Fall 2009 » Research Briefs » Factors Associated With Litigious Divorces In Families With Children

Factors Associated With Litigious Divorces In Families With Children

March, 2009

Law professor Janet Flaccus has shown that two factors are associated with post-divorce litigation in divorcing couples with children: being married less than seven years and filing a counterclaim. These findings may help judges, lawyers and counselors determine which divorcing couples need mediation to help settle their disputes.

Flaccus studied the first five months of the 1995 Washington County, Ark., divorce records, examining files of couples with children to see if there were factors that could predict which couples used the court system to settle post-divorce disputes.

Studies have linked post-divorce fighting to many problems including the worsening of depression and declining academic performance in children. Flaccus wanted to examine whether any information in the early pleadings in a divorce would be predictive of post-divorce litigation.

"The goal is to stop the fighting," she said. Some studies suggest that early intervention efforts produce the best results. Other studies have shown that mediation works well, but such intervention is expensive.

She performed regression analysis on 186 divorce records of couples with children. She looked at who filed counter-claims; how long they had been married; who filed protective orders, interrogatories, depositions and motions to dismiss; custody requests and how many children the couple had.

The data in Flaccus's study showed that if you have 100 couples that file counterclaims that have been married less than seven years, then 76 of those couples will continue to fight in court after the divorce. If you have 100 couples married for longer than seven years who did not file counterclaims, the number who continue litigation drops to 30.

Being married less than seven years and filing a counterclaim were related to post-divorce litigation at the 95 percent confidence level.

"We're not saying that this is what has caused the fighting, but there is an association," Flaccus said.