The Economic Downturn and Family Law

In recent years, unemployment and interest rates have skyrocketed while the stock market and the economy have plummeted. Domestic relations litigation and its importance to the involved families, however, have remained constant. But, the current economic climate has certainly impacted the family law field in several distinct ways.

For instance, because the values of many 401(k) and other retirement plans have diminished significantly, there is often much less asset division between divorcing parties. Couples who have been aggressively saving for their future can be left with very little after years of retirement contributions. This situation presents a timing dilemma in some cases; parties often consider “waiting out” the bad economy to divorce at a time when the marital assets are worth more. Obviously, that can cause a host of other problems, especially if the parties are not being amicable towards one another.

Some parties have been so impacted by the downturn that they feel like they cannot afford family law attorneys at all. This has led to many more cases being filed pro se. Pro se litigants often run into problems when their spouse or former spouse hires an attorney who knows the system and who can exploit the relative lack of knowledge of the pro se litigant. So, the decision to save money on an attorney needs to be carefully made and balanced against the important interests that are involved in the lawsuit at hand.

Another area that has been greatly affected by the economy is the judiciary. For instance, not only has the Georgia legislature put a moratorium on the creation of new judgeships in the state, but it has actually allocated even less resources to the judicial branch as a part of state-wide budget reductions. This has led to great backlogs of cases in many counties, and has thus delayed many family law cases from being heard in a timely fashion.

These are just a sampling of the many issues facing families who are going through or contemplating a domestic relations action. At the very least, these issues should highlight the need for careful consideration and the benefit of effective and efficient legal counsel.

Fault, No Fault and Covenant Marriage

“You mean she can divorce me without proving I did anything wrong, just like that?”

It seems that, as a family lawyer, I have heard this lamentation many times. People facing an unwanted divorce often profess shock at the fact that, in this state, a divorce may be granted although they did not cheat on, abuse or otherwise grossly fail as a spouse.

It was not always so–prior to 1973 in Georgia, a divorce was only granted if fault grounds were proven. In other words, someone had to have cheated on, or abused their spouse, or become alcoholic or insane. This led, inevitably, to unhappy couples falsifying grounds to get the divorce they wanted.

On the other hand, since uncontested divorce was made available, divorce rates have climbed. Some have responded to this by reintroducing fault as a necessary element in divorce through covenant marriage–in essence, a couple agrees prior to marriage to divorce only when there is fault. This is authorized by law in several states: Louisiana, Arkansas and Arizona. I understand that around 2% of couples marrying in those jurisdictions choose this course.

Covenant marriage is not available in Georgia.

So my question to you is: if you were getting married and had the option to be bound together unless there was fault, would you chose to do so?

Families Matter

Last week in Baltimore, MD, the University of Baltimore Law School and the ABA Family Law Section co-hosted a very special event, The Families Matter Symposium.   The “Families Matter” idea is a platform of three consecutive Chairs of the ABA Family Law Section with the goal of reducing the negative consequences of Family Law on families, and most importantly children.  65 experts from across the country convened, at their own cost, to explore and share ideas on how to achieve this goal.  There were large working groups which broke into small working groups and then reported back to the whole group over the two full days of the Symposium.   There were judges, psychologists, financial experts and lawyers, all working together.  Former Georgia Supreme Court Chief Justice Leah Sears was a featured speaker as was Maryland Supreme Court Chief Judge Bell.

While the program was a great start, it was only that, a start.  There were great ideas that will take a lot of effort and time to implement.  There was a consensus that it is impossible to create a flow chart for a family law case that would work perfectly. Every case is different.  But there was agreement on many needed changes to the family law system.  The concept of “triage”, immediately figuring out what a case needs and prioritizing situations based on different priorities (violence, kids needs, foreclosure?) was considered.  “Early case intervention” was another popular (and similar) thought.  Another discussion focused on law school preparation (and encouragement) of students to practice in this area.   

So what are the next steps?  One step is a comprehensive CLE Program which will be worked into the ABA Family Law Section‘s next Spring CLE seminar. Beyond that we must figure out how to assimilate these and other great ideas into the general practice of family law. Judge and lawyer training and specialization? More frank discussions between the bench and bar (and mental health experts)?  Family law is becoming more, not less complex.  Relocation issues, gay marriage issues, international custody issues are all on the rise.  Without consistently taking the time to study and try to improve our family law system, we do a disservice to our community.  

Kudos to all those (and there are so, so many) that take the time and effort to work to better our system.  Our superior court judges and their staffs, the many governmental agencies that are overburdened, and the legal and mental health practitioners who see the problems daily are all doing their part.  The question is what else can we do.  Certainly we all agree more needs to be done.  So let’s keep exploring what can be done, and of course, lets do as much as we all can.

Please visit the blog maintained by the Center for Families, Children & the Courts: http://ub-cfcc.blogspot.com/

Tiger, D-Wade and Sandra Bullock

Isn’t it amazing how interested the press is in celebrity cases?  Thankfully it seems that in Tiger’s case and Sandra Bullock’s case, the parties and the lawyers are being tight lipped.  The same is true for Dwayne Wade, but given that he had to go to court, there has obviously been more coverage.  What we should all appreciate is that the privacy of these parties has been preserved, at least with respect to the specific details of their divorces.  Dwayne Wade’s divorce shows how litigation exposes their private lives.  It seems he (Dwayne Wade) had little choice given that his wife went through nine lawyers and skipped a court date or two.  But compliments to the Woods family and the Bullock/James family for not opening up the dispute to further public inspection and comment.  Just like any divorce, litigation should be a last, not first option. 

Family Law in the Digital Age

Text messaging. Electronic billing. Social networking. Smart phones. Not only are such innovations becoming part of the daily lives of most Americans, they are also reshaping and reforming the practice of domestic relations law. As the technology continues to develop around us, family law practitioners must continue thinking and learning about how such developments impact our various cases.

For example, it has become common practice for family law attorneys to request discovery documents and information regarding the opposing party’s social networking, online billing and email history. In many cases, such requests are coupled with the hiring of a private investigator specially trained in computer forensics. These efforts generally produce content-rich discovery and evidence which can have a great impact in a domestic relations case.

Obtaining this electronic information is really only half the battle, and frankly, the easier half. Submitting such information into evidence at Court requires a deft understanding of a rapidly-changing and relatively unsettled area of law. Thus, the family law attorney must stay apprised of the evolving state of the law on electronic and digital discovery and the client would be well-served by hiring such an attorney.

Why did Al and Tipper wait?

As a divorce lawyer, I could give you a thousand possible reasons. But what intrigues me is how much America is interested. While it may seem strange for a couple near or past retirement age to separate, in actuality it is very common. The pressures that often keep a couple together (young children, insufficient assets to support separate households, concern that the non working spouse will have to now work) are less present in older couples. There are thousands of people who consider or desire a divorce, but cannot and will not do it for fear of raising children in two separate homes or for fear of being left in a financially desperate condition. Once these people reach retirement age, retirement accounts may be accessible penalty free, the kids may live in other cities and all the reasons not to divorce may be gone. But the reason they considered and contemplated divorce often remains. Different views on life, different dreams and even different lifestyles may not only remain, but become more visible and relevant. Divorcing at age 50, 60, 70 or 80 is becoming more common and who are we to judge?