Traditional court-based divorce encourages couples to become opponents in a win-lose contest with high stakes. In our culture, court means adversaries and battles.
Even though most divorces cases settle without a trial, the court casts a long shadow over negotiations as people try to discern what the judge might decide. In other words, becoming adversaries is baked into the current system, even if well-intentioned people in the system try to avoid fighting.
The result too often is enormous emotional and financial damage for children,
adults, and society. We need a way for couples to opt out of court-based divorce and into a system entirely outside of the court. People get married without courts, form and dissolve businesses without courts, write and execute wills without courts—they should be able to divorce without courts.
No judicial oversight is required for other decisions involving the possibility of inter-
family coercion, like informal, unsupervised estate distribution; involving the welfare of children, like the voluntary surrender of parental rights to another relative; or significant financial coercion, like corporate dissolution. In all these situations the court is available to correct injustice, but is not involved unless a party calls upon the court for assistance.
The decision to marry has far more momentous consequences than the decision to divorce, and no judicial oversight there would be tolerated.
The paternalism inherent in our current divorce system is unprecedented and inconsistent with our belief in personal responsibility and individual freedom.
Cooperative Private Divorce