Author: Tony Rogers

Raising family law system’s efficiency could make domestic disputes less traumatic and their resolution less expensive— besides streamlining the litigation.

Many divorce lawyers practice some form of alternative dispute resolution in addition to estate litigation because of the traumatic impact judicially determined divorces have on families who are already traumatized emotionally, mentally, and financially by the divorce process. The current system does not do enough to utilize available resources to make the process less confrontational and more user-friendly for divorcing couples. There is a dire need to improve the family law’s efficiency for improving resolution of cases involving custody, child support and divorce.

The most common complaints I hear about the divorce process are its expense, the lack of availability of courts, and lack of consistency of results. This frustration is exacerbated by the fact that clients usually have a “friend” who got what they wanted and don’t understand why their results weren’t similar. This gives clients the impression that courts aren’t fair, and that justice is fleeting. This does not even include the horrible toll custody litigation has on the family. Here are five common-sense alternatives that could make domestic controversies less expensive – both financially and emotionally.

Ideas To Improve Family Law System’s Efficiency

1. Divorce Panels

Family lawyers know that the judicial system was not designed to handle divorce cases. As a substitute for battle, the court system often appears to litigants as cold and unfair. Until we can mandate a substitute for courts applying a medieval concept to the breakup of a family, litigants who can’t agree on their future will be forced to apply a “win-lose” resolution to the breakup. My first recommendation for fixing the system is to create panels of lawyers, mental-health and behavioral professionals, and guardians ad litem to decide the ground rules for failed families.

Perhaps family lawyers should be required to serve on the panels, which would decide custody, visitation, child support, and protective orders. Court “policies” that award custody and support may not be in the best interest of the family – but if a lawyer, mental-health professional, and child advocate could decide these issues, parties would be reasonably assured that a fair and impartial result could be found. These panels would serve pro bono and therefore greatly reduce the cost of the process. There would be no need to involve courts unless there was evidence of bias or manifest injustice.

2. Loser Pays

The American rule, which requires parties to pay their own attorney’s fees, can have a detrimental effect on quick resolutions of issues and oftentimes forces the “poorer” spouse/litigant to give up because they don’t have the resources to battle like their opponent. The party with resources might refuse to settle or compromise because they know they can outspend their opponent.

The British rule, which requires the party who loses to pay all of the attorney’s fees, could even the playing field and force the party with resources to have to risk having to pay the winner’s attorney’s fees, which is a powerfully persuasive reason to compromise. To take this one step further, if the loser’s attorneys are responsible for paying the winner’s attorney’s fees, this would be an even more powerful persuasion to reach a compromise.

If the jurisdiction has administered court preferences regarding custody, child support, and other family matters, and a party challenges those preferences because they are “different”, they should pay the court costs and their opponents attorney’s fees if they lose.

3. Clerk’s Courts

Unfortunately, a lot of court, judges’, and litigants’ time is wasted by cases that don’t really rise to the level of a controversy. Jurisdictions could institute clerk’s courts who deal with prepackaged divorces, uncontested custody matters, and parties who have a settlement agreement in place. The judicial system could institute relatively lower fees for choosing this route and make the filing fees for cases requiring judicial determination more expensive. This would result in people choosing to appear before a clerk rather than a judge because of the cost of the latter. The economic pressure to choose a clerk would take a tremendous strain off our domestic court systems.

4. Simplify. Simplify. Simplify

The more we can streamline the family law system’s efficiency by creating user-friendly forms, the better – especially if we make the forms simple enough for lay people to use. Sometimes, it appears that forms are unnecessarily complex only to require litigants to hire lawyers to fill them out.

One of the most frustrating aspects of the court system is that litigants cannot get help from court staff to fill out the usual forms. Perhaps lawyers could provide pro bono services, in proportion to the size of their practices, that are limited to filling out the forms. If the litigants choose to hire the lawyer who has helped them to fill out the forms to represent them in litigation, good for the lawyer. Most litigants just want help to fill out the forms and will take their chances in court. If we go to divorce panels as suggested above, litigants would have a better chance of having their concerns heard after filling out the forms.

5. Small Claims Property Division

There will always be a need for judicial supervision of large and complex marital estates. However, equitable distribution is simply not justified in estates that are less than some reasonable threshold amounts – such as $100,000 of marital assets, or even higher depending on demographics. The success of the creation of small claims courts for civil disputes warrants giving a similar threshold amount for property division. This could also be relegated to the divorce panels mentioned above.

Improving Family Law System’s Efficiency: Conscious Approach to Specific Disputes

As the number of divorces rises along with custody and property conflicts, there has to be a more conscious and mindful approach to these specific types of disputes. Marital and family conflict should be decided with compassion and understanding with the input of mental- and family-health professionals – not just left to a judge who may or may not appreciate the consequences of their actions on a family in a combative courtroom setting. Contact us for more information.

What are the pros and cons of being a family lawyer?

First, you will really get to know your relatives. That’s because they will talk to you about delicate family issues more than your immediate family — like who’s having an affair, who’s the crazy uncle, where the dead bodies are, etc.

