Abstract
Couples rarely consult with lawyers when they get married. Nor do they have a battery of attorneys on hand during their marriage. Nevertheless, at the first suggestion that their marriage will terminate either in separation or divorce, their immediate thought is to seek legal counsel. Moreover, they are generally encouraged in this by the Greek chorus of well-wishers who immediately surround each of them, offering them advice and moral support, and urging them on. Thus, rather than being frowned upon for going out and employing hired guns to do battle for them, instead of sitting down as responsible adults and resolving these matters on their own, they are each encouraged in the belief that their decision to retain separate lawyers to be their champions is both appropriate and necessary.
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Notes
In the discussion that follows, we do not mean to suggest that there may not be important legal implications that flow from personal decisions. Thus, if during the course of their marriage a couple decide to buy a home, they may well need legal assistance to assure that they get good title. (In many states, California, for example, this will be done almost entirely without the intervention of lawyers, who will not even participate in the preparation of the contract of sale or be present when it is negotiated or signed.) However, if they retain an attorney for that purpose, that does not mean that the decisions incident to this will now become legal ones. Nor will their attorney question the fact that those decisions (including the community they will choose to live in, the kind of home that they will select, the price that they will pay for it, etc.) remain essentially personal ones. Even if their attorney were to offer advice, based upon his experience (just as a broker, a relative or a friend might), that advice will still be about decisions that all parties concerned recognize are personal ones, and for the couple alone to make. Unfortunately, and for reasons that will be discussed later, this basic distinction gets lost if the personal decision that one of the parties is considering or has made is the decision to separate or divorce.
In New York, for example, section 236 of the Domestic Relations Law provides that the court has the power, as well as the obligation, to make an equitable distribution of the parties’ marital property “Except where the parties have provided in an agreement for the disposition of their property.... ” When the parties conclude an agreement on their own, it is generally said that they have “opted out” of the statute— that they have opted to make a distribution of their property on their own rather than to have the court do it for them. While the court does, nevertheless, have the right to ignore the terms of the parties’ agreement, and even to set it aside, it will not do this simply because, in making their determination, the parties did not follow the same rules that the court would have applied. Rather, it will only do so if it feels that the agreement was the result of fraud or duress, or that its terms were so unconscionable as to represent overreaching on the part of one of the parties. See, e. g., Christian v. Christian, 42 N.Y.2d 63, 365 N.E.2d 849, 396 N.Y.S.2d 817 (1977); Johnson v. Johnson, 67 N.C. App. 250, 313 S.E.2d 162 (1984); Stockton v. Stockton, 435 N.E.2d 586 (Ind. Ct. App. 1982); Merritt v. Merritt, 616 S.W.2d 585 (Mo. Ct. App. 1981).
The question of whether the application of legal rules will necessarily result in a fair agreement is one that will be addressed specifically in Chapter 4, Is the Agreement Fair? and, by implication, in Chapter 3, Equitable Distribution and Divorce Mediation.
The question of how lawyers actually apply legal rules in adversarial practice, and whether their purpose in applying them is to arrive at a fair agreement, will be discussed at greater length in Chapter 5, The Rule of Law in Divorce Mediation.
While it might be argued that the law’s restraint here is based on respect for the principle of self-determination, and a compromise between that principle and its concern that justice be done in a particular instance, in a far more important sense it is based on the understanding that, first, the law is a very poor instrument by which to regulate the very delicate and intricate relations that exist between family members, and, second, and even more important, that the law cannot pretend to make more appropriate judgments and decisions in people’s lives than they can make themselves and that, except in extreme situations, it is not its place to second guess them.
Although it is beyond the purview of our discussion, it is worth pointing out another inherent problem in the application of equitable distribution statutes, and of all laws for that matter. By definition, our laws embody general principles—for example, that all property acquired during a marriage is deemed derivative of marital effort and is therefore subject to distribution at the time of a couple’s divorce. Unfortunately, and even if it is correct to say that their application will effectuate a just result when applied to separating and divorcing couples as a composite group, that is not to say that their application will necessarily do justice in any particular instance. It is for this reason that most of the statutes, rather than attempting to enunciate one rule that will be applied to all couples, direct the court to look more closely at the unique facts of each individual case so as to make an equitable distribution. Nevertheless, these general principles, which still tend to restrict the court’s thinking, exert a very strong influence on its final determination. Moreover, they often cause the court to make decisions that, to the very extent that they mirror those general principles, do so at the expense of an equitable result in the given instance. (The incongruity between general legal principles, and equity and justice in any particular instance, and the implications of this for dispute resolution in mediation, will be discussed at greater length in Chapter 3, Equitable Distribution and Divorce Mediation.)
