Setting the Scene for Success

by Curtis J. Romanowski, Esq., Chairman
Collaborative Family Institute, LLC

“This guy walks into a divorce lawyer’s office…”

The traditional adversarial system continues to draw criticism when aggressively applied to family law cases. Apart from the inefficiencies, impracticalities and associated costs of strongly competitive approaches, the reasons for abandoning these poorly conceived methods of dispute resolution should be obvious:

ex:

Combative fires tend to be fanned and magnified with each contested Court proceeding, thereby creating the potential for long-term conflict;
Negative emotions and feelings of the parties are allowed to significantly impact the attorneys’ actions on behalf of their clients;
The potential for professional ill-will between attorneys and/or professional experts is created, while heightening the potential for gross animosity between attorneys and opposing parties.

The litigation process influences the attorney to take every available advantage for the client, put the client’s case in the best possible light, not offer evidence that is harmful to the client (with some exceptions), and challenge everything possible, in the opponent’s case. The opposing attorney has the same job.

Most attorneys in the adversarial process are so caught up with the client’s “cause,” that the attorney can lose sight of any and all sense of objectivity, which is required to analyze both sides of an issue. Many attorneys are all too willing to believe the “emotional” version of the client’s facts, and not inclined to scrutinize the information for false or misleading claims.

The contested dissolution of marriage case is a family disaster waiting to happen. As difficult and bad as things seem to be during the litigation of a family law case, the real battle, the real conflicts, are yet to be realized. After the Final Judgment is entered whereby a Judge determines contested issues, if there are one or more minor children or any ongoing financial support matters or any other issues over which the Court has retained jurisdiction, an odyssey of struggle and conflict will surely ensue for as long as the Court has jurisdiction over the parties and subject matters.

What can be done to avoid this “never-ending” conflict resulting from litigating family law issues? Probably nothing immediately, but over a period of time, changes can occur which will result in most of these kinds of issues not being litigated. However, change is slow in the traditional legal arena where attorneys are trained and experienced in relying upon precedent and stare decisis.

Significant changes in process are required; however, the professionals practicing in the adversary system may be resistant to change and unwilling to consider different and creative means in representing a family law client. Also, such creative and innovative changes in process may appear to be either unethical or in violation of the attorney’s duties to fully represent the client, thereby further delaying change.

As time progresses, changes must occur in the “system” which will result in a process which is more practical, simplified, less financially expensive, less time-consuming and less confrontational. Moreover, changes are occurring whereby legal procedural rules in many states now require alternate dispute resolution at various stages of litigation, as well as required financial disclosure and supplemental disclosures periodically during litigation.

However, the real change necessary to simplify and create an atmosphere of less confrontation shall result from the individual professionals taking appropriate action – the Judge, the attorneys, the other expert professionals, such as mental health professionals and financial professionals, called upon to assist one party, the other, or both parties.

Each professional person coming into contact with the parties in the family law “system” has a significant opportunity to “assist” the party/client/patient, rather than to “advocate.” The goal of the family law professional should not be to represent his or her client’s interests blindly, but to be mindful of the client’s best interests in light of the entire family’s long-term interest, both financial and emotional. If children are involved, their interests must be paramount. If there are financial issues, they must be approached with a sense of objectivity and fairness to both sides.

Most parties arrive in the family law “system” via the divorce attorney. Some persons will have contact with a mental health professional or clerical member. Others will have discussions with their accountant, family physician or other trusted family friends. Yet, it is the attorney who most often has the first real opportunity to change the way the system operates.

For example, a client comes to the attorney for either consultation, asking advice regarding the potential for a divorce, or comes to the attorney already knowing there will be a divorce. The first contact between the attorney and client is critical and will probably set the parameters of the relationship between the attorney and client throughout the entire case. Close attention should be paid at the outset to clients who say or exhibit the following:

