La Familia and Divorce – A basic introduction to culturally based issues when working with Hispanic clients

Culture is color. It’s also flavor and scent. It gives our society an added spark in the form of Mexican restaurants and Irish festivals, beautiful Sari’s and spicy salsa dancing. Culture is a truly beautiful thing. And with culture come deep seeded belief systems. In a society in which the law applies to all in “cookie cutter” format, this can, and does, cause serious conflicts. It is far too easy to simply respond to these conflicts with “you’re in America; you do it our way or go home”. For many culturally diverse groups, America is their home… and their culture is their way of life. Responding in this fashion too often results in violated court orders, sanctions, incarceration, resentment, anti-American sentiment, and death. This article is not intended to justify any cultural beliefs over others or to say that our laws should accommodate each individual’s cultural ways. My hope is that, after reading this article and the series that follow, you will gain a greater insight on the role culture plays in our legal system and how to create a process and solutions that takes these factors into account while still operating within US and California laws.

In order to identify signs that your case may have a cultural element to it, you need to have some understanding of the culture you are working with and the level of acculturation of your particular clients. Most Latin American cultures are based on Spanish traditions and beliefs, typically the result of prolonged occupation. Such occupation influenced the country’s religion, government, and education. As a result, the Catholic Church, controlled, and to this day continues to control, most aspects of life, including state and federal law. My parents, for example, immigrated from Colombia, South America. Prior to 1974, marriages there could only be performed by the Roman Catholic Church or other religious group, and divorces for such unions were not permitted. It was not until the Colombian Constitution of 1991 that divorces were allowed for marriages performed by the Catholic Church.

Although divorce is on the rise in most Latin American cultures, it is still viewed as a sin, carrying with it great social and moral stigmas. In fact, most Spanish literature that discuss divorce, do so as a sin to be avoided. The emphasis is on marriage as a holy union, and eternal. Annulment is the only accepted method of dissolution. But the requirements and process for annulments are extremely burdensome so as to serve as a deterrent.

Socially, divorce often results in isolation and alienation by both families against the spouse perceived as “causing” the divorce. As a result, many such couples will simply separate and start new families. A few years ago, I mediated the divorce of a Mexican couple who had been separated for over 10 years. With the support and encouragement of their adult, and more acculturated children, they decided to divorce. They turned to their tax advisor, also Mexican, to find a divorce attorney. The tax advisor found my name on a mediation website. He later told me that he chose me because of my last name, Martinez. Both spouses had new relationships, and one even had a new family. Every mediation session involved the eldest son and the tax advisor. The matter resolved peacefully and I was invited to attend their holiday party. Although I come from a Latin background in which everyone is treated like family, it still felt a little strange when the couple and their children took me around the room introducing me to their families and friends as their “divorce attorney”.

There are several key points to this example. First, this couple had a strong support group, many of whom were acculturated and educated, and yet understood where this couple was in terms of their own culturally based moral and religious beliefs. Too often, such individuals have no family here and limited resources. Their is often a distrust of “outsiders” and a blind trust of those within their community, subjecting them to poor, sometimes unhealthy, counseling and/or unlawful practices.

Second, while willing to seek assistance outside their immediate community, they still turned within for assistance. Very often, within the Latin cultures, a couple will seek guidance from spiritual advisors, business managers, financial advisors, and/or community leaders. For those who are less acculturated, there is a strong resistance to seeking help outside of their community. This is problematic as there are very limited resources in Mediation and no resources in Collaborative law for these communities thus far.

Third, divorce is a family affair. Not only were my clients’ children present in our mediations, they were actively involved in the decisions that were made. The eldest son, who attended every session, as the CFO of the family business, had most of the financial information that was needed. He would also explain to his parents what he felt was the best decision to make. Very often, when language is a barrier, such couples will bring family, including their children, to act as translators. A word of caution here: when working with family or friend “translator”, information is often filtered and/or inaccurate.

Understanding the religious, family, and social influences within a particular culture will help you to identify issues that are based on cultural beliefs so that you can facilitate a resolution that addresses those unique concerns. Your approach in these cases may be unorthodox and contrary to what you have learned as a divorce professional. You will be challenged on issues of confidentiality, disclosure, and neutrality/objectivity. In the articles that follow, I will address identification of such issues through personal and case examples, and how best to work towards resolution. Understanding and acceptance of these cultural realities will increase your effectiveness in removing these cases from litigation, where cultural needs and goals are largely ignored.

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