The Evolution of Divorce and Family Lawyers
Contemporary family law practice requires that the family lawyer’s philosophical map be redrawn so that she sees herself first and foremost as a conflict manager and problem solver. - Action Committee on Access to Justice in Civil and Family Matters (The “Cromwell Report”)
Most critics of our present adversarial family law system focus on the overly aggressive family law attorney who uses sharp tactics and hostile methods of representation, thereby exacerbating an already complex situation. They recommend that we should somehow find a way to reign in these rogue family law gladiators.
In a recent case in Australia a woman received up to five letters a day – including on weekends – from her ex-husband’s lawyer. The letters were often times angry, allegedly threatening and, according to a presiding judge, inflammatory and accusatory. Regardless, the woman had to pay for her lawyers to read and respond to every letter. By the time the property and custody aspects of the bitter court dispute were settled, she and her ex-husband had amassed more than $860,000 in legal fees. As well as the repeated letter-writing, the case also involved several court applications – all of which cost to launch and respond to. It amounted to a kind of financial abuse, and one that was able to occur in the current court system. After the case the woman remarked: “As the family court system falls apart, all of the unethical, unscrupulous, bottom-feeding lawyers converge to extract money from the carnage”. In his judgment the presiding judge noted the large volume of correspondence between lawyers that were attached to the affidavits, including some within the 500 pages of exhibits to the father’s affidavit. “Some of those letters were inflammatory and reflected the anger of the parties or one or other of them,” he said. “The letters were at times accusatory. They were often verbose and at times involved unnecessary tit-for-tat commentary. Some of the letters served little or no forensic purposes. “Solicitors are not employed to act as ‘postman’ to vent the anger and vitriol of their clients.” The judge went on further to say.
The judge remarked, "Whether this win at all costs, concede little or nothing, chase every rabbit down every hole and hang the consequences approach to family law litigation is a reflection of a Sydney-based culture by some or many litigants or whether it is an approach by some legal practitioners or a combination of both, I do not know. Whichever is the cause, the consequences of obscenely high legal costs are destructive of the emotional, social and financial well being of the parties and their children. It must stop". The judge stated that legal practitioners – who were often representing people for their first interaction with the family court – had a duty to minimise costs and reduce conflict. “The children of these parties depend upon the income and assets of their parents to support them,” he said. “Yet, in this case, the costs of the proceedings have taken a terrible toll on the wealth of the parties and consequently their ability to support and provide for their children.” “A formalist reading of the law says the law is about the best interests of the children. But what are the best interests of the children? That’s culturally determined. And it’s determined by the lawyers and barristers and theater performance on the day.”
I personally know of one matter where a family law attorney advised a client to obtain a protection order against her husband since the husband abused her emotionally and verbally. The client informed the lawyer that the husband said to her that if she obtains a protection order against him that he will commit suicide. The lawyer brushed this off as another attempt of abuse and proceeded with obtaining the protection order. The result, the husband committed suicide.
As life changes, people do too, the same goes for lawyers. Lawyers are well-known for resisting to adapt to change. What lawyers don’t realise is that the law does not exist for the purpose of keeping lawyers employed. We live in an era where the general public have become smarter, information is freely available, and people become negative towards lawyers.
Lawyers are perceived to make money on hours billed, the longer a case stretches, the more fees in the pocket.
The problem is the mindsets of the archaic old school breed of lawyers. The ones who have been molded by an adversarial, combative and confrontational legal system, where the law is seen as a battle of winners and losers. Family law issues themselves are emotional and value laden, adding additional complexity for the role of the lawyer.
Over-identification with clients may be challenging in many areas of law, however the personal nature of family law creates a difficult task for separating the client’s problems from the lawyer’s personal history. Family law comprises of personal and intimate matters and the most vulnerable members of our society – children. The issues can lead clients and lawyers to feel passionately, especially when we have our own histories. Nevertheless, clients will not be well served if lawyers cannot work together on effective and proportionate dispute resolution and solutions to the issues. We must isolate clients’ views from those of lawyers and recognize that, as lawyers, we only fully have one side of the story. What is more, clients will not be well served by personal incivility in contentious matters. After all, if lawyers are not civil to each other on a personal level, how can we expect spouses taking part in a family breakup, the most aggravating time of their lives, to do so?