So yeah, that’s both a pro and a con. After that, they kind of line up like this:

Pro 1: Referrals

Statistically, it’s not that hard to find clients because half the people you know will get a divorce. Just do a good job, and they will come.

And family clients, who entrust their most important concerns to their lawyers, often turn to them for other legal services. So even if you don’t practice outside of family law, you can build a referral network by sending out cases to lawyers who do personal injury, criminal, medical malpractice, and other work.

Pro 2: Practice Variety

Family lawyers often say they enjoy the variety of their practice because the issues go beyond custody disputes and community property.

It can be more like a general practice with cross-overs into property law, criminal law, constitutional law and even probate. You may start by filing a petition in family court, spend a day in domestic violence, wend your way through juvenile proceedings, and end up in probate court.

Pro 3: Career Satisfaction

People find career satisfaction in many ways. You may value money, peer approval, community recognition or simply doing good.

Family law, unlike some practice areas, offers all these rewards. Financially, a family lawyer can do as well as other billable-hour attorneys — let’s say, $400 an hour? And in the colloquial community of family lawyers, peer approval is almost necessary to survive.

Being of value to society and doing good is also within the family lawyer’s grasp, as more practitioners embrace collaborative family law — focusing on helping families through divorce amicably.

Con 1 Emotional

Perhaps more than any other field, family law is inherently emotional because the cases are about people’s biggest life choices and corresponding feelings of failure.

While it helps to be empathetic, it can also be hard professionally to be objective in the break-up of a family. You will have more than one client break down in tears as you advise them of legal realities.

Con 2: Stressful

Unfortunately, the emotional nature of family law can spill over into even more stressful areas. More than a few family cases have turned into criminal cases, including the murders of family law attorneys.

Criminal lawyers, who see the blood and guts all the time, develop tough skins to deal with criminal behavior. Family lawyers, on the other hand, are more likely to take their clients’ pains and stresses personally.

Con 3: Addiction

Alcohol and other addictions too often become pseudo-salves for stressed-out attorneys. It’s not an occupational hazard for family lawyers, but it is a problem in a significant number of cases.

“At some point in your career, you will probably encounter another lawyer whose addiction problems impair their ability to practice,” according to Family Lawyer Magazine.

Because family lawyers often work alone or in small firms, isolation and addiction problems may follow.

Trust is an incredibly powerful resource for any business. Workplace trust is the basis for strong relationships and is crucial to success in business. Why? Well, businesses are built on relationships. All businesses no matter their size or the industry in which they work rely on relationships. This is no more true than when it comes to law firms and chambers. The importance of trust in the legal industry cannot be understated. Trust has a huge influence on the outcomes of casework and future business for those working in law. Losing trust, whether it be with employees or clients is hugely detrimental.

Reputation is a firm’s most valuable asset

Trustworthiness is one of the most vital considerations that clients make when choosing legal counsel. To quote the official guidance of the Solicitors Regulation Authority: ‘Clients often place their confidence in solicitors during times when they are at their most vulnerable; assuming they will protect their interests, money and assets and personal, often sensitive, information.’

A meta-analysis by LawNet of nearly 70,000 satisfaction surveys and 5,000 experience reviews found that two thirds of new business for firms is won by reputation and perceived trustworthiness. On the other hand, only 4% was won on price. But when cost was important, clients were actually more concerned with the pricing structure itself than the final cost. 

This highlights the need for transparency that led to the rule changes at the end of 2018 requiring firms to be more open about their credentials and pricing models. Clients are taking more interest in being regularly updated on the progress of their cases and getting to grips with the benefits of their chosen firm. It is therefore vital that firms take practical steps to meet the needs of the public.

Why low-trust firms are doomed to struggle

But it isn’t just the relationship between a firm and its clients that can cause issues. A breakdown in trust between co-workers can be disastrous for productivity. A study of over a thousand US workers, covered in the Harvard Business Review article “The Neuroscience of Trust,” found that respondents in the top quartile for workplace trust reported more than twice the level of energy at work, were over three quarters more engaged and had 50% greater productivity than those in the bottom quartile. They also experienced 40% less burnout from their workload.

With the current regulations demanding transparency, and prospective clients placing greater value than ever before on clear pricing models and regular updates, it would be problematic to assume that internal disputes don’t spill over to the client-side. So the question is, what steps can law firms take to foster trust in the workplace?

Here are a few tips for building trust and an open, honest culture in your firm:

• Update your firm’s performance review methods
• Harness the power of social employee recognition
• Give people control over how they work
• Prioritise management skills training for new partners
• Build-in accountability to all you do

Update your firm’s performance review methods

The annual performance review is near-universally despised. Bosses hate conducting them, and employees dread sitting through them. What’s worse is that according to workplace analytics company Gallup, 8 out of 10 staff feel they are highly ineffective, and 6 in 10 managers believe the time that goes into setting them up is a waste of productivity due to the fact they are often untimely, based on best guesses and require a sizeable chunk of time to complete.  Regular but ultra-lightweight employee check-ins, such as those championed by Weekly10 give both staff and managers a way to raise issues, share successes and present feedback in a timely effective manner while only taking a few minutes to complete. 

