Trends and Changes Observed in a Legal Career

It might be argued that the field of family law has undergone more dramatic changes in the past thirty years than any other area of law. "This field, because it is dependent on people, is constantly dynamic and changes daily," says Carol Rogers Milliard, a practitioner in Rocky River, OH.

Since the 1960s, there has been a shift from the traditional nuclear family of husband, wife, and two children to an increasing proportion of single-parent families and blended families. The changing definitions of family along with other issues which have transformed our society have also altered family law. Thus, the women's liberation movement, the rise in divorces, an increase in mobility and major technological and scientific advancements, have all had an impact on the legal developments in this field.


Development of No Fault Divorce

One of the most significant changes has been the liberalization of divorce laws in the late 1960s, which gave rise to the concept of "no fault" divorce. Most states had previously required that grounds for divorce, such as adultery, had to be proven before the marriage could be dissolved. Divorce lawyers regularly hired investigators to substantiate allegations of infidelity.

With the advent of no fault laws, divorces were easier to obtain and more commonplace. As divorce rates soared, much of the stigma of having a "failed marriage" or "coming from a broken home" was reduced.

"Divorce has changed from a shame-filled event to a routine and predictable occurrence in the life-cycle of families,"
explains Professor Andrew Schepard, who teaches family law.

The idea that a couple could separate and have an "amicable divorce" was widely touted, but proved impossible for many. "No fault divorce reduced but could never eliminate vicious attacks by spouses on each other" explains Gary Skoloff of Newark, NJ.

Equitable Distribution of Assets

The focus in a divorce was shifted from fault issues to economic issues, leading to key changes in the area of marital property division. In the past thirty years, many states have adopted community property laws mandating an equal division of property upon dissolution of the marriage. Even in non-community property states, considerable efforts have been made to achieve a more equitable distribution of marital assets. The Partnership Theory, which took into account the contributions of both spouses to the family, "gave the non-earning spouse a fair shake," according to Skoloff.

The concept of marital property was expanded by the courts to include such things as retirement benefits and the increased value of a business or stocks. Family lawyers became more knowledgeable about accounting methods, taxes,
and valuation.

Litigation vs. Mediation

Another significant change in family law has been the shift from litigation to mediation, arbitration, or other forms of alternative dispute resolution. Working it out instead of fighting it out has become critical for former spouses who continue to share child-raising responsibilities. For many family law practitioners, their own role has evolved as a result.

"Procedurally, the biggest change has been in alternative dispute resolution for family cases, especially divorce and custody mediation," writes Alice M. Price of La Jara, CO. "I personally have left litigation practice and work exclusively in mediation now."

A West Chester, PA, practitioner, Kim Morton, writes that she has become a divorce mediator as well. "While the work is still hard, it is far more rewarding," she explains. "I hope to see more mediation."

Custody and Support Issues

Family law has also undergone important changes in the field of child custody and child support. In the mid-1970s, courts moved away from the "tender years doctrine" which automatically awarded custody to the mother in nearly all cases to more closely examining the best interests of the child. Divorcing fathers began to fight for custody or an expanded role in their children's upbringing. Many versions of joint custody were developed in an effort to give children the advantages that both parents could offer them.

Throughout the 1980s, a changing concept of family meant custody might be awarded to adults other than the biological parents.

Children from "blended families" often ended up with a step-parent following a second or third divorce. Grandparents and foster parents asserted their own rights to continued contact with a child. Courts were more willing to consider placement with a homosexual parent and partner. Most importantly, the rights of the children themselves were advanced and the focus became on "children as separate legal and emotional entities from their parents," as Professor Schepard describes it.

"In the past, children have been treated as property and their feelings and wishes in family law situations were ignored" says Patricia Stiller of Morgantown, WV "The most important change that I have experienced as a practitioner, at least in my state, is the trend of our courts to give more consideration to the interest and welfare of children involved in family law litigation."

Changes in child custody and support issues have reflected the increased mobilization of society. Interstate cooperation and increased "federalization" have led the way for uniform laws dealing with custody jurisdiction, child support enforcement, and child support standards, according to Professor Linda D. Elrod, who teaches family law at Washburn Law School and is editor of the Family Law Quarterly.

Uniform custody laws have virtually eliminated the once common practice of a noncustodial parent attempting to get custody in another state. In the 1980s, the same concept was applied internationally through the Hague Convention, protecting the rights of custodial parents whose children might be taken abroad.

Support enforcement has been improved through garnishment laws and access to computerized records. Noncustodial mothers as well as non-marital partners may be required to make support payments. Child support guidelines have reduced the number of times the issue of support is tried, a "true blessing" according to Nancy Bailey of Dillon, SC.
Scientific developments have also had an impact on child custody and support issues. Genetics and reproduction technology have led to DNA testing to establish paternity, in vitro fertilization, surrogate mothers, sperm banks or egg
banks, women on life-support giving birth, and a host of complex legal issues unimaginable 30 years ago.

