Family Court

Family Lawyers meet to help improve things

As written for my “Influencers” post:
Once a year I travel to meet with about 20 of the finest family law attorneys in the country. This is that week.  I always learn something and gain an optimism after each yearly meeting that lawyers can make a difference.  We deeply explore systemic problems and ways to fix them. We discuss helping individual clients as well as how to assist the legislatures and the courts to better understand the needs of individuals embroiled in family law cases. But most importantly, the sometimes very depressing work we do on a day to day basis looks and feels much more positive when we realize we all struggle with the same dilemmas. How to convince a client that settlement is better than court. How to explain to a client that even though their spouse cheated, the children still love them both and want them to get along.  How to ensure they are financially protected without spending all their savings on discovery and other legal procedures.  These are dilemmas. But I know that my colleagues are good, decent people trying their best to help. This is refreshing and inspiring. I respect them and am honored to be able to join them. And I look forward once again this year to being inspired and educated.  I owe it to my clients to learn as much as I can to help them. And learning from experts from around the country is one of the best ways to do that.

Why not seal divorce records?

Why shouldn’t we allow divorce records to be sealed? Since when is the public’s right to know more important than a couple’s right to keep private the division of their assets and the whereabouts of their children. Married people need not publicly disclose how they share assets or time with their children. So why must divorcing couples be subject to public scrutiny of their most personal dealings?

This has always seemed odd to me. In Georgia a few years ago, much was made of the Speaker of the House’s divorce being sealed (click for wikipedia info). But I think the outcry was not so much about his case being sealed, but more about why was his case sealed, when many others weren’t. The answer should have been: “Let’s seal them all”. Instead, the opinion of the majority seemed to be: “no special treatment for him”.

Currently, as reported by the Washington Post, the Montana Supreme Court is considering restricting public access to such records (click for story). As a family law attorney, I think the potential benefits are tremendous. Why should information about where children are being dropped off be public? What about agreements to sell property for a certain price? It may take a philosphical shift about court records, but family law is different. The parties, if they have children, will continue to interact and be somewhat interdependent on each other after the divorce. Why allow more roadblocks, like allowing outsiders to know their private business, to make their life any harder than it already will be?

Divorce Insurance? Why not a prenup?

I was recently asked to comment for CNN (click here to see the video clip of my appearance on “Newsroom” with Don Lemon) about a new fad: Divorce Insurance. My first reaction, as I told Anchor Don Lemon, is that the best insurance against divorce is not getting married. Of course that was said “tongue in cheek”, but really, if you plan to get married and want to pay, monthly, for divorce insurance, it seems very strange if not counterproductive to the goal of a long-lasting marriage. Let’s explain it this way. If a couple, or even just one spouse is considering a divorce, AND they know the expenses of a divorce are already paid for by insurance, isn’t that just one more thing that facilitates them moving forward with divorce? It is almost like saying “hey, we paid the insurance, let’s collect on it”.

Prenuptial and postnuptial agreements can predetermine division of assets and alimony. Once those things are decided, only issues related to children remain. And how can you predict the cost of issues relating to children. There are so many variations on parenting time, decision making, travel expenses, etc. How can we insure against all such costs?

Yes, divorce insurance sounds like a nice, safe bet. Why not limit your exposure? But when you start to think about the concept, it unravels. For instance, if I want to be sure I have the best divorce lawyer, is there any guarantee that the best lawyer will accept my insurance company (since insurance companies typically pay reduced rates to lawyers)? And what about a wealthy spouse who can afford a good lawyer and then, when the other spouse says “well, I need a good lawyer too”, the court’s reply may be “You have insurance so use that”?

I am all about prevention, but smart, effective prevention. To me, that is a prenuptial agreement. A prenuptial, or post nuptial agreement forces a party to think about all of the possibilities specifically. It is unclear to me how divorce insurance can address evrything, but if it makes someone more comfortable getting married, then perhaps it is not that bad. But for the best protection, I would suggest a consultation regarding a prenuptial agreement (which of course must be prepared and reviewed by an attorney in the proper jurisdiction, and I am certainly offering advice since prebuptial agreement laws vary from state to state). And besides, isn’t it nice flying without a safety net sometimes? Yes, I am a divorce lawyer saying that. Perhaps the thrill of a good marriage is that each spouse is voluntarily continuing to commit without fear of consequence. But if that thrill has been spoiled once by a bad divorce, then perhaps a prenup is right for round two.

