Family Law

By Nikki Clark

Nikki Clark practices family law exclusively. She is the managing attorney at the Fremont, California, location of the Law Office of Shirley D. Jacobs, and the current Family Law Section Chair of the Alameda County Bar Association. She may be reached at . For additional resources, see the GP|Solo Division’s Family Law Committee website.

Family law attorneys deal with people at their very worst—people reeling from the loss of their life-long partner and/or their children, terrified from the decline in their standard of living, trying desperately to understand a dramatically different world.

Family conflicts expose the most primitive human emotions—anger, betrayal, rejection, sadness, and fear. The practice of family law is simultaneously frustrating, depressing, humbling, exhilarating, and tremendously rewarding. Successful family law attorneys require a mosaic of unusual skills. They must be able to analyze objectively, empathize emotionally, and problem-solve creatively.

In California a family law case begins when a party files a petition to dissolve a marriage, establish a parental relationship, or obtain a restraining order. Dissolving marriages dominates the practice of family law, as the divorce rate hovers around 38 percent, according to the 2005 estimate by the National Center for Health Statistics. The dissolution of a marriage has a number of components—mainly custody, support, and the division of community property. Custody cases are also litigated between unmarried parents. The issue of child custody can continue to be litigated post-judgment until the children are 18, whereas a judgment dividing property is generally final upon entry.

Family law attorneys typically handle guardianships and adoptions as well. To be an effective family law practitioner, you will need at least a working knowledge in such collateral fields of law as probate, estate planning, bankruptcy, immigration, juvenile law, tax law, criminal law, and civil law.

While a dissolution or parentage action is being litigated, there are usually interim motions heard by the court to establish temporary orders. Most family law cases are settled somewhere along the path to trial.

In California the family code requires that attorneys and litigants cooperate to promote settlement of issues and to reduce the cost of litigation. Sanctions may be imposed on the parties for unreasonable conduct.

You should become familiar with the local rules of practice for any county in which you plan to appear. Although state statutes are applied consistently in any county of the state, local rules can vary greatly, so your client, the court, local clerks, and your malpractice carrier will be happier with you if you fully acquaint yourself with each county’s rules.

Because the practice of family law frequently involves the determination of either child support or spousal support, California recognizes specific software to perform this function. In my county the bench uses DissoMaster, but other counties in California may use other software. You should familiarize yourself with the kind of support software used in the county you will be practicing in and buy a use license. A number of private companies offer software containing electronic versions of mandated county and state forms.

There are a number of resources available such as practice guides that are very beneficial to both novices and veterans. I subscribe to online practice resources because of the ease in obtaining information. I also highly advise joining the family law section of your local and state bar associations. There may be valuable networking connections available through both. Finally, try to get e-publications of recently published cases in the field. It is imperative that you are aware of newly published cases as they may immediately impact some issue you have before a court for consideration.

Like all other attorneys, family law attorneys have a duty to zealously advocate for their clients. However, unlike other areas of practice, aggressive tactics and advocacy are usually not in the client’s best interests, especially when children are involved. Think long and hard before you rush your client into a custody battle, which will undoubtedly worsen any relationship between your client and the other parent and likely create irreparable emotional harm to the children.

There is irony in the idea that a courtroom is the appropriate place to resolve the issues of a family in crisis. In Alameda County, California, where I practice, we have an excellent family law bench that works diligently to resolve issues, but most judges have neither the time nor the psychological expertise to deal effectively and constructively with the deep and often dysfunctional emotions that generally drive family law litigation.

Some family law litigants appreciate this on an intuitive level or come to appreciate this when the courtroom experience exacerbates, rather than resolves, their conflict. For those folks there are now alternatives: mediation and collaborative law. Both family law mediators and collaborative family law attorneys facilitate agreements that are equitable in nature and based on the parties’ own sense of fairness. Typically, it is the parties in a family law case—not the attorneys or the judge—who are in the best position to make the significant decisions affecting their lives and the lives of their children.

Perhaps the most important consideration in any family law case is that the relationship between a family law attorney and client impacts the client’s entire present and future life. It is vital for a family law practitioner to understand that anger and fear, further inflamed by courtroom battle, do little to resolve the underlying emotional issue in the client’s life. No client of mine has ever “won” anything after being drained emotionally and financially, even when the court ultimately ruled favorably. To effectively represent family law clients, conflict must be understood and constructively contained so that the parties can, with the assistance of their attorneys, find the way to their own solutions.

Copyright 2007

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