Family Law in the 21st century: There's a lot to unpack, and the situations are getting more complicated. We've come a long way from the antiquated English concepts of lineage, blood descendants, and the divine right of kings.
Okay, fine—I don't have a king's divine right, and democracy has taken over. But if I were King of Family Law, I'd decree a few changes to bring us into the 21st century. In fact, I'd like to introduce a series of ideas, concepts, practicalities, and projects that you can do to improve family law, whether you're a family lawyer, an individual, or anyone connected to the world of family law.
Part 1: A New Approach to Divorce: Prevention through Reorganization
Did you know that bankruptcy has changed over the years? Now, I'm not a bankruptcy lawyer. But how I understand it, the only thing you could do when your company was facing bankruptcy in the past was to liquidate—get rid of your company. In the everyday individual's situation, you had to liquidate all your assets or as many assets as you could possibly get rid of to pay whatever debts you had.
Congress recognized that there were benefits and often greater value to establishing a way for companies, such as Continental Airlines, to remain in business instead of only being worth the value of its sold assets. Thus, Chapter 11 of the United States Bankruptcy Code was established, which allowed a business to reorganize its financial affairs. Later, Chapter 13 introduced a reorganization plan for individuals. In other words, you didn't have to liquidate. You could just reorganize, start over, change direction and, often, come out stronger in the end.
As a family lawyer working on divorce prevention for the last 13 years, I've often pondered why we can't have reorganization in family law. People could start over or redirect their marriage. In Texas, we do have a statute for counseling. I call it a divorce discernment statute. That is, you go to a counselor to help you figure out whether you should get divorced.
But as of right now, there's virtually no preventative program for divorce in the family law world. You've essentially got two choices if you're not sure what to do about the dissolution of your marriage: just get divorced or begin the process and then dismiss your case. Why not offer another solution via laws, similar to bankruptcy, that allow a couple to reorganize, start over, and redirect?
Part 2: Reorganizing through Marriage and Relationship Education
Now that I've introduced the idea of marriage reorganization, let's talk about how people can reorganize. What if marriage counseling doesn't work or you can't find the right marriage counselor?
As King of Family Law, I believe the answer lies in marriage and relationship education. More specifically, reorganization can happen through something called a marriage restoration intensive. The general rule is that if both spouses want to make their marriage work, they'll do marriage restoration intensives with a therapist or similar professional qualified to help. Intensives are a minimum of two days, and Houston has resources like the Smalley Institute to help, Austin has others.
Part 3: The Alternative of Collaborative Divorce
There are alternatives to litigation (i.e., fighting about a divorce in court). One such alternative is collaborative divorce.
Let's say you want to bypass reorganization, as it were, and get on with it. You're basically liquidating the marriage, just like the old laws. And you're dividing up your assets to pay off whatever debts you can. Now, you're figuring out how much time each person should have with the children—the parenting plan—and moving on.
After all that, it's time to think about where you're going to go to resolve your case. Most people think they go to a lawyer and the other spouse goes to a lawyer, and you just leave it at that. But if you haven't already hashed out the details of your agreement, things don't quite work out that way. You don't have a plan.
So, the third thing I would do as King of Family Law is raise awareness and encourage collaborative divorce whenever practical and possible. There's a lot of information on collaborative divorce on the Internet, but, essentially, your lawyers will agree not to take your case to court. Instead, you'll negotiate and come up with a solution that makes sense to everyone.
Part 4: Healthy Co-Parenting
Many times, the main goal of dispute resolution (besides keeping a case out of court) is to preserve the relationship between each parent and the children and find a peaceful resolution. The question becomes then: is a peaceful resolution only reserved for those cases that don't go to court?
Theoretically, every case goes to court eventually because it has to get filed, and you have to go to court to get your divorce finalized, even if it's just for a couple of minutes. You'll stand up in front of a judge and say some lines, and then your divorce is granted. Most courts require some kind of proof for the judge to decide what is in the best interest of your child. And all of it goes on public record.
The problem with these cases comes up when there are minor children involved, who may deal with the lingering effects of court. What if it were possible to have cases in court without having the nasty custody portions or the detrimental effects on children?
Well, the answer is that it is possible, and it's been proven with evidence-based programs.
