Family Law Cases Are the Vampires of the Legal Field

Posted By Mark Baer || 10-Sep-2015

On May 27, 2015, I attended the Beverly Hills Bar Association's monthly Family Law Section meeting. The topic on that date was "Post-Judgment Spousal Support: Creating Predictability on an Unpredictable Issue." One of the presenters, the Honorable Robert A. Schnider (Retired), commented that family law cases are considered the vampires of the legal field because the cases never die.

There is an excellent reason for this unfortunate reality -- the cases are typically not over when they're over. For good reason, public policy and the law is such that parenting plans (child custody and visitation), child support and spousal support (unless jurisdiction is terminated or it is made non-modifiable) are modifiable post divorce. Post judgment modifications are not available in any other field of law, to my knowledge. Therefore, by handling family law cases in the traditional adversarial manner, people turn their case into a vampire.

"Conflicts of any type can be resolved either through force or diplomacy. In legal disputes, parties try to exert force on each other though the courts. 'We call it an adversary system, but a better term would be a coercion system. The parties bash each other in order to persuade the judge to coerce the other person to do something they do not want to do,' says family court Judge Bruce Peterson of Hennepin County, Minneapolis. The threat of having a judge coerce 'a person to do something they do not want to do' unless they agree to certain terms, is itself coercive.

Diplomacy, on the other hand, works through mediation and other forms of consensual dispute resolution (CDR). As the name implies, the parties to such processes resolve their conflicts through mutual consent, without obtaining such consent through coercion.

Litigation: No Real Resolution in Family Law

Litigation is the most traditional form of dispute resolution and involves the use of the courts. It is initiated by filing a lawsuit in a court. By definition, litigation is an adversarial process. How often does litigation improve interpersonal relations? Unfortunately, the answer to that question is never.

Somehow, many family law attorneys have convinced themselves that they are not litigating unless a judge makes a ruling. In fact, some attorneys actually believe that a matter is not litigated unless it goes to trial. However, pretrial litigation consists of litigation planning, fact investigation, legal research, discovery, pretrial motions and settlement strategy. In an effort to make it appear as though family law litigation is not a lawsuit, the parties are referred to as Petitioner and Respondent, rather than Plaintiff and Defendant. Nevertheless, the Summons itself states, 'You are being sued.'

A defendant has no choice to participate in litigation. Moreover, litigation involves formal and structured rules of evidence and procedure. The Family Law Summons states:

You have 30 calendar days after this Summons and Petition are served on you to file a Response (Form FL-120 or FL-123) at the court and have a copy served on the petitioner. A letter or phone call will not protect you. If you do not file your Response on time, the court may make orders affecting your marriage or domestic partnership, your property and custody of your children. You may be ordered to pay support and attorney fees and costs.... NOTICE: The restraining orders on page 2 are effective against both spouses or domestic partners until the petition is dismissed, a judgment is entered or the court makes further orders....


Litigation in family law matters commences upon the filing of the Petition. Pretrial litigation is still litigation and is therefore adversarial in nature. Have we really convinced ourselves otherwise? At a recent bar association meeting, a colleague was describing the most contentious and costly divorce he had handled in his career. It just so happened that the Respondent was served with the Petition on Christmas Day. Is anyone really surprised by the result?

Typically, a divorce occurs due to marital discord, and litigation exacerbates conflict. When the matter is finally 'resolved,' is it any surprise that the parties find themselves unable to co-parent and violating coerced 'agreements' or court orders? The reason the word 'resolved' has quotation marks around it is because a case is not over when it is over.

You see, when we create a win/lose or lose/lose dynamic in a case that is subject to future modification, the real or perceived loser later attempts to effectuate a perceived "win." The real or perceived loser will do so by filing a Request for Order to Modify Child Custody, Visitation, Child Support and/or Spousal Support. If the real or perceived loser loses again (perceived or real), they will file again thereafter. Of course, if the prior "winner" (real or perceived) feels that they have lost in a post-judgment modification, they will be back in court in an effort to effectuate a real or perceived "win."

Since parenting plans and child support are modifiable at any point, while at least one child is still a minor, this can and does go on for quite a long time. If the child happens to have special needs and the child support therefore doesn't end upon the child reaching the age of majority, this destructive cycle continues even longer. The same is true of spousal support, unless and until the court no longer has jurisdiction over that issue.

Unfortunately, when anyone says how much a divorce costs (financially), they typically only mention how much it cost up to the point at which they obtained their divorce. This also tends to be true of lawyers, when asked how much a divorce costs. People somehow manage to convince themselves that the immense financial costs of ongoing post-divorce modifications are not related to the financial cost of the divorce.

By the way, this exact same dynamic holds true for paternity cases because they involve child custody, visitation and child support issues arising out of a non-marriage.

I recently read an article by Dr. Travis Bradberry titled "Do You Have Grit?"

Many of the same concepts mentioned by Dr. Bradberry with regard to the "grit" that "the majority of successful people all share" apply equally well for those who opt to mediate their disputes, rather than litigate them.

In the past, I have said, that "in the United States, the 'default' in the legal system is litigation and court. In order to avoid the default mechanism, both spouses must agree to handle their matter outside the legal system -- through mediation, collaborative divorce or some other form of consensual dispute resolution. They must also agree on the particular process and the professionals involved. Moreover, they must both actually remain in some sort of consensual dispute resolution process until their issues have been resolved. Otherwise, they revert to the default mechanism, which is litigation and court.

Please note that while litigation is more costly and destructive than handling matters through some form of consensual dispute resolution process, it is much easier. All the parties need to do is throw their money at the lawyers and the 'gun for hire experts' they employ and ultimately allow a judge to decide their fate and that of their family. It is much more difficult for individuals in conflict or high conflict to jointly resolve their issues, even with the help of professionals....

Unless the default is changed, as it has been in Australia, England, Wales, British Columbia and elsewhere, someone may likely abandon the consensual dispute resolution process as soon as it becomes too difficult for them. This decision to take the easy way out creates a massive amount of destruction to assets and children and destroys families. We must therefore do what other countries have already done and change the default. One member of the family should not have this much power and ability to cause so much destruction to their spouse and the other members of their family.

If the default were mediation (except in those cases in which there are certain levels of domestic violence or child safety issues), I would bet that most people would successfully resolve their matter through mediation or collaborative divorce. Many things in life are determined by the way in which the 'game' is designed."

In the meantime, I'm afraid that it is only those with 'grit' who opt to mediate such disputes. Do you want to create a vampire and suffer the negative consequences that result? If not, I highly recommend "developing grit."