Legislating Morality

This is an interesting discourse on the difficulty legislatures have balancing needs of the family against individual rights.  To what extent can public policy influence intimate relationships? And vice versa.

From Concurring Opinions Blog   http://www.concurringopinions.com.

Is Divorce Too Easy? Helping Marriages Survive Infidelity
posted by Solangel Maldonado
Last week I came across a New York Times article that has led me to question my position on the legal regulation of divorce. I generally agree that once a person decides to end his or her marriage, there is little that lawmakers can do to help “save” it. Most people know that divorce often wreaks havoc on the family’s financial security, is almost always painful for the children, and can have long term negative effects on children’s emotional health, academic achievement, and adult relationships. Despite this knowledge, approximately one million children each year experience their parents’ divorce. Although there are many reasons why couples divorce, adultery is often at the top of the list. While some states require spouses seeking a no fault divorce to live apart for a statutory period (often 6 months), no state imposes a waiting period when the alleged ground is adultery. Adultery is seen as a marital offense that no one should have to endure. Indeed, until the late 1960s, adultery was the only ground for divorce in New York. It turns out, however, that most marriages survive adultery. In other words, although a betrayed spouse has the legal right to file for divorce immediately (at least in the two-thirds of states that still have fault based divorce), most do not. Marriages often last for years after the infidelity is discovered.

Many of us find it hard to believe that, in a time of websites with mottos such as “Life is short. Have an affair“, marriages might actually be stronger and more resilient today than they were 20 or 30 years ago. The divorce rate has stabilized in recent years after rising dramatically in the 1970s and 80s. In addition, the 10-year divorce rate for couples who married in the 1990s is significantly lower than that of couples who married in the 70s and 80s. Admittedly, a lower divorce rate does not necessarily mean that spouses are happy, but marriage has traditionally served a greater good than promoting the happiness of its individual members. The Supreme Court has described marriage as the “foundation . . . of society, without which there would be neither civilization nor progress.” Zablocki v. Redhail, 434 U.S. 364, 384 (1978).

Given society’s interest in marriage and all of the negative consequences of divorce, should law incentivize couples to repair the marriage after infidelity? For example, the reason why some states require couples seeking a no fault divorce to live apart for a significant period of time is that lawmakers believed that this waiting period might actually lead to reconciliation. The hope was that spouses who were living apart while waiting out the statutory period would come to the realization that they did not want to be apart and would reconcile. I am not aware of any empirical evidence suggesting that this waiting period actually leads to long term reconciliation, but many couples do reconcile after separation. Maybe they would not have done so had they been able to seek a divorce immediately.

Studies have found that at least two-thirds of people who discovered a spouse’s affair were still married and living with the cheating spouse years later. These studies might suggest that the law need not provide an incentive for spouses to stay together after infidelity—the majority are already doing so even though they have legal ability to exit immediately. Of course, there are many reasons why a betrayed spouse might stay (for the sake of the children or financial stability, for example) even if the law does not place any obstacles to exit. But is it possible that some marriages that did not survive infidelity could have survived had the law made divorce more difficult? Is it possible that a woman (whose first instinct upon discovering her husband’s affair is to kick him out) would give him a second chance if she knew that she was stuck with him anyway for at least another 6 months to a year. As the New York Times article noted, although the wife of unfaithful South Carolina Governor Mark Sanford asked him to move out after she discovered his affair, she still believes that their marriage can be repaired. What if the law could give them a push in that direction? Although a waiting period alone might not change spouses’ willingness or desire to try and save their marriage after an affair, social norms might. If the law were to require a cooling off period in cases of adultery, as it often does in no fault divorce cases, it would signal that adultery is forgivable—that society no longer considers it an offense that no one should be expected to endure. As a result, individuals who do not give their cheating spouses a second (or third, or fourth) chance could be stigmatized as uncommitted or even selfish. Therein lies the challenge when law tries to regulate intimate relationships. How can lawmakers encourage stronger marriages (which are presumably good for society and children) while simultaneously respecting individuals’ rights to personal happiness and freedom?

