Divorce Law Reform

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Divorce Law Reform

Postby CorruptUser » Thu Dec 29, 2011 5:34 am UTC

So, a distant acquaintance of mine's parents are about to go through a divorce. Probably. I don't know all the details, but I heard enough to make me start thinking. Said person is afraid that (among other things) person's parents are both going to go through every last penny in the divorce, and I am trying to wrap my head around how that is possible. So as far as I understand, divorce law is incredibly complex, and Family Law is the one part of the legal profession that even Personal Injury lawyers get to sneer at. If one side wants, they can offer the other side a perverse ultimatum; 'surrender most of the assets to me, or fight me in court and we both lose all assets to the court'. Emotions run high, people act spitefully*, and it's a mess. The legal fees can easily be more than the cost of a decent house.

But from a societal standpoint, what exactly is gained from this expense? I fail to see how hundreds of thousands of dollars do anything but disappear into busywork that does nothing to improve either side. Yeah, I understand the hidden, odder things in economics, such as the extra money spent in non-medicine at a hospital, but that would (hopefully) be worth the reduced chance of medical accidents and so forth. But with lawyers arguing back and forth, just racking up bills, I can't wrap my head around what benefit is gained from the giant legal expense.

So my question(s) is/are:

1) What is the benefit of the incredibly expensive divorce system, and does said benefit truly cover the cost?
2) If the benefits don't cover the cost, what can we do to fix the legal system to make it less costly or provide more benefit?


*Perhaps the reason they are getting a divorce in the first place
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Re: Divorce Law Reform

Postby elasto » Thu Dec 29, 2011 9:41 am UTC

Personally I think there should be universal legal aid just like many countries have universal healthcare. If said legal aid extended to divorces as well as every other kind of civil and criminal lawsuit there'd be no way to make that threat ('give me most of the assets or I'll make sure neither of us get them!')

Course, for many electorates universal access to healthcare funded by the taxpayer is too big a pill to swallow - so giving everyone universal access to legal support funded by the taxpayer is definitely beyond the pale.
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Re: Divorce Law Reform

Postby MiB24601 » Thu Dec 29, 2011 9:58 am UTC

Let's start with your main points and then we can cover some of the minor points in your post.

CorruptUser wrote:1) What is the benefit of the incredibly expensive divorce system, and does said benefit truly cover the cost?
2) If the benefits don't cover the cost, what can we do to fix the legal system to make it less costly or provide more benefit?


Divorces don't have to be expensive. If both spouses have come to a decision about how to divide the property and there aren't any children involved, a couple can get divorced in Pennsylvania for less than $500, including legal fees. If there are children involved, the divorce will be more expensive but if the couple has agreed a solution as what to do with the kids which doesn't raise the concern of the courts, it won't be that much more expensive than amiable divorces not involving kids. Divorce only becomes expensive when the spouses start fighting over property or kids.

If there isn't much to argue over, then the cost of a contentious divorce will still be limited. However, the more disagreement there is between the spouses, the more petitions will need to be filed with the courts, which will need to be researched and then argued and appealed. And then, if a spouse violates the courts ruling as to the property or what to do with the kids, then there is another rounds of petitions. This is when divorces become expensive.

Now, there really isn't a way to limit this cost. As you mentioned, divorce law is complex, mostly due to everything that has to be considered in the case (the actual law involved isn't so bad). If a person hires a divorce attorney and the attorney is doing all this work at the behest of the client, the client should pay the lawyer. And yes, the client is well aware (or should be) of how much this is costing them. By law, lawyers are required to disclose before doing any work the cost of the work. It isn't fair for the client to hire the lawyers to do a ton of work and then balk at the cost afterwards when they knew all along it was that expensive.

We also can't keep people from hiring lawyers. If a person wants to spend all their money to hire lawyers, then that's their prerogative. Now, if a person is simply hiring a lawyer to hassle someone else, then the court may fine the client but the court still has to take a look at the work that was done by the lawyer in case the case is legitimate. And even if a client is fined for bringing a nuisance suit, that's just another fee that the client has to pay, on top of the legal fee.

In short, divorces can be expensive because people can be stupid with their money, using it for spiteful reasons. It can't be stopped because if a person really wants to be stupid with their money, they will always find a way to be so.

CorruptUser wrote:Family Law is the one part of the legal profession that even Personal Injury lawyers get to sneer at.