Changes in the Courtroom

Over the years, one of the major changes has been the development of a family court system by individual states. While some states already had separate courts to try family law cases, other states established a system following the dramatic rise in the number of divorce and custody cases in the 1970s.

Despite efforts to alleviate clogged dockets, several attorneys surveyed list crowded courts as one of the biggest and most difficult changes they have experienced as practitioners. As a result, courts often push for out-of-court settlement by parties
or become more rigid about scheduling dates and orders.

Other family lawyers note the changing rules of practice and the use of discovery as being among the most significant changes. The use of expert witnesses in everything from valuation to child psychology is applauded by some, while others point out that experts increase the cost of litigation and sometimes complicate issues needlessly. One practitioner strongly criticizes judges for deferring too much to the experts and abdicating their judicial responsibilities.

Specialization and Proliferation of Laws

In the past thirty years, those in family law have witnessed what one practitioner calls "an explosion of laws related to the field."

Another lawyer terms it the "increasingly legislative involvement with family law issues."

"Family law has become a much more specialized area of practice, requiring constant continuing legal education to stay abreast of the law," writes Pamela Deal of Clemson, SC.

Nine states offer certification programs for family law specialists and other states are looking at starting their own certification program or having an approved certification agency administer tlieir state's program. Family law, because it involves so many areas of law, however, is difficult for states to define and test as a specialty.

Changes in Practice

Like other lawyers, family law practitioners have experienced many changes within their own practice setting. Those surveyed talk about the use of computers, the increasing costs of running a practice, competition created by the surplus of lawyers, and changes in the level of civility among colleagues.

"Technology has changed the way we manage our practice, paper work, etc.," writes an attorney who has been practicing family law for thirteen years.

Personal computers have replaced the personal secretary for those in larger firms who now produce their own letters and documents.

The advantages of reproducing forms and editing documents must always be weighed against the disadvantages of paying for equip-Most of the family law practitioners surveyed have had to adapt to survive. Here are some of their responses to the following question: What is the most important change that you personally have experienced since becoming a family lawyer?

Those who have been practicing from 2-5 years:

• I've learned to take a more common sense approach rather than a legal approach.
• I have acquired the ability to confront my own client.
• I have learned to put my family and my mental health before my career.
• I've gotten better at evaluating the amount of work any given case will require. Also, I've gotten better at letting go when things are beyond my control, as long as Fm sure I've done what I can.
• I have learned there is a limit to what you can do to solve clients' problems. Another attorney reminded me when I opened my practice that my background is in law, not psychology. When clients have non-legal issues, I compassionately listen, but suggest that they work with someone better trained to help them with those problems.

Those who have been practicing from 6-10 years:

• I have found that many things can be mediated, that parties want to be heard and listened to.
  
  
• The most important change that I have experienced as a practitioner is to establish clear boundaries with my clients and opposing parties, including in the area of expectations as far as payment of my fees and outcome in the court system. When I first started practicing, I was not sufficiently clear with my clients with regard to these two areas.
  
  
• I have learned to pace myself and not take on more than I can handle. I have the ability to see issues quickly and to come up with alternative ways of dealing with them.
  
  
• I have more wisdom, but not enough. I'm not wise.

Those who have been practicing from 11-15 years:

• I began sending letters confirming advice I have given clients because they conveniently "forget" what they hear.
  
  
• I have realized that, in the future, the children will continue to be involved with both parents and I have to help parents realize that the ex-spouse is entitled to build a new family unit with the children.
  
  
• I have acquired an ability to deal with unexpected developments. I have learned to be prepared to handle situations that I can't totally control or really prepare for specifically.
  
  
• I have the ability to avoid getting bogged down in minor issues.
  
  
• I have learned that I cannot help everyone and that, as the attorney, I must fully advise clients and control the case. There are some clients that you must be very firm with.
  
  
• I have become proud of the broad range of skills I have acquired which are necessary for the successful practice of family law.
  
  
• I have come to realize that if you try hard enough, you may find prac tical solutions to almost any problem.
  
  
• I have adjusted my own personal views and goals for the practice of law, including moving from a larger law firm to a small practice where I can control more of how cases and clients are handled.
  
  
• If you take time for self, you are more effective at work.

Those who have been practicing from 16-25 years:

• I have acquired the ability to reduce emotionally-charged situations into less hostile and less adversarial contests where children are involved.
  
  
• No matter how good a job you think you are doing for the client, there are really no winners and you need to keep the client's expectations focused on getting through the process rather than destroying the other party.
  
  
• Finding a balance between aggressively representing a client and being cautious about determining my client's untruths. If it doesn't sound right, it probably isn't.
  
  
• I personally have left litigation practice and work exclusively in mediation now.

Those who have been practicing 25+ years:

• I have been able to use a variety of past experiences to predict and identify with current issues and understand people's problems so I can help clients with problem solving.
  
  
• I have the ability to listen to both sides to determine the best interest for the children and to see that the client is educated as to this aspect of domestic relations. The law has changed, but there is still a gender bias against fathers.
  
