Skip to main content

Are Divorce Lawyers regularly violating the Civility Guidelines?

At a recent event celebrating the 15th Anniversary of the Massachusetts Collaborative Law Council, one of it's founders, Rita Pollak, spoke about her reasons for joining the Collaborative Law movement.  Among those reasons was a recognition that the practice of family law in the courts was becoming less civil, and more hostile.  This is a sentiment that I have heard echoed by many, and have experienced myself.   Too many of the lawyers who handle family law cases fail to understand the importance of civility, and act without thinking about the true impact of their actions.  In fact, I believe many lawyers think they are acting in their client's best interest when in fact they are modeling bad behavior and bad habits which will harm their clients and their client's family for years after their case is over.

The Massachusetts Bar Association approved Civility Guidelines for Family Law Attorneys in 2006.  These guidelines should be required reading for all family law attorneys and we should refer back to them whenever we're unsure about our plan of action in a case.  Even small failures in a divorce case can have lasting impact on families and children.  Consider the following typical example:

A wife gets an e-mail from her husband asking her why her attorney hasn't responded to his attorney about the financial information they are supposed to exchange.  She calls her attorney upset that her husband is bugging her about this and complains that she doesn't want to talk to him about the divorce.  That's why she's paying the attorney.  What should the wife's attorney do?

"A lawyer’s incivility may unwittingly fuel already volatile circumstances or encourage a client to become hostile and unreasonable."


As a litigator, the wife's attorney sees it as her responsibility to solve all of these problems for her client.  So she writes a letter to opposing counsel with the requested financial information, and a demand that the husband "cease and desist" all communication with the wife except in reference to the child.

This might be an appropriate response to protect the wife, if the husband's e-mails were aggressive or threatening.  But if the husband simply happens to be in more of a hurry to get divorced than the wife, the lawyer's demand that they cease all communication will do more harm than good.  That demand takes a small discomfort by the wife and turns it into a highly contentious issue, pretty much guaranteed to make the husband defensive.  It also models a communication style for the wife that encourages all further disputes be stunted or go through the lawyers.  While that is advantageous for the lawyers financially, it is detrimental to the family, financially and emotionally.

The civility guidelines point out:
"Domestic relations cases are unique in that they center primarily around children, family members and interpersonal relationships. Divorce is often a painful and stressful process. Clients and other family members may be in crisis and emotions often run high when a couple separates or parties are involved in a court case. Lawyers, however, set the tone for their clients. A lawyer’s incivility may unwittingly fuel already volatile circumstances or encourage a client to become hostile and unreasonable. The best domestic relations practitioners are holistic in their approach and focus on their role as a counselor as well as zealous advocate for the client. Lack of civility may have devastating, lifelong personal consequences for the client, the client’s children and the client’s most important relationships." (emphasis added)
The wife's lawyer in this example violated the civility guidelines, by setting a tone of hostility between the clients.  That lawyer had an opportunity to help her client by having a conversation about the best way to communicate with the husband and how she might respond in a way that encourages more productive future communication.  The wife's lawyer also could have picked up the phone and spoken with the husband's lawyer, expressing how her client was feeling and encouraging the husband's lawyer to have a constructive conversation with his client about being patient in the process and how he can best communicate with the wife.

All divorce lawyers need to be thoughtful about how every part of their practice models good or bad behavior for clients in an emotional crisis.  When choosing a plan of action, practitioners should ask "Does this help my client and her family long-term?"  Answering that question will seldom result in sending an aggressive letter or e-mail.  As long as lawyers fail to model effective communication, more and more people will turn to mediation and collaborative practitioners to find a divorce process that respects families, instead of destroying them.


Comments

Popular posts from this blog

New Massachusetts Child Support Guidelines (2021): Big Changes, Little Changes, Typos & some Unexpected Results

UPDATE: The court has released a web calculating version of the 2021 MA Child Support Guidelines Worksheet .  It resolves some of the typos referred to below, but the unexpected calculations still apply. Every four years, per federal mandate, the Massachusetts Probate & Family Court revisits the Child Support Guidelines through the work of a Task Force appointed by the Chief Justice.  The 2021 Massachusetts Child Support Guidelines were recently posted.  They take effect on October 4, 2021.    If you are interested in a training on all of these changes to the new Child Support Guidelines: DMTA Presents the 2021 MA Child Support Guidelines Update  – Attend this event to learn the key updates you need to know for your mediation clients. Presented by Justin Kelsey of  Divorce Mediation Training Associates  and  Skylark Law & Mediation, PC . For a full comparison of all the  tracked changes between the 2018 and 2021 Massachusetts Child Support Guidelines you can download a pdf sho

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

Online Tool for Creating Parenting Plans

It is our hope that all families find a way to resolve conflict peacefully.  This is especially true when children are involved.  Divorced or separated parenting has many complications and the first is just deciding how to share time with a child from two separate households.  Developing a schedule can result in a lot of tension, especially if parents have trouble picturing how this new schedule will interact with their work schedules and the schedules of their children. To help make this easier, we've created an online tool for creating parenting plans that is simple and easy to use: We encourage parents, regardless of the process they are using to divorce, to use this form to assist in evaluating and settling custody disputes. The form allows you to choose between the Model Parenting Plan proposals or customize your parenting plan over a four week period by clicking directly on the form.  When you click on a section of the calendar it switches between Mom and Dad, an