OK, so only one minor point: Where did you get this idea? Family lawyers are generally pretty respected by other lawyers. The only family lawyers who are not respected are the ones who try to convince people to get divorced in an effort to get more clients and that's because of their sleazy commercials. That's pretty much why PI lawyers have such poor reputations. But PI lawyers are the second lowest tier of lawyer. The lowest tier of lawyer are the lawyers who sue other lawyers in malpractice cases. No one will talk to them at bar association events.
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Re: Divorce Law Reform

Postby Zamfir » Thu Dec 29, 2011 10:09 am UTC

I don't think the problem is merely the law itself. The complexity and price of the law is also a reflection of the complexity and cost of the underlying conflicts themselves.

Marriages can be deeply intertwined relationships, with money matters just one part of that. Breaking that up is hard, and it becomes harder if both sides want to play hardball. Your relatives don't have to hire a house-worth of lawyers. They could just sit around a table, work out the major issues, and be flexible and generous to each other when it comes to details. If the relation is so soured that they prefer hard conflict over any kind of settlement, then that's primarily their own responsibility. Even the best law system can only do so much to help solve that situation.

You can make the law simpler and clearer, which will save cost and make it harder to play the system. But most likely, that simplification will also mean that the law is now less reflective of the possible realities and you will more often end up with unfair outcomes. There's a trade-off between clear law and just law, and a good law system finds a balance between those. Perhaps your relatives are finding themselves on the wrong side of that balance, but you need a very good and deep experience before you can tell how the system is doing overall.

EDIT: or what MiB said
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Re: Divorce Law Reform

Postby Azrael » Thu Dec 29, 2011 1:05 pm UTC

CorruptUser wrote:... 'surrender most of the assets to me, or fight me in court and we both lose all assets to the court'.

The court doesn't take your assets. Ever. So I'm not sure what you're getting at here.

CorruptUser wrote:The legal fees can easily be more than the cost of a decent house ... I fail to see how hundreds of thousands of dollars ...

Although I don't know what your price point for a 'decent house' is, a divorce does not cost multiple hundreds of thousands of dollars. Unless the marital assets are utterly enormous, and enormously complex to divide. On the whole, you're not operating with factual information here -- or you're trying to use ridiculous celebrity divorces to make parallels to real-world circumstances.

Your friend, however, could very well have a legitimate concern; if a family's liquid assets are limited, a drawn-out acrimonious divorce involving a custody battle could eat up a high-four to low-five figure sums. Which is certainly more than the average person can readily afford to 'waste'. However, all 50 states have no-fault divorce laws now and something like 95% of divorces in the US are uncontested, meaning that the parties have negotiated before hand. Such cases simply do not run up giant legal fees because there is no litigation, only (typically) a single/few appearance(s) in court to present and agree to the terms before a judge.

So, to answer your questions:
1) The system is not inherently expensive.
2) For the vast majority of cases, any significant cost is driven by the plaintiffs desire to maximize their own output; the cost-benefit analysis is entirely subjective.

The real issue is that throughout the legal system, Party A can hire a pile of lawyers to bully Part B, especially if Party B cannot afford the same quantity/quality legal team. This is not unique to divorce court, nor would the solution.
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Re: Divorce Law Reform

Postby CorruptUser » Thu Dec 29, 2011 1:50 pm UTC

Azrael wrote:
CorruptUser wrote:... 'surrender most of the assets to me, or fight me in court and we both lose all assets to the court'.

The court doesn't take your assets. Ever. So I'm not sure what you're getting at here.


Meant the lawyers, my mistake.

Azrael wrote:
CorruptUser wrote:The legal fees can easily be more than the cost of a decent house ... I fail to see how hundreds of thousands of dollars ...

Although I don't know what your price point for a 'decent house' is, a divorce does not cost multiple hundreds of thousands of dollars. Unless the marital assets are utterly enormous, and enormously complex to divide. On the whole, you're not operating with factual information here -- or you're trying to use ridiculous celebrity divorces to make parallels to real-world circumstances.


Not using celebrity comparisons. If one side decides to contest the divorce, it can get bloody expensive. They claim one thing, other side claims another, lawyers constantly argue with each other while the 'meter' runs. Yes, it can get expensive for even moderate amounts of assets.

Azrael wrote:However, all 50 states have no-fault divorce laws now and something like 95% of divorces in the US are uncontested, meaning that the parties have negotiated before hand. Such cases simply do not run up giant legal fees because there is no litigation, only (typically) a single/few appearance(s) in court to present and agree to the terms before a judge.


