California Divorce in the 21st Century
Who will suffer and who will profit?
By Brian H. Burke, Certified Family Law Specialist
During the last thirty years there have been enormous changes in California Family Law. All of the reforms enacted by the legislature or created by the courts are well intended, but divorcing families are usually denied the full benefit of changes in the law because there haven't been corresponding changes in the practice of law. From 1850 to 1969 a California divorce was simila r to a criminal trial. There was no divorce without a finding that one of the parties was at fault for the failure of the marriage. Unless the couple could agree on who would "take the fall," a trial by jury was held to decide who was the "guilty" one. The court then awarded more than half the 11community property" to the "innocent" spouse as a way of compensating him or her for the marital sins of the other. (Generally, "community property" is assets acquired during marriage by the effort of either spouse.) Since January 1, 1970, divorce is granted when either party believes that the marriage is doomed by "irreconcilable differences." The court hears nothing about fault, and community property is simply divided in half. During the 1980s California was the first state to make "joint custody" of children possible, and every county was required to provide parents with free child custody mediation before a custody dispute could be brought before a judge. In the 1990s the court created mandatory parenting classes, and a mathematical formula was developed so the exact amount of child support could be determined without court involvement. For couples with low assets and no children, sets of forms were provided for do-it-yourself divorces and "Family Law Facilitators" were provided to assist those going through the divorce process without lawyers. These reforms work better for families who can't afford to hire attorneys than they do for families who need and can pay for legal support. This is because many, perhaps most, lawyers still see a divorce as a contest or fight between two litigants, ultimately resulting in a winner and a loser. Legal expenses are justified as necessary preparation for The Trial. But The Trial rarely comes. About 95% of all divorces now conclude not with a trial but with a
settlement. If nearly all cases are settled, why is time, energy, and money spent getting ready for an event that isn't likely to happen? Some lawyers justify adversarial divorce practice by saying, "The best way to settle a case is to get it ready for trial. During the course of [expensive] trial preparation the client learns why a settlement is almost always preferable to a trial." Most of the time billed in the conventional practice of Family Law is spent on some form of "preparation." Skeptics suspect that the high fees generated by the f1preparation" necessary in adversarial practice is the real reason why so many lawyers still think it serves the best interests of their clients. In spite of the adversarial nature typical of family law practice, there are excellent alternatives. The divorcing couple which finds the option best for them and their family, are the people who will profit most from thirty years of reform. Among the options are: • • The courts do-it-yourself package for cases with minimal assets and no children. Do-it-yourself guides for people with the time and interest necessary to learn how to complete numerous court forms. Paralegal services which complete forms at low cost for people who believe that the amount of money involved in their case isn't enough to justify payment of any professional fees. Legal clinics supervised by lawyers but designed to provide "generic!' services at a low cost. Some of these clinics can be accessed by phone or Internet. Private mediation is typically provided by a lawyer who has given up the role of "advocate" to become a "facilitator." A mediator helps the couple define the problems to be solved and to explore and evaluate settlement options. Most mediators will prepare the final agreement and related court papers if asked to do so. Once a tentative agreement is reached, each party can (and usually should) have it reviewed by an independent attorney. "Collaborative" family la w practice is a promising innovation. The lawyers are hired by each party to settle case and not to prepare for the "unlikely trial.” Lawyers are specifically instructed by the clients in a four-way contract that their job is to reach an acceptable settlement. If a lawyer or party feels it necessary
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"go to court," both of the original lawyers are required to withdraw from the case. New lawyers are engaged to assume adversarial roles and to take over case. This design presumes that there will be a settlement and the incentive for the initial lawyers is to create it. The people to profit from the comprehensive reforms in family law will be those aware
of the different ways to go about a divorce and who then select the method that will work in the best interests of the entire family. In making such a decision it is very desirable to consult with a lawyer knowledgeable about the available options and who serves only as a consultant. In such a professional relationship, the lawyer is paid for the time spent in the consultation but has no financial interest in which option the client selects. If such objective advice is not available, the best alternative is a series of interviews with family law attorneys and mediators. In conducting these interviews one must remember that the professionals use the "initial consultation" to sell their own services; it is not to help the potential client find the optimal way to handle the case or to provide objective advice about the benefits of services offered by others .