This past week I heard a report from the Harris County District Clerk, Loren Jackson, that 77,000 new family law cases were filed in Harris County in 2009, to be handled by 9 Family District Courts and a 10th court dedicated to family violence cases. This compared with only 46,000 cases filed in the 39 civil district courts. To say that the family district courts are overwhelmed with the volume is to understate the problem. The result of this huge volume of cases and the limited number of courts available to hear them is that couples who need to have their cases heard often wait months and sometimes years to reach a resolution to their family matter.
What many couples may not be aware of is that they do not have to rely on the litigation route to get their divorce or other family matter resolved. If they are willing to put their anger and fear aside, there are other routes to resolution available to them. One of them is early intervention mediation. Mediators are neutrals, trained to assist people in reaching agreements. If resolution is reached with a mediator, a family attorney can be hired to do all of the paperwork necessary to finalize their case legally.
In the event that the parties are unable to settle in mediation, they can then hired trained collaborative lawyers to assist them in reaching a resolution. Collaborative law is conducted out-of-court, in the privacy of the lawyer's offices. Collaborative lawyers have special training in teaching couples to reach agreements on their own, without having to resort to the courts. If needed, communication facilitators and financial professionals can be part of a collaborative team to guide the couple through the process. National statistics on collaborative law show that between 90-95% of all collaborative law cases end in settlement.
Given the backlogs at the courthouse, litigation should be seen as a last resort in most cases. When looking for a lawyer, you should ask if the lawyer you are seeing has been trained in collaborative law. They can then tell you if that approach is appropriate in your case. There will always be cases that need the assistance of a judge or jury to get resolved. Those should be the ones at the courthouse. Not the ones that could be resolved by the parties with the help and guidance of trained mediators or collaborative lawyers.
Friday, June 4, 2010
What About the Children?
At a recent meeting of a family law organization, a speaker reported on a recent case that was heard by the Beaumont Court of Appeals. It involved a lesbian couple and their fight over visitation with six year old twins. The biological mother won the legal fight and the non-biological mother was denied contact with the children, who she had co-parented for the six years that the couple were together. Later I learned that the story was even more complicated because the non-biological mother had also had a child, and the twins and her child had been living as siblings before the couple split up. The Court of Appeals decision was based on legal technicalities, and from a legal standpoint might be correct. But what about the children? What will be the effect on the twins of suddenly being separated from a person who acted as their parent all of their lives? And what will be the psychological effect on all three children of suddently losing the love and companionship of lifelong siblings? One can only speculate, but I would assume it would be devastating.
Lesbian and gay couples in Texas contemplating sharing parenting roles must understand that Texas law, and the law in most states, probably will not be available to assist them if their relationships break down. I don't know the statistics, but I would assume that homosexual couples are no different than heterosexual couples whose marriages have a 50% chance of failing. In my experience, collaborative law offers an excellent vehicle for Lesbian and gay couples to reach contractual agreements regarding their coparenting relationships before they commit to having children and, if they have children and their relationship is ending, reaching coparenting agreements after separation. Collaborative family lawyers are trained to assist couples in focusing on the children, and often enlist the assistance of child specialists who can assist them in devising arrangements that work best for them and the children.
Lesbian and gay couples in Texas contemplating sharing parenting roles must understand that Texas law, and the law in most states, probably will not be available to assist them if their relationships break down. I don't know the statistics, but I would assume that homosexual couples are no different than heterosexual couples whose marriages have a 50% chance of failing. In my experience, collaborative law offers an excellent vehicle for Lesbian and gay couples to reach contractual agreements regarding their coparenting relationships before they commit to having children and, if they have children and their relationship is ending, reaching coparenting agreements after separation. Collaborative family lawyers are trained to assist couples in focusing on the children, and often enlist the assistance of child specialists who can assist them in devising arrangements that work best for them and the children.