That requires that both agree to the divorce. But in the 5% where someone contests it...
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Re: Divorce Law Reform

Postby kiklion » Thu Dec 29, 2011 3:10 pm UTC

Can both sides not agree to use arbitration? Going that route before legal arguments, assuming both sides truly believe they are in the right, should make sense. Both people believe they are right and that a neutral person would see things their way, both sides want to limit the amount of money spent on legal fees. This only wouldn't work for someone who knows they are being unfair/asking for too much and is planning on ruining all of their assets out of spite.
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Re: Divorce Law Reform

Postby Azrael » Thu Dec 29, 2011 4:26 pm UTC

CorruptUser wrote:That requires that both agree to the divorce. But in the 5% where someone contests it...

In those cases, the average cost runs around $20k. Or so says the internet.

Now, are you willing to continue this discussion using realistic numbers?
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Re: Divorce Law Reform

Postby CorruptUser » Thu Dec 29, 2011 4:51 pm UTC

MiB24601 wrote:
CorruptUser wrote:Family Law is the one part of the legal profession that even Personal Injury lawyers get to sneer at.


OK, so only one minor point: Where did you get this idea? Family lawyers are generally pretty respected by other lawyers. The only family lawyers who are not respected are the ones who try to convince people to get divorced in an effort to get more clients and that's because of their sleazy commercials. That's pretty much why PI lawyers have such poor reputations. But PI lawyers are the second lowest tier of lawyer. The lowest tier of lawyer are the lawyers who sue other lawyers in malpractice cases. No one will talk to them at bar association events.


Ok, I probably shouldn't have extrapolated from my own small "city", where the family lawyers we have are disliked more than the 'ambulance chasers'. I'm sure the way most lay-people view lawyers is different from how lawyers view lawyers.

Legal Malpractice attorneys, are those lawyers viewed by other lawyers the same way doctors view Medical Malpractice lawyers, or better/worse?

Azrael wrote:
CorruptUser wrote:That requires that both agree to the divorce. But in the 5% where someone contests it...

In those cases, the average cost runs around $20k. Or so says the internet.

Now, are you willing to continue this discussion using realistic numbers?


$20k actually sounds about right for the average cost. I'm sure the median cost is lower though. The children are of age, no custody battles there, so that should reduce the cost. He's in a major city, so that would raise the costs. The picture I get from the situation is that if it comes to divorce, it will be adversarial, and both parents tend to be spiteful. Granted that if both are spiteful, I have no sympathy for either of their financial troubles.

I guess I'm just concerned about the extreme cases, and whether there is any real net benefit from the extra expenses in divorce. After all, the only thing keeping torts from being a Zero-Sum game* is the incentive to avoid a tort in the first place.

*E.g., you slip in a store, you sue the store. But every dollar you get as a result is a dollar the store lost, the economy as a whole doesn't improve. But if winning $X means stores everywhere take action to reduce the chance of people slipping, the economy improves.
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Re: Divorce Law Reform

Postby Azrael » Thu Dec 29, 2011 5:28 pm UTC

CorruptUser wrote:I guess I'm just concerned about the extreme cases, and whether there is any real net benefit from the extra expenses in divorce.

An overly simple (but still pretty good) answer is no. If the parties could negotiate a settlement in a reasonable fashion, they could have spared themselves that expense. It isn't a bad generalization that splitting a household increases net costs for the family, and they would likely benefit directly from keeping that wealth at their disposal.

The expense covers all of the time the third parties spend getting the primary parties to a rational outcome. I guess acrimonious divorce is a pretty good example of why you can't assume people are rational actors.

From a more macro perspective, there are a thousand different models of the path that money would take to end up back in the economy. I don't know that it really makes any difference, as the money gets spent and taxed by someone, somewhere. They're just keeping the lawyer employed instead of the retail positions -- although some miniscule, esoteric benefit might be wrought in the fact that the lawyer is a domestic, highly-skilled position, rather than a low-wage jobs supported by additional trade deficit activity from buying foreign manufactured goods.
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Re: Divorce Law Reform

Postby marky66 » Sat Dec 31, 2011 7:22 am UTC

CorruptUser wrote:But if winning $X means stores everywhere take action to reduce the chance of people slipping, the economy improves.

