Pros and cons of one-year vs. two-year separation period for contested divorce litigation -- a divorce lawyer reflects

At the end of 2017, couples began to be affected by Pennsylvania's the new divorce law, which cut the living-apart period before filing contested no-fault divorce litigation, without mutual consent and without all the financial and child-related issues worked out, from two years to one year. Carolyn R. Mirabile, a partner and family law group head at Weber Gallagher Simpson Stapleton Fires & Newby in Norristown, Pa., looks back at what seemed to have worked better under the old law, and what improvements she hopes for from the new law. 

One Year Later On the One-Year Separation

By Carolyn R. Mirabile in The Intelligencer - Mar 15, 2018


Utah lawmakers boost premarital education but abolish family courts, conciliation, counseling; cut divorce wait period by 2/3

Marriage and Family Courts Blog:

 

New Utah law gives marriage license discount for premarital education or counseling; marriage commission to publicize couples' options

 

Utah legislation would abolish family courts, counseling and conciliation, cut divorce wait period by 2/3


It's not a "right to custody" -- here's what the Saudi justice minister actually decreed

The headlines are misleading, but the truth behind them is strange and elusive, from a Western perspective. A "right to custody" has appeared in headlines on CNN, in Khaleej Times, and in news links circulated on social media. That wording, at least the way it would commonly be understood in the U.S., is completely wrong.

Just as divorced or separated parents in the U.S. do, Muslim Saudi women who get divorced, or whose children later reach the age for living with their fathers, have the right to ask a court to decide who gets custody, and to have the court consider the case.

What is new this month is apparently a procedural reform: IF the parents have no disputes on child-related issues, the mother can get custody by filing an application with the court, instead of going through a full-scale court case. The Justice Minister's circular says, in part:

 A mother may submit a probate application to the competent court for certifying her custody of her children, provided she signs an acknowledgement that there were no existing disputes ... 

For granting custody to a mother, the judicial panel considers her capacity for custody and then determines her application in accordance with Sharia and legal requirements, without the need for initiating a lawsuit, as is the case with all probate certifications indicated in Chapter 13 of the Law of Civil Procedure.

--  quoted in "Saudi mothers can now retain custody of children without filing lawsuits" by Habib Toumi in Gulf News

Almost all the news stories include that key phrase, "provided there are no disputes," but the headlines and lead sentences, and indeed the rest of the wording of each article, totally ignore it, as if it were a technicality or an unthinkably rare and meaningless exception. This is as bad as the reporting on no-fault divorce laws or covenant marriage laws -- blowing up changes to sound far more drastic than they are, by making crucial exceptions sound like meaningless recitations, and naively ignoring or belittling the role of agreements and disagreements between divorcing spouses.

There is no change in favor of foreign or non-Muslim women, as far as I can tell.

Other substantive changes the Minister announced:

The circular also gives the mother the right to carry out all formalities related to her children at government departments, embassies, education offices and schools, and to apply for and collect her children’s passports.
She will also be able to collect all child support and maintenance from government and civil entities, but may not travel with her children outside the Kingdom without a judge’s permission.

-- "Divorced Saudi mothers win new rights to child custody" by RUBA OBAID in Arab News

To see what this is a change from, here is what looks like the most up-to-date background on child custody in Saudi courts:

"THEMATIC REPORT ON MUSLIM FAMILY LAW AND MUSLIM WOMEN’S RIGHTS IN SAUDI ARABIA," report to CEDAW, February 2018, by Musawah: For Equality in the Family


My comments on proposed limited-scope representation rules; your comments due March 1

The Virginia Supreme Court and the Judicial Council are considering a new rule to deal with limited-scope representation, especially assistance to people who are already in litigation. My comments on it are below. The proposal, and where you can send comments by March 1, 2018, are at:

Advisory Committee on Rules of Court, Judicial Council of Virginia, "LIMITED-SCOPE REPRESENTATION ISSUES".

Overall comments — 
 
This is a very important reform. Full-scale representation in family law litigation is often unaffordable even by people who would be considered upper middle class. And it takes both divorcing spouses to prevent any particular divorce from becoming unaffordable, long-running litigation.
 