This will be an easy case.
My spouse has threatened to kill himself/herself if I go through with the divorce.
I do not want this divorce.
I do not have time for this divorce, including meeting with you and filling out papers.
I need legal representation, as I was served with legal papers two months ago.
I am presently being represented by an attorney, my third attorney, who is not representing me to my satisfaction.
Are you the best attorney? I need the best attorney I can possibly afford.
Can you beat my spouse’s attorney?
My spouse’s attorney is an (expletive).
I will never, ever pay my spouse’s attorney. I will go to jail first.
I am a fighter. I never lose. Will you fight for me?
I have standards and principles I must vindicate.
My spouse and I do not communicate with each other.
I want to limit my spouse’s contact with our children.
As a result of his/her adulterous relationship, I am going for full custody of the children.
I want you to Subpoena his/her “lover.”
The other party/parent does not deserve to have regular contact with the children, as that person was never involved with the children during the marriage.
I want to move with the children to a state 2,000 miles away.
I will not pay one red cent in alimony. I will go to jail first.
Did I mention that this was an easy case?
I will allow the other spouse to see the children, but only if I receive financial support.
I am unwilling to give primary care (custody) of the children if things don’t go well financially.
I will pay financial support, but only if I am allowed contact with the children first.
I have an answering machine screening and limiting phone calls from my spouse to our children.
My spouse and I (or either one) are citizens of another country/culture. (Since family values are significantly affected by cultural factors, this cannot be responsibly glossed over.)
Can you “get to” the Judge and influence him/her?
I want this case over as soon as possible.
Money is no object.
I have no money to pay your fees.
My spouse has complete control over family finances, as well as all of the documents and papers. I have no knowledge of our income. My husband pays all of the bills.
I am without any knowledge of my financial status, which will require you to deal exclusively with my accountant/business manager/other persons.
The other party will have to pay all of your fees.
I am unable to financially afford a divorce now.
I do not have any money, as my spouse has withdrawn all of the monies from our bank account.
I want to keep secret certain financial transactions which are designed not to be ever uncovered.
I am due a large financial bonus in the next few weeks, but do not want my spouse and his/her attorney to know.
I have a bunch of cash. Can I take a trip to Las Vegas and get rid of it?
My spouse owns and manages a business which receives most of its revenue in cash receipts.
My spouse under-reports his/our income to IRS.
Can I cancel my spouse’s use of all credit cards?
Can I charge all credit card accounts up to the maximum allowable balance in order for my spouse not to be able to incur charges?
I want to close all liquid asset accounts to prohibit my spouse from taking any of these funds.
My spouse is devious and I do not trust him/her. He/she said I would get nothing if I contested anything.
My spouse worships money.
My spouse has threatened bankruptcy.
I am angry at my spouse.
I love my spouse and will give him/her anything he/she wants.
I want my spouse removed from the home, notwithstanding the fact that we are barely meeting our financial obligations as it is.
My office is in my home, and my spouse has informed me that she is going to seek my removal from the home.
I pushed and shoved my spouse last night, and she said she would have me removed from our home.
I am unable to make any decisions and will rely upon you, as my attorney, to do so.
I want to tell the Judge my side of the story.
I want my six-year old child to tell the Judge how he feels about the other parent.
This is, after all, an easy, straight-forward case.
Will I be divorced by this Summer?

The list goes on and on. The attorney can easily take sides with the client, support the client in every way, and begin planning a strategic attack on the other side at this beginning point. Or, the attorney can sit back and listen to the client (listening is, of course, an excellent communication technique). At some point, however, the attorney must ask some questions, explore the facts not being volunteered by the client, and inform the client of reasonable expectations notwithstanding the client’s feelings, wishes and concerns.

A problem-solving approach would include:
Assessing whether the client, in fact, needs an attorney at this point? Is the marriage really over? Is it realistic to consider saving the marriage?
Counseling that children are not to be “used” as pawns. Their best interests must be considered, which normally means regular, frequent contact with both parents.
Encouraging or discouraging communication between the parties, depending upon the relationship and feelings of the parties toward each other.
Avoiding any action that will result in antagonizing the other side or in engendering distrust. Typically, an attorney’s letter articulating his or her client’s grievance or position may result in additional ill-will and additional disagreement between the parties. Consider picking up the telephone and talking with the opposing lawyer first regarding sensitive and potentially confrontational issues.
Treating the other side with courtesy. Try to overlook actions that will appear to be, or are, in fact, uncooperative or insulting. Instead of responding in a like fashion, the attorney should start to attempt cooperation. Avoid emotional reactions and deal with the factual issues logically.