But if someone winning $X means stores everywhere have to put ridiculous "caution - hot" warnings on coffee, the economy worsens. You're back to zero-sum...
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Re: Divorce Law Reform

Postby lalop » Sat Dec 31, 2011 8:26 am UTC

Azrael wrote:From a more macro perspective, there are a thousand different models of the path that money would take to end up back in the economy. I don't know that it really makes any difference, as the money gets spent and taxed by someone, somewhere. They're just keeping the lawyer employed instead of the retail positions -- although some miniscule, esoteric benefit might be wrought in the fact that the lawyer is a domestic, highly-skilled position, rather than a low-wage jobs supported by additional trade deficit activity from buying foreign manufactured goods.


Eh, I think this is a broken window fallacy: the lawyers are essentially wasting their time feuding when (in an aggregate and long-term perspective, of course) they could be spending that time doing something else that actually produces something. Thus, there's a social benefit to making laws less costly to enact. This is a general conclusion, not just for the case of divorce proceedings.
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Re: Divorce Law Reform

Postby CorruptUser » Sun Jan 01, 2012 5:25 pm UTC

Spoiler:
marky66 wrote:
CorruptUser wrote:But if winning $X means stores everywhere take action to reduce the chance of people slipping, the economy improves.

But if someone winning $X means stores everywhere have to put ridiculous "caution - hot" warnings on coffee, the economy worsens. You're back to zero-sum...


Depends on whether or not the extra aggregate economic cost of placing those warnings is less than the extra aggregate economic cost from not placing those warnings. For example, let's say printing the warning costs $1000/year, and it reduces the expected cost from accidents by $1500/year. The economy has improved by $500/year as a result of placing that warning. The store has no reason to place the warnings since they don't pay the cost, unless the legal system forces the store to. So, as a result of the legal system, the economy will grow by that $500, minus the opportunity costs of the lawyers and all that fun stuff.

So it is very possible for the legal system to not be zero-sum.

But if the legal system is placing the damages far in excess of what the damage is, then the legal system harms the economy as businesses spend, say, $1000 to reduce $700 in damage, causing a $300 loss to the economy, on top of the legal fees. The courts try to avoid this, but not always.
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Re: Divorce Law Reform

Postby Роберт » Tue Jan 03, 2012 6:29 pm UTC

Messy divorces will be messy, there's no way around that. I would like evidence that they are messier than necessary and the Divorce Law is to blame.

What are you suggesting, anyway? Maybe make pre-nups required?
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Re: Divorce Law Reform

Postby Save Point » Wed Jan 04, 2012 5:43 am UTC

Well, as has already been said, not all divorces are costly. My parents are likewise going through one now and have gone the mediation route. It helps, of course, that my siblings and I are older so there are no custodial issues, and that neither party wants to 'get back' at the other. But even in most families, while the experience is unpleasant and can come with emotional costs, it's not terribly expensive and there is a prohibition on making either party destitute as a consequence of the split. As was already mentioned, most states have no-fault divorce statutes.

Anyway, I spent a while trying to come up with ways to make the divorce system and family law in general less aggravating. I don't mean to say I expected to find a solutions to all of these problems when people more educated on the subject than me have yet to do so. I mean that I just spent a lot of time thinking about it. The one conclusion I came up with is this:

The legal system gives a lot of deference to the husband and wife when it comes to making decisions within the marriage. It's designed to create the flexibility necessary to deal with the ups and downs of both marital and, typically, parental relationships. It's pretty rare that you will see courts deign to influence this dynamic unless there is some kind of abuse or similar issue. When you divorce, the court then has to try and create a decent and equitable solution and, like any third-party entering a naturally intimate and circumstance-specific relationship, this will always result in something sub-par. The result will almost always be considered 'bad' with the assumption that there was ultimately some systemic cause and not that this is just the natural consequence of having to adjudicate something that is difficult even for the two parties involved to find an ideal solution to.

It would be nice to create hard and fast rules for divorces. It's precisely because families differ so much in circumstances that you want a standards approach to most issues where one balances the interests of all parties. Rigid rules would likely create inequities between families in different socio-economic circumstances; or between increasingly non-traditional families; and between men and women as gender roles continue, essentially, equalize (ex. we don't want to exacerbate inequities between men and women with regard to child custody, or between men and women with regard to the intangible economic contributions the housemaker - typically a woman - makes.) These are just a few factors to consider, all of which require a modicum of judicial discretion. Oh, and we need to consider that, at least in the US, family law is traditionally limited to state, primarily because marriage is so heavily intertwined with property and testamentary rights. The UMDA and similar acts could draft up proposed rules, but states are free to amend or simply not adopt these proposals so that they remain in sync with the concomitant rights that flow from marriage.

