Friday, December 9, 2016

Why do People go to Court to get Divorced? Because that's where the money is...

There is a story that Willie Sutton, a famous bank robber, once responded to a reporter who asked "Why do you rob banks?" with the simple answer "Because that's where the money is!"  While that story is probably made up, it reminds me of the reason that most people go to court to get divorced: because that's where the paperwork has to be filed.

Of course, if divorce was as simple as filling out the paperwork then there would be no need to write anything further.  However, the act of getting divorced involves numerous aspects of a couple's lives including finances, parenting, communication, loss of a relationship, forming of new relationship dynamic, etc.

One Court's Answer:

One court in San Francisco, California has recognized this problem by "strongly recommending" that people filing with the court in family law matters first consider out-of-court dispute resolution options:
"The San Francisco Superior Court and its Family Law Department strongly recommend the use of alternative dispute resolution methods in family law matters. This Notice is intended to inform parties and counsel about the nature and availability of such methods. All parties and all counsel in such matters must file and serve a signed copy of this Notice in the manner prescribed in Rule 11.17 of these Rules."  NOTICE OF NATURE AND AVAILABILITY OF ALTERNATIVE DISPUTE RESOLUTION METHODS IN FAMILY LAW MATTERS
The Notice explains the options of mediation and collaborative law in depth, as well as describing areas where those options might not be appropriate.  While you can't force someone to really consider all their options, this Notice at least ensures that the parties are aware they had options.

How does Massachusetts Compare?

In Massachusetts, we have a similar rule about informing parties of ADR options but the Uniform Counsel Certification Form is only signed by counsel and this is the entire text:
In accordance with Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) which states in part: 
"...Attorneys shall provide their clients with this information about court-connected dispute resolution services; discuss with their clients the advantages and disadvantages of the various methods of dispute resolution; and certify their compliance with this requirement on the civil cover sheet or its equivalent." 
I hereby certify that I have complied with this requirement.
Many people don't go to court because that is their best option, it's often because they don't know that they have other options.  The Rule 5 form is an opportunity to educate, instead of just treating it like a formality.

Dealing with the Conflict of Interest:

Critics of how family court is structured in the United States often point to the conflict of interest that divorce attorneys have:  attorneys make more when there is more conflict and when cases go to court instead of settling.  In fact, there's a whole "documentary" dedicated to the subject: Divorce Corp.
This type of conflict is not unique to the legal field.  In medical ethics, for example, one answer to addressing this type of conflict has been to require "informed consent": "But signing a form alone does not necessarily prove that the patient gave informed consent. The doctor must actually discuss the procedure and risks with the patient. And the patient must understand, to the extent possible, the risks he or she faces."

If attorneys and the family court are serious about client autonomy and the right of parties to settle on an informed basis, then the parties have to know their options before proceeding in court.  Otherwise, it's a fair criticism to say that clients are often encouraged to go to court "because that's where the money is" for the lawyers.

I truly believe that the majority of divorce attorneys are not following purely financial motivation, but if I'm right then we need to support better efforts for "informed consent" by our clients.  California is clearly leading on this front, and Massachusetts courts should follow suit.

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