An Argument for Less Argument in Family Law

The trend over time in the United States is that there is steady population growth, but less marriages occurring overall and a smaller percentage of marriages ending in divorce. The median age for a first marriage has increased from age 26 for women in 2012 to age 30 for women in 2022 and in the same years for men an increase from age 28 to 32. The numbers clearly point to less couples taking the leap into the legal binds of matrimony and further they are waiting until they are older if they do decide to marry. What does this mean? Less divorce clients. But that is not all.

Trends also show us that for couples who do get a divorce, they are increasingly ending their marriages with less conflict, less involvement of legal professionals and 93% of divorcing couples utilized a method of Alternate Dispute Resolution (ADR).  Couples are increasingly pursuing DIY Divorce solutions which are designed to remove all divorce professionals from the process.  These types of solutions involve filling out their own forms, negotiating with one another on complex issues like spousal support, child visitation and custody and asset and debt division.  Although statistics are not gathered on the exact number of attempts, online DIY solutions boast of helping “thousands” and even “a million” couples. What does this mean? Divorcing couples do not want and are not seeking the traditional contested and acrimonious process of the past. There is no data kept on how many couples use clerk forms or online downloads to attempt to resolve things themselves, but the amount of people attempting to go it alone without assistance and the rise and success of DIY services sends a clear signal to all divorce professionals that couples are actively seeking efficient and peaceful divorce resolutions. The reality is, however, that approximately 80% of those who attempt to do the divorce paperwork themselves fail. Couples are finding they need legal guidance, drafting or calculation assistance or that they are emotionally unable to negotiate directly with their spouse. This leads well-meaning couples to seek assistance and they desire routes to resolve their matter outside the traditional court system with methods like EDR, ADR, amicable divorce, collaborative divorce and other cooperative law processes.  Divorce professionals who have practiced by relying on conflict and strife between parties will not be equipped to help meet the new and changing needs of divorcing couples. Professionals should be taking steps to understand, promote, and be engaged in all forms of dispute resolution, and in particular, Early Dispute Resolution (EDR).  In fact, well-known divorce attorney and mediator, Susan Guthrie, has often said that the adversarial litigation approach to the divorce process has never been a good nor appropriate choice for helping families to restructure through separation.  Applying a legal model intended to resolve disputes involving automobile accidents and contract disputes, has always been ill-suited to meeting the intricate needs of those facing the many issues facing a family moving through divorce. Guthrie agrees that the decreasing trends in divorce rates and the increasing preference for Alternative Dispute Resolution (ADR) methods underscore a significant shift in how couples navigate separation indicating that we, as practitioners, should not merely be shifted towards facilitating legal proceedings but ensuring that the process respects the dignity, emotional well-being, and financial stability of all involved. Embracing Early Dispute Resolution (EDR) and ADR not only aligns with this changing landscape but also offers a pathway to resolving disputes that honors the humanity of our clients and their desires for a respectful and amicable resolution. 

Divorce trends are a clear signal that couples desire effective and cost sensitive resolutions and divorce professionals need to hear them and be prepared to offer the solutions the clients are seeking and not create conflict where it did not exist. 

No matter how complex or simple, the Amicable Divorce Process focuses on moving parties through divorce, and other family law matters, in a streamlined manner, professionally and with transparency.  With this process, there is a focus on a divorce process comprising of three stages. These three stages remain true for all divorce and family law matters and each stage presents different opportunities to enlist EDR and ADR to resolve matters efficiently.

Stage 1 Information Gathering:  In this stage either a couple or their selected professionals gathers all the information for the case and identifies all issues that exist pursuant to the case. It is basically one big list and often utilizes discovery to obtain the required information.   At this stage, EDR can be very effective to get everyone organized and on the same page. Individuals and/or their professionals can enlist the services of a mediator for a short period of time to work on making sure everyone has the same list of issues, and if they do not, what is the plan for resolving the dispute and on what timeline as well as what documents need to be exchanged and by what deadline.  As many professionals have seen, when parties try to mediate (Stage 3) without being on the same page factually, everyone is spending time in the mediation doing information gathering that should have been accomplished earlier in the process. 

Stage 2 Assessment of Information: Now that everyone is dealing with the same list of topics that require resolution, what is on the list can be evaluated. Professionals should consider utilizing EDR and setting a settlement conference at this stage. If the parties are in agreement as to the values of items and their allocation, or even custody and visitation, these items should be memorialized as an agreement and removed from the case to do list. During the settlement conference, parties and counsel can create a roadmap for resolution of final issues. For example, if the parties agree the home is a marital asset to be divided, but don’t agree on the fair market value, a real estate appraiser would be involved. Everyone can identify what steps are being done, on what deadline, who is paying the cost and how the information is being shared. Parties may agree to enlist, for example, a business valuation expert. They now have the opportunity to both be invested in that process and to use one expert in the case as opposed to the traditional contested route of expensive and competing experts. Nailing down the who, what and where can streamline the process for all involved.

Stage 3 Resolution:  Every divorce case comes to an end. If the parties are unable to come to an agreement themselves the Judge assigned to the case will issue a Final Order with the terms. However, for many parties, taking control of the resolution process allows them to work for a settlement in a manner that is creative and personal for their family, private and not being given to the Court to decide, lower conflict as they do not need to sling mud at one another as required by the court system and cost efficient as they are not preparing for trial. At this stage we can no longer be in the EDR space and have moved into the Alternate Dispute Resolution space. Under the umbrella of Alternate Dispute Resolution there are many different professionals holding different expertise such as a mediator, arbitrator, divorce coach and parent coordinator. Assisting the parties in resolving their matter without court intervention is serving the client’s desires for efficiency, lower cost and lower conflict. Having a mediation at the right time, with the right information sets everyone up for a successful conclusion.

Although a divorce is the typical family law process that comes to mind, EDR and ADR should be utilized in family law matters across the board.  Professionals should consider when preparing initial agreements asking the parties to agree to dispute resolution for any later issues. Often tempers flare when one party gets a new partner or relationships are tested when one parent wants to relocate to a new state. Anticipating future issues and guiding parties towards EDR and ADR for future disputes is also a way to channel conflict and focus the parties on resolution and not litigation. Cases may include child support modifications, relocation cases, visitation and custody modifications and contempt actions.  No matter what the dispute, it again will follow the same three stages articulated above. 

The trends in divorce and with divorcing couples is clear that the future of family law has a low conflict future. Professionals interested in serving their clients, what they want for their future and their family, should diversify their practice with EDR and ADR knowledge and techniques to be meeting the needs of family law clients in this resolution focused future.