Can We Do Divorce Better?
By Randy Kessler
The “family law system,” as many refer to it, is evolving (think same-sex marriage) and is different in each state and even in each county. Good people across the country are continually trying to improve the system. I hope the energy of those who seek to improve the family law systems across our country continue their good work, helping ensure that families who undergo family law crises (divorces, paternity cases, custody disputes) get through these situations faster and better.
The system needs help. But the truth is, the system being used in many places is the same system being used for criminal cases, personal injury cases and the like. That is, many courts handle criminal matters one day, divorce and family law the next day, and other civil suits the next day. And the system (or that particular court) does not work as well for each type of dispute.
States or jurisdictions that have family courts understand this situation and strive to create systems or processes that work better for families and are separate from the systems that handle criminal matters and personal injury cases.
So what is the main difference between litigants in a civil or criminal case and litigants in a family law case?
The litigants in a family law case will likely still see each other again and still have some sort of relationship. For this reason, more patience, more alternative dispute resolution and more care are often required.
The parties to a family law case are already in trouble. The system should help alleviate or reduce that trouble, not increase it. But ultimately if two adults cannot resolve their differences (about money, children and possessions), a judge who knows very little about them will do his or her best to figure it out. And that’s a recipe for disaster.
No judge can fully learn all of the facts and make a perfect decision. Yet time and again we see people who prefer to let a judge decide their future rather than to keep negotiating with the other party.
So what do I suggest? Let’s support family law litigants and give them every chance to determine their own destiny. Let’s use more mediation, more late case evaluation, more therapy and anything that gives people a chance to resolve their own issues. Judges may be great, but they can never understand the entire background and dynamic of the families before them. And they have pressure to make a decision and move on to the next case.
Yes, there are times when there is no choice. There are times when we as family law attorneys do battle and put on the very best case we can and implore the court to grant the relief we think is warranted. But by the time the parties realize that they could have done it better themselves, it is often too late.
So again, my suggestion? Stop, consider, negotiate, mediate, relate, navigate and compromise. Be sure that if you must go to trial in a family law matter, you have done all you can to resolve it privately and amicably.
Even if you go to trial, consider what you say in court very carefully. The court case will end, but the memories of what you say in court will not. Your words will resound forever, especially the harsh words.
Is that how you want to be remembered? Is that going to make it easier to navigate and resolve the next dispute you have with that opposing party?
End it as peacefully and politely as you can, and you will save yourself much aggravation (and cost) when the next stalemate arises.
Randy Kessler is the founding partner of the family law firm Kessler & Solomiany (www.ksfamilylaw.com) in downtown Atlanta, a former chairman of the American Bar Association’s Family Law Section, and the author of “Divorce: Protect Yourself, Your Kids and Your Future.”
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