There are easily some suggestions one could make. I think pre-nups are a really good way to mitigate divorce costs. Divorces rely first and foremost on property division, only creating spousal support if that property is insufficient. Similarly, while there is always going to be child support for the non-custodial parent, determining who-gets-whom beforehand can at least create some boundaries within which to work while mitigating litigation. The problem is that no person should be forced to make these decisions pre-marriage, especially when circumstances can change. Similarly, there are some issues tangled up, particularly in community property states, where co-mingled assets are not always preempted by prenuptial agreements and will have to be litigated anyways. Finally, you'd be surprised how many pre-nuptial agreements have legally unenforceable clauses.

So, I'm not really sure I can think of very many sweeping changes to divorce law that I'd make, especially because these laws vary considerably across states. Sure, there are legal tweaks I'd recommend. I'd probably also say that pre-nups can go a long way, despite my aversion to forcing them upon people. But ultimately the discretion we allow the courts to have, while not exactly cost efficient compared to some hardline rules we could consider, are the preferred route to take in a family context. Most of my qualms have to do with the standards and presumptions we do have, and less with moving from that more costly approach to a hardline, rules based approach.
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Re: Divorce Law Reform

Postby lucrezaborgia » Wed Jan 04, 2012 6:45 pm UTC

My issue with family law in regards to divorce is custody. Custody and placement need to be 50% automatically unless there are serious issues in the family unit. It's absolutely ridiculous how much latitude judges have with this and it needs to stop. Unless you've been involved in custody and placement issues, you have no idea what kind of nightmare it is when you are short on cash while your vindictive SO has a lawyer and way too much time on their hands.
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Re: Divorce Law Reform

Postby Save Point » Wed Jan 04, 2012 8:29 pm UTC

lucrezaborgia wrote:My issue with family law in regards to divorce is custody. Custody and placement need to be 50% automatically unless there are serious issues in the family unit. It's absolutely ridiculous how much latitude judges have with this and it needs to stop. Unless you've been involved in custody and placement issues, you have no idea what kind of nightmare it is when you are short on cash while your vindictive SO has a lawyer and way too much time on their hands.

Custody always depends on what is in the best interest of the child, and there's nothing that suggests 50% always, or even mostly, results in this.
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Re: Divorce Law Reform

Postby Obby » Wed Jan 04, 2012 8:41 pm UTC

Yeah... 50% isn't really feasible with children all of the time, especially when one of the parents moves away after the divorce. My girlfriend's parents split when she was in 8th grade, and the mother was given primary custody since the father moved about an hour away to put some distance between him and the mother (yes, it was an extremely messy divorce, if you were curious). There's not really a good way to split time 50-50 in that case, due to both children still being in school. My girlfriend hated having to get up at 5 in the morning every other Monday just to be able to make it to school on time from her dad's place. She didn't hate her dad at all (given the choice, she probably would have preferred to stay with him rather than her mom) but she didn't really have much of a choice in the matter since her mom wanted to keep them in the same school district.
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Re: Divorce Law Reform

Postby lucrezaborgia » Wed Jan 04, 2012 8:43 pm UTC

Themis wrote:Custody always depends on what is in the best interest of the child, and there's nothing that suggests 50% always, or even mostly, results in this.


Barring abuse and the other parent moving away, why isn't having equal access to both parents not more beneficial to the child than only seeing the non-custodial parent every other weekend? I'm not saying it should always be that way...but it definitely should be the starting point. Modifications can be made later on if it's having a negative affect on the children.
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Re: Divorce Law Reform

Postby DSenette » Wed Jan 04, 2012 10:01 pm UTC

lucrezaborgia wrote:
Themis wrote:Custody always depends on what is in the best interest of the child, and there's nothing that suggests 50% always, or even mostly, results in this.


Barring abuse and the other parent moving away, why isn't having equal access to both parents not more beneficial to the child than only seeing the non-custodial parent every other weekend? I'm not saying it should always be that way...but it definitely should be the starting point. Modifications can be made later on if it's having a negative affect on the children.

instability with regards to living arrangements, possible differences in school districts after the split (it's not terribly frequent that after a divorce, the party that moves out of the house stays in the same neighborhood), etc.. etc..
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Re: Divorce Law Reform

Postby lucrezaborgia » Wed Jan 04, 2012 10:09 pm UTC

DSenette wrote:instability with regards to living arrangements, possible differences in school districts after the split (it's not terribly frequent that after a divorce, the party that moves out of the house stays in the same neighborhood), etc.. etc..


