Rethinking Family Law

In the course of my legal career, I've practiced most kinds of law, both transactional work and litigation, and in most areas of law, landlord-tenant, business contract disputes, personal injury, construction defects, governmental liability, foreclosures, and more. Just about the only area of law that I haven't done any significant amount of myself is criminal law. And, I have had a front row seat watching lawyers whom I've practiced with do that.

Of all the areas of law that I've encountered, the most stressful of all is probably family law, by which I mean divorce and post-divorce litigation.

The courts are not well designed to handle these kinds of cases. Courts are not really dispute resolution forums. They are forums in which people go to enforce their legal rights.

Historically, courts metted out justice in response to isolated events, maybe a crime, maybe an accident that hurt someone, maybe a breach of a contract. In each of these cases, the norm is that the incident that gives rise to the suit is long over by the time the court process begins. The burglary or murder has happened and the suspect has been arrested. The accident is complete and the injury is clear. The terms of the contract have not been met and the damages from the breach have already occurred.

Until the 1870s, there were no law schools. Until the 1930s, civil litigation was typically a form of "trial by surprise" with each side bringing their evidence to court on the day of trial, small claims court style, with no advanced disclosures of the evidence.

Courts have also historically been called upon primarily to resolve disputes amongst people who are strangers or at arms length with each other, not people in continuing relationships with each other. At common law, husbands and wives were not allowed to sue each other. Crimes that took place within families were typically ignored and sometimes were even subject to formal legal immunities. Husbands had a legal right to "reasonably discipline" wives and children and servants with physical force. Marital rape did not exist. Limitations on spouses testifying against each other made proving intrafamily crimes difficult even when prosecutions weren't, strictly speaking, barred. In the one area where courts did intervene in family matters, probate disputes, the legal rules were narrow, definite, and primarily involved the question of whether a will was valid, rather than how an estate was administered.

Prior to the 20th century, courts generally didn't have any authority to grant divorces, and prior to the 1970s, divorces were had to obtain and were basically a form of tort law. A divorce was a remedy for some civil wrong committed by a husband or wife, some specific, proveable fault, just as money damages are a remedy for negligently driving a car.

No fault divorce, which is the overwhelming majority rule and pervades how divorce litigation is viewed even in those few states which are not yet pure no fault states, is everything that traditional court litigation is not.

The ending of the marriage itself is essentially automatic. Proving an entitlement to divorce at all has gone from being the center stage of divorce litigation, to a residual footnote. Divorce litigation is now primarily about child support payments, alimony, property divisions, parental responsibilities, and regulating a cauldron of breakup related emotions that can lead to violence or destructive behavior.

Until traditional litigation, it involves people who know each other intimately and have generally been in relationships for prolonged periods, and unlike traditional litigation, the court is intervening as the situation unfolds, rather than at a time when it is over. When minor children are involved, a divorce is not really over until all the children are adults, a process that can take decades to play out. Even when minor children are not involved, the transition period from the time when the parties separate to the time when a permanent divorce degree is entered is constantly in flux, as the former spouses seek new jobs, find new homes, and come to terms with new financial situations as separating typcally increases a family's expenses faster than new income arises, while at the same time imposing entirely new classes of expenses like legal fees on the family.

While they are called permanent orders, it simply isn't realistic for any court direction to endure. Flexible rules are too vague to resolve differences between people who are not prone to agree. But, rigid rules can't keep up with a constantly changing set of facts. People's incomes change. Children grow up and have different needs. People move to new homes in different places. Life's little surprises, that throw monkey wrenches in the usual schedules, maybe its a surprise student-teacher conference, or an minor illness, or a snow day, or a kid wetting his pants, or an out of state funeral, bring parents close to quasi-criminal violations of court orders. The very notion that a court can, a few months after a couple seperates, make rules that will endure until children are adults, and that deviations from those rules should be exceptions, rather than the norm, is itself fundamentally flawed.