Given our legal mythology, which talks in terms of legal rights, it may be hard for some to accept the suggestion that it can be irresponsible to insist on going to court to resolve our disputes, especially when part of our legal mythology is the idea that everyone is entitled to his day in court. Nevertheless, it is at times no more responsible for a person to resort to legal combat than it is for a nation to resort to armed combat.
After all, the right to receive alimony for a fixed period, like the right to have to pay it for only a fixed period, is not, like the right to vote or speak, a right that cannot be abridged. See, e. g., Marshall v. Marshall, 394 N.W.2d 392 (Iowa 1986); Edgar v. Edgar, 366 Mich. 580, 115 N.W.2d 286 (1962). This is exactly what happened with the enactment of the various equitable distribution statutes in recent years. Until then, support was generally awarded to a dependent spouse (usually the wife) for life. The change in the climate of opinion that resulted in the enactment of our present equitable distribution statutes also brought with it a change in society’s attitude toward alimony, a change that was reflected in the substitution of the term maintenance for that of alimony in many statutes. See, e. g., Uniform Marriage and Divorce Act, ∫ 308. While the statutes in the various states are not identical, the prevailing view is that except in marriages of very long duration, spousal support should be rehabilitative, and awarded only until the dependent spouse is reasonably able to provide for his or her own needs. See, e. g., Ariz. Rev. Stat. Ann. ∫ 25-319 (West 1976 & 1986 Supp.); Cal. Civ. Code ∫ 4801 (West 1983 & 1987 Supp.); Colo. Rev. Stat. ∫ 14-10-114 (1974 & 1986 Supp.); Del. Code Ann. tit. 13, ∫ 1512 (1981 & 1986 Supp.); Fla. Stat. Ann. ∫ 61.08 (West 1985 & 1987 Supp.); Haw. Rev. Stat. ∫ 580.47 (1985); Idaho Code ∫ 32-705 (1983 & 1987 Supp.); Ill. Ann. Stat. ch. 40, para. 504 (Smith-Hurd 1980 & 1987 Supp.); Ind. Code Ann. ∫ 31-1-11.5-1 l(e) (West 1979 & 1987 Supp.); Iowa Code Ann. ∫ 598.21 (West 1981 & 1987 Supp.); Kan. Stat. Ann. J 60-1610(b)(2) (1983 & 1987 Supp.); Ky. Rev. Stat. Ann. ∫ 403.200 (Michie/Bobbs-Merrill 1984 & 1986 Supp.); La. Civ. Code Ann. art. 160 (West 1987 Supp.); Md. Fam. Law Code Ann. ∫ 11-106 (1984 & 1986 Supp.); Minn. Stat. Ann. ∫ 518.552 (West 1969 & 1987 Supp.); Mo. Ann Stat. ∫ 452.335 (Vernon 1986); Mont. Code Ann. ∫ 40-4-203 (1986); N.H. Rev. Stat. Ann. ∫ 458.19 (1983 & 1986 Supp.); N.Y. Dom. Rel. Law ∫ 236-B (McKinney 1986); Or. Rev. Stat. ∫ 107.105 (1985); Pa. Stat. Ann. tit. 23, ∫ 501 (Purdon 1987 Supp.); S.D. Codified Laws Ann. ∫ 25-4-41 (1984 & 1987 Supp.); Tenn. Code Ann. ∫ 36-5-101(d) (1984 & 1986 Supp.); Vt. Stat. Ann. tit. 11, ∫ 752(1984); Wash. Rev. Code Ann. ∫ 26.09.090 (West 1986); Wis. Code Ann. ∫ 767.26 (West 1981 & 1986 Supp).