Tuesday, May 11, 2010
The Cheapest Lawyer May Cost You the Most
In the current shaky economy, many people in need of an attorney go shopping for the least expensive attorney they can find. This may be a false economy, given the potential for finding an attorney with little experience and minimal dedication to the client’s welfare. This can be especially true in the area of family law. Poorly drafted divorce decrees and transfer documents can leave clients with child support orders that are unenforceable, clouds on the title of their real estate, unrealizeable interests in retirement plans, and complicated and expensive post-divorce litigation that could have been avoided if a competent attorney had been hired in the first place.
Not that every inexpensive attorney is incompetent. There are many boutique family law firms that have younger attorneys who bill at a lower rate but have the advantage of supervision by the more experienced senior attorneys. There are also less expensive approaches to divorce that are offered by more expensive counsel. When shopping for representation, the client should look for an attorney who explains all possible processes for resolution of their divorce. Does the attorney ask if the couple are capable of sitting down together and coming to a "kitchen table" resolution with the attorney available to answer any questions that might come up? Are they informed that there are mediators who they can work with to resolve their differences with the attorney being utilized to do the required paperwork? Has the attorney been trained in collaborative law, a non-adversarial approach to divorce resolution which offers the added advantage of teaching the couple a system for resolving their differences after divorce? If the only approach mentioned by the attorney is litigation, the client should question why that is the only process being suggested, as in many cases, a litigated solution can be the most expensive possible approach, even when the attorney hired was the "least expensive" to be found.
Not that every inexpensive attorney is incompetent. There are many boutique family law firms that have younger attorneys who bill at a lower rate but have the advantage of supervision by the more experienced senior attorneys. There are also less expensive approaches to divorce that are offered by more expensive counsel. When shopping for representation, the client should look for an attorney who explains all possible processes for resolution of their divorce. Does the attorney ask if the couple are capable of sitting down together and coming to a "kitchen table" resolution with the attorney available to answer any questions that might come up? Are they informed that there are mediators who they can work with to resolve their differences with the attorney being utilized to do the required paperwork? Has the attorney been trained in collaborative law, a non-adversarial approach to divorce resolution which offers the added advantage of teaching the couple a system for resolving their differences after divorce? If the only approach mentioned by the attorney is litigation, the client should question why that is the only process being suggested, as in many cases, a litigated solution can be the most expensive possible approach, even when the attorney hired was the "least expensive" to be found.
Thursday, April 29, 2010
The Power of Apology
Dick Clark recently posted an interesting comment on the power of apology
http://dick-price.blogspot.com/2008/10/power-of-apology.html. In it he says, "As you may know, divorces are often very emotional experiences. It is also true that while generally both parties are at fault for the breakup of the marriage, often only one of the parties recognizes his or her underlying mistakes that led to the breakup. In many ways, it would probably be beneficial to the emotional health of the parties, and the bottom line financially, if one or both of the parties could and would apologize for at least some of the wrongs inflicted on the other party during the marriage."
This reminded me of a fascinating lecture I heard given by Lee Taft, a former certified trial specialist and graduate of the Harvard Divinity School, at the 2010 Collaborative Law Course sponsored by the State Bar of Texas and the Collaborative Law Institute of Texas. In his lecture, Taft differentiated between "partial" and "full" apologies. In a "partial" apology, he writes, the offending party expresses sympathy for the wronged party, but does not accept responsibility for the event that caused the injury or wrong. He goes on to say that a "full" apology includes the expression of sympathy contained in the partial apology but, importantly, adds an acknowledgment of responsibility. He cites Richard Nixon's resignation statement as what he calls a "botched" apology -- i.e., one that not only fails to communicate the offender's remorse but creates further harm that can strain relationships and fuel vengence.
Accepting full responsibility may not be enough if the person apologizing is hoping for reconciliation. For that there must be forgiveness by the wounded party, which Taft suggests is only possible when there is what Taft calls "authentically performed repentence".