Harness the power of social employee recognition

Giving staff a tool for social/peer recognition (such as Weekly10), letting them nominate a co-worker for the great work being done that may be missed by leadership, is a great way to build a workplace culture based on trust. Employee recognition helps create bonds across teams and locations within a firm, helps senior leadership unearth top talent and acts as an effective motivator for anyone recognised. This could be especially beneficial for paralegals and other support staff whose work can often be overshadowed by that of fee-earning associates. 

Give people control over how they work

One factor that can negatively impact workplace trust is when a worker has no control over how they perform their job. Be it non-standard office hours or the ability to work remotely, providing options for flexibility can be great for creating a sense of trust by making employees feel relied upon to complete their workload at their own pace. Flexible working arrangements are also becoming increasingly expected in today’s job market, so it’s as much an issue of recruitment potential as it is one of trust. If you’d like to know more about flexible working then we work with dozens of great clients (some of whom in the legal sector) utilising a range of approaches to give staff greater autonomy in how and when they work. We’d love to introduce you. Or alternatively, read our recent blog on the topic.

Prioritise management skills training for new partners

And finally, it’s important to make sure that anybody entering a management position has a working knowledge of key management skills. Associates are often promoted for their skill at legal casework rather than any perceived management potential, and many are forced to learn on the job. Research by the CIPD connects rising levels of at-work stress to poor management style. The only way to combat this is with practical, evidence-based leadership training so that employees feel they can be open with the firm’s partners. 

Divorce and Home Ownership

Divorce can bring up a lot of questions. One of the main ones is “what about the house?” A house is not only typically a couple’s largest asset, but it’s also often the asset with the most emotional attachment. Your spouse and you decided that this was where you were going to spend the happiest of times – raising children and building a life. This emotional attachment can make it impossible to let go of and assign a value to. The personal importance of a house can make it the lynchpin of property division negotiations. Here are some common ways the family home is settled in a divorce.

Put the House Up for Sale

If neither spouse wants to stay in the home, or neither spouse can afford to stay in the home, you might want to put it on the market to try to get the best price possible. This can be hard for families because of the moving out process – everything can feel very final and “done.” But often times it’s easier to have the money from the sale than a large asset that reminds them of their divorce.

Buyout

A house buyout is when a spouse releases hers or his interest in the house – this is in exchange for cash or the promise of cash to be paid in the future. This often happens in instances where the primary caregiver for the children want to stay in the house with the children. There are a lot of intricacies with a buyout – you’ll want to work with a negotiator that can help advise you on this if you feel it’s the best option.

Co-Ownership

Sometimes a sale nor a buyout will work for your situation. In this case it might be best to consider co-ownership for a predetermined amount of time. This will need to be clearly defined. Essentially, this will redefine your relationship with your spouse – you will now have a business relationship of “co-owners” of the property.

As family law is so widely used in society, clients can accidentally spread common myths about family law that simply aren’t true. This article aims to set you straight with some truth-talking when it comes to family law and family lawyers in Melbourne.

Truth 1 – Waiting 12 Months Before Divorce

Any family lawyers in Melbourne will be able to tell you that couples need to wait a minimum of 12 months after separating before they can file for an application for divorce. This 12-month period must demonstrate an irretrievable marriage breakdown. The period can involve reconciliations of up to 3 months before the separation period is reset. If there are reconciliations, the total time of separation will include periods before and after brief reconciliations.

Truth 2 – De Facto Definition

There’s a common myth that couples must live together for two years before they’re considered de facto. But the best family lawyers in Melbourne will be able to tell you that cohabitation is only one criterion for de facto status. Other factors that can impact this can include whether they have children if they share their finances, how they present their relationship to other people, and whether it’s a sexual relationship. Sometimes a couple could be thought of as de facto even if they live together for less than half of the year.

Truth 3 – Super is a Property of Marriage

Leading family lawyers in Melbourne can tell you that since 2002, the Family Court treats superannuation as a “property of marriage”. This means that couples can split up their super entitlements as part of their property settlement. There are some exceptions to this, and splitting super does not turn it into immediate cash, either. Splitting super is not necessary, but it can be used to offset the division of other assets.

Truth 4 – No Parent Rights

Parents do not have rights in relation to their children, only responsibilities. Terms of the Family Law Act 1975 specify a child’s right to have a meaningful relationship with both parents. The only time when this is waived is when there are concerns about the safety of the child. Parenting matters are always worked at according to what is best for the child, not according to any right of a parent.

Truth 5 – Court Proceedings Unlikely

Family lawyers in Melbourne may advise you that not many cases relating to family law will reach trial. This is because Family Court prefers mediation over trial due to delays in being listed for trial and also because of the large cost of legal proceedings.

Truth 6 – Children’s Issues Demand Mediation

Couples must attempt mediation before engaging family lawyers to pursue Family Court proceedings about children’s issues. If mediation is not possible or practical, or if there is violence or a risk to the children’s welfare, then this expectation is waived.  

To gain a more comprehensive understanding of family law, consult with suitably qualified and experienced family lawyers in Melbourne.