There are two main issues when it comes to custody disputes:
A high-conflict situation. Some people know how to put aside their differences and focus on the kids, as opposed to those who can't. And when no one can come to an agreement, the situation is high conflict. Sometimes, parental alienation comes into play. Parental alienation occurs when one parent tries to turn the kids against the other parent.
High-conflict personalities. My experience is that one party in a custody dispute typically has this type of personality. One person in this set of parents is more cooperative, and the other is… well, less cooperative. This often results in taking almost everything to court and letting a judge or jury decide your fate.
But, what if you could peaceably resolve these situations or at least manage the conflict without an ugly court case? Studies have shown that traditional therapy doesn't help these situations, especially where parental alienation is involved, which is why a legal solution combined with family therapy might be the best solution. You might still have some points of conflict, but you can drastically reduce the level of animosity in your relationship by accepting your differences and working through a cooperative program.
There are some options already available for co-parenting among high-conflict parents. A judge can order the program, or you might pursue it for yourself. A therapist and lawyer will work with you to help identify the high-conflict personalities in your relationship and help you learn how to negotiate. These programs will help you outline potential issues with raising your child and determine how you'll handle challenges with the other parent's approval.
Many programs, such as the High Conflict Parenting Classes Programoffered by the Child and Family Evaluation Service in Massachusetts, give parents a passing or failing grade to encourage participation. As King of Family Law, I would bring a cooperative program to Texas and explore more ways to handle high-conflict cases “in-n-out” of court, perhaps through alternatives like conference mediation. With the combination of informed judges, lawyers, and therapists, you will have a better chance of managing your conflict.
Currently, another good option in Texas to manage ongoing parental conflict is to have the two parents and children assessed to determine the source of parental conflict. Then the assessment will provide a treatment plan for the parents and children. This assessment and the treatment plan can be provided by either the nonprofit group Children 4 Tomorrow in Houston or a few other therapists in Houston, Austin, and other Texas cities.
Part 5: The Alternative of Conference Mediation
Another concept I would encourage people to explore is the divorce alternative called conference mediation. This type of mediation is different from caucus mediation, which is widely used in Texas. Caucus mediation is used to resolve disputes in already filed cases. For example, caucus mediation can be required before a temporary orders hearing and is almost always required before the divorce is finalized. Caucus mediation is normally used in Texas, and it's done almost exclusively by lawyers.
Conference mediation, on the other hand, focuses on the parties getting divorced and their children. The two spouses will work with a mediator, sometimes co-mediators, without lawyers present to resolve their case. The mediator won't offer legal advice, so I always recommend having a co-mediator in these situations and seeing your lawyers between sessions. But overall, almost all control and power is vested in the couple during mediation. This can produce some great results.
Part 6: Other Divorce Alternatives
My final decree as King of Family Law would be to make sure the public knows there are still other alternatives for divorce such as binding arbitration. I've already created a system for this and call it “divorce in a box.” In my system, an arbitrator—someone separate from the spouses' lawyers—takes control of the divorce from the very beginning. This means that from the start, the couple negotiates everything with their lawyers.
An arbitrator serves as a backup when you can't reach agreements through your lawyers or mediation. For example, if you need to agree on a temporary order and you can't find common ground with your spouse, the binding arbitrator will make the decision and help keep your case amiable. Arbitration is another great way to focus on rebuilding and reorganizing, even if your future doesn't involve your current marriage. Having an arbitrator also keeps the divorce contained, “in a box,” so nothing gets out of hand and all cards are on the table.
The arbitrator can set rules on maximum attorney fees, the extent of discovery, how long you can negotiate any one issue – in short, it is “collaborative divorce” with arbitration (please note that Texas does not allow arbitration in a collaborative divorce, although the author is familiar with one or two states that do). You CAN, however, use the Texas Arbitration Statute to accomplish the aforementioned rules.
Bringing Family Law into the 21st Century
Reorganize, start over, and change direction: If I were King of Family Law, these would be my priorities. I've seen far too many clients' finances and well-being be taxed by the stressors of litigated divorce. It's time to focus on innovative approaches to family law and explore all the options. Even if a marriage is irredeemable, there are plenty of alternative ways to dissolve it constructively.