That doesn't preclude having 50/50 as an automatic starting point. These issues can and should be addressed. Even if one parent is in another district it's not a stretch for them to bring the child to school. My issue is that "best interest" can be wildly different depending on the inherent biases of the judge.
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Re: Divorce Law Reform

Postby Роберт » Wed Jan 04, 2012 10:16 pm UTC

lucrezaborgia wrote:
DSenette wrote:instability with regards to living arrangements, possible differences in school districts after the split (it's not terribly frequent that after a divorce, the party that moves out of the house stays in the same neighborhood), etc.. etc..


That doesn't preclude having 50/50 as an automatic starting point. These issues can and should be addressed. Even if one parent is in another district it's not a stretch for them to bring the child to school. My issue is that "best interest" can be wildly different depending on the inherent biases of the judge.

Why not just have 100/0 as a starting point?
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Re: Divorce Law Reform

Postby Yakk » Wed Jan 04, 2012 10:32 pm UTC

Because that increases the stakes and gives the parties in question a stronger incentive to use the child as a weapon in the divorce proceedings, and/or the legal system as a weapon.

And incentives matter.
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Re: Divorce Law Reform

Postby Роберт » Wed Jan 04, 2012 10:56 pm UTC

Yakk wrote:Because that increases the stakes and gives the parties in question a stronger incentive to use the child as a weapon in the divorce proceedings, and/or the legal system as a weapon.

And incentives matter.

I don't actually get what "starting point" means or how it affects anything.
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Re: Divorce Law Reform

Postby lucrezaborgia » Wed Jan 04, 2012 11:07 pm UTC

Yakk wrote:Because that increases the stakes and gives the parties in question a stronger incentive to use the child as a weapon in the divorce proceedings, and/or the legal system as a weapon.

And incentives matter.


Yes. People assume that family court is just like any other court and it mostly is as long as there are no significant disputes between the parents. That all goes out the window once people start fighting. Family courts have wildly different processes and standards for resolving these disputes. It's not systematic in the least! The worst part is the assumption that you are guilty until proven innocent.

I used to think that the horror stories about it weren't true, but I'm stuck in it now and so is a good friend of mine. It's very easy for one parent to make a claim against another parent without any proof and I'm not talking about allegations of abuse or rape. I'm talking really, insanely, minor crap that you wouldn't think twice about until you are under that microscope of "best interest".

Роберт wrote:I don't actually get what "starting point" means or how it affects anything.


Assume that both parents have the right to 50% custody at the beginning of divorce proceedings.
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Re: Divorce Law Reform

Postby Yakk » Wed Jan 04, 2012 11:15 pm UTC

Роберт wrote:
Yakk wrote:Because that increases the stakes and gives the parties in question a stronger incentive to use the child as a weapon in the divorce proceedings, and/or the legal system as a weapon.

And incentives matter.
I don't actually get what "starting point" means or how it affects anything.
If the starting point is asymmetrical (ie, that one will get full custody, and the other will get none, by default), that generates an incentive to use the asymmetry as a weapon.

If the starting point is symmetrical, then you cannot use the asymmetry as a weapon.

If it takes some very strong level of evidence to move the starting point, then generating weak evidence isn't incentivized. If even weak evidence can be considered, then there is lots of incentive to generate it.
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Re: Divorce Law Reform

Postby Save Point » Thu Jan 05, 2012 1:24 am UTC

lucrezaborgia wrote:
Themis wrote:Custody always depends on what is in the best interest of the child, and there's nothing that suggests 50% always, or even mostly, results in this.


Barring abuse and the other parent moving away, why isn't having equal access to both parents not more beneficial to the child than only seeing the non-custodial parent every other weekend? I'm not saying it should always be that way...but it definitely should be the starting point. Modifications can be made later on if it's having a negative affect on the children.

That's different from your previous posts where you said physical custody should automatically be 50%. "Best interest of the child" requires looking at a multitude of factors that go beyond making sure that each parent has, literally, equal time with the child. Sometimes that's not feasible, sometimes it's just costly and imposes a burden on the child (or even on one of the parents.) There are other factors:

-The existence of a prior agreement, even though, just because it’s in here, doesn’t mean it will happen. Depends on enforceability of the agreement which, as I said before, can be fuzzy if the clauses aren't enforceable or are preempted.
- Quality of the home environment and parental guidance.
- The financial status of each parent (independently.)
- Individual needs of the child.
- Child’s preference (age 14+ you want consent, though this likely isn't controlling. I know in NY it isn't.)
- Close familial relationships.
- Mental health of the parent as it affects parenting abilities.
- Look at parents themselves (credibility, ability, morality, lifestyle, job.)

