Reform and its Opposite

April 2, 2010

Nancy Ver Steegh (William Mitchell) has posted “Family Court Reform and ADR: Shifting Values and Expectations Transform the Divorce Process” (Family Law Quarterly, Vol. 42, No. 3) on SSRN. Here is the abstract:

During the last fifty years, the process of divorce has undergone a remarkable transformation. This article examines the sweeping breadth of the change and the underlying societal forces behind it. As the family court landscape has changed, a ripple effect has occurred necessitating reconsideration of the roles that lawyers and judges play in the divorce process. Although lack of judicial resources has fueled some of the change, deep funding cuts foreshadow a less positive transformation, one potentially resulting in a two-tiered system of justice for families.

I am somewhat concerned that Van Steergh is correct. As courts require litigants to pay increasing amounts for guardians ad litem, court mediation and settlement services, and remove the availability of publicly subsidized custody evaluations, I am required to inform my clients with lower incomes that they may not be able to fight for the best interests of their children or for a fair and equitable disposition of the marital estate. This often leads them to wonder what value I provide to them. Although the courts have made it much easier for these litigants to represent themselves in family court, having witnessed a great number of such contested pro se cases, I question the value such a process provides to a family undergoing a difficult separation.

Often, the hearings look a lot like an episode of Judge Judy, except that the judges are better behaved. Trials are streamlined into an hour of two of storytelling-style testimony, and often, the judges do not have basic pieces of evidence needed to make a decision. It is slightly better for the judge if one party has an attorney who is able to present appropriate information. However, there is no doubt that the interests of at least part of that family are not being addressed during one of these summary trials.

A family law attorney’s primary role in the divorce process is to represent the interests of our clients. I do not believe that any family is well served by a system where money buys the amount of justice received.