The Landscape of Family Law
The bumps along the legal road can be mountains or molehills. Just ask the attorneys who work in family law.
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In an effort to save time and curb the tremendous financial and emotional costs incurred in lengthy litigation, a growing number of family law attorneys in California and elsewhere are turning to collaborative law, or alternative dispute resolution —a relatively new method of resolving divorce cases. The collaborative process is far less expensive than litigation. Studies have found that collaborative divorces cost from one-tenth to one-fifth the amount spent on litigated divorces, according to the California Bar Journal, official publication of the State Bar of California. In addition, collaborative cases are far more expedient: Divorce cases settled through litigation generally take at least 18 months, whereas collaborative cases are often settled in 18 weeks, according to the Journal.
“This is a team approach, where two attorneys, with their clients, come together to talk through issues and reach an equitable agreement,” says Brown.
The climate and tenor of a collaborative divorce is in stark contrast to the pitched battles waged in many divorce proceedings. (Think War of the Roses.) The attorneys’ only job is to help their clients settle their dispute calmly—without mediation or litigation. If they fail to do so, they are barred from representing either client against the other—ever. In addition, both sides sign a binding agreement to disclose, at the outset, all documents and information relevant to the case. Stone walling is verboten.
The collaborative approach to divorce is especially beneficial for couples who will be sharing custody of their children, as well as those who want to keep open the possibility of remaining friends after their divorce is settled.
“The goal is to help people solve problems, not win a settlement,” Brown says.
In the past, divorces in California could be granted only on specific grounds, such as adultery or mental cruelty. Those limitations were lifted in 1970. Today there are two possible grounds for divorce in California: irreconcilable differences or incurable insanity. The former is a broad, ill-defined category.
“It’s admittedly very subjective,” Cruse says. “Basically, these are differences of whatever nature that make it clear the marriage should be terminated.”
California was the first state in the nation to introduce so-called “no-fault” divorce, which concedes that both husband and wife contributed in some measure to the breakdown of their marriage. As a result, neither party is at fault, or solely to blame, for its dissolution.
GIVEN THE VAGARIES of each case, and the volatility simmering within most clients, what exactly is the role of the attorney in a divorce proceeding, other than that of counselor? Moderator? Coach? Referee? Protagonist? Therapist?
“I would say all of the above,” says Brown. “My approach is that every case should settle. There’s no reason for people to litigate all the issues. The two attorneys need to work together. This isn’t rocket science.”
Beals sees himself as a peacemaker. “The real challenge is to keep families together whenever possible and as civilly as possible,” he says. “If someone comes in and says they want the meanest s.o.b. to represent them, then I pass. I don’t want to be the person who creates more disharmony among couples who are already having a tough time.”
Cruse frames his role in decidedly down-to-earth, figurative language. “We’re cast as referees and protagonists, but basically, our role is to clean up after the elephants,” he says. “Bad things happen in life. People make poor choices. Clients come to us with whatever mess they’ve created or stumbled into, and our job is to try to fix things.”
And then a caveat: “People come to the legal system wanting retribution and fairness,” he cautions, “but the system isn’t designed for either.”
THE MOST EMOTIONAL battles in a divorce are fought over children. How will they be raised? Who will raise them? Can the couple come to terms over joint custody? If one parent is granted sole custody, what types of arrangements will be made for the other parent to visit the children? If a couple simply cannot reach an agreement on these issues, the court will decide for them.
“When divorce cases get nasty, it has a devastating impact on the kids and their future,” Brown says. “It affects the way they look at relationships and marriage later on in life. It’s difficult, but couples have to somehow set aside some of their differences and focus on what’s best for their children.”
Cruse agrees. “I enjoy custody cases where I can help a family focus on the children instead of themselves,” he says. “The kids come out of it with better parents, even though those parents are divorced. The couple actually grows through the process.”
Are there any clear winners in a divorce, regardless of the outcome?
“To tell you the truth, no one is ever completely satisfied with the results,” Beals says. “The outcome might be favorable to them from the viewpoint of the legal system, but still they feel as though they’ve lost.
“These things can drag on seemingly forever. I’ve seen couples litigating for 15, 16 years, always finding new ways to fight. The emotional scars for them, and for their children, last a lifetime.”