Monday, October 3, 2016

"Stop Crying, You're Pissing off the Judge" -- Why the Court System Doesn't Work for Family Law

               Most divorces do not belong in court.  That might sound controversial, especially coming from someone who has spent most of her professional life as a litigator.  I think I shocked myself when I first started thinking along these lines.  But really, when you think about it, even the name sounds incongruous.  "Family" -- as in a cohesive,  loving, unit -- "Court" -- as in litigants, combatants, adversarials....
               Briefly, divorces are handled in the courts because historically the issues involved property and power transfers, first of a woman to her husband's family and also relating to whether a child was "legitimate" and could inherit property.  As one commentator aptly noted: "the framers of family court probably could not have fathomed it would become a tribunal for every family related dispute as it exists today." ["History of Family Court" by Effie Belou]  Modern life and culture have changed.  Women are no longer chattel.  Women no longer have to go to court in order to exercise control over their finances and their lives.  But for the most part, we are stuck in history -- still stuck in court for divorces and its related issues.
               Of course, with the caveat that this is just my opinion (that's a perk of writing a blog!) -- Here's why "family court" doesn't work:
  • emotions are way too high -- about as high as you can get -- you used to be in love, he/she hurt you terribly, and now you are thrust into the "rational" -- non-emotional -- court system and supposed to magically have all the emotions disappear;
  • the family law court system embodies the litigation system, litigation is adversarial -- very adversarial -- which is the antithesis of what you need when you are trying to deal with love gone bad and children caught in the crossfire.  Indeed, even referring to the divorcing spouses as "litigants" ups the ante and puts people in a defensive mode instead of a conciliatory mode, (which is much more conducive to effectuating the split and helping the parties to move forward with their lives);
  • going to court takes a long time and litigation fans the fires instead of helping things to calm down and move forward -- and it eats up a lot of the parties' money, which is already stretched by things like suddenly supporting two households, counseling, attorneys' fees, etc.;
  • the majority of judges are good, competent, caring people, however, they are usually over-worked and don't have a lot of time to try to learn about all of the relevant factors which would go into a good decision, and even if they could, they are strangers trying to come up with solutions to very personal issues;
  • although judges make rulings on issues where they have to, I have never met a judge who likes to make thorny custody rulings, such as whether one parent has the right to move with the child out of the area; these are Solomonic decisions which are difficult enough for the loving parents to make, let alone a stranger, (the judge);
  • litigation is financially and emotionally very costly -- attorneys' fees, expert fees, court fees,  rehashing issues over and over, parsing through this wrongdoing and that while trying to come up with ways to win in court -- which often leaves clients feeling drained;
  • you may think you have a "winning cause", or your attorney may tell you that you will "win for sure" but the truth is, nobody can guarantee how a judge will rule -- no outcome is guaranteed.
               The great thing is that for most family dissolution cases, there are alternatives!  In most cases (for the inverse of the reasons stated above), I think it is in the best interests of all parties involved if they can reach a mutually acceptable resolution outside of the courthouse.  In this way, they can be a part of the solution instead of having a judge (a stranger) tell them what to do.  (And truly, I can't count the number of times I've heard parents say that neither of them agreed with the court ordered custody plan!)

               A multitude of approaches offer alternatives to knock down drag out litigation.  Some possibilities include:
  • having the parties talk with each other and come to decisions together, filling out the paperwork and representing themselves -- and most counties have decent family law self-help resources;
  • agreeing that one party will retain an attorney to help effectuate the dissolution, the terms of which are agreed to by both parties;
  • both parties making a commitment to working with a mediator to resolve any issues that are prickly and can't be resolved by the parties without a neutral third party;
  • working with attorneys who try to resolve disputes as a first approach before marching straight into court.
               I'm not saying that there isn't a place for judicial involvement in divorces.  To be sure, in areas of actual and deliberate malfeasance, the tools of the court system may be necessary and can provide some effective solutions.  Overall, I think family law participants would be much better served if the "court route" were the last resort instead of the normal first step.

               **A note on the title. I actually witnessed a seasoned family law attorney tell her client "Stop crying -- you're pissing off the judge."  The source of the client's quiet tears?  In an extremely abusive and difficult situation, the judge had just ordered the crying client not to respond to her children's calls for help.  Whether or not the judge had a valid reason for the order, the client had a valid reason for crying. However, there was no space for crying inside the courtroom.  Most judges are ill-equipped to deal with on outpouring of feelings -- they are judges, not counselors....


