voice alterations : why women have more difficulty than men with the legal process of divorce

VOICE ALTERATIONS Why Women Have More Difficulty Than Men

With the Legal Process of Divorce

Cathleen Gray and Susan B. Merrick

The experience of divorce ir dificult for everyone involved. To best help with the legal experience, we need to undersrrmd gender dzrerences that affect the process. This article a& to the understanding of that dyerence by acklressing womenb development and the female “voice.” Women have not been acculturated to the subtle rules of litigation, which are in the male “voice.” The authors offer an alternative scenario to add balance to the traditional experience of divorce for women and men and to the divorce process itseIf.

Love, the quest; marriage, the conquest; divorce, the inquest.

-Helen Rowland [1903], “Reflections of a Bachelor Girl, as quoted in Partnow (1993, p. 262)

In recent years, the literature on adjustment to divorce has expanded rapidly and shifted in focus. It appears that the similarity between men’s and women’s experience of and adjustment to divorce is growing (Gray, Koopman, & Hunt, 1991; Hanson & Spanier, 1983). Many professionals attribute this to the changing roles of women and demonstrate that the more a woman is ‘‘liberated,’’ the less distress she experiences about divorce (Colburn, Lin, & Moore, 1992). The factors affecting adjustment to divorce that still remain to be addressed may be less obvious but none the less important. One such factor is how the legal process itself affects psychological adjustment during and after the divorce. This article focuses primarily on the collision of the legal process and women’s manner of relating to the world, which we describe as women’s “voice.”

Voice is defined here as beyond actual verbalization or speech and rather as a contextual relationship of thoughts, attitudes, and cultural conditioning that culminate in the spoken word. It is relevant here to clarify the difference

Authors’ Note: The authors thank Carren Oler for her legal arsirknue.

FAMILY AND CONCILIATION COURTS REVIEW, Vol. 34 NO. 2, April 1996 240-25 1 0 1996 Sage Publications, Inc.

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Gray, Merrick I VOICE ALTERATIONS 241

in meanings between sex and gender. Sex is the biological status of the person; people with male genitalia are male and people with female genitalia are female. Words such as male andfemale areused to indicate the objective fact of a person’s sex. Gender, however, is the cultural notion of what it is to be a woman or a man. Words such as masculine and feminine describe these notions. In our society, wedescribe people as womanly or manly, as a tomboy or a sissy, as unfeminine or unmasculine. These words have nothing to do with a person’s sex; they are culturally acquired, subjective concepts about character traits and expected behaviors that vary from one place to another and from one individual to another.

The concept of voice, and specifically of female and male voices, is related more to gender and acculturation than it is to sex. Although it is certainly not always the case, the assumption made in this article is that most women “speak” in the female voice and most men “speak” in the male voice.

To begin to characterize and understand the difference between the female and the male voices, we must first understand how the female and male developmental processes differ. For both males and females, the primary early childhood caretaker is usually a woman. Female identity is formed in this context through the mirroring process with mother. Mothers see themselves in their young daughters and vice versa. The daughter develops experiencing this mirroring process and sees herself as more continuous, or alike, “in relationship” with the mother. Females emerge with a built-in empathic base. The male identity, however, takes shape in a context of being different-or opposite-from mother. The mother also experiences the male child as different. Males emerge with a more defensive formation of ego boundaries than do girls. The male defines himself by what is different. A critical and fundamental gender difference in perspective and voice is in- grained in very early childhood: Male gender identity is threatened by intimacy, and female gender identity is threatened by separation (Chodorow, 1974). For men identity precedes intimacy and generativity in the optimal cycle of separation and attachment, whereas for women these tasks are merged (Le., intimacy flows right along with identity). Women develop their sense of self through relationship with others. Women will sometimes even relinquish their sense of self for the maintenance of the relationship, as being “in relationship” is critical for most women (Gilligan, Ward, & Taylor, 1988).

