The Family Law System Needs To Evolve

July 8, 2014Articles The Legal Intelligencer
Reprinted with permission from the July 8 issue of The Legal Intelligencer. (c) 2014 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

At this time next year, Pennsylvania will mark its 35th year of no-fault divorce and the adoption of a statutory scheme to divide property and award alimony on the basis of securing to all citizens what the General Assembly then described as "economic justice." It was a lofty goal with a checkered past, for while Pennsylvania was among the first jurisdictions to accept that marriage could be dissolved by law (circa 1785), it was among the last to adopt no-fault divorce and equitable distribution.

For most of this province's 325-year history, divorce followed the pattern of most civil and criminal laws. To secure a divorce or legal separation, the "innocent and injured" spouse had to prove nefarious conduct on the part of a perpetrator spouse. Then there were two remedies. A "bed and board" divorce meant essentially no divorce but lifetime alimony. A vinculo matrimonii divorce formally ended the marriage and left the couple to partition jointly held property into equal shares.

When the no-fault statute was enacted, life seemed simple. People getting divorced still hated each other. But their property was simple: a house, a pension, a few bank accounts. Their income was regular. The mother would have custody and the father would have weekends. 1980 was the beginning of the new prosperity of the Reagan era, where America was a bright shining light on a hill and all boats were rising.

Not by a single stroke, but by 2008 the landscape had changed. And notwithstanding the recovery of the stock market since mid-2009, the rest of the world is adjusting to a new reality where job security and economic opportunity are viewed much more narrowly. Jobs are scarce even at the low end, and increasingly vulnerable the higher up the compensation ladder one climbs. In the 1980s, one could tell a client to pay a little more to conclude a divorce and put energy into building a better world.

Today, clients respond to these "tomorrow will be better" bromides with the retort that they would be happy to keep things as they are even if it means living in a home that has negative equity with a spouse they long ago professed to dislike.

Thirty-five years ago, legal advice came from lawyers. Financial advice came from stockbrokers and accountants. Today, it's all out there on the Internet so that folks feeling squeezed by tenuous financial times think that they can do it all themselves for little or no cost. And perhaps they could, if they could read their paystubs or if they knew how a stock option really worked. If you think this applies only to the working poor or middle class, you are mistaken. Many wealthy individuals would be hard-pressed to map out their assets and liabilities without their accountants and estate planners in the room. In the 1980s, a 60-year-old might have worked two or three jobs during his career. Today, the typical 30-year-old college graduate will already have had three employers. Ask him or her what pension rights accrued during those engagements, and the response is often a blank stare.

Thirty-five years ago, people worked from nine to five from Monday to Friday and had two weeks off in the summer. Today, the world is connected and on call around the clock. Leisure time is steadily declining and often is interrupted by work. Ask a client to produce historic tax, bank or brokerage records and they are likely to tell you that they discarded them or only receive updates online. They profess to have no time to search for these documents because their work or their children's activities consume every waking and some sleeping hours. They will inform their counsel that they have three retirement plans, nine bank accounts, 12 credit cards and four kinds of awards points, and then profess to wonder why this can't all be divided up in a few days. Home mortgages were once used to finance residences. Today, they finance cars, boats, credit-card binges and six-week stints in rehab facilities. Ask how those debts should be allocated if only one spouse is keeping the house that secures the mortgages and the answer is, again, a blank stare.

Perhaps most frustrating is the fact that, under Pennsylvania law, a spouse has the privilege to pretty much ignore a divorce for two years with impunity. So even if I persuade a client to invest the time to pull together all the financial data and make a meaningful or even generous proposal, the other spouse has a statutory right to just say, "No, we'll talk in two years." Of course, in two years all the numbers will be changed and both attorneys and clients will have to recreate all of the same documents and trace all of the historic transactions to make certain that neither spouse palmed any money during the two-year wait. Then we will embark down a litigation road that is fairly well guaranteed to consume another year of actual litigation. If one party appeals, add 12 to 18 months for disposition of that. So, a person leaves a spouse and effectively marries his or her lawyer for three to four years of economic jousting.

Not surprisingly, droves of people are opting out and not in healthy ways. They are not arbitrating. They are dumping legal representation and going it alone, armed with a few computer printouts of what they believe is relevant and many pages of nonspecific legal advice culled from the Internet. They are stepping into courtrooms without any knowledge of statutes or court rules or concepts of how evidence is introduced of record and sheepishly asking judges and masters to decide. Even when judicial officers are disposed to cast aside their judicial roles to help resolve matters, they often find that these pro se litigants are not armed with the information needed to perform a judicial function effectively. Then there are pockets of judicially sponsored chaos, such as child custody, where the rule is that a parent can file to change custody any time the parent conjures that change would be in the best interest of the child. It is not unheard of for a pro se litigant to receive an adverse ruling from the court only to immediately file a new modification petition in the hope to fare better before a different judge or master.

As year 35 approaches, the system is showing signs of self-destruction. Courts are packed with more and more pro se litigants for whom legal precedent and judicial relevance are distant concepts. Lawyers who are being paid to prepare and present cases in conformity with the rules governing litigation are often left waiting in hallways while judges trained to actually conduct trials are consumed with helping unprepared litigants resolve their matters. The client who has paid several thousand dollars to a prepared lawyer to attend court only to find that his case was not reached is among the first to tell the lawyer that next time he will go in alone, as he cannot afford to pay for unproductive lawyer time.

This system will continue to erode at a heavy price to justice and a staggering price to the taxpayer unless we resort to a system where cases are administered by the courts with strict deadlines and defined end results. The concept that judicial cases just bounce around in the system for years at a time while plaintiffs and defendants prepare for their long-awaited day of judgment serves neither the litigants nor the judiciary. And, candidly, that system rarely serves the lawyers well either, despite what the public may want to think.

We started with a system that was designed around a trial devoted to a single purpose: deciding marital misconduct. For that, an adversary trial was a useful enterprise. We pretty much abandoned marital misconduct as the linchpin of the divorce process in 1980. We now need to recognize that the system devised 200 years ago is not serving its new intended purpose today.

We need to build a system to cooperatively discover the facts and divide the income, assets and debt in an efficient way that affords unhappy couples a means to conclude their marriage, secure their property and move on. To accomplish this, the role of judges and masters needs to evolve from presiding over conflict to managing the dissolution of the marriage, in much the same way that bankruptcy trustees preside over the reorganization of a failing business. Cases need management from the beginning with interim custody, support and discovery orders that telegraph to parties and counsel that the court, not the litigant, is exercising control. Certainly there is a place for advocacy, but testimony should be confined to subjects where the court perceives the dispute to be meaningful.

By definition, dissolution of marriage is a failing business, but our bench and bar need to realize that we need to systematize the process or risk drowning in a sea of complex assets and often needless conflict. 

Reprinted with permission from the July 8 issue of The Legal Intelligencer. (c) 2014 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.