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Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

Historical Perspective and Current Trends in the Legal Process of Divorce
Sanford N. Katz

The Future of Divorce

There seems to be no end to legislative activity insofar as divorce law and procedure are concerned. On one hand, there is a feeling that divorces should be prevented or, at least, made difficult because of the belief that divorce results in a number of social ills including juvenile delinquency.68 More than 20 years ago, Professor Max Rheinstein responded to conclusions of this sort by writing that it was not divorce that caused social ills, but marriage breakdown.69 Some legislatures are constantly reviewing substantive laws and procedures in an effort to improve them by making the laws more realistic and the process more efficient.

No-fault divorce is now a part of American jurisprudence. There seems to be no returning to the past when divorce was difficult to obtain because of our reliance on English law that reflected a culture and customs of a different time and place. With no established national church in the United States, where we have a more heterogeneous population than in Great Britain, we are not held hostage to a single religious dogma. Nonetheless, some states in the United States have been dominated by particular religious groups who have influenced divorce legislation. If the immediate past history of divorce is any indication of the future, reforms will most likely be in the direction of further relaxing substantive and procedural laws regarding divorce. However, the requirement of the presence of at least one spouse at the divorce hearing will probably not be abandoned. In other words, divorce by proxy or divorce by mail, either in the United States or in a foreign country, like renewing a license or a passport, will not be attractive alternatives because of our fundamental belief in marriage and family as serious American institutions requiring personal attention and the investment of time and concern. Divorce by registration or summary procedure—the wave of the future—requires the presence of both parties and the involvement of some official who reviews documents and issues a divorce.

Divorce by the conventional adversary method is expensive. The costs of securing a divorce are high because of the present hourly fee of lawyers (in metropolitan areas like New York, Boston, Chicago, Los Angeles, and San Francisco, well-known divorce lawyers charge anywhere from approximately $125 to $350 an hour) and the absence of legal aid lawyers who handle divorces. Reports from judges suggest that, at the present time, an inordinate number of litigants are pursing their cases themselves, that is, acting as their own attorneys—pro se.70 This practice presents difficulties for the court system (because pro se cases do not move through the system in an orderly fashion as compared with cases handled by lawyers) and for the judges who, according to judicial ethics, must be neutral and are not allowed to act as counsel to litigants, yet are confronted with the reality that the litigants need assistance. Institutional responses for pro se cases are varied. One is to refer the litigants to lawyers who are willing to represent them at a reduced rate. A court in Arizona features a video that runs continuously and provides litigants with basic information about divorce procedure. Some courts have volunteer lawyers (in the court building) not to represent litigants but to be available to them as consultants or aides.

Just as important as it is to litigants with uncomplicated divorces to provide them with inexpensive and timely divorces, it is vital to those going through a complex divorce to provide a setting that reduces, to the extent possible, the anxiety of getting a divorce. Currently judges and court staffs, despite their knowledge and experience, are often overwhelmed by both the volume and complexity of divorce cases. In many states, a reform movement is under way to establish integrated family courts that would handle the range of family related matters (divorce, child protection, guardianship, domestic violence, etc.) with both specialized staff and specialized services.71 Whether or not courts are formally integrated to handle family disputes, the goal of creating a court system that is both more accessible and more helpful to families will likely continue to spur court improvements nationwide.

The tension that exists in divorce is that, on one hand, the economic and child custody aspects of divorce are extremely complex requiring the use of traditional procedural mechanisms for discovering facts. On the other hand, there is a desire to simplify, expedite, and reduce the financial and emotional costs of the divorce process by utilizing as many alternative conflict resolution methods as are appropriate. Additionally, family courts can serve as a community-based institution that coordinates all legal matters dealing with the family in a holistic manner. That is, it can provide necessary social and psychiatric services that may be incident to the divorce on the site of the court. It can be the institution to which divorced spouses as well as children of divorce can turn for future services such as postdivorce counseling.

For years lawyers who handled divorce and judges who heard divorce cases were looked upon by their colleagues at the bar with some disdain. Perhaps the reason for this lack of respect was that family law in general was considered "soft law," something less than the "hard law" of corporations, property, or taxation. It dealt with the brute facts of life, not its theoretical or intellectual aspects. As substantive family law has become complex, especially those laws dealing with the assignment of marital property, divorce law practice has become extremely complicated. No longer is it the practice of the inexperienced lawyer. Today, to practice divorce law, a lawyer must have a working knowledge of all aspects of pensions, business law, property law, estates, bankruptcy, and taxation. The divorce of spouses with considerable wealth today can take on the attributes of a dissolution of a business partnership.

But, no matter what the economic position of the divorcing spouses, divorce is an emotional experience that can leave lasting scars on husbands, wives, and children. The goal of any divorce procedure should be to lessen the scarring process. This means that those professionals involved in divorce ought to be aware of the impact they will have on the parties involved and approach their task of, in the case of lawyers, helping their clients get through the ordeal or, in the case of judges, deciding cases (knowing their own limitations and their inability to foresee the future clearly) in a fair, just, and timely manner.