Men may be more comfortable with conflict than women are, but they seem to be uncomfortable with the processing of conflict and often use “stonewalling” as a defense. This defense systemmay relate to the differences between men and women in their experience of the legal process of divorce. Men are by and large socialized to assign greater value to individual rights than to the rights of the group or to the care of others (Gottman, 1991). For

242 FAMILY AND CONCILIATION COURTS REVIEW

men, prelaw training or preparation to go to court begins almost at birth-in the home, on the soccer field, and in relation to peers (Gilligan et al., 1988). Boys are trained in advocacy, autonomy, stoic detachment from adversity, and emotional detachment from others (Gilligan et al., 1988).

Sattel(l976) states that men practiceinexpressiveness as ameans of con- solidating their power and masking their vulnerability. Women practice expressiveness and affiliation to cope with vulnerability. Boys tend to play games according to the rules, and when a conflict arises they look for rules to refer to or for outside arbitration to resolve the conflict. Girls tend to play in pairs and will often end the game if conflict arises rather than disrupt a relationship. Girls will more often choose noncompetitive games to begin with, whereas for boys almost every activity is a competition (Gilligan, 1977). Boys may quarrel, but they will fight to the finish. Girls will sacrifice the position of winner to avoid conflict and maintain the relationship (Lever, 1976). Girls prefer games in which the results are not that one wins and one loses; they are more comfortable with taking turns and playing games in which competition is not direct. Boys prefer games that have direct competition and a clear winner and loser (Kohlberg, 1969).

Gilligan’s study of male-female differences found that men tend to look for universal principles or rights to guide a decision, whereas women seek to avoid hurting others and consider all possible ramifications of alternate choices in a specific context to form a decision. Because women look at the particularities of individuals, their relationships to one another, and the situations they are in to guide decisions, their way of thinking and solving problems is described as contexrual. Moreover, whereas men focus on rights, women focus on responsibility and care (Gilligan, 1977).

Men’s conditioning inhibits the development of emotional expressiveness and stimulates intellectualization and passive-aggressive behavior. Women’s conditioning inhibits the development of cognitive expressiveness and ma- ture independence and stimulates the development of dependency. Men’s self-esteem is not closely tied to feeling connected in a relationship but rather is tied to concrete achievements (Schneider & Schneider, 1991).

With this childhood background, it is not surprising that women and men will enter the legal process of divorce in different, if not opposite, manners. Women are at a disadvantage because the legal system is fundamentally familiar and analogous to how men are socialized and is unfamiliar and alien to how women are socialized.

The literature suggests that women who have a very traditional sex role orientation experience a poor adjustment to divorce (Pledge, 1992). The traditional woman has more invested in the marriage relationship and less invested in her own autonomy. Moreover, the woman who is raised very

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traditionally is most unprepared, especially at a time of extremecrisis, to enter a legal arena that is constructed for winning and losing and that forces direct competition.

Marriage is a sexual and companionate relationship, but there is also always a power relationship within a marriage, and power is experienced far differently by men and women. For men, power in a relationship is ascribed, whereas women negotiate for power (Schneider & Schneider, 1991). The underlying power dynamic is intensified by the divorce process because it stresses the discrepancies between the way men and women are treated by established laws and property rights.

The legal process emphasizes fault finding and following the rules of the game, that is, legal precedent. The courts in this country were founded to deal principally with property issues. Initially, voting rights were held only by male landowners, Individual rights and what are referred to as “civil rights” are later developments. The law is designed to use precedent to determine whatproperty belongs to whom. In adivorce, men discuss with their attorneys ways to “keep” their property or assets, and women discuss ways to “get” assets (Hancock, 1982).

The legal process of divorce tends to intensify the differences between men and women as it relates to problem solving. In theprocess of separation, women often first seek a therapist, whereas men often first seek an attorney (Hancock, 1982). Because women look for a solution within a relationship rather than in the rules, they find little comfort in the legal process. Most women view rules through the lens of contextual thinking. Women may be seeking to heal the rupture of the relationship, and men may be seeking to declare a winner and loser and a definitive end to the process so that they can begin to heal.