When collaborative professionals represent clients who want to repair their marriages or, at least, pave the way for a cooperative relationship after divorce, they need to explore with them whether they are willing to take responsibility for the problems in the marriage and whether they are willing to demonstrate that willingness in making changes that recognize what needed repair in the relationship. If there is any divorce process that offers an opportunity for a healing apology, it is collaborative law, which brings couples together in a dialogue that would be discouraged in the litigation model.
http://dick-price.blogspot.com/2008/10/power-of-apology.html. In it he says, "As you may know, divorces are often very emotional experiences. It is also true that while generally both parties are at fault for the breakup of the marriage, often only one of the parties recognizes his or her underlying mistakes that led to the breakup. In many ways, it would probably be beneficial to the emotional health of the parties, and the bottom line financially, if one or both of the parties could and would apologize for at least some of the wrongs inflicted on the other party during the marriage."
This reminded me of a fascinating lecture I heard given by Lee Taft, a former certified trial specialist and graduate of the Harvard Divinity School, at the 2010 Collaborative Law Course sponsored by the State Bar of Texas and the Collaborative Law Institute of Texas. In his lecture, Taft differentiated between "partial" and "full" apologies. In a "partial" apology, he writes, the offending party expresses sympathy for the wronged party, but does not accept responsibility for the event that caused the injury or wrong. He goes on to say that a "full" apology includes the expression of sympathy contained in the partial apology but, importantly, adds an acknowledgment of responsibility. He cites Richard Nixon's resignation statement as what he calls a "botched" apology -- i.e., one that not only fails to communicate the offender's remorse but creates further harm that can strain relationships and fuel vengence.
Accepting full responsibility may not be enough if the person apologizing is hoping for reconciliation. For that there must be forgiveness by the wounded party, which Taft suggests is only possible when there is what Taft calls "authentically performed repentence".
When collaborative professionals represent clients who want to repair their marriages or, at least, pave the way for a cooperative relationship after divorce, they need to explore with them whether they are willing to take responsibility for the problems in the marriage and whether they are willing to demonstrate that willingness in making changes that recognize what needed repair in the relationship. If there is any divorce process that offers an opportunity for a healing apology, it is collaborative law, which brings couples together in a dialogue that would be discouraged in the litigation model.
Wednesday, April 28, 2010
Judge Rules in Interstate Custody Dispute
Alexander Nirenstein of the Arizona Divorce & Family Law Blog reports on an Illinois judge's ruling that a man may take his 3-year-old daughter to Mass even though her mother is raising her Jewish. http://tinyurl.com/36xdxbf The article goes on to say: "Ilinois Judge Renee Goldfarb said this week that Joseph Reyes may take his daughter to "church services during his visitation time if he so chooses" and that he have visitation rights every Christmas and Easter. Likewise, the order stipulated that Rebecca Reyes always have their daughter on Rosh Hashana, Yom Kippur and Passover.
"Goldfarb refused to bar Reyes from taking his daughter to church as long as no evidence exists that it would harm the child. Although Rebecca Reyes said that contrary religious teachings could confuse the preschooler, Goldfarb avoided doctrinal questions, saying it was not the court's place "to focus on or attempt to interpret or judge official religious doctrines."
If the parties had persued a collaborative divorce, they could have enlisted the assistance of a child specialist to advise them on the best approach to handling the child's religious upbringing. Courts will always throw up their hands when asked to address conflicting interests regarding the exposure of children to religious influences. Collaborative law offers parents the opportunity to view these issues in a neutral and non-adversarial atmosphere, focusing on the best interest of the children of the marriage.
"Goldfarb refused to bar Reyes from taking his daughter to church as long as no evidence exists that it would harm the child. Although Rebecca Reyes said that contrary religious teachings could confuse the preschooler, Goldfarb avoided doctrinal questions, saying it was not the court's place "to focus on or attempt to interpret or judge official religious doctrines."
If the parties had persued a collaborative divorce, they could have enlisted the assistance of a child specialist to advise them on the best approach to handling the child's religious upbringing. Courts will always throw up their hands when asked to address conflicting interests regarding the exposure of children to religious influences. Collaborative law offers parents the opportunity to view these issues in a neutral and non-adversarial atmosphere, focusing on the best interest of the children of the marriage.
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