Parent Support?

As our society ages, should we explore the notion of parent support? Nobody questions mandatory child support (well a few perhaps), but does it make sense to compel senior support? Do we owe anything to our parents if they are aged and economically insecure?

One could argue that families have a duty to care for their own. Therefore, assuming a child has some ability to support a parent–and that parent has unmet financial needs, we should mandate contribution for their care. After all, that same parent may have been likewise compelled to support that child at some point in the past. The economic obligations should be reciprocal.

But does a child owe anything to a parent? (Probably some more than others!)  And if so, should the child’s recognition of a parent’s contributions be recognized, or compelled, through court ordered remuneration?

Perhaps this question becomes more timely as social security becomes overburdened, pension funds are failing and recent economic events have shaken our sense of economic security. Should the state’s recognition of a parent’s financial responsibilities to a child go both ways? Let’s start the debate.

Ten Ways to Screw up Your Divorce Case

After practicing family law for nearly 25 years, Lex has seen a full -range of behavior in divorce court. Probably the most disconcerting  is witnessing people that are  self -destructive. The following is a compilation of the ten ways people ruin their lives in divorce cases:

1. Self pity.   Buck up and deal with it.  When people get mired in self-pity– they lose focus on resolving the conflict and instead focus on their perceived victimization.  If people drive their car looking in the rear-view mirror, instead of the front windshield, they ultimately crash. Same with a divorce.

2.  Ignore your lawyer’s advice. Why would someone hire a lawyer and ignore their advice? It sounds implausible, but it happens all the time.  Find the smartest and most mature lawyer available and  listen and follow their advice.  Lawyers are paid for their wisdom and experience–not to help satisfy client’s self destructive impulses. This is why it is so important to get competent representation.

3.  Play games with  your lawyer. If you aren’t honest with the lawyer, how can they help? Let a lawyer make representations that aren’t true and the lawyer won’t be around for very long. Or don’t cooperate when the lawyer asks for information. All of these behavioral problems just end up in a disastrous result.

4.  Transference of anger. Sometimes people transfer their anger at their spouse towards their lawyer. If you are hostile with your lawyer or his staff, how effective do you think they can be?  Get a counsellor and work  through the anger . The lawyer is not the enemy and should not be treated as such. They are there to help.  And if they aren’t helping–fire them and get one that can help.  In general, anger = trouble in divorce court.

5.  Understand the nature of the relationship. The attorney client relationship is a professional relationship. Treating the lawyer as a friend, therapist or the enemy (see above) is not particularly helpful. Boundaries benefit everyone. The lawyer must remain clinical and detached enough to help guide you through the tumult. Blurred boundaries help no one and actually become destuctive.

6.  Using your lawyer as a  therapist. Not helpful. Lawyers are not typically trained as therapists and frankly, using them as such will quickly exhaust a litigation budget.  Let the lawyer manage the domestic conflict and use a therapist or coach to help to manage the toxic emotions that need to be appropriately addressed.  

7. Pick a lawyer from the phone book. The two most important professionals you rely on are your divorce lawyer and doctor; neither of whom should be chosen based upon the size of their yellow page ad.  Get a referral and research the competence of your lawyer. A bad lawyer needs the bigger ad–not the better lawyer. Too much is a stake to pick a name at random. And for that matter, there is a reason why some lawyers cost significantly less than others. You get what you pay for.

8. Have unrealistice expectations.  If the bar is set too high, the crash landing is more painful. Unrealistic expectations prolong litigation and the pain to the family. In general,  avoid an egocentric world view.  Make your best deal and get on with it. People that get stuck on the litigation carousel sometimes never get off–a painful and miserable existence.

9. Relying on friends and family for advice. While they mean well, they sometimes are less objective than the person actually involved in the divorce. People that follow well-meaning family member’ s advice over their attorney’s ususally end up getting screwed by that advice–a poor choice.  The delicate world of divorce negotiations cannot and should not be impacted by angry  friends or relatives–too upset to understand the implications of their advice.