To assert, point blank, that there should automatically be some numerical divide, to me, puts the interests of the parents ahead of those of the child. It's a fine starting point, but a cosmetic solution. The BIOC standard is subjective and gives judges wide discretion. I imagine this drives a lot of parents wild, but I think it is a lot better than creating a rigid rule that would make parents feel better without taking into account all the other factors that affect a child's quality of life.
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Re: Divorce Law Reform

Postby lucrezaborgia » Thu Jan 05, 2012 3:48 am UTC

Themis wrote:That's different from your previous posts where you said physical custody should automatically be 50%.
Sorry, shouldn't have been posting so quick.

"Best interest of the child" requires looking at a multitude of factors that go beyond making sure that each parent has, literally, equal time with the child. Sometimes that's not feasible, sometimes it's just costly and imposes a burden on the child (or even on one of the parents.)


I'm well aware of that. On the flip-side, I think children should have equal access to both parents. Parent's are not babysitting their kids on their time.

To assert, point blank, that there should automatically be some numerical divide, to me, puts the interests of the parents ahead of those of the child. It's a fine starting point, but a cosmetic solution. The BIOC standard is subjective and gives judges wide discretion. I imagine this drives a lot of parents wild, but I think it is a lot better than creating a rigid rule that would make parents feel better without taking into account all the other factors that affect a child's quality of life.


It's not just about how it drives people wild. Some people use this system to try to destroy the other parent and end up screwing up the kids in the process. Reasonable people divorcing don't usually have this problem and assuming 50/50 as a starting point (barring serious abuse and logistical issues) doesn't seem bad to me at all.

Of course, I could just be extremely jaded being that I'm currently in the 9th circle of hell of family court.
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Re: Divorce Law Reform

Postby Chen » Thu Jan 05, 2012 1:20 pm UTC

lucrezaborgia wrote:Yes. People assume that family court is just like any other court and it mostly is as long as there are no significant disputes between the parents. That all goes out the window once people start fighting. Family courts have wildly different processes and standards for resolving these disputes. It's not systematic in the least! The worst part is the assumption that you are guilty until proven innocent.

I used to think that the horror stories about it weren't true, but I'm stuck in it now and so is a good friend of mine. It's very easy for one parent to make a claim against another parent without any proof and I'm not talking about allegations of abuse or rape. I'm talking really, insanely, minor crap that you wouldn't think twice about until you are under that microscope of "best interest".


So where does this guilty until proven innocent part come in? Wouldn't both parties be able to do that if no proof was required rendering the whole thing pointless?
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Re: Divorce Law Reform

Postby lucrezaborgia » Thu Jan 05, 2012 8:25 pm UTC

Chen wrote:
lucrezaborgia wrote:So where does this guilty until proven innocent part come in? Wouldn't both parties be able to do that if no proof was required rendering the whole thing pointless?


Delay is a common stall tactic and throwing out accusations is the perfect way to do it. Not all judges go for it, but some do. Stalling is a great way to push the other party into giving up due to lack of money to pay lawyer fees. A good local friend of mine has been fighting false accusations for over 2 years now and has spend over $30k in lawyer fees. Unfortunately, he's out of money and his ex-wife is just getting started. I know someone else whose ex-husband has been using the courts against her for 10 years.

Family court is also the only court I know of where people can be caught red-handed in a lie and have nothing happen to them. The last hearing I was at my FIL lied under oath on the stand and even though we proved he lied, nothing happened. They also don't always do transcripts of hearings or record them in any way. I know my city does not record or transcribe custody hearings. Some cities have set-ups where custody evaluations are done by an "independent" 3rd party but if you use them you have to sign away your right to have the evaluator testify. Some cities go even further and don't allow you to have a copy of the evaluation! Clusterfuck does not even begin to describe family court...

edited to add...I should just go away from this topic. I'm currently involved in a battle-royale between the state of Wisconsin, state of Missouri, monster-in-laws, and the incubator so please forgive me if I seem a bit tense and bat-shit-crazy on this subject.
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Re: Divorce Law Reform

