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Revolutionary Thoughts: Revamping Family Law

“You say you want a revolution –
Well, you know –
We all want to change the world –
You tell me that it’s evolution
Well, you know –
We all want to change the world”

… Paul McCartney / John Lennon

It’s time for a revolution in the family law world. Most people practicing in this area of law for any period of time will agree that the “system” is not very good at managing families. But we have yet to devise a better mousetrap.

One of our young colleagues, Rebecca Stahl, is in New Zealand on a Fulbright Scholarship studying for an LLM. Rebecca has yet to be tainted by the world of billable hours and cynical opposing counsel, so she is bringing a fresh eye to the world of family law. Her blog,“Family Law: Shifting the Paradigm,” (http://famlawshiftingparadigm. blogspot.com/) is a challenge for us to think (again) about how to approach the riddle of family law from a systems viewpoint.

Rebecca’s blog has suggested that we incorporate interdisciplinary services in a unified court. As for the interdisciplinary model, it’s already here in the form of collaborative practice and it dovetails well with a unified court; however, I have come to believe that the whole notion of families interacting with a “court” misses the mark. I also believe that we need to extend our horizons because, as our society ages and the definition of “family” changes, we are going to see more family-type partnerships that fall outside of intimate relationships: people living together for community, economics, and safety. We must be prepared in our processes to manage the inevitable disputes that will arise from such arrangements.

Creating a Better Mousetrap
So here are some ideas for creating a better family law mousetrap, but I know you have a few of your own!

First, let’s eliminate the dabblers, who have so little commitment to the field that they only visit opportunistically and do more harm than good. It’s a common but serious misunderstanding of the complexities of human relationships to assume that family law is “easy” to do. Second, let’s make the zealots (as in “zealous advocacy”) obsolete. Third, let’s insist on wellness and balance in our lawyers so that they can focus on the whole family instead of becoming aligned and enmeshed with the position du jour. Finally, let’s scrap the whole “family law” system, toss out the statutes, rules, and cases, and start over. (Oops. Did I say that out loud?)

Dabbling Is Not Best Practice
One way to cure the dabbling offender is to require basic family law training prior to being accepted to practice before the family bench. While that may sound like an administrative nightmare or an unacceptable barrier to entry, consider that admission to the patent bar requires underlying education in science or engineering. Shouldn’t admission to the family bar require education in psychology, child development and family dynamics, when so much is at stake?

Zealous is a Four-Letter Word
The zealots are tough to convert because so many are heavily invested in perpetuating litigation as a business model. In addition, zealots often receive a personal reward (beyond money) for being antagonistic, surly, and obstructionist. Is this what our bench and bar approve of as acceptable practices? Some of you will answer with an emphatic NO, and for that I’m grateful. But if stirring up the emotional pot in order to generate income and an adrenalin rush is not acceptable, how do we end it? The extra education for admission to the family bar will manage much of that behavior, but perhaps we should mandate that our attorneys, judges, and mental health providers be trained in facilitative mediation and collaborative practices. That step, in conjunction with the basic education requirements for practicing family law (above) would help to minimize the occurrence of self-serving, family-damaging litigation tactics.

Wellness Goes Beyond Physical Fitness
As for the wellness and balance component, if you are like most lawyers, you know intellectually that you need to do certain things to take care of yourself, but do you actually engage in the practice? I know I’m not alone in having come face-toface with someone on the other side of a case who is so deeply out of touch that they act as if the issues at stake were their own. That type of over-identification and alignment is not only an impediment to providing quality legal services, it is detrimental to the attorney-client relationship and seriously damaging to the mental health of the attorney. Do what you can with the resources you have but make time for yourself – for the sake of all of us!

Of course, we can’t mandate wellness, but the State Bar of Arizona is one resource that should be educating the profession about the necessity of self-care. The Bar dipped a toe in that pool with a workshop that my friend, Alisa Gray (Fassold & Gray, PC), and I co-chaired earlier this year called “Beyond Burnout: Practical Approaches to Transform Your Practice and Your Life.” As a CLE, this was a voluntary activity, so I go back to the notion of mandatory education. The Bar requires three hours of ethics per year, leaving another 12 hours to our discretion. Given the alarming statistics regarding mental illness and substance abuse among lawyers, why not require three hours of wellness education and leave the remaining nine hours as electives? Those who can prove their regular attendance at some type of good-for-you program (yoga, fitness training, meditation, etc.) can get a waiver.

What if Legal Marriage Went Away?
We currently have two systems of marriage: religious and legal. What bubbles up in my thinking of this issue is that we must un-hitch our legal wagon from the idea of the traditional family. The religious marriage (i.e., the wedding mass, or whatever iteration you like) is not part of this discussion and I think everyone should enjoy the ceremony of their choice in that regard. It’s the legal marriage that is problematic because the system was employed to confer property rights. Period. Fast forward a few hundred years and we have a cobbled-together system of some civil law that’s been tweaked and some economics applied to childrearing costs and some watered down social science that passes for a best-interests inquiry regarding parenting rights and responsibilities.

So what happens if we scrap the statute book? How do Sam and Sarah (the prototypical nuclear heterosexual family) “untie the knot”? How are property rights conferred and protected? How are parenting rights determined? And what if Sam and Sarah had a fabulous synagogue marriage ceremony but never actually got around to being legally married – a practice which is becoming the norm in many communities?

What comes to mind for me is a system of residential partnership (RP), similar to the system we currently use for creating a corporation. RPs would apply to couples (including same sex), roommates, members of communal housing arrangements, inter-generational families, and anyone else who shares a residential household. If you want your RP (no matter what its flavor) to be recognized as a “legal” RP, then you must pay your fee and register with the state.

What the parties would register is an RP agreement, similar to an Operating Agreement: a contract to set forth separate and joint property rights and (for couples) the method for which parenting issues will be resolved in the future. This type of agreement could be form-driven for the do-it-yourself (pro se) client or customized contracts for those with more resources and/or complexity. If parties fail to register an RP agreement and then have a property dispute, they would fall within civil contract law. For disputes regarding children and support, parties would be referred to mandatory binding arbitration. The arbitration panel would include an attorney-arbitrator, a child specialist to advise regarding best interests of children, and a financial specialist to advise regarding support.

These are just a few ideas for revamping our system to make the practice of family law more humane (for us and for our clients). I can almost hear the gasps of outrage from some of my colleagues and my response is this: if you have a better idea, let’s hear it!

Pamela Donison

Following a 15-year career in journalism and book publishing, Pamela attended the University of Arizona James E. Rogers College of Law, graduating in 1999. After a few too many high-conflict litigation cases, Pamela created Donison Law Firm, PLLC in 2005, with an emphasis on out-of-court solutions including mediation, arbitration, collaborative law, and negotiated settlements. Pamela has an undergraduate degree in Business Management which she uses to assist clients in Double Divorce. www.donisonlaw.com

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About the Author: Following a 15-year career in journalism and book publishing, Pamela attended the University of Arizona James E. Rogers College of Law, graduating in 1999. After a few too many high-conflict litigation cases, Pamela created Donison Law Firm, PLLC in 2005, with an emphasis on out-of-court solutions including mediation, arbitration, collaborative law, and negotiated settlements. Pamela has an undergraduate degree in Business Management which she uses to assist clients in Double Divorce. www.donisonlaw.com

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