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Friday, September 22, 2023

A changing notion of family

Two fascinating new legal trends reflect society's sea change in attitude toward family and interpersonal relationships. The first is collaborative divorce, which sounds like an oxymoron but is actually a brilliant concept. The second, which I'll get to below, is "legalized friendships."


Two fascinating new legal trends reflect society’s sea change in attitude toward family and interpersonal relationships. The first is collaborative divorce, which sounds like an oxymoron but is actually a brilliant concept. The second, which I’ll get to below, is "legalized friendships."

Marriage expert Stephanie Coontz wrote recently in the Wall Street Journal that since the 1980s, Americans have been innovating ways to make divorce less adversarial. "The War of the Roses" is so yesterday.

Divorced best friends is so 21st century. We’ve finally learned that failed relationships need not ratchet up to and end in nuclear-like conflict.

There are several reasons for collaborative divorces, not the least of which is cost savings.

Mediation is still cheaper than collaborative divorce. But collaborative divorces are considerably cheaper than nasty, drawn-out, litigated divorces. Coontz quotes one expert who estimates the average cost of a mediated divorce is less than $7,000. The average cost of a collaborative divorce is less than $20,000. The average cost of a divorce negotiated by rival lawyers is $27,000 while a primo-style nasty litigated affair runs some $78,000.

So what is a "collaborative" divorce? The rules are simple as related by Coontz: "The divorcing couple and their attorneys agree in advance that they will disclose all pertinent information and will jointly engage neutral experts rather than hired guns … The attorneys agree not to litigate; if the process breaks down (as it does in about 5 percent of the cases), they are bound to withdraw rather than pursue the case in court. If the spouses then choose to litigate, each must hire a new lawyer and start from scratch."

My first husband and I must have been trendsetters when we used the same lawyer in our mid-’80s divorce. We were in our 20s, just starting our careers, had no children and there was not a lot on the table to scrap over. We jointly owned a one-bedroom condominium and neither of us had much in savings. I do not recall the exact cost of our parting but it was minimal. Clearly there are the Paul McCartneys/Heather Mills of the world where a civil parting of the ways is impossible. But for most of us, collaborative divorce is a welcome addition to the array of options.

The family values crowd apparently worries that more options will drive up the divorce rate. That seems like a silly objection. If I wanted to be funny, I’d ask: what could drive up the divorce rate much higher than it already is?

The next trend, legalized friendships, should be of particular importance to older Americans. It was described this week in the Boston Globe as follows: "Now, a number of scholars are seeking to shore up friendship … by granting it legal recognition. Some of the rights and privileges restricted to family, they argue, should be given to friends. These could be invoked on a case-by-case basis — eligibility to take time off to care for a sick friend under an equivalent of the Family and Medical Leave Act, for example. Or they could take the form of an official legal arrangement between two friends, designating a bundle of mutual rights and privileges…"

The Census Bureau reports 18 percent of married women are childfree and women on average outlive their husbands by several years. An elderly widow could take great comfort in the knowledge that a close, legally designated friend would administer her living will, if there were no blood relative to do so.

My father died surrounded by family two years ago in a New York hospice. But most of the near-death patients had few or no visitors. I asked one of the nurses, "why?" She responded that a surprising number of hospice patients died alone or received rare visits by family members.

So many new cultural attributes are unwelcome (I think of the rise in unwed motherhood and the hyper-sexualization of teenagers) that I was pleasantly surprised by the emergence of collaborative divorce and legalized friendships. Giving people more legal options to adapt to changing notions of "family" is a positive development and one we should all welcome.


(Bonnie Erbe is a TV host and columnist. E-mail bonnieerbe(at)

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