Tuesday, September 6, 2016

Choosing -- AND KEEPING -- Your Attorney

             Unfortunately, sometimes the attorney-client relationship is not so happy and a high percentage of people who hire a family law attorney end up with a different attorney before their divorce is finalized.  The attorney-client relationship, especially in an emotionally charged situation like a divorce, can have its ups and downs -- not to mention, sideways,  backwards, and upside down.  This can be difficult for a person whose life is already changing radically with the ending of their marital relationship.  Additionally, it adds extra expense -- if you hire a new attorney, he or she will need to review the file, (which is often volumes of documents and emails and conversations and court hearings, etc.), in order to effectively take on your representation.  This review can take many hours of work by the new attorney and it's likely that at least a portion of which will be charged to the client.
               Because switching attorneys is costly (and can also be emotionally jarring), it's a good idea to choose your attorney carefully before you sign the agreement and pay the retainer deposit.  It can seem like there's a fire drill emergency and that you need to hire an attorney immediately (and in some cases, this is true), but usually it is best to be careful and make deliberate choices. 
               A good place to begin is to gather some names of attorneys you may be interested in.  Ask friends, family, colleagues for referrals.  You can also contact the local bar association or various online referral sites (such as NOLO Press).  Even if your best friend has recommended someone, it is a good idea to contact several attorneys and either speak with them over the phone or go into their office to meet in person (although beware as many attorneys charge a consultation fee if you go into their office to meet).  Even without a formal consultation, you can gain much insight about the prospective attorney by how they communicate with you.  Another source of information is the attorney's website or other online information.  Make sure that the attorney you are considering has the same approach that you do -- for example, if you and your "ex" agree on most everything, look for an attorney who will help you come to a settlement, not an attorney who promises to fight to the death in court.  Think about what issues may arise for  you and your ex -- for example complicated division of assets or a joint business venture, or custody issues, etc. -- and then see if the prospective attorney has experience in these areas.
               I often recommend that people choose an attorney who they can envision getting bad news from -- because in most cases, there will be some "bad news," something that doesn't go the way the client expects.  Hire someone you think you can trust -- do your homework and then trust your gut.  Try to think of being in a long-term relationship with this attorney -- keep in mind that even in the best case scenario, it will take the California statutory minimum of six months plus one day before your divorce is finalized and many divorces can stretch on for a couple of years. 
               The bottom line is that whatever methodology you utilize, do take some careful steps before you make up your mind and sign on the dotted line.  This is likely to be one of the most important decisions you will make in your divorce.  And once you make a decision, try to have faith in your choice and in your attorney and try to remember there is a light at the end of the tunnel.... 


Saturday, July 2, 2016

Setting AND Keeping Personal Boundaries

Good personal boundaries are elementary...right?  Involved in all relationships...right?  Yes, I think so!  And it is a little shocking to know that so many of us routinely violate what seems like a fundamental cornerstone to all healthy relationships....The issue is pervasive and affects people in all marital and ending-marital relationships, as well as being a part of the interactions between parents and children and employees and co-workers and friends, and even in exchanges with strangers, etc., etc. 
            Setting and maintaining good personal boundaries becomes absolutely imperative when people are divorcing.  If you aren't yet convinced, here's some really great, basic, things that can be achieved when we set personal boundaries:

  • We can act, instead of reacting, we can direct ourselves and stop feeling like we are victims
  • As we utilize the boundaries that we have decided on, we can change the entire dynamic of relationships -- treat yourself with more respect and others around you will treat you with more respect  -- voila, it's like magic!
  • We empower ourselves by building our self-respect which creates a domino effect to pave the way for other positive things that we can achieve
            I recently read a brief article on "Upworthy" about planning for the future.  It hit me that several of the suggestions are directly applicable to setting good personal boundaries.  With my (slight)  modifications to the boundary setting context, the "Upworthy" tips include:

·        Take responsibility for all of your choices -- although many factors are beyond your control, own the choices you make and let that guide you
·        Remain flexible -- if you have set a boundary and it is routinely being broken, it might be time to re-examine and re-frame the boundary
·        Remember that not everything will turn out exactly how you planned but moving forward with intention, keeping your ideals in mind, will help you reach your ultimate goal

            It might not feel "natural" to set and enforce good personal boundaries, in which case, try to think of it as a job, a task to be accomplished.  Consider making a checklist to get started and then stick with it!  It might help to:

  • envision having a "personal bubble" around you and then work to keep this area free and clear
  • think about personal interactions that don't feel good (i.e., someone saying negative things about you, someone getting too physically close, etc.)...
  • and then think about ways you can keep the negative behavior out of your "bubble" -- for example, if someone is being verbally abusive, keep your focus on being calm and making one simple declaration "If you continue to use those words (that tone, etc.) with me, I am going to walk away/hang up" -- and then you need to follow through....
           And as with everything, be persistent.  Don't give up even in the face of some setbacks.  Believe in yourself and your ability to create and maintain good personal boundaries.  You are the keeper of your boundary lines.  Don't expect that someone else will enforce your boundaries.  It is up to you to set the stage and once you do, you will find the power.  

"The most common way people give up their power is
by thinking they don’t have any...."  Alice Walker

Sources and Resources: