The Disciplinary Divorce:
Foucault, Family Law, and Narrative in Our Times
University of Washington
With the rancorous contemporary debate about no-fault divorce in the United States-a debate in which blame is attached either to women's contemporary morality or to our failures as a society-we lose sight of what is more important: the process of divorcing with children materializes the fusion between the law, discipline, and governmentality that Foucault argues is the state of modern law. By drawing on the public record files of 32 highly contested cases from sample of 295 cases initiated in 1992, 1993, and 1994 in King County, Washington (Seattle), I use formal narrative analysis on the accounts of litigants and human scientists to establish contemporary divorce as a deeply disciplinary process. I focus on four types of documents found in the files, each articulating either the disciplinary reach of the human scientists or the projection of government rationality into individual cases: the social worker's home study, the drug and alcohol counselor's report, the child support worksheets and declarations, and the parenting plan demands on parents and children. The changes that accompanied the Washington State Parenting Plan Act of 1987 mirrors changes nationally in family law and provides an apt site from which to assess the degree to which techniques of surveillance, discipline, and governmentality have accelerated into the lives of divorcing families.
When I initiated this project, I did not begin with Foucault's work in mind. I intended to study-as a critical discourse analyst-have individuals told their divorce stories in the records contained in these files. What I found, however, upon reading and analyzing the files collectively was a degree of surveillance and discipline that I simply did not anticipate and begged a more comprehensive explanation. Thus, in the first chapter of this book, I pursue three lines of argument. First, I argue that Foucault's work on law, disciplinarity, and governmentality, much footnoted but little pursued in legal scholarship, provides the framework with the most explanatory power to study and analyze the accumulated documents of these divorce files. Second, I advocate critical narrative analysis as a further means of analysis of these documents, providing as it does deeper analysis of "how" power and knowledge work with these divorcing families. Third, I analyze the contemporary debate about no-fault divorce and children through two widely discussed works, Barbara Dafoe Whitehead's The Divorce Culture (1996) and Judith Wallerstein, Julia Lewis, and Sandra Blakeslee's The Unexpected Legacy of Divorce (2000), concluding that while they focus on assigning blame for the divorce rate, they suggest even deeper incursions of disciplinary and governmentality into families-even currently intact families with children.
In chapters two, three, four, and five, I focus on four types of documents found with regularity in the files. In each of these chapters, I begin with a genealogy of the document, providing either its disciplinary history or its role in government rationality, and then turn to the actual use of the type of document in a representative file with formal narrative analysis. Each type of document provides ample evidence of the use of discourse structures in favoring one parent over the other as the primary residential parent. In Chapter 2, I focus on the social worker's "home study," tracing its formation through the roots of the foundation of social work as a profession in the late nineteenth-century. The use of social work reporting as social and disciplinary control is apparent in the case of the Kirisov family, recent Russian immigrants to the area. As all contested divorces in King County require the litigants to undergo a family study, the Kirisov case provides a representative example of how these instruments and their narrative accounts of each parent and child control both their representation to the court and legal outcomes. In Chapter 3, I examine the drug and alcohol counselor's report, beginning with their origin in the second half of the 20th century and the areas moves to acquire disciplinary knowledge and power. In the case of the O'Briens, both parents underwent psychological testing and "predictive" drug and alcohol screening. Though one of the parents was found to have no tendencies toward drug and alcohol abuse, he was nonetheless ordered into long-term counseling relations with the agency, demonstrating the workings of bio-power at the local level. The counselors' narrative accounts of each parent's interviews, physical testing for drugs, and surveillance in their community demonstrate both actual physical control of the parents while custody is being determined and the weight assigned by courts to the outcomes of the investigation. In Chapter 4, I shift to issues of governmentality, as I examine the narratives surrounding the state-provided child support worksheets and child support schedules. I review the history of the child support schedules and work sheets and their origin in normative representations of family life and resources. Also intersecting with issues of immigration, the Sung family alternates between traditional, gendered assignment of responsibility for family funds and the U.S. version, sanctioned by Washington's Parenting Act. Both Sungs produce narratives attempting to approximate the legally sanctioned version of normativity. In Chapter 5, I turn to the Parenting Plan, the document by which the children of the marriage are assigned residential time with each parent. I examine the normative assumptions that prevail in the form of the state-mandated plans, as well as analyze the rational governmental basis for using the plans. The Stacy family offers an example of the presumptive powers of the plan to assign residential time to both parents set against the bizarre and dangerous behavior of one of the parents. The narrative strategies evident in both the reports of professionals and each parent's pleadings offer testimony to the power of the plan and its government rationality over rational decisions for this particular, individual family. These four case studies provide ample evidence of the deep fusion between law, discipline and governmentality in family law.
In the final chapter, I return to a reconsideration of the theoretical issues posed in the first chapter through the lens of these four representative cases. For the Kirisovs, the O'Briens, the Sungs, and the Stacys, the outcomes are vital examples of how far the process of fusion has progressed at the same time that their human outcomes are equivocal. I compare their outcomes with the focus group study financed by the state to evaluate the Parenting Act after its first decade. I find that the demands of discipline and government outweigh the needs of divorce litigants and their children. These litigants, like the unsatisfied litigants found in studies by Conley and O'Barr, Merry, and Ewick and Silbey, do not repair their relationships through resort to the law. But it is not law alone that makes resolution difficult to grasp; discipline also intervenes and contributes to keeping parents locked into an ongoing and troubling relation. I close with attention to resistance and argue that most parents have little access to the power/knowledge connection that Foucault offers as the site of resistance. Resistance becomes possible only by walking away, as the number of uncontested divorces attests-even leaving behind the possibility of sufficient child support, adequate protection for personal safety, or reasonable time with non-residential children. Neither no-fault divorce itself nor the morality tales about divorce account for the current state of divorce; only the fusion of disciplinary and governmentality with law does so.