Tuesday, October 6, 2009

The 50% Solution?

So, in my initial post I bemoaned some of the ills and incivility in the modern divorce case. I did, however, promise to offer some solutions. Well, with all due deference to Sir Arthur Conan Doyle (or in keeping with my film theme-- Basil Rathbone), here are some proposals to try and cut back on half the angst and turmoil.

1. Enact "no fault divorce". Most people are shocked to learn that New York does not have a true no fault divorce law. There is no provision for "irreconcilable differences" here. In fact we are the ONLY state that does not have one. Every time proposed legislation is created, it goes nowhere. Studies have shown that the enactment of such a law will cut down on unnecessary litigation in this area since grounds for divorce must be proven or the court will deny the divorce. This forces people to continue to be married where one of the parties refuses to understand or accept that the marriage is over.

2. Courts must enforce the law and grant sanctions and counsel fees where a litigant or their attorney engages in "frivolous conduct". That is conduct which is solely intended to delay, harass or prejudice the other or which has no true basis in fact or under the law.

3. There should be stricter educational guidelines for the practice of law in this field. Many attorneys who are adopting divorce law as a field of practice are doing so for economic reasons, particularly if their own field is suffering. This creates a group of attorneys who are not suitably educated in this area of law. The result is poor decision-making, poor advice, the perpetuation of unreasonable expectations, and an ultimately dissatisfied divorcing litigant who feels they got a "bad deal" and/or ripped off. They do not understand what is going wrong, why is it costing so much and why isn't it ending. Judges get frustrated and experienced practitioners are hamstrung trying to deal with someone who has no clue about the law but will not settle the case because they don't know any better.

I lectured for the NY State Bar Association yesterday and was surprised not only at the amount of attorneys practicing over 5 years who were veering into matrimonial practice for the first time, but also at the lack of knowledge as to some very basic matters. That they were attending the seminar, was at least somewhat heartening.

4. Better education for divorcing parents and children. In Nassau County we have the PEACE Program which tries to explain how parents' behavior affects them and their children. There is also a "Model Custody Part" which tries to address custody issues at the very beginning of the case. The American Academy of Matrimonial Lawyers, of which I am a member, also has materials to try and educate parents and children who are going through a custody battle. The American Bar Association has information as well. Fathers and mothers both have rights to their children. Having more information at their disposal can have a great settling effect and can go far in diffusing the conflict.

Just a few suggestions and food for thought. More to come...