Within the legal system, decisions are made by referring to the law and to precedent (the rules) to determine who is right and therefore who is wrong. These rules also govern the nature of the presentation of information or “evidence.” The legal process dictates that the attorney collect facts that constitute the “objective” evidence to support his or her client’s position (Hancock, 1982). The advocate, or lawyer, is successful when a logical, analytic approach to problem solving is employed. This system emphasizes rational thought and avoids emotions and contextual thought processes (Hancock, 1982).

Women, however, speak in “feeling-thoughts” (Brown & Gilligan, 1 992). A feeling-thought is a manner of expression in which the feeling is the thought. Women’s language often speaks of “I feel” rather than of documented facts or evidence. Because the law is based on logic, rules, and documented evidence, there is no room for feeling-thoughts as they cannot


be documented. Thus, when a woman expresses herself by a statement such as “I feel betrayed,” the statement is not admissible in court.

Because the function of the law is to determine who is right and who is wrong, the voice of the law is a male voice (Hancock, 1982). The legal process also values advocacy, stoic detachment, autonomy, and suspension of emotional judgment, the very qualities boys are trained to develop. A woman’s contextual style and her request that her own as well as others’ feelings be understood not only are not effective in the legal process, they are also not welcome. Her voice, or her whole way of being, often goes unheard. “The rational-logic emphasis of the legal system does not provide an ideal atmosphere for theresolution of interpersonal conflict and, in fact, may serve as a catalyst to increased hostilities” (Heman, McHenry, & Weber, 1979, p. 318).

Consider some of the legal language of divorce: judge, advocate, litigate, ex-spouse, adversary, hearing, decree, judgment, fault finding, disclosure, appeal. Among theunflattering terms sometimes used to describe lawyers are bomber and barracuda. These are words that connote attack and war; they are harsh, violently oppositional, and polarizing.

Men are socialized to be comfortable “gearing up” for the legal battle of divorce. Most men arecomfortable with thenotion ofhaving to “fight it out.” Men may also be better able to respect their opponents (their former spouses or the opposing attorneys) if they have fought a good fight. Men are more able to let the rules of the game determine the winner. Perhaps most impor- tantly, afterward they are able to leave the anger of the game behind them as they leave the courtroom and go on with their lives. After a case is tried,

there is a hearty exchange of pleasantries between the lawyer and district attorney, wholly out of context with the supposed adversarial nature of the preceding events. The fiery passion is gone, and the lawyers for both sides resume their off stage relations, chatting amiably and perhaps including the judge in their restrained banter. (Blumberg, 1970, p. 26)

Women are not well equipped to engage in the legal battle. Women are more likely than men to experience interpersonal events or conflicts as stressful (McLaughlin, Cormier, & Cormier, 1988), and there are few life events that are more personally conflictual than divorce. Just as the legal process of divorce by definition ruptures the marital relationship, women experience the adversarial legal process as destructive of relationship and attachment. Because women’s view is contextual, they may not be comfortable enough with battle to engage in a fair fight, and they will not be able to admire any opponents’ strategies. For women, it is difficult, ifnot impossible, to respect a fierce adversary. Women certainly will not be able to readily

Gray, Menick / VOICE ALTERATIONS 245

engage in dialogue with their opponents (former spouses) after the battle. Moreover, once their relationships have been ruptured, women may experience themselves as being violated by the legal process.

The emotional process of divorce is predictable and extensive (Gray et al., 1991). This psychological process is often where women use much of their energy, and yet they must be managing the legal process at the same time. Even when they consider themselves to have initiated the divorce, women experience marriage as a relationship of attachment. The emotional- psychological process of divorce is equated with arupture in that attachment. The rupture of attachment is profound for women, who valuerelatedness over autonomy of self (Gilligan et al., 1988). In divorce, the loss they experience most intensely is loss of the relationship.

By contrast, the loss in divorce for many men is the loss of the institution of marriage. When men talk about their satisfaction in marriage, they often speak in terms of the comfort of roles and the status of married life. When women talk about marriage, they speak in terms of the marital relationship.

To function successfully in thelegal system and to be effectivein “fighting her case,” a woman must forego her culturally formed ways of knowing and relating and adopt men’s rules. This task may be impossible for her in the midst of the emotional crisis of divorce. In fact, most people in crises regress to earlier and more primitive defense structures and ways of being.