Family law consists of a unique crossroad of emotional, financial and legal challenges. It entails of rights presented by the law – compensation for sacrifices made for the family unit, entitlement to benefit from the increase in net family wealth, and financial support for the ongoing care of children. It furthermore deals with rights that are people-oriented, rather than act-oriented, such as care and contact. Family law demands the resolution of financial issues, that are usually tied to emotional issues. Emotional information is essential - information that may potentially be at the root of the relationship breakdown, regarding whether a spouse committed adultery, or lied about their sexual orientation. Emotional information is not really legally relevant since the introduction of no-fault divorce, nonetheless it is pertinent to a client making decisions in an interest-based process.
Family law is changing towards non-adversarial dispute resolution processes. As a consequence, some family lawyers are representing clients who are attempting to reach settlements that recognize their interests, instead of just pursuing their legal rights. By reacting to the full spectrum of client needs, lawyers are expected to act in a different way than they do whenever they are representing a client in a traditional civil litigation matter. They give consideration to the emotional and financial consequences of relationship breakdown – issues that are not usually within the purview of the family law lawyer. They objectively reality check with their clients, and they approach interest-based negotiations in a client-centric way. These lawyers view their role as that of a non-adversarial advocate, and their clients as whole people with interests that are not just legal.
Most civil litigation disputes are linear: there is an incident, a claim, and a resolution, then the parties go their separate ways. In family law, the parties may remain interconnected if they have children; which means, they will remain in each other’s lives, at the very least participating in family functions. If there are maintenance responsibilities, they may be financially attached for an indefinite duration. Family law comprises of reviews and variations, meaning the parties may review issues when there is a change in circumstances. In other words, family law issues are not always linear and do not always allow for a clean break. Clients will need to communicate over time.
The vast majority of family law legislation and jurisprudence is centered on the care of children, and the economic consequences of the dissolution of the family unit, legal rights that are designed for an adversarial system.
The way families deal with disputes has significantly changed over the last decade. Scholars have focused on a number of substantive law changes that have contributed to this transformation. These include the changing definitions of marriage, parenthood, and families. However, less focus has been paid to the huge changes that have taken place in the processes surrounding family dispute resolution.
Social science research over the last two decades has made a powerful case that children's well-being following parental breakup is dependent upon their parents' conduct throughout and after the separation process. A great deal of the research indicates that the greater the levels of parental conflict to which children are exposed, the more negative the effects of family dissolution.
As two leading reformers recently stated, "in the last quarter century, the process of resolving legal family disputes has, both literally and metaphorically, moved from confrontation toward collaboration and from the courtroom to the conference room".
The standard adversary system has failed many family law litigants, especially in contested cases concerning children. As family court proponents have accurately observed, existing legal standards make family court proceedings mainly a backward-looking process, fashioned to assign blame and, as a result, add to the acrimony between parents. However, possibly just as problematic, those same indeterminate standards make it difficult for parties to anticipate results in court, and reduce the likelihood of achieving early and less costly agreements concerning childcare and contact related issues. Even if agreements are ultimately reached in most cases, parties spend enormous resources on lawyers, investigators, and other experts to show the other parent unfit.
We should now acknowledge the contaminating and toxic nature of the whole adversarial court-supervised divorce and care and contact process and start to move divorce completely outside of the court’s grasp. This can only happen if there is a mind shift in the minds of Family lawyers.
In Australia the law reform commission launched its review into the Australian family court system by focusing on areas of key concern for families. These include ensuring the family law system prioritises the best interests of children, best addresses family violence and child abuse, and supports families, including those with complex needs, to resolve their family law disputes quickly and safely while minimising the financial burden. Some of the key recommendations were that family violence must be determined early in the proceedings. This ensures the right orders are made to protect children and too often that is not happening.
In an article in the Economist it was reported that all around the world, lawyers generate more hostility than the members of any other profession—with the possible exception of journalism. South African divorce law is founded on the adversarial system where two lawyers represent their clients’ positions before a judge or magistrate, in contested divorce cases, who then try to determine the truth of the case.
Some authors trace the process to the medieval age-old mode of trial by combat, a system that forces the parties into a mind-set of winners and losers. Let’s face it, we live in an adversarial society, one that approves the idea that every time there is a conflict sides must be taken. That means that one side ending up on top, the other side ending up on the bottom, a looser and a winner. The adversarial system is a poor way to solve divorce. This is especially true where children are involved, the adversarial system is sluggish, and many people are refused justice for too long simply because the system tends to lengthen the trial process. “Justice delayed is justice denied”. This system is additionally expensive and requires litigants to have legal representation. The high cost of legal advice and legal representation impede those who cannot afford it. This may suggest that vital evidence which needs to be drawn out by questioning may not be presented in the trial and as such, the truth may not always surface.