The proposed rule has many extra cautionary requirements for the attorney, or the attorney’s name and contact information, to be present in court, and on documents, even for issues where the lawyer is not involved. Please bear in mind that each of these requirements comes at a cost, not only of the attorney’s time, attention, and availability for other cases, but also by sowing predictable confusion among clients and especially their opposing parties, who aren’t involved in the limited-scope agreement. When lawyers’ names are on papers or a lawyer is present, lay people are going to assume that the lawyer is a prime mover in whatever is going on. Lay people, and even the lawyers themselves, will often feel that the lawyer has some responsibility to intervene or advise about whatever comes to the lawyer’s attention. Lawyers' instinct to be helpful will inevitably cause “mission creep” in many cases. So all such requirements should be kept to the minimum necessary.
 
As lawyers comply with these additional requirements, clients and other members of the public may feel that the lawyer is hanging around like a vulture waiting to insert herself into the proceedings and expand her involvement so that it is no longer limited. Or interfering, intruding and violating the client’s desire to limit the scope of the lawyer’s work, by writing to the client with repeated notifications of well-known facts about hearing dates, etc., whenever the lawyer is cced on something the other side sends out. Many clients already respond this way to communications that court rules and ethics rules require us to send.
 
Line comments
 
9-10 
 
 I agree that a lawyer should not be present but generally uninvolved, only popping up now and then with objections. That would be chaotic and unfair.
 
But I can also see the value in having an attorney handle only a particular motion in limine or motion to suppress. It seems fairly clear that the intent is to allow that, but it would help to make that explicit.
 
11-13
 
" A notice of limited scope representation is not required for  … (ii) services performed by an attorney before any litigation is pending”
 
Does that dispensation also apply to the requirements to “indicate” or “identify" in (1) (F), Alternative versions 2 through 5?
 
I believe it should apply. Either way, that question should be answered explicitly.
 
26 et seq. — Alternative versions of (F)
 
In all versions, the term “papers for submission to a court” is intended to be clear, but what about marital separation agreements? They are not court filings. They are binding contracts when the parties sign them, regardless of whether they are submitted to a court. But whenever one gets signed by both spouses, perhaps 95% of the time there is going to be divorce, and the agreement i8s going to be submitted to the court as part of the divorce process.
 
I think limited-scope assistance is crucial, so I oppose Alternative # 5, which essentially bans limited-scope, and Alternative # 4, which creates a presumption against it; imposes a needless requirement to essentially file a notice of appearance, and then to file a notice of disappearance.
 
86
 
“Papers” sounds vague. I think you mean litigation documents such as pleadings or discovery requests, but we need a more precise, comprehensive, understandable, and distinctive term for that.
If it’s intended to mean everything, including settlement correspondence, that’s reasonable, too, but that too would need to be clearer. Because the word “papers”, to a lot of people, vaguely indicates papers that are somehow official, binding, and/or threatening.
 
88
 
The requirement should be to notify the “sender”, not “the adversaries”. They might not be the same people.
 
 
notify the adversaries in writing of that fact
should be changed to  
notify the adversaries, in writing, of that fact
or
notify the adversaries of that in writing
 
But really, “that” or “that fact” might not make clear to everyone which of the facts mentioned earlier in the sentence it refers to, so it would be better to say, 
 
“the attorney must notify the sender that the documents received deal wholly or partly with matters outside the scope of the limited representation,"
 
107-108
 
"(D) Contacts by adversaries or co-parties on matters within the limited scope of 108 representation shall be with counsel …"
 
What about family law cases, where many couples legitimately continue some kinds of negotiation between themselves, even when they both have counsel who are negotiating at the same time? 
 
110-111
 
“copy served upon the attorney making a limited scope appearance” — 
 
Would serving the attorney require that attorney to respond and notify as required in (3)(C)? If that happens once, it makes sense or is at least harmless. But in litigation where filings go back and forth almost every week, it’s going to drag the limited-scope attorney into a lot of busy work, and confuse litigants — the client and/or the opposing party — about the attorney’s role.
 