The language of the legal process of divorce conveys the metaphor of battle; i t is empty of language that conveys an empathic sense of working it out. We know that although there is usually one declared winner to any battle or war, everyonepays dearly and for a long time. In adivorce, everyonepays dearly for a long time as well, but in most cases what has led up to the divorce is a complex set of interactions in which there is neither one clear aggressor nor one clear victim. Most persons in the midst of a divorce describe themselves as being the more benign member of the couple. It may be accurate to say that the main differences between the two members of a divorcing couple are only a matter of how they go about the divorce process and how well or how poorly they are equipped for the legal system.

The law is obliged to lay blame. Until recently, divorce was based primarily on a system of fiiding fault in which one spouse, and only one spouse, was blamed for breaking the marriage vows. The law still requires proof of “irreconcilable differences.” Despite the fact that “no-fault” divorce is now the rule, the adversarial process is still built into the legalproceedings.

When the legal divorce process has avoided adversarial relationships, the postdivorce adjustment has been shown to be better for both parties (Anderson, 1989). Mediation and other methods of alternative dispute resolution provide a framework for structured, collaborative decision making and


are gaining in popularity as a method for resolving the issues in divorce. It may be that mediation speaks more in a female voice. It is notable that structured problem solving, such as mediation or arbitration, is defined as alternative disputeresolution, as though litigation were the only “normative” mode of resolving disputes.

When a woman experiences not only the rupture of the relationship but also the betrayal of a system that cannot hear her voice, she feels totally abandoned. This rupture with the system does not equip her for the necessary battle of the legal process, and it does not readily allow her to move on with putting the divorce process behind her and forming a more business-like relationship with her former spouse. Rather, it leaves her defeated-unheard and often psychologically damaged. She wouldrather have left the game than engaged in the fight.

A CASE EXAMPLE OF THE BETRAYAL OF VOICE

Susan andTomhadbeenmarriedfor23 years andhadtwogrown children, Susan had remained at home and valued her role as homemaker and mother. Tom had begun another relationship with a woman who was a colleague at work. Tom wanted to leave the marriage, but Susan was the one who actually filed for divorce. Susan’s identity was wrapped up in her relationship with Tom, and she felt his success as her success. She had tried every way possible to keep themarriagein place, even acknowledging Tom’s relationship outside the marriage. On the surface, Tom did not seem angry with Susan, but he clearly refused to renegotiate their marriage and stated fiimly that he wanted to end the relationship. Susan was extremely depressed and sought a lawyer who was very comforting to her and promised to “get back at Tom.” When she began thelegal process, Susan believed that the court and thelegal system would protect her and that she would get everything she needed and wanted financially because she had been “wronged”; because he was the one who wanted to leave, he should have to “pay” for that privilege.

As the divorce progressed, Susan discovered that the house would probably need to be sold and that she would not get the alimony for life that she had expected. She had difficulty preparing her financial statements and advocating for herself; rather, she stayed with the feeling-thought that she had been betrayed and the court should and would protect her financially. Although her lawyer advised her to negotiate the settlement out of court, she could not follow her lawyer’s advice. Susan’s rage had now become directed at the system as well as at Tom because she felt that no one was listening to her voiced sense of betrayal. Because no one was agreeing with her, no one

Gray, Memck / VOICE ALTERATIONS 247

could be listening. Susan insisted that the case be tried so that she could get her “day in court” and so the truth of her betrayal would finally be heard. By the time she had her trial, she had spent more than $20,000 in legal fees trying to be heard. The final decree was very similar to the one her lawyer advised her to take in the negotiation phase of the divorce. Susan now felt betrayed by her husband, her lawyer, and the court system. At the end of the court proceedings, Tom suggested that they meet for dinner in a few days to “put aside their differences” and begin the rest of their lives. Susan described feeling a murderous rage. Three years later, Tom was remarried, and he described the divorce as a reasonable settlement. Susan was still depressed and “hated all men.”