10. Maintain a sense of entitlement. Nobody is entitled to anything! If you dwell on the notion that you are owed–trying to fill an emotional void brought on betrayal–the end result will never compensate and will only cost.  While a trite idiom, life is indeed unfair sometimes. But to dwell on that instead of trying to figure a way forward will be hazardous and destructive.

 

 

 

 

      

The Conflict Matrix

After reflecting on the role of  lawyers in  family law disputes, I have come to the conclusion that above all else, we are conflict managers.  Each conflict is unique, and the attorney’s mission must be to discover the most effective  (and efficient) way of resolving the dispute.  As family lawyers, we have a special responsibility to help protect  the family, that fragile  and vital social system, wherever possible.

The lawyer must creatively try to find the least conflictual alternative to resolving the dispute. In some cases, mediation will be the approriate alternative. In other cases, a collaboration may be beneficial. Yet in some cases, using the full power of the court may be the unfortunate, but necessarily preferred means of resolving the dispute. While litigation should be the last alternative, it is an appropriate way to bring a hopeless conflict to a halt.

Most people are grasping for civilized alternatives to resolving their disputes. Wherever possible,  less adversarial approaches need to be employed. As conflict increases, the costs–both economic and emotional– increase as well.  Unfortunately, lawyers that mindlessly churn  family law litigation are unnecessarily creating family conflict for generations to come.  Consumers of legal services need to be aware of their alternatives and seek counsel that can help them choose the least harmful alternative to their individual dilemma.

Wisdom, above all else, is the best service that a family lawyer can provide. The stakes are too high to allow anything else.

Parental Alienation: The Blame Game

Consider this hypothetical family. A mother is an exclusive caretaker for the children. The father exhibits little interest in them.  He is a domestic tyrant mistreating both the children and their mother on nearly a daily basis. He invests nothing in the relationship with the children and all interaction is negative. Finally mom has enough and files a divorce. The children refuse to see their father.  As a result, dad accuses her of parental alientation and seeks custody.

Whether parental alientation is a clinical pathology or not, the fact remains that in some divorce cases, children refuse to have a relationship with one of their parents. Unfortunately, a new dynamic has taken hold in family court. The search for a lasting remedy is being disregarded in favor of the aggrieved parent’s exploitation of the tragedy to obtain custody. 

Nobody can blame a father for being angry when his child refuses to see him,  especially when the mother takes no pains to hide her animosity towards him.  But is he blameless if he never invested the time and effort in the relationship with the child prior to the divorce?  Or, even worse, what if he was emotionally or physically abusive to the child?  

Lex Familia’s experience is that children who have a good relationship with a parent prior to the divorce do not become alienated after the divorce.  This is not to excuse the reprehensible conduct of a parent so distraught by her own grief and anger that she tries to hurt dad through an overt campaign to destroy his relationship with the child.  But prevention is the best cure. Parents who have a firm bond prior to the divorce are rarely marginalized after the divorce.

Courts need to sensitize themselves to the incredible complexity of these situations. Coercion is not the solution, nor is automatic placement of the child with the alienated parent.  The conclusion that mom assumes all the blame if the children won’t see dad is naive and simplistic.  This is especially absurd if dad never established a meaningful relationship when he was living with the children.

People in divorce cases are often mercenary and will exploit even their own children to gain an advantage–real or imagined. Courts should realize that things are frequently not as they appear. A simplistic formulaic transfer of custody will not remedy this complicated problem. Unfortunately, too many custody cases are  about avoiding child support rather than quality parenting. In family court, there needs to be less emphasis on blame and more emphasis on solutions. Just as most states rejected fault in divorce cases, family courts should not become preoccupied with determining fault if a child becomes alientated. Instead, courts should consider this thorny issue with patience and wisdom,  acting as a healer, not an executioner.