115-116
 
(A) — attendance at all court proceedings, outside the scope,  should not be required if the rule is truly allowing limited representation. I would expect attorneys to charge for this time, and it would be a major burden on the clients and the attorneys.
 
John Crouch
VSB Council Member for 17th Circuit
Fellow, International Academy of Family Lawyers (Formerly IAML)
and International Academy of Collaborative Professionals
 

Federal "diversity jurisdiction" exists to prevent unfair home-court advantage, so why doesn't it apply to family law?

"Family Law Is Not 'Civil': The Faulty Foundation of

The Domestic Relations Exception To Federal Jurisdiction”

By Joseph A. Carrol, Dickinson School of Law

ABA First Place Schwab Essay Contest Winner, 2017

 


Is family-court duty cruel & unusual punishment for judges who cuss out criminals?

<<According to the Tribune, Sacks “has long had a reputation for delivering strongly worded rebukes from the bench.” He was reassigned for four months to domestic relations court in 2004 for what the Tribune describes as his “profanity-punctuated lecture” during a sentencing hearing.>>

Judge's sarcasm was 'unwarranted and wholly inappropriate,' appeals court says


Law schools' focus on case-law makes the law & lawyers elitist, undemocratic, bad at their most important job

Larry Gaughan, an elder statesman of family law and mediation in Northern Virginia, recently reflected on the legal profession's excessive focus on case-law, and the attitude that law isn't real until it has been applied in a published appeals court case. Besides the way it poisons lawyers' ability to help their clients, which he so eloquently illustrates, I think there's even more:

  1. It makes young lawyers ridiculously elitist and contentious -- they model themselves on bow-tied Supreme Court Justices hurling pompous insults at each other and at the people involved in their cases, and not on real lawyers working in the trial courts, lawyers who work to resolve disputes before they become trials, and lawyers who try to draft contracts and statutes so well that people won't even have legal disputes about them, and won't have to go to lawyers to know what they mean.
  2. It's anti-democratic: As Larry points out, major new legislation in our field -- even something as basic as letting divorce courts divide property --  is often not understood, and not really recognized, until there is case law saying what it means. And Virginia's appeals courts sometimes take the attitude that revising the details of divorce-related law is only their business, and when the legislature tries to meddle in it or to undo the effects of an appeals court decision, they seem to do their best to frustrate the legislature's aims or use the new statutes to reach absurd and unintended results, as if to say, 'see what a mess you make when you meddle in the affairs of divorce courts!' In Constitutional law, the Third Amendment and, until recent decades, the Second Amendment, are often described as a dead letter because there were no court case opinions 'making them real.'

Larry writes:

"In 1890 American law schools began to switch to the study of appellate cases as the primary means of legal education.  ...  Given that so few law graduates now wind up as litigators, that approach makes less sense with every passing year.  Almost by its very nature, the case system teaches us to look backwards and to think of law as litigation. ...

"The case system made more sense when most law graduates wound up as lawyers whose practices included litigation.  Even [for them], law schools were not great in teaching statutory interpretation.  I remember vividly the problems many Virginia lawyers had in figuring out how to interpret the new equitable distribution statute as first enacted in 1982.  To many lawyers, the new statute really only started to have meaning after the appellate cases started to come into play. ...

"We must recognize that most legal disputes are not resolved by courts, that statutes have meaning even before courts interpret them, and that more law school graduates will pursue careers that require some knowledge of the legal framework, but also the ability to quickly learn and assimilate other kinds of expertise."

Like most lawyers, I have good and bad recollections of my own legal education.  I remember the popular law professor who taught commercial law courses, and the skepticism about another professor who taught criminal procedure.  The former taught us “the law” from uniform statues that were already in the process of major revisions.  The latter was a theorist whose courses accurately predicted every one of the major reforms of the Warren court.

-- Mediator and lawyer Larry Gaughan in "An Improper Focus for Legal Education", The Divorce Agreement Newsletter, No. 53 – July 6, 2016