INTERVENTIONS

To decrease the devastation of the legal process for women, wemust look toward change on both sides. To paraphrase Duberman (1975), because society creates the legal process of divorce, society can alter it. The legal system must first truly recognize that this difference of male and female experience does exist. Then there must be movement toward valuing female reasoning and contextual thinking, followed by a modification of the language of divorce. The overall focus needs to be more on mediation and less on polarized advocacy in the divorce process.

Onemight question whether thelegal systemis interestedin effecting such changes, beginning with the fundamental premise that the system will value women and women’s experience. Consider the following statistics from 1990. Only 20% of lawyers and judges are female, whereas 80% are male. Just 6% of law firm partners are female, whereas 94% are male. And 11% of tenured law school faculty are female, whereas 89% are male. It is notable that in any divorce hearing, one party is female. Therefore, 50% of litigants are women who may not be equipped to deal effectively with the entire legal system. This calls for some changes,

Although we cannot assume that none of the male majority of lawyers or judges speak or understand the female voice, we cannot wait for the trend of more and more women entering the law profession to reach a par with men. At the same time, we also cannot assume that all of these women do or will speak with the female voice.

The process of legal education is rooted in the experience of men, and it forces women who go through that process to function within the context of the male voice. To succeed at law school, women have to adopt the stereo- typical male role of adversary, a role that excludes many female characteristics.


“Being alawyermakes youreal good at things like arguing and cross-examining, which are not especially positive elements to bring into a relationship” (Gilligan et al., 1988, p. 278).

Women must also take “voice lessons,” practice competition and advocacy, and value a good (and fair) fight to function more effectively in male- defined institutions and processes. Some feminists might view this strategy as giving in or giving up women’s own voice, whereas others might view it as learning to “beat them at their own game.” Women need to become more comfortable with conflict andunderstand thatit is acceptable to beadversarial in the legal process of divorce.

At the same time, men need to acquire new skills in the legal process of divorce. Men may need help in focusing on the long-term goal of co- parenthood rather than on winning the intermediate battle. New strategies need to incorporate an ability to value the other voice and to work coopera- tively toward a common gain-namely, the peaceful resolution of a rupture of an important relationship.

MODELS OF PRACTICE

The therapy model is based on relationship and the “feeling voice,” which is inherently more comfortable for women than it is for men. The therapy model is in the female voice and is certainly helpful in supporting women through the traumatic emotional process of divorce, especially in working through the process of regaining a sense of self after the divorce. However, the therapy model is not typically productive in helping women, or for that matter men, through the legal process of divorce. As clinicians, we need to meet the needs of clients who are experiencing both a legal and a psychological process. To do so, we need to change our approach in the therapeutic process. For women, a psychoeducational support group that can educate women

to think and operate both strategically and affectively throughout the divorce process should be encouraged. A lawyer could be an important part of the psychoeducational group to educate women about negotiating through the legal system. Women can be helped to see that many legal strategies are just that: strategies to improve one’s power position.

Men can also benefit from a psychoeducational group or “workshop” focused on the process of negotiation rather than litigation. Men can be helped to value the long-term goal and to learn the value of hearing their former spouses without necessarily agreeing with them. Both men and women can benefit from a brief psychoeducational group or workshop that

Gray, Memck / VOICE ALTERATIONS 249

begins first as a samesex group and then moves to a mixed-sex group. Using this format, participants can feel the safety of similarity and then the value of listening to another perspective.

CASE EXAMPLE, REWRITTEN IN DIF"ERE3JT VOICES

Susan and Tom had been married for 23 years and had two grown children. Susan had remained at home and valued her role as homemaker and mother. Tom had begun another relationship with a woman who was a colleague at work. At the point of acknowledging that Tom was no longer invested in the marital relationship, Susan began therapy and began to explore her options including that of divorce. Through therapy, Susan began to feel stronger and to believe that, although she wanted the marriage to continue, she would survive on her own.

Tom wanted to leave the marriage. Susan believed that she would bemore in control of her lifeif she filed for the divorce. Susan's identity was no longer wrapped up solely in her relationship with Tom.