The cost of divorce can differ significantly starting almost free to nearly all a couple’s assets. On one end of the spectrum, spouses can draft their own divorce settlement agreement, have a lawyer review it, and spend only the essential court filing and court appearance fees. At the other end, animosity can get the better of otherwise reasonable people, and when they become embroiled in drawn-out and costly litigation, they end up wasting many thousands of rands on attorney's fees and costs.
Someone who is having a contested divorce case is advised to employ experienced attorneys. Some of the principal issues that affect divorce cases entail childcare and contact, maintenance and the division of property.
Separating Your Emotions from Your Divorce Case
The costliest blunder some couples make is utilizing the divorce case as a way to show which partner was “the better spouse” during the course of the marriage. If you're arguing over property division or child contact out of anger at your spouse, instead than thinking about what's fair or best for the children, you will rapidly run up bills from senseless litigation.
How Does Acrimony Increase the Cost of a Divorce?
Animosity and pointless litigation can bring many additional costs to a divorce. Divorce cost is also determined by the wealth of the couple; when wealthier individuals can't agree on maintenance or property division, they tend to employ more expensive lawyers and are also more probably to need financial experts such as forensic accountants, psychologists, and property appraisers. Acrimonious custody disputes and battles over the division of assets can also enhance divorce costs.
Custody battles can quickly become the most expensive part of your divorce. For parents who spend nearly every night at home with his or her children, the possibility of only seeing their children every other weekend can be dreadful. Although many couples agree that one parent ought to be the primary caretaker of the children, other people fight tooth and nail to be the primary parent.
Many costs come from dealing with a care and contact dispute as a contest to optimize your custodial time and limit your spouse’s. To decrease unnecessary costs in a custody battle, parents should rather start from the standpoint that the child is best off having adequate time with each parent, and try to truly find a contact schedule that promotes a positive relationship between each child and each parent rather than employing forensic child experts to recommend at great cost what the contact should be.
Division of Property and Divorce Expenses
Divorcing couples must decide how to divide their asset and debts, an exceedingly sensitive topic for spouses who have probably argued over money before to divorcing. Countless unnecessary costs come from spouses’ unrealistic expectations regarding what their financial life will look like following divorce. With the exclusion of very rich couples, most spouses must expect that moving from one household to two households will fundamentally mean some decrease in their standard of living.
When making use of attorneys, every day that couples fight over money means that there will be less money to divide at the end of the divorce process. If you're anticipating an extremely ill-proportioned division of assets in your favour, you're likely to be dissatisfied, unless of course you have a really compelling legal argument for an unequal split of real estate and personal property. If you are proceeding with unrealistic expectations, you'll likely lengthen your litigation and run up the cost of your divorce, just to find at the end of the day, the division will be something near to 50/50 (if you married in community property).
Trial and Divorce Expenses
Whether your divorce case ultimately settles or goes to trial can make a tremendous difference in your ultimate legal costs. Between the legal preparation necessary and the trial, itself, heading out to trial can definitely double ones litigation costs. One must only go to trial after having attempted to negotiate a settlement agreement in good faith and having attended mediation.
Many divorcing spouses aren’t able to negotiate a complete divorce settlement on their own, and attorneys are usually necessary. Divorce attorneys are indispensable when one spouse is furious, dishonest, revengeful, or even just more financially intelligent than the other.
TC V SC - Case no: 20286/2017 – Cape Town High Court
Judgment delivered on 18 April 2018
Case Summary - Facilitation in Child Disputes
In an application in terms of Rule 43 for interim relief pending a matrimonial action the core issue was whether the High Court had the power, by virtue of its inherent jurisdiction as the upper guardian of minor children, to make an interim order appointing a facilitator to deal with parenting disputes over the objection of one of the parents. The applicant ("father") and the respondent ("mother") were in the midst of an acrimonious divorce. They had two young boys, "C", age 9, and "M", age 7.
In this case, Judge Diane Davis who presided over the matter observed:
“…. sadly often the case in divorce situations, the conflict generated by the breakdown of the marital relationship spilled over into the parenting relationship. The children became an arena of struggle where spousal conflict played out in the form of disputes about care and contact and other parenting issues”.
Cases and Articles on Divorce Law and Family Law in the SA courts.
Legal news and case law in the South African courts, compiled by Family Law attorney, Bertus Preller.
Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.