Divorce and birth rates down?

A Georgia Public Broadcasting article suggests birth rates and divorce rates are down in this poor economy. But is this a good thing? We must remember that divorce, is a legal proceeding, not a determinative identification of which marriages are stable and which are not. Perhaps the economy is preventing some folks from filing legal papers or hiring lawyers, but does that really mean more people are staying together (and if so, happily?). I think not. From my perspective, many people who have struggled for years trying to maintain a marriage have had it. On top of years of marital or relationship troubles, the stress of a poor economy puts many couples over the top. The economy may be the proverbial “last straw”.

Couples who are in distress, especially those living in separate residences, often need the court’s assistance to decide how funds are shared between the parties and how time with the children is allotted. But in a poor economy, many cannot afford an attorney so they often ignore the legal process and engage in self help. This may work on an ad hoc basis, but troubles are inevitable. And if we do see a decrease in divorce, unfortunately, in my opinion, we will see a rise in other legal areas, such as child kidnapping, criminal claims of abandonment and even domestic violence as people take out their frustrations on each other (frustrations which a “good divorce” or “good divorce agreement” might have avoided).

So, the real issue is not whether divorce rates are down, but are marriages healthier? Are people now staying together and resolving their issues. Or are they simply not able to afford the safeties and resolution mechanisms divorce courts provide?

Fulton County Family Division finally here to stay

First Family Court in Georgia nolonger

One day in late 1996 or early 1997 while I was Chair of the Family Law Section of the Atlanta Bar Association I received a telephone call from Fulton County Superior Court Judge T. Jackson Bedford. Judge Bedford had previously been Chair of the entire Atlanta Bar Association and was and is a proponent of lawyers and judges working together to better our court system. It was not, and still is not common for a trial lawyer to receive a call directly from a jduge. But this was important he said. Fulton County was about to announce a project which would attempt to create the first Family Court in Georgia. He told me where the announcement would be made and that lawyers, especially family lawyers were invited and should attend. I went.

I volunteered our family law section to work with the judges in any manner they desired. We then invested thousands of hours of lawyer and judge time. We met monthly (judges and lawyers). The lawyers became the scriveners of a whole new set of rules that would apply in this new family court. We debated the name of the court (Family Division, well, we tried?) and we decided the cases would no longer say him vs her, but it would now be him and her. We invited experts who had established family courts around the country to come teach us what to do. I became Chair of the American Bar Association, Family Law Section’s Family Courts Committee and the ABA, with the help of then ABA President, Bill Ide, donated many resources and much time. It was well received throughout Atlanta (1998 WSB News Story-family-court ).

But one big issue was how to create a “new” court. Well really, it was the same court with the same judges, but it was to be a new division of that court. The Supreme Court authorized it as a “Pilot Project” and I am happy to report, that after twelve successful years, the court is no longer a “temporary” pilot project (see AJC story by clicking here).

There are many stories about the development of the court, from establishing the procedures (status conferences, etc.) to the selection of judicial officers, but the overall experience, although extraordinarliy time consuming, was once in a lifetime. I was lucky enough to be a part of a new endeavor that directly affected my clients. I am a firm believer that instead of complaining about rules and processes, lawyers should be a part of the planning. If you can help create the blueprint, then you are more likely to be satisfied with the outcome. The Fulton County Family Division is by no means perfect. There will always be problems when trying to devise a formula to care for and resolve some of our most basic human issues, those of parenting, support (for food, education, etc.), health insurance and shelter. But a court strictly devoted to family law matters inherently has an advantage over courts that manage family disputes one week, murder trials another week and car wreck cases the next week. And while the court is no longer a “pilot project”, it will always be a “project” as is our entire judicial system. I was lucky enough to be a part of it when it started and fortunate enough to still practice in it as an advocate. I encourage anyone who has an opportunity to improve our system to volunteer to do so. Even the Fulton County Family Division still has a need for good lawyers. The Family Law Information Center (F.L.I.C.) which was another part of the project can always use lawyers to donate time to counsel parties who cannot afford counsel.

I am excited that the court now seems more “permanent”, but we should always encourage improvement in our system and cooperation between bench and bar. The Fulton County Family Division is one good example of what such joint efforts can achieve.