Susan attended a psychoeducational support group for women in the process of divorce. In her group, she gathered much legal and financial information. She also learned legal strategies, roleplayed a deposition, and began to see the legal process as procedural rather than as the voice of her protector. Susan came to believe that if their divorce could be mediated, she and Tom both would end the marriagemore amicably. Although she was very angry, she attempted to bring her rage to her support group and her women friends rather than to her lawyer and to Tom.

Tom did not seem angry on the surface with Susan, but he made it clear that he would not negotiate directly with Susan. Tom participated in a psychoeducational workshop for men experiencing divorce in which he learned that the emotional process of divorce was clear and predictable and that he and Susan were at different stages of the process. If he wished to move the process along, it would be cost-efficient for him to listen to how betrayed. Susan felt and to value her contributions to the marriage. Tom also learned that although he could get a reasonable settlement in court, if he wanted to maintain a reasonable co-parental relationship with Susan, he would be well advised to mediate the divorce so that both he and Susan could experience some degree of control over their divorce.

In mediation, Tom and Susan both learned that the house would probably need to be sold because there simply were not enough funds to support two households in the same manner as was the case when they were married. Tom and Susan agreed to timelimited alimony to help Susan rejoin the workforce.


Susan remained enraged at Tom for betraying their marital trust, but with the help of her group she managed to argue with facts and figures rather than with emotions. Tom was angry that Susan had not “grown” during the marriage, but in his group he learned to both listen and speak even if he did not agree with what Susan said. He acknowledgedher position and then stated his disagreements.

At the end of the mediation and the court hearing, Tom suggested to Susan that they meet for dinner in a few days to put aside their differences and begin the rest of their lives. Susan said she needed more time but agreed to meet Tom a month later.

Three years later, Tom was remarried, and he described the divorce as a reasonable settlement. Susan was single and sometimes depressed, but she was also finding some joy in her new life.

CONCLUSION

Both men and women experience a great deal of pain in the process of divorce, but women also experience the challenge of learning new rules of fighting. Women can be helped in the process of divorce first by acknowledging that they must learn new rules and then by getting support in knowing what the rules are. Through the acquisition of new knowledge and skills, women can resolve the legal and psychological process of divorce in a new manner. Although nothing totally eradicates the pain of divorce, the residual trauma of feeling victimized by the legal process itself can be reduced. Divorce itself is not a pathological event, but it can all too easily become pathological when early appropriate interventions are not made.

We need to become aware that the normative litigation model for divorce is not the only alternative. In fact, litigation may be a model in which only half of those getting divorced can even operate. A combination of mediation and psychoeducational groups for men and women may be the best model. Although nothing can remove thepain of divorce, this solution may transcend voice issues and help divorcing couples to move on to co-parental business- like relationships.

REFERENCES

Anderson, E (1989). An explaation of a divahce statute: Implidom for fuaue policy development. J O U ~ of Divorce, 12(4), 1-18.

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Colburn, K., Lin, I!, &Moore, M. (1992). Gender andthe divorceexperience. Journal ofDivorce and Remarriage, 17(3/4), 87-107.

D u b e m , L. (1975). Gender andsex in society. New York Praeger. Gilligan, C. (1977). In a different voice: Women's conceptions of the self and of morality.

Harvard Edircational Review, 47,481-517. Gilligan, C., Ward, J., &Taylor, J. (Eds.). (1988). Mapping the moral domain. Cambridge, MA:

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Journal OfDz'vorce, 6(ln), 115-124. Hanson, L., & Spanier, B. (1983). Family development and adjustment to marital separation.

Sociology and Social Research, 68(1), 19-48. Henman, M., McHenry, F!, & Weber, R. (1979). Attorneys' perceptions of their role in divorce,.

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Cathleen Gray, Ph.D., is Assis9lant Pmfessor in the National Catholic School of Social Service at the Catholic University ofAmerica. She hax aprivatepsychotherapypTacrice and cor&c& research in court systems.

Susan B. Mem'ck MAW, is a Clinical Social Worker in the diagnostic evaluation unit of the Johns Hopkins AIDS service at the Johns Hopkins School of Medicine. She has a private psychotherapy practice.

voice alterations : why women have more difficulty than men with the legal process of divorce

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