  
• I have learned to constantly review the mistakes my clients make in their marriages so I don't make the same mistakes and end up getting divorced from my wife of 32 years.

Civility and Professionalism among Colleagues

"Family law has become more civil and less adversarial in the 32 years that I have been practicing marital and family law," asserts Alan Rubinstein of Fort Myers, FL.

Others lawyers surveyed strongly disagree with the Florida practitioner, however. Asked to identify the most important change in the practice of family law, one attorney reports "the willingness of other lawyers to 'win at all costs,' including damage to the children for a high enough fee."

Another lawyer notes "the growing lack of civility and decency among certain members of the bar There seems to be an increasing emphasis on putting making money ahead of high quality client service." While both of these lawyers have been practicing for a decade or less, those with more experience are much more outspoken about "the passing of civility."

"Young lawyers are not as friendly or cordial as we used to be,"says a lawyer who has practiced for over 40 years. Edward Schoifet of New Brunswick, NJ, believes the "attorney's ego unfortunately take precedent over the matters of the client and the children" in many cases.

"Too many young practitioners, and unfortunately, many older practitioners, treat family law matters as a duel between combat ants, which must be won at all costs," believes Schoifet who has practiced for over 38 years. "Too little consideration is given to the effect of such a battle on the litigants and more importantly, on their children."

"Lawyers have become less civil over the last ten years," writes Carroll Padgett of Loris, SC. "We must make a concerted effort to work with each other in the furtherance of the profession."

Many practitioners point to changes in the way family law is practiced and an increased "effort to keep children out of the battle" as having a positive impact in general. Some, however, question whether avoiding litigation at all costs is always in the children's best interests. Asked whether he considers family law to be less adversar ial, San Francisco lawyer Lawrence Stotter responds that, "Most attorneys today are big on alternative dispute resolution, mediation, etc. and are not up to full court clashes. Many are not properly trained or skilled in handling courtroom resolution and therefore prefer alternative means of dispute." He adds that a lack of civility can be found in all practice areas of law, not just in family law, and in life in general these days.

Another litigator agrees that "fewer people want to go to war," but believes "those who do get nastier than ever."
"The system provides for both extremes," explains Chicagoan Don ald Schiller. "Lawyers usually reflect what their clients want. There are some lawyers that always fight and some that will never fight.

The best lawyers are in between and have skills in both areas."

Family Violence and Abuse

Professor Schepard includes among his list of most important changes in the field the "increasing recognition and understanding of problems of family violence."

There has been a "better understanding of the psychological impact abuse has on the victim" according to Gerald Nissenbaum of Boston.

Loretta Frederick, a practitioner in Winona, MN, says the most important change in the profession has been the "recognition that violence against women plays such a large part in so many divorces and custody battles" Frederick is involved in policy development and conducts training sessions on domestic violence legal issues. A practicing family lawyer since 1978, she says there is "less tolerance for violence by a parent in my advocacy."

Recognition and understanding have led to increases in violence and sexual abuse laws, related cases, and services provided for victims. "The most important change I have experienced is the increase in the number of domestic violence allegations and the increase in the number of sexual abuse allegations in the practice," writes Rodi O'Loane of Everett, WA.

New domestic abuse laws are not without their problems, however, notes one attorney who says they are "too often used as a means to an end."

Future Shock

While this field has absorbed its share of positive and negative changes over the past thirty years, anticipated future trends serve as a reminder for family lawyers to keep their seat belts fastened.

"Clients have more options and are more sophisticated than ever," says Professor Schepard. "Practitioners need better training and more flexibility."

Several of those surveyed list the increasing number of clients who represent themselves among the key changes they are experiencing.

Eileen Sorrentino describes the "shift to large number of pro se litigants, especially in paternity cases, leading to extremely over crowded courts and testy judges."

Both Professor Schepard and Professor Elrod predict the number of pro se litigants will increase over the next ten to fifteen years. They also agree that more alternatives to litigation will become available, placing an increased emphasis on the "lawyer as problem solver, not gladiator," as Professor Schepard puts it.

"Family lawyers need to prepare themselves for a much less adversarial, more diverse system of family law dispute resolution," advises Professor Schepard. "They need to be increasingly familiar with resources in their communities which can help children and can help families reorganize themselves without extended court intervention or proceedings."

He recommends those choosing this field take more courses in mediation and arbitration and become involved in community organizations that seek to reduce the trauma of divorce and separation on children. Professor Elrod sees a trend toward requiring more parent education as having an impact on the field of family law.

But even with more forms of dispute resolution available, litigation will continue to remain an option. Once in court, increased case loads will mean added frustration and delays, according to Professor Schepard. He strongly suggests that family lawyers need to take courses in accounting as well as classes in ADR and psychology.

"You must learn not to be afraid of numbers and calculations to work with divorcing upper middle class couples who have property to distribute," he explains.

But while change may be the only thing that remains constant, family lawyers have certainly demonstrated their ability to adapt.