Consistency versus Discretion in Family Court

There is an inherent conflict in American law that seeks to reconcile the need for specific rules– against the need for judges to have the discretion and latitude to decide issues on a case by case basis.  When rules are subordinated to the subjective discretion of individual judges, consistency is sacrificed. On the other hand, if courts are not given some latitude to address unusual or extraordinary circumstances, unjust results follow. How these two competing interests are reconciled is the challenge for any legislative body seeking to draft family law rules.

For example,  American custody law followed several rules based formulas evolving into the discretionary best interest standard we have today. Revolutionary America awarded custody to fathers, adopting the Roman  formula treating children as property of their fathers. 19th century America awarded custody to the “non-guilty” spouse in a marital breakup. Mothers, recognized as nurturers, next legally evolved as the preferred caretakers. In the 1960s, liberated from all sexual biases, the courts adopted a neutral best interest of the child standard that allowed trial courts the discretion to determine custody based upon all of the competing factors as they related to the child’s interests.

The opposite development has happened in child support laws. Initially child support laws were purely discretionary. Driven from the top down–federal mandates on states required that they draft laws with specific guidelines for setting child support. Now all states use some type of guideline or fourmula in setting child support.  Likewise there is a national dialogue now concerning the employment of alimony guidelines in order to avoid arbitrary results arising from a discretionary standard in determining alimony.

So how is the conflict resolved?  Unfortunately there is no easy solution. Legislatures have a duty to its citizens and the courts to provide certain presumptions and preferences reflecting  public policy. This helps guide the adjudication process and gives the courts and litigants direction. A dialogue needs to be commenced by lawmakers, academics and practitioners on ways to draft legislation that provides certaintly to courts–without limiting judges discretion to do the right thing. Not unlike federal sentencing guidelines, too much certainty may cause unjust results. On the other hand, a legal standard that is completely uncertain, e.g. “the best interest of the child standard’, invites litigation because both parties theoretically have a shot at convincing the judge that they can better parent.

Reconciliation of our need for certainty in family law versus the need for discretion is a challenge for any legislature.  The goal, while difficult, is neither impossible nor unachievable. Constant improvement of our family law is a worthy aspiration. The dialogue should start.

When is too much too much?

Increasingly Lex Familia is confronted with visitation schedules that are almost impossible to accomplish.  Parents have children enrolled in so many activities, it is difficult to find time for the child to spend with the non-residential parent. Should a child be allowed to participate in activities if they interfere with the the non-residential parent’s time with the child? There is no easy solution to this dilemma.

How should a court respond when the time-slighted parent objects? To be certain, it  would be unfortunate to deny a child of divorce access to activities available to a child of an intact family.  However, a child from an intact household presumably sees more of both parents and the need for uninterrupted time is less crucial. Perhaps, like in so many instances in the law, the courts need to use a balancing test. But what factors should be weighed?  Perhaps the court could consider the child’s aptitude at a given activity versus the benefits of time with the non-residential parent. For example, are circumstances different if the child is a superstar baseball player with potential to be a pro, versus an average player that will be lucky to make the high school varsity squad?  Should the social benefits of participation be weighed against the benefits of additional parenting time?  Also the court can consider the quality of parenting of the non-residential parent. It should matter that the child sits in front of a television during visitation rather than being actively engaged with the parent. 

The over-involvement of children is a symptom of modern society.  It is not limited to children of divorce. Children today have very little time to goof off or even daydream. While children clearly benefit from participation in organized activities, Lex wonders if sometimes they are fulfilling certain dreams their parents did not get to realize. Indeed, in this instance, forcing children into the activity is exploitation and should not be tolerated as a basis to limit visitation. But, where the child is genuinely interested in an activity and has aptitude, do the benefits of participation outweigh the missed time with the non-residential parent?

