Monday, February 23, 2015

The future of marriage and paternity

Most modern family law attorneys do not refer to themselves as "divorce attorneys" as they might have 40 years ago. First, that term describes only about half (sometimes fewer) of my cases at any given time. Second, the term sounds antiquated. It's almost like an estates attorney describing her business as "drafting wills", when we all know that various kinds of trusts are much more common these days than traditional wills. For married persons, though, there is no alternative to a divorce. The difference is that marriage is becoming less common.

I believe the perception of divorce as a time consuming, expensive, complex process is one of the reasons for this. It is true--no matter how brief the marriage or seemingly undisputed the division, there are rules that have to be followed, documents that must be exchanged and filed in a certain order, and filing fees that must be paid. And you can mostly avoid this if you don't get married and never have children with the other party (except, see Marriage of Marvin and other cases re: palimony, quiet title actions if you buy property together, and potential legal proceedings over undoing any of the other manners you might nonetheless intertwine your lives notwithstanding the lack of a marriage). Without marriage you are generally free to act out your own version of what is fair in a break-up and the court probably won't figure in your breakup unless your version rises to the level of something criminal or quasi-criminal like assault, theft, or domestic violence.

If you do have children, or are planning to, the assumption that you are avoiding court by not getting married is simply untrue. Without the marriage in place, you actually open the door to very bad behavior in the event of a break-up that will be harder to unwind than if there had been a marriage in place. And yet, when I suggest to people, particularly younger adults, that marriage is the single easiest way to protect their custody rights to their children, they balk. I often say that I am a traditionalist on this particular issue, even though I don't particularly love the institution of marriage or even believe it is appropriate for all relationships.

If you have a marriage like relationship and you break up and need a court's assistance with custody and visitation, you will find yourself in a paternity case. For many couples, paternity is never questioned or considered an issue and they are very confused to find the only court action available to them is a paternity case, but that is what you have to file if you weren't married and you want a court to make custody orders.

The fact that you must file a paternity case means that it may present an opportunity for a father to test and deny paternity or for a mother to exclude a father from the lives of the children he thought to be his. The laws are all written from the perspective of women needing support and men avoiding responsibility for children--because this was the primary concern at the time of drafting and continues to be a concern for many children. As written, there is potential for use and abuse of the paternity laws in unexpected ways. Being married at the time a child is born trumps any other claims that might be made almost without exception. The presumption of paternity of a child born to a married couple is one of the strongest presumptions in family law, and so far it seems to have held (at least in California) with regard to same-sex couples as well.

Marriage is not yet an outdated institution. The same-sex marriage movement has breathed new life into marriage. When children are involved, there are advantages to being married. Couples who are contemplating or expecting children should seriously explore the advantages of marriage before dismissing it out of hand.

Tuesday, January 6, 2015

A few words about custody disputes

Most of my work, whether a new case or a revisit of an old case, seems to stem from custody disputes. Nothing is more emotional or potentially expensive than litigating your custody arrangement. How you raise your kids is so integrally tied to who you are as a person that it is nearly impossible to separate out your own needs, desires and beliefs from what your children need in planning for how they are going to grow up. Yet, that is exactly what the court expects. If both parents were capable of doing that, they probably wouldn't be hiring attorneys and going to court.

Before you file a scathing declaration in support of a motion to get the arrangement that you want, here some things to consider:

Monday, July 7, 2014

Improving Access to Justice in Family Law

Legal advice is pricey. There is a reason for that--see my previous post; this doesn't mean every attorney charging hundreds of dollars an hour is rich. Bar associations, judges, and already rich attorneys like to make a lot of noise about how we need to improve "access to justice" in the family law area for people who can't afford it--which these days is 90%+ of the population. But when it comes down to what should actually be done, all you ever hear is the same suggestion every time--unemployed new law graduates should handle these cases for free because they don't have anything better to do. This suggestion is tone deaf and dismissive of the larger issues involved in providing legal assistance to people without adequate funds. Young graduates would be happy to volunteer some time to get some experience. Unfortunately, without guidance in these matters, the young attorneys are likely to get into cases over their heads and possibly leave clients worse off than they found them.

Tuesday, March 4, 2014

Pre-nups are always difficult

Theoretically, pre-marital agreements (pre-nuptial agreements, or pre-nups) make perfect logical sense. After all, the state has decided what is fair if you get divorced, why shouldn't you come up with your own rules if you don't agree? But every time I sit down to discuss and draft one with a client, it is a difficult thing to do. Here are some reasons why: