Thursday, March 21, 2013

Restraining Orders

     I was a relatively new attorney when Massachusetts General Laws Chapter 209A was passed, creating the right to apply for restraining orders against spouses, family members, former lovers and dating partners, and other household members. Never was a statute so necessary: most violent crimes and murders occur among people who know each other, and despite the fact that fully one-third of the police officers who died in the line of duty died while responding to a domestic disturbance call, the Courts and the Prosecutor's offices often treated domestic violence  as a victimless crime, more a nuisance than a real crime. Charges were often dropped, especially by spouses and girlfriends feeling trapped, and the cycle of violence was perpetuated.
     As the years passed and the statute was 'tweaked', attitudes in the Court, the DA's office, and society changed, as domestic violence was finally recognized for what it was: a vicious cycle of physical and emotional pain that perpetuated itself between the generations; a slow physical torture of its victims, who had little support, financial or emotional, to escape the hell they lived in.
     Having said that, Chapter 209A also remains the most abused statute in the Commonwealth. Spouses and former girlfriends and boyfriends can allege almost anything in an affidavit filed in a district court, and the Court will issue a restraining order which adversely affects ones home, work, access to children, and ability to function. Too often, the allegations are either made up or exaggerated,either out of spite, or to gain an advantage in a divorce or custody fight. The Courts, especially the District Courts, are so afraid of negative publicity if they make a mistake, that they will grant the Restraining Order almost routinely, and the fabricator suffers no consequences, even if it is later proven that they lied.
     What is the answer? There is no perfect way to protect all the innocent and punish all the guilty who lied. But there are ways to better the system: The judges should be trained to be more discerning in granting this extreme relief. The DA's offices should actually prosecute the people caught lying. And we, the general public, should be taught to recognize and avoid dating and marrying vengeful and spiteful people, those who constantly need to litigate their relationships, and punish those who end them.

Tuesday, March 12, 2013

Does the Adversary System Work in Divorce?

     American courts follow their British counterparts by presenting legal issues in an adversary system. While this may work with criminal cases and certain civil cases, is it the best way to deal with divorce and other family law cases? In a word: NO.
      My personal experience is that while the adversary eventually works in most cases, it is far from the ideal way to work out most family law matters, and is not justified by the emotional damage to the parties - and unnecessary expense - that takes place during the long process of family law litigation. Most breakups involve complicated issues mixed with high emotion and tension. Zealous lawyers can make otherwise reasonable people attack each other vicariously. I once heard one divorcee describe the divorce process as "a public enema of your life." In too many cases, that is true. Rather than hiring attorneys to advocate positions which are entrenched due to anger and resentment, the parties would be far better served being counseled to mediate and communicate directly about the multiple issues involved in their breakup.
      In custody and visitation cases particularly, the adversary system is inadequate, at best. The attorneys and judges do not know your children like you do, and the usual "cookie cutter" approach the judicial system imposes in parenting plans rarely is the best solution. If and when the parties get past their anger over other issues (which can take some time in many cases), they realize that the parenting plans imposed on them by judges and lawyers lacks the flexibility they and their children need. With few exceptions, children need both of their parents to be involved in their lives. Despite what you now think of your former partner, you once chose that person to be the father or mother of your children. Well guess what: they still are, and will always be.  While Massachusetts requires parents to take a special divorce parenting class, it really does not go far enough. In cases where there are no serious issues of abuse, neglect, or substance abuse, counseling and mediation as to child-related issues should be the first step that the parties take, not the last.

Wednesday, March 6, 2013

How Do I Keep My Legal Fees Down?

     If you cannot mediate your divorce, for whatever reason, you can still take steps to minimize your legal fees. Some simple suggestions from my side of the fence:

  1.  Cooperate with your lawyer! 
       Lawyers need assistance from their clients to prepare their cases. From the gathering of documents, the naming of witnesses, and preparation of Financial Statements, the less time your attorney and their staff spend chasing you for information, the more time they can spend productively on your matter. Organized clients make our jobs a lot easier.

2.  Don't call your lawyer over every little thing.
      Lawyers charge for their time, so use it wisely. Instead of calling 3 times with 3 quick questions, call once and discuss all issues. Remember the lawyer's role: he or she gives you advice, prepares your case, and represents you in Court and in negotiations. Venting is better left for friends, (adult) family members, and counselors.

3.  Non-legal questions can be handled by  secretaries and paralegals.
      Questions on scheduling and how to fill out Financial Statements can more economically be handled by staff for free or at a much lower hourly rate.

4.  Take your lawyer's advice!
      If you are not going to take your lawyer's advice, then you are wasting your money. If you don't trust the advice, why did you hire the lawyer? Maybe it's time for a change. If you don't trust any attorney's advice, maybe it's time to re-think your attitude.

5.  Pick your battles.
       It is not economical to spend $200-$500 per hour to argue over the silverware and used furniture. Prioritize and remember what is important. Closure saves you money and peace of mind.