Monday was Martin Luther King Day. A time to remember a great man who had a great vision for our country.
When I hear the words “I have a dream” it makes me think about what I wish for my clients in their divorce.
The current way folks get a divorce in this country is really messed up. It is adversarial and causes everyone involved to pick fights to gain an advantage where it all could have been avoided. The system seems to reward the spouse that lies and exaggerate, particularly where children are involved. False claims of abuse or negligence; using temporary restraining orders to force one spouse out of the house are used so frequently that the family Judges on the bench are overwhelmed. How can they parse out the truth from the endless “he said she said” motions presented to them?
Not a task I envy.
Unfortunately “divorce” is a $100 billion a year industry in the US. The most frightening aspect of this is that the $100 billion is all from individuals; from life savings and children’s college funds. This “business” convinces you that you need to get experts and retain attorneys as the “winning strategy” and your only real option to succeed during your divorce.
This is wrong on every level.
Other parts of the world have a much more civilized approach to divorce. In Quebec (province of Canada) for example, the government pays for 6 divorce mediation sessions where they pay for one here. In Quebec 90% of couples get divorced using the free mediation in 3 months or less!!
Is there a simple solution to this? NO. The recent changes in the divorce laws in NJ, which took years and years to implement, did not address some of the fundamental issues in the divorce process albeit they did clarify a few issues.
My thoughts are along the lines of limiting what a lawyer can charge for the divorce. A fixed fee basis(like they do for bankruptcy). Before all you lawyers start to scream; the fees could be based on a % of assets or different if there are children or not so I am contemplating that the fees could be reflective of the degree of complexity.
What this would do is to stop the back and forth letter writing and the inflammatory claims that sometimes happen. Lawyers would tell their clients “no, not doing it; not worth the paper or, you will not win that one” and the conflict would subside. So often I have heard lawyers say that they were just doing what their clients wanted. If there was only a fixed amount of fees, lawyers would push their clients to settle and settle fast. I have personally seen multiple cases where the battles stop when there is no more money for legal fees. I have heard more than one lawyer say that once the money is gone people are ready to settle. Really! Once people are bankrupt they are ready to settle?
Additionally, if the fixed fee was paid up front, in advance, it might make more folks inclined to go to mediation as a way to get their divorce done.
A question I would like to ask is how much do lawyers walk away from due to debt forgiveness/compromises on the bill or from bankruptcy? I would guess that it is a lot. I know that the spouse of a client of mine left her lawyer with an unpaid bill of over $296,000 in her bankruptcy. That amount could have bankrupted the legal firm let alone caused severe hardship for the lawyer.
This has turned into a rant and I apologize for that. It is just that I have seen too many cases where families spend everything they have to fight over their right to see their children. A pissed off spouse uses the children as a way to extract money. What if the court automatically awarded 50/50 custody, in all cases, unless an infant was nursing under the age of one? Only way that changes is if one spouse says can’t do 50/50. No more fight there.
This could change everything. Parents know they have equal time with the children and the rest is just money. It would take the emotion and sting out of divorces. How would things change?
What do you think?
What has been your experience?