Divorce lawyers talk a lot about alternative divorce resolution because of the traumatic impact judicially determined divorces have on families who are already traumatized emotionally, mentally and financially by the divorce process. The current system does not do enough to utilize available resources to make the process less confrontational and “user friendly”. The most common complaints I hear about the divorce process is its expense, the lack of availability of courts, and lack of consistency of results. This frustration is exacerbated by the fact that clients usually have a “friend” who got what they wanted and don’t understand why their results weren’t similar. This gives clients the impression that courts aren’t fair, and justice is fleeting. This does not even include the horrible toll custody litigation has on the family. I have some common-sense alternatives which may make domestic controversies less traumatic and less expensive.
- Divorce panels. It is obvious to any family lawyer that the judicial system was not designed to handle divorce cases. As a substitute for battle, the court system often appears to litigants as cold and unfair. Until we can mandate a substitute for courts applying a medieval concept to the breakup of a family, litigants who can’t agree on their future will be forced to apply a “win-lose” resolution to the breakup. I would recommend that panels of lawyers, mental health and behavioral professionals, and guardians ad litem decide the ground rules for failed families. Perhaps family lawyers should be required to serve on these panels who would decide custody, visitation, child support and protective orders. After all, court “policies” which award custody and support may not be in the best interest of the family. If a lawyer, mental health professional and child advocates could decide these issues, parties would be reasonably assured that a fair and impartial result could be found. These panels would serve pro bono and therefor greatly reduce the cost of the process. There would be no need to involve courts unless there was evidence of bias or manifest injustice.
- Loser pays. The American rule, which requires parties to pay their own attorney’s fees, can have a detrimental effect on quick resolutions of issues and oftentimes forces the “poorer” spouse/litigant to give up because they don’t have the resources to battle like their opponent. The party with resources oftentimes refuses to settle or compromise because they know they can outspend their opponent. The British rule, which requires the party who loses to pay all of the attorney’s fees, could even the playing field and force the party with resources to have to risk having to pay the winner’s attorney’s fees which is a powerfully persuasive reason to compromise. If the loser’s attorneys are responsible for paying the winner’s attorney’s fees, this would be a more powerful persuasion to compromise. If the jurisdiction has administered court preferences regarding custody, child support and other family matters, if a party challenges those preferences because they are “different”, they should pay the court costs and their opponents attorney’s fees if they lose.
- Clerk’s Courts. Unfortunately, a lot of court, judges’ and litigants’ time is wasted by cases which don’t really rise to the level of a controversy. Jurisdictions could institute clerk’s courts who deal with prepackaged divorces, uncontested custody matters, and parties who have a settlement agreement in place. The judicial system could institute relatively lower fees for choosing this route and make the filing fees for cases requiring judicial determination more expensive. This would result in people choosing to appear before a clerk rather than a judge because of the cost of the latter. The economic pressure to choose a clerk would take a tremendous strain off of domestic court systems.
- Simplify, Simplify, Simplify. The more we can streamline the process by printing forms which are user friendly, the better. Especially if we make the forms simple enough for laypersons to use. Sometimes it appears that forms are unnecessarily complex only to require litigants to hire lawyers to fill them out. One of the most frustrating aspects of the court system is litigants can’t get help from court staff to fill out the usual forms. Perhaps more lawyers can provide pro bono services which are limited to filling out the forms. If the litigants choose to hire the lawyers to represent them in litigation, good for the lawyer. Most litigants just want help to fill out the forms and will take their chances in court. If we go to divorce panels as suggested above, they would have a better chance of having their concerns considered after filing out the forms.
- Small Claim Property Division. There will always be a need for judicial supervision of large and complex marital estates. However, equitable distribution is simply not justified in estates which are less than some reasonable threshold amounts, such as $100,000 dollars of marital assets, or even higher depending on demographics. The success of the creation of small claims courts for civil disputes warrants giving a similar threshold amount for property divisions. This could also be relegated to the divorce panels mentioned above.
As the numbers of divorces rise along with custody and property conflicts there has to be a more conscious and mindful approach to these specific types of disputes. Marital and family conflict should be decided with compassion and understanding with the input of mental and family health professionals, not just left to a judge who may or may not appreciate the consequences of their actions on a family in a combative courtroom setting.