussions are kept completely off the record. ‘All this is mild [compared] to what I’ve seen in the family courtroom’ another audience member said.”

There you have it, folks!!!!!”

Joe Sorge:
“Agreed. You’re a good person Mark. I know you want to see this fixed. We agree that juries are not the solution. There is only one solution for this problem – get rid of family courts and let people go their separate ways without judges.”

It is foolish to believe that people can always resolve their differences on their own. I am a very outspoken advocate for reform; however, we must never ignore history. Courts came into existence in order to stop people from resolving their disputes through violent means. If we got rid of family courts, what would happen when the people could not reach an agreement for any number of legitimate reasons? As I keep saying, we need to change the default from litigation to mediation, as they have in the Scandinavian countries and elsewhere.

I guess that when you are worth in excess of $100 Million, it benefits you not to have courts because you can do essentially anything you want. I, for one, don’t like a system that allows those with means and power to do anything and everything they want. Moreover, to be quite frank, even if I had such means and power, I can’t imagine that I would feel otherwise. Unfortunately, Mr. Sorge feels differently.

Mark Baer:
“Thirty third, I am not going to get into the Scandinavian issue with you because I mentioned it several times in the past.”

Joe Sorge:
“Come on my friend. Please don’t bypass this one. It’s the solution. I know you don’t think the US is ready for it. But we need to start phasing it in now so that we can have a healthy system in 10 years. And there will still be a huge role for mediators! People will need help resolving things – but from compassionate supporters, not jaded judges and greedy litigators.”

Let me quote Kimberly Graham, who said the following:
“I used to live in Sweden. I still visit and have friends there, and I used to spend one day a week there for work, for 9 years. Until women and men in the US have the same pay for the same work, and until women and men share many other equalities here in the US, the Scandinavian system will not work here, nor would it even begin to be equitable in any sense.

The Swedish system won’t and can’t work here. And shouldn’t. In Sweden, both genders get something around a year of paid time off after having a child (80-90% of full salary when I last knew what it was). Maybe more, I haven’t Googled and don’t have time this morning. College is pretty much paid for, if you get in. Medical care isn’t something you have to quake in your boots about — that one illness, if you don’t have good insurance, or even if you do, may bankrupt you.

And premiums aren’t $600++ a month, like they are for me, one healthy self-employed, non-smoking woman. Good daycare is subsidized so the cost of it doesn’t eat up a woman’s entire salary or nearly. And on and on . . .and the US will never adopt any of that. (The ACA doesn’t even come close to a social-democratic model, sadly, imo… and in spite of what many think. Many people I know had their health insurance just go up dramatically, while mine went down starting in February to a mere $435 a month…plus of course the huge deductibles and co-pays. )

Anyway, mediation and collaborative law are the best models we currently have for the majority of divorces. Sure, some need to be tried and should be, but they are the small minority.”

I also want to point out that not all judges are “jaded” and not all litigators are “greedy.” If you read Part 6 of my series, you will see who is greedy.  Moreover, as set forth in Part 1 of my series, even in Sweden, the couple will find themselves in court in the event that they are not able to reach an agreement through mediation.  It appears that Mr. Sorge is creating his own version of the “family law system” in the Scandinavian countries in an effort to accomplish his desired results.

Mark Baer:
“Thirty fourth, spousal support DOES NOT balance post-divorce income, at least not in California.”

Joe Sorge:
“Agreed, but we believe that spousal support should be the result of a private agreement between the parties, entered into either before or during the marriage. With more women than men in the workforce, spousal support is not appropriate in the majority of cases. So it should not be the subject of discovery, and litigated in every divorce.”

I suggest that you read The Shriver Report – A Woman’s Nation Pushes Back From The Brink. “As the title suggests, Shriver’s newest report on the economic status of women focuses on the financial hardships that plague many of America’s working women and their families – low wages, limited paid sick leave, a steep rise in single-mothers, and the perennial “wage gap” statistic that women continue to make only 77 cents for every dollar her male counterpart earns…. The report succeeds at exposing just how vulnerable many women – especially unmarried women – are, and sheds light on some of the legitimate challenges they face.”

Regardless of which spouse or parent holds the financial power in the relationship, it seems to me that Mr. Sorge’s position is that “he who has the most stuff wins.” Considering that Mr. Sorge is worth in excess of $100 Million, chances are pretty great that he would be the one with the “most stuff.” I’ll tell you one thing, that sounds like a bully to me and I like the idea of a level playing field.

Those of us who handle cases in mediation and collaborative divorce know perfectly well that we are “operating in the shadow of the law.” What I mean is that everyone involved knows the best and worst alternative to a negotiated agreement. In other words, we have a range of possible results that will be forced through the court system if the parties cannot reach an agreement on their own. If the court system didn’t exist, there would be no best or worst alternative to a negotiated agreement because the one in control could just “take their toys and leave” because they couldn’t get their way. Mr. Sorge wants to get rid of the courts because Mr. Sorge is a bully and he wants it his way and his way only. Interestingly enough, my colleague, Karen Robbins said that “’Divorce Corp.’ felt like a bad online review of the family law system by a high conflict individual with enough money to fund a full length documentary.” Mr. Sorge certainly sounds like a bully to me and he produced a film that is extremely biased and misleading in the hopes of legalizing bullying by getting rid of family law courts. If you haven’t read Part 6 of this series, I recommend that you do because it will give you a better understanding.

Mark Baer:
“Thirty fifth, when you eliminate economies of scale, expenses increase by an average of 34%. How do you support the marital standard of living, when expenses increase by 34% and income remains the same? It is a false standard. In any event, at least in California, nobody can be forced to work more than a full time job. Forced to work 2 jobs – false and misleading!”

Joe Sorge:
“In Massachusetts some people are still forced to work 2 jobs, as are their second spouses, to support the first spouse. We think the idea of supporting the marital lifestyle is antiquated and unworkable. As above, alimony should be eliminated unless provided for by private agreement.”

Since I am not licensed to practice law in Massachusetts and am not familiar with the laws there, I can’t comment as to the accuracy of that statement. However, “people often fail to enter into pre-marital agreements because they underestimate the ‘value of prenuptial agreements, especially due to false optimism that marriages will last; and a belief that discussing prenuptial agreements would signal uncertainty about marriage.’ However, as Harvey A. Silberman, family law judge for the Superior Court of Los Angeles County in California likes to remind people, “getting married in and of itself creates a pre-marital agreement – the Family Code.” Thus, as with all circular arguments, people manage to reach a “conclusion,” without ever having addressed the question. In this case, the question is as follows: What are the terms of your pre-marital agreement? They can either be the terms set forth in the Family Code or terms that you specifically negotiated as part of the pre-marital agreement.”

To be continued…