Years ago, Lex was involved in a case where the child wanted to go to a football camp that would deprive the non-residential parent of a large amount of his summer visitation time. He objected and it went before the judge. The child attended the hearing and begged the judge for permission to go.  She listened to the boy’s pleas and simply said, “Young man, you may not understand this today, but perhaps someday you’ll appreciate this comment.  Nobody has ever laid upon their death bed and said ’I wish I had more opportunities to go to football camp.’ But there have been countless people laying there that have wished they had more time to spend with their parents or other people they loved.”  The boy went with his father instead of football camp.

Indeed, life is short.  When is too much too much?

 

Pennsylvania’s Pro-Life Supreme Court

In what ultimately can  be described as a pro-life decision, The Pennsylvania Supreme Court recently upheld an agreement to create a child using in vitro fertilization. In Ferguson v. McKiernan, Pa. No. 16 MAP 2005, decided December 27, 2007, the Pennsylvania High Court affirmed an agreement between a man and his former paramour to donate sperm for her conception of a child– on the condition that he not be held responsible for support.

In rendering its ruling, the Supreme Court disregarded the lower courts’ rejection of the agreement on public policy grounds. Both the trial court and the appellate court rejected the agreement, finding that Pennsylvania public policy disallowed agreements that avoided child support. The High Court, however, distinguished divorce cases and other traditional parenting cases from assisted reproductive technology cases. The court found that the “analogy…is unsustainable in the face of the evolving role played by alternative reproductive technologies in contemporary American society.” As this particular contract was fundamentally no different than a clinical artificial insemination agreement (despite the fact that the sperm donor and mother had a prior relationship), it should be upheld.

This case hinges on the intention of the parties. The analysis is not unique. Many assisted reproductive technology (ART) issues are adjudicated based on the intentions of the parties rather than the traditional focus on biology.  A t least in this instance, children conceived through ART really are treated differently than children conceived traditionally.  While logically the law shouldn’t discriminate against children produced with the help of science, this court has determined the benefits to society in facilitating ART outweighs the denial of support in this instance. 

The Pennsylvania High Court is encouraging the creation of children using non-traditional methods. The court, in its progressive willingness to enforce non-traditional parenting agreements supports these procedures as a means for people–otherwise unable–to have children. The expression “pro-life” has certain definite political connotations. However, in a very literal sense, the Pennsylvania Supreme Court, by facilitating the creation of life, can only be described as pro-life.

What is Alimony?

Lex Familia has noticed a series of articles urging a re-evaluation of  alimony laws. Complaints are made by both payors and recipients alike. The complaints vary depending upon who is making them. However, both sides complain that alimony awards are arbitrary and subjectively determined by  judges relying on  vague statutory considerations. We agree that alimony laws should be looked at critically. However, the first question to be asked is what exactly is alimony. What is its goal and purpose? Until we determine what alimony is designed to achieve, a meaningful and consistent legal policy cannot be developed.

In Illinois, alimony is called maintenance. By definition, maintenance suggests that its purpose is to support or maintain an economically dependent former spouse at the former marital standard of living. But is this all there is to the concept? Many issues of public policy need to be explored in order to determine a cogent and fair policy on this subject.

For example, the American Law Institute in it’s “Principles of the Law of Family Dissolution” published in 2001 recommends calling alimony “compensatory spousal payments,” as a more appropriate definition of the nature of the payment. Specific guidelines and presumptions are suggested by the ALI to enhance predictability and consistency in awards. Therefore, under the ALI’s approach, alimony is not merely considered a form of “divorce welfare.” It also serves as a payment to recognize  lost economic opportunities by a spouse due to his or her contributions to the family as a homemaker or caretaker.  With that in mind, should maintenance automatically terminate upon the recipient’s remarriage? Does the right to compensation for lost opportunities automatically disappear as a result of a re-marriage?