Postby tomtom2357 » Thu Jan 12, 2012 4:30 am UTC

I think that if they lose lots of money by going to court, then that is what they deserve for ruining their kid's life. However, if one of them is constantly going after the other, then there should be a 1 year limit on how long they can do that. There should be a penalty for continuing to go after ones ex-wife/husband.
lucrezaborgia wrote:Family court is also the only court I know of where people can be caught red-handed in a lie and have nothing happen to them. The last hearing I was at my FIL lied under oath on the stand and even though we proved he lied, nothing happened

This is crazy, if they get caught lying under oath, then the liar should get thrown out of court!
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Re: Divorce Law Reform

Postby lucrezaborgia » Thu Jan 12, 2012 5:12 am UTC

tomtom2357 wrote:However, if one of them is constantly going after the other, then there should be a 1 year limit on how long they can do that. There should be a penalty for continuing to go after ones ex-wife/husband.


If wishes were fishes...

Even "permanent" custody orders can be reopened. What happens a lot is that the parent will try to claim that the custody order is being violated and then the other parent has to defend themselves against it. This is what is currently happening with my local friend. During these hearings, parents will try to insert other issues which in turn need more mediation and more court hearings. My friend had his ex slip into the last hearing's paperwork a bunch of stuff that was never even discussed in court or disclosed to him (yet it was to the judge) and he now has to go back to court to fight this new stuff.

tomtom2357 wrote:This is crazy, if they get caught lying under oath, then the liar should get thrown out of court!


It's expected that people will lie in family court. People being emotional over children and all that. The caseworker who came to our house to do a homestudy outright told us this as well as admitting that we were fighting an uphill battle because the system isn't favorable to unmarried males.
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Re: Divorce Law Reform

Postby tomtom2357 » Thu Jan 12, 2012 5:42 am UTC

lucrezaborgia wrote:It's expected that people will lie in family court.

That does not change my viewpoint in this situation, if they lie, then they are obviously trying to take advantage of the court system to get what they want/hurt the ex-wife/husband.
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Re: Divorce Law Reform

Postby CorruptUser » Thu Jan 12, 2012 2:36 pm UTC

tomtom2357 wrote:
lucrezaborgia wrote:It's expected that people will lie in family court.

That does not change my viewpoint in this situation, if they lie, then they are obviously trying to take advantage of the court system to get what they want/hurt the ex-wife/husband.


Lesson 1 for aspiring trial lawyers;

The Defendent is a scumbag.
The Plaintiff is a thief.

At least one of the previous statements is true.
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Re: Divorce Law Reform

Postby Le1bn1z » Wed Jan 18, 2012 10:57 pm UTC

Some practical experience:

1) The vast, vast majority of cases never go to court. These are relatively inexpensive. So long as both sides operate on good faith, there is minimal capital consumed in the court case. Remember, just shy of the majority of marriages end in divorce. If they all went to court, it would be even more unbearably expensive to the state than the war on minorities and poor people drugs.

2) On the other side of the equation, I am currently working on two family law cases which have dragged on for over 15 years. You have read that correctly. 15.

The major factors which can drag out a case to epic proportions are:

a) Issues of disclosure. When one side hides their assets and tries other dirty tricks, this can consume huge time and expense through forensic accountants and investigations.

This gets doubly difficult when there's cash unreported income- often from crime or other, ah, shady enterprise.

b) Judicial incompetence. Note: NOT stupidity. The rarity of highly complex divorce cases can be a problem in itself - Judges are often unfamiliar with the law involved. In two cases, we faced a constitutional challenge on whether the court has inherent jurisdiction to enforce its own orders.

Tied to this is judicial turnover. When (a) happens, you'll see the case be rotated through several judges over many years, accruing hundreds of pounds of paper. There is no way that new judges can ever have a full grasp of what's going on. The cases shift through divorce court, commercial court, divisional appeals, bankruptcy court and, in one case, landlord-and-tennant tribunals.

There is no way for a judiciary to handle such circumstances with competence.

Silver lining: In both cases which were "never-endums," the dads had abandonned the kids completely and had no interest in them (i.e. - psychopaths).

If both partents wish to remain part of their children's lives - that's a very, very good sign. It can sometimes help if you broach the topic with your parents - ask for them not to blow this up. You love them both, and don't want this to consume their lives. Their lawyers, 99/100, will tell them the same thing unless one of them is a multi-multi-millionaire.

Anything less than that and any likely payment doesn't justify the costs of a super law-suit.
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