Family Lawyer Magazine sought suggestions from divorce lawyers and judges on reforming the divorce process in courts. Here’s what they had to say.
Reforming the Divorce Process
The main problem in many divorce proceedings is a delay in moving the case forward and towards a conclusion. Divorce cases are often drawn out over a long period of time, during which the lives of the parties are placed on hold. The solution to this problem would be to “fast-track” divorce cases with the help of judges who actively enforce this approach. A case is fast-tracked when a set schedule is put in place immediately after the case is filed, setting time limits for the various phases of the case, including the final trial. In order for cases to be successfully expedited, family law judges would have to strictly enforce the time limits, and urge divorce lawyers to move things along.
Jay Frank is a senior matrimonial attorney and AAML member who represents clients on a local, national, and international basis. Elected annually as an Illinois “Super Lawyer” since 2005, he is a lecturer, writer, and co-founder of Legal Netlink Alliance. www.agdglaw.com
Ken Nathens, Ontario:
Two recommendations for making the family law court system more effective and cost-efficient:
1. Case Management: One judge should be assigned from a case’s commencement to the point of trial, removing the need to repeatedly explain the situation to new judges.
2. Mandatory Mediation: The parties should be required to mediate for no fewer than two sessions to determine if there is a chance of resolution or partial resolution before the first court appearance. Encouraging settlement prior to litigation can potentially reduce costs.
Ken Nathens is a founding partner of Nathens, Siegel LLP in Toronto, ON. Ken has published and lectured on various family law matters, including mediation. www.nathenssiegel.com
Ronald V. Thomas, Arizona:
The current divorce process provides family law judges with too much power for a single person. Litigants in divorce and custody cases would benefit from the opportunity to request a trial by jury rather than by a single judge. It would also be better for litigants to have several of their peers deciding their very important legal matters of family and money, rather than a judge who may be jaded and exhausted from his or her years on the Bench. Judges tend to adopt rules of thumb that replace the fresh consideration of various family law cases and scenarios. Although the cost of litigation would increase if the divorcing parties were permitted a jury trial, the trade-off would be well worth it.
Ronald V. Thomas is a family law attorney and a former Judge Pro Tempore of the Maricopa County Superior Court in AZ. www.thomaslawoffice.net
Rackham Karlsson, Massachusetts:
From the perspective of a former family law litigator who now focuses on mediation and collaborative divorce, more should be done to reduce the frequency of contentious divorce litigation. Public education and guidance toward Alternative Dispute Resolution (ADR) – particularly mediation – by the courts themselves would be an obvious first step that many states have yet to take. ADR doesn’t have to be made mandatory, but many divorcing couples aren’t even aware that alternatives to litigation exist. The courts are in a unique position as gatekeepers to educate divorcing couples about the available alternatives.
Rackham Karlsson is a family law mediator and collaborative attorney based in Cambridge, MA. www.zephyrlaw.com
Jack L. Moser, Ohio:
Ohio’s current child support calculations are outdated and unfair. Our courts presently approach parenting time on the basis of a 50/50 division. However, Ohio’s child support mechanism – which was last modified more than 15 years ago – allocates on a 75/25 split. Thus, a paying parent’s real costs have increased by 100% (from 25 to 50). The parent may seek a deviation in child support, but a judge has the power to deny it. An automatic 50% reduction in guideline child support under current calculations would remedy the problem. Then, if either party dislikes the automatic deviated amount, or have agreed to some other amount, they can seek a judicial change.
Jack L. Moser, Jr. is an attorney practicing throughout Ohio. www.jmoserlaw.com
William L. Geary, Ohio:
The divorce process should be “re-formatted” so that children’s issues (such as custody, parenting times, and schooling decisions) are addressed and concluded as soon as possible – not just with temporary orders, but with final orders regarding the children. Oftentimes, serious family law situations involving the children are not addressed properly until the date of the final trial or the signing of a settlement – either of which occur too long after the issues were originally brought to the attention of and placed within the jurisdiction and power of the court. In the interim, the children are helpless victims of circumstance without a voice in the matter or any control over the outcome of the case. Too often, children of divorce are used as pawns in the battle over financial issues, while the whole divorce proceeding is prolonged because of the non-resolution of the child-related issues.
William L. Geary is a family attorney with 35 years’ experience who focuses his practice on litigation in Columbus, OH. www.columbusfamilylawyer.com
James A. Boyko, Florida:
Judges should identify positive and negative parenting practices for both sides in a divorce case. More often than not, judicial rulings fail to weigh the statutory parenting factors as to both parents. Sometimes, the “winner” feels that what may be highly inappropriate parenting behaviors have been validated by the “win” in court – thereby placing the entire family on a trajectory of visitation violations, alienation, open hostility, and so forth after they have left the courtroom. The legacy of errant judges in such cases are children who have poor self images, emotional disorders that manifest in criminal behaviors or substance abuse, and, in some cases, children who don’t understand why they feel so badly about themselves. In order to stop the emotional trauma inflicted on children by one-sided views in custody and visitation rulings, family law judges should begin telling the “winning” side what they are doing wrong and where they can improve as parents.
Based in in Port Richey, FL, James A. Boyko is a semi-retired attorney after 26 years of practice. www.grieblelaw.com
Please send us your suggestions on divorce reform for use in future articles. Send us 50-100 words stating the problem you’ve identified with your solution; email your submission to firstname.lastname@example.org.
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