It is no secret that people engaging in a divorce experience financial and emotional trauma that is only made worse by divorce lawyers and the adversarial system. So I am usually preaching to the choir when I tell horror stories of some of the cases I saw in the 8 years I practiced adversarial law. I was a child of a litigated divorce. I taught emotionally disturbed children from dysfunctional families for many years, I was a divorce attorney for eight years, and now I only do divorce mediation. Having witnessed our legal system from all sides, I can safely say that the whole context of how family disputes are settled in court today is not in the best interest of families. This is a call to arms. I am not even going to pretend this is an unbiased "news" article.
We who fight on the front lines on a daily basis, working with the emotionally vulnerable who feel as though the rug has been pulled out from under them know that the last thing a family in trouble needs is the "assistance" of counsel who could be throwing gasoline on the fire in order to line their own pockets. Most of you probably don't know that family law attorneys are the ONLY kind of lawyers in California whose fees are statutorily protected by the equity in the family home. Divorcing couples may not be aware that they agreed to a lien on their homes and a possible forced sale at the end of the case when they sign their lawyer's fee agreements. People need to know that they will get more and lose less by cooperating with their ex-partner than by litigating the matter.
Most people know what assets they have. No matter how much they earn, many people live paycheck to paycheck and there are usually no issues of hidden Swiss bank accounts. While this is the norm, any couple with equity in their home who both engage lawyers will soon see why the average contested divorce in our state costs $20,000 in attorney fees PER SIDE! And that is just an average. Most often, the more equity your home has, the higher the fees. Read Charles Dickens' Bleak House and you will see little has changed in the past 150 years.
First, the lawyers will engage in expensive discovery procedures, serving interrogatories and subpoenas for production of documents. In order to keep the case going, with the lawyer making as much money as possible, they will schedule depositions and hire forensic accountants and other costly experts. When couples trust their attorneys, it's hard for them to see they are being manipulated. It does NOT have to be this way!
Society needs to demand that divorce court be replaced by the more family friendly solution of divorce mediation. My own practice demonstrates what a sham the adversarial alternative is. I have a 100% track record with over 150 couples. When a lawyer has a powerful intention to help people find their bottom line fairly, efficiently and economically, cases settle without the expense, drama and irreparable harm to children and their co-parenting relationship, harm that is most always the result of a bloody and adversarial battle. Lawyers who are paid by the hour have no incentive to wrap it up. There is an inherent conflict of interest between the attorney, who wants to earn more money, and the client, who wants to save more money. When you are working on a flat fee, there is motivation to help couples come to a reasonable resolution without dragging it out.
An experienced attorney will usually have a good idea of how a judge will rule on a case. This is a community property state, and everything that falls into that category is evenly divided, and separate property is also well defined by statute. It just isn't that complicated. Now there may be cases where a business requires a forensic accountant to value, but you don't need to have a battle of the experts to testify why the husband or wife should get more or less money.
We have all seen the critical mass theory at work in our own lifetimes. For those unfamiliar with this theory, the simple explanation is that when enough people (thought to be somewhere between 3% - 5%) move in a certain direction, the rest of the population follows. Think I Pods, cell phones, recycling, health food, ending the war in Viet Nam, etc. It takes some time for the tipping point to be achieved, but whether it is 5% or 20%, at some point, when enough people get behind something, the change manifests throughout society. We can create a transformation in the way legal services are delivered not only in the area of family law, but all across the board. Mediation is applicable to every area where people have disputes.
As with anything unfamiliar, it takes a certain amount of education to show people the possibilities before they are willing to get on the bandwagon. But if law schools taught would be lawyers to encourage cooperation when marriages break down, more and more couples will hear the message of peaceful divorce and not necessarily think that divorce = court fights. We need more divorce attorneys who take their responsibility to protect their client seriously. I have never understood how these "zealous advocates" can justify draining a client's college fund for their kids so that the attorney's child can go to private school while the client's child is lucky to have lunch money. When people are informed and demand better than what is currently available, more and more law students will study mediation and develop a skill set that supports working with people who are breaking up.
It is my mission to help transform the way people get divorced in this country. Our children are depending on adults to join this crusade. Encourage your friends and family to work together if they have to get divorced. You can split a pie two ways or if lawyers are involved, 4 ways. Which way will you get more? Do you really have to pull the child apart? Don't you think YOU are in a better position to say how your child should be raised instead of lawyers, judges and other "experts." You don't want to start World War III with the parent of your children!!! Your child needs to be your primary focus, not how much money you can get out of paying or not being there when dad comes to pick up the kids. That kind of high conflict drama is totally unnecessary. Not only do consumers need to demand a new kind of divorce, but more lawyers need to recognize the damage caused to families by the legal practice as it is set up now. I hope more attorneys will walk away, as I did, and say, "NO MORE!"
We need judges to recognize who the most egregious of these attorneys are and sanction them, instead of holding them up to young lawyers to emulate. We need an informed public to tell their legislatures that it is NOT OK to give the Family Bar the right to drain the family home of equity through litigation that only comes to an end when there is no more money to be made. The system is broken, and we need to fix it. Generations of children have been caught in the middle of fighting parents who are often encouraged to fight by lawyers who stand to gain. The more we focus on and promote mediation as the rightful solution to family law issues, the more momentum we will build. Who is with me?