Further policy issues need to be explored. With the advent of no-fault divorce in the 1970’s, consideration of conduct is frequently prohibited in deciding any divorce-related issues. Illinois specifically prohibits considerations of fault in determining maintenance issues. However, should there be a blanket prohibition against considerations of fault in deciding maintenance? One can think of several occasions where fault may be a legitimate consideration. For example, should a spouse who conducts a notorious public extramarital affair receive the same amount of alimony as a spouse not otherwise misbehaving? Should we as a society draft legislation designed to punish people who engage in behavior that harms the family?  Again, this policy should be explored.

Maintenance, at least in Illinois, is highly dependent upon the subjective discretion of trial judges. Case law sets no firm policy and is too fact-dependent to be of much help. One judge may automatically deny maintenance for any marriage under ten years, while another may allow it, but only for five years after the divorce has been finalized. Should we employ guidelines, like we do with child support, to limit some of the randomness of rulings? The American Academy of Matrimonial Lawyers, as well as several states, have formulated guidelines to ensure more consistent awards. Should legislatures set policy by adopting guidelines?  Or, do we prefer giving more latitude to judges who are intimate with the facts of the particular case?

It has been thirty years since Illinois has had a comprehensive review of its family law.  Maintenance in particular has significantly evolved during that time.  This topic needs to be reviewed with fresh eyes. But, in order to do so, a meaningful dialogue needs to start regarding the purpose and goals of any maintenance statute.  What is alimony? Only when that question is answered, can we craft legislation that fairly addresses this important family law issue.

The Parenting Trap

Divorce is a life event that invites many people to re-evaluate their lives.  During our day to day lives, we often lose sight of our priorities, instead questing  for professional or economic  success at the expense of meaningful relationships. And when people ignore these relationships in favor of external rewards, family breakup often follows. This notion is no great insight but a tragic reality in our “go go” culture. What Lex familia finds interesting, however, is the court’s unwillingness to allow people to reprioritze and reconsider these relationships after the breakup. Apparently, there are no second chances in family court.

Consider this. A succesful professional regularly works a 60 hour week, both because he is a workaholic and to maintain the family standard of living. He never attends his children’s school or extracurricular events.  As a result, he  knows very little about his children and relies on his wife for periodic updates.  While his career ascends, his relationships with his children never develops. Then comes the divorce…and the hard charger is jolted into a focus on the importance of his children. He realizes that he has been going down the wrong road and now wants to change course. However, when he decides to reduce his hours to a more reasonable 40-hour week, thus reducing his income by 30%, he is accused of intentionally reducing his income to avoid paying child support.

The problem that confronts family court judges is the  inability to discern the well motived reduction versus the dead- beat looking for a way to beat his ex-wife out of support. Our experience is that courts will rarely, if ever, allow a non-custodial parent to argue that he should be entitled to cut back on work (and thus his income) so that he can spend more time with the children.  This is the trap that confronts many parents. Families disintegrate because of inattention. Divorce follows. People take stock and re-evaluate priorities, realizing the importance of the relationships. However, when the pursuit of relationships costs the family in terms of reduced income, it is effectively denied by courts refusal to recognize the reduced income as legitimate. Thus the support-paying parent may cut back on work, but will likely pay support based upon his former higher income. This requires him to finance the rebuilding of the relationship. One could argue that this is fair since he created the breakdown in the first place. However, in some cases the excess work is due to economic necessity to maintain an extravagant lifestyle. Should that person be “punished” and forced to work excessive hours to maintain the former status quo, at the cost of continued neglect of his children? Lex Familia thinks not.

One of the truths of divorce is that everything changes. Many people cannot accept this fact and expect that because “it is his fault, ” there should be no disruption in the family’s standard of living. The truth is that there is always plenty of blame to go around and things must necessarily change. Courts need to sensitize themselves to good faith attempts of support-paying parents to rehabilitate their relationships, even if it means reduced income. While Lex Familia is not advocating that parents quit their jobs to spend more time with their children, we also cannot tolerate courts denying a second chance to well-meaning parents.  We all sometimes get trapped in our pursuit of ”things” without recognizing the costs. Redemption too has a price.