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....