Experiences of Family Law Attorneys with Current Issues in Divorce Practice
Braver, Sanford L., Cookston, Jeffrey T., Cohen, Bruce R., Family Relations
Experiences of Family Law Attorneys With Current Issues in Divorce Practice*
A survey was administered at a state bar convention to 72 family law attorneys who reported on their experiences in representing a total of 3,860 clients. Results showed that lawyers believed that (a) most losers in relocation cases do not or would not ultimately move; (b) the Family Court Masters system seems to be helpful to families; (c) lawyers' actions often raise the emotional level of the dispute; and (d) the divorce and custody system is biased against fathers.
Key Words: attorneys, divorce, family, law, relocation.
There is a strong impetus in the United States to view family relationships as an entirely private matter, something the family members work out largely by themselves without outside intervention unless they seek it. On the other hand, many aspects of family relations are governed by legal restrictions, policies, and procedures.
Because the state is seen to have a valid interest in certain family matters, in many respects it restricts how family members may act toward one another. Such restrictions are especially obvious in the instance of family dissolution and divorce. Because divorce (like marriage) is a legal and familial event, it must be sanctioned by the law and the courts to be valid. For the most part, and based on the U.S. Constitution and interpretations thereof by courts, laws concerning families apply at the state level, as opposed to lower levels of jurisdiction, such as the county, or the higher federal level.
Nonetheless, the federal government has immense influence on state-level family policy because of enormous financial incentives. For example, the child support policy in each state is greatly affected by the opportunity of the state to receive Federal Child Support Enforcement funding, but only if it hones its laws to complement federal "guidelines." As a result, virtually all states have similar child support policies, such as the use of "presumptive guidelines." Moreover, laws concerning families are virtually always adjudicated and enforced at the county level via county superior courts. Therefore the practices and procedures are likely to be in effect countywide. Despite these qualifications, the major difference in law occurs at the statewide level, and there are substantial variations across states in their laws concerning the matters addressed by the survey administered in this study.
Thus, many state statutes, policies, and procedures constrain the actions of the two divorcing parties. States' constraints are maximal when there are contested matters that the parties have not been able to resolve themselves, and they submit these issues and themselves to the court to decide or adjudicate. However, it is surprising to many that the incidence of this happening actually is small. Braver and O'Connell (1998) report that only 5% of the more than 300 cases they examined required judicial rendering of decisions, whereas Maccoby and Mnookin (1992) reported a figure of 1.5% based on 1,100 cases.
It might appear that the law's constraint would not be substantial in the remaining cases, in which the two parties agree on all of the various matters they must settle when the decision is made to legally terminate their marriage. In the case of such full agreement between the parties on these matters, "private ordering" (Mnookin, 1985) dictates the settlement of their affairs, and they merely bring their paperwork to a judge who (generally with no questions asked) typically "rubber stamps" their decisions, making them legally binding. (In the case of these "agreed-upon" settlements, it may not be a judge, but a commissioner, hearing officer, or even a clerk who stamps their agreements with the seal of the court.) However, even in settled cases, the backdrop of the court and the formal setting has considerable influence on the family. What Erlanger, Chambliss, and Melli (1987) term the informal processes of bargaining and negotiation occur "in the shadow of the law" (Mnookin & Kornhauser, 1979. …