Also, unlike traditional litigation, the court does not really address and resolve the entire situation. In a purely accidental car accident, or a breach of contract, the issues which the court addresses, determining the victim's entitlement to money damages, is pretty much all there is to address in the relationship between the two strangers who encountered each other and had things go badly. In contrast, in a divorce, hammering out parental responsibilities, dividing property, and determining the parties financial relationships with each other, doesn't even consider, let alone address, the typically primarily emotional issues that gave rise to the divorce in the first place, by design. This takes a great deal of the fire out of divorce litigation, making it barely cool enough for courts to deal with, although inevitably, those issues do work their way into the litigation typically through disputes over parental responsibilities and restraining orders, but the fact that those issues are out of the courts, doesn't mean that they don't exist. The court process virtually insured that disfunctional relationships end unresolved and unaddressed in any public setting. As a result, often, family law litigation has an unusually large share of litigants who simply want to hurt the other side, even if they gain nothing from doing so.

Yet another problem with family law is that the rules are so malleable that they provide very little guidance to parties trying to negotiate "in the shadow" of a litigated outcome. Alimony awards and allocations of parental responsibilities are virtually entirely committed to the discretion of the trial court. Child support formulas appear rigid, but in practice leave lots of wiggle room over issues like imputed income and extraordinary expenses. Property divisions are to be "equitable" rather than equal, again vesting a great deal of discretion into the trial court. This is fine in a world where divorces are very rare, but it doesn't serve a court system that is charged with "mass producing" divorces.

And, on top of everything else, half or more of divorcing parties don't have lawyers to guide them through the system. In disputes over property or money, this can be tolerable. People will hire lawyers if the amount at stake in a dispute justifies it, the theory argues. Criminal law provides defendants who can't afford an attorney with a right to an attorney, as do termination of parental rights proceedings. People who are seriously injured can usually obtain lawyers on a contingent basis, and people who are sued for causing an injury usually have an attorney provided for them by their insurance company. But, in a dissolution of marriage context, attorneys must be paid for by the hour out of pocket, the need for legal assistance to resolve parenting issues often bears little relationship to the ability of the parties to pay for attorneys, the people who can't afford attorneys are often the ones who most need assistance navigating the legal system, and resolving matters without any court involvement is not an option since a marriage cannot be ended without court intervention and the parties cannot make an absolutely binding agreement concerning their children when the divorce.

Colorado is actually at the forefront of restructuring its court system to address the anomolies of family law in a system that it isn't designed to handle. It has discovery rules tailored specifically to divorce cases. It has firm guidelines on the award of temporary maintenance in most cases. It does a fairly good job of providing day care for parties at court houses. It has shifted a signficiant share of responsibility in contested parental responsibility cases from a distant judge to whom evidence is presented, to an inquisitorial evaluator with specialized training who actively contacts parties and witnesses outside a courtroom setting. It has shifted from a paperwork dominated type of litigation to one in which an initial status conference in person, an in person hearing on temporary orders, and an in person permanent orders hearing, sometimes supplemented by additional in person status conferences, smooth over procedural difficulties for pro se parties and reduce the degree to which the proceedings are adversarial. It has set clear guidelines on the rules for modifying existing court orders. But, Colorado still have a long way to go towards rethinking how it handles divorce from a first principles, and most states have even further to go towards that end.

At the level of the court system as a whole, the stakes are high. Family law cases are now the predominant kind of civil litigation in state courts of general jurisdiction. And, in lower courts of limited jurisdiction, temporary restraining order cases and domestic violence criminal litigation take up a significant share of the court's resources and have evolved into the "county court divorce" for people who never even officially got married but face many of the same issues of divorcing married couples.

While law schools continue to focus their curricula on non-family civil litigation in general jurisdiction courts, appropriately for students who go on to practice in large law firms, this is becoming a smaller and smaller part of the docket in the nation's courts. Trials are rare. Scarce judicial resources encourage judges to push these kinds of cases to settle out of court, and even when cases are litigated to trial, the usual judicial practice is for a judge to do everything possible to ignore those cases until they actually go to trial, even though 90% of the litigation time in big cases goes towards pre-trial discovery and motion practice. This isn't being driven by increased personal injury or business filings, and crime has to a great extent plateaued. But, increased family law litigation squeezes everything else out of the docket.

Maybe, if we can design a system of adjudicating divorces that is better suited to the problem than the existing court system, representing parties who participate in it wouldn't be such a stressful affair.