See, e. g., Fobes v. Fobes, 124 Wis. 2d 72, 368 N.W.2d 643 (1985); Simpson v. Simpson, 134 Cal. App. 2d 219, 285 P.2d 313 (1955).
This one exception, as well as the place and function of legal rules in divorce mediation, will be discussed at greater length in Chapter 5, The Rule of Law in Divorce Mediation.
To blunt the implications of this fact, the legal community has repeatedly attempted to undermine the public’s confidence in who it is that will replace lawyers if mediation is successful. Thus, rather than acknowledging that, based upon their legal background alone, they have no more special province here than does a bartender or a cab driver, they have instead attempted to intimidate the public with the suggestion that if divorcing couples turn away from lawyers and the adversarial system and toward mediation, they may find that all they will be left with is a bartender or a cab driver.
This, traditionally, has been the means employed by the legal profession to maintain its monopoly, and those who have attempted to infringe upon territory that the legal profession felt was within its own special province have done so under the threat that they might be subjected to a charge that they were engaged in the unauthorized practice of the law, which in most states is a crime. While such proceedings were employed in the early days of divorce mediation, they have proved less successful in recent years, particularly as mediators have learned the very few things they must avoid doing in order to protect themselves against this charge and particularly as they have increasingly worked with attorneys who, in addressing the legal issues involved in mediation, shelter them from this attack.
Most lawyers would have great difficulty in answering a question with both the husband and the wife present because they would not know whom to answer—they would not know who they are supposed to represent. Furthermore, they would not question this difficulty, but would instead accept it as being reflective of the fact that the couple have conflicting interests, rather than its simply being reflective of their own legal training and thinking. When lawyers begin to be trained to think otherwise than simply as advocates for the parties’ conflicting interests, or when they begin to teach themselves this, they will come to understand that, although it may be impossible to advocate for parties who have conflicting interests, it does not follow from this that it is impossible, in a nonadversarial setting, to provide them with legal information. To be more accurate in terms of the choices that we insist have to be made here, they will learn that whatever the problems may be in attempting to provide legal information in a nonadversarial setting, those problems are not as great as are those posed by providing it in an adversarial setting. This will be discussed at greater length in Chapter 7, Context.
Strange as it may seem, it also sends shudders down the spines of many advocates of divorce mediation as well. Thus, standards of practice promulgated by divorce mediation advocates are replete with admonitions against this simple solution. Perhaps the most unfortunate of these is that contained in the Professional Standards of Practice for Mediators of the Mediation Council of Illinois, which provides that “Mediators, including attorney mediators, shall not advise either party as to their legal rights or responsibilities so as to direct the parties’ decision on a given issue. Each party must be referred to independent legal counsel for that advise. A single attorney to advise the participants as to the law in the course of the mediation is not a substitute for independent legal counsel.” (as quoted by Carl D. Schneider in A Commentary on the Activity of Writing Codes of Ethics, 8 Mediation Q. 83, 94 (June 1985)) (emphasis added). These ethical strictures are particularly unfortunate for two reasons. To begin with, they fly in the face of important advances that have been made in recent years by decisions such as that of the Court of Appeals in New York in Levine v. Levine, 56 N.Y.2d 42, 436 N.E.2d 476, 451 N.Y.S.2d 26 (1982), where the court, although acknowledging that agreements concluded with but one attorney would be more closely scrutinized, nevertheless affirmed that a couple had “an absolute right” to be represented by one attorney. Secondly, and perhaps more importantly for our purposes, in insisting upon the presence of separate representation, they have not only lent support to the idea that divorce is primarily a legal process but have also unwittingly reaffirmed the mythology that it has to be an adversarial one as well.
Notwithstanding this supposed impediment, attorneys represent parties having conflicting interests all the time. Nor has it necessarily been considered unethical for them to do so. In fact, it is more than likely that one attorney has previously represented both of the parties here, despite their conflicting interests. For example, if they were represented by an attorney when they bought their home, they undoubtedly used but one attorney. Suppose their attorney learned that, although title was to be taken in both of their names, the funds that were to be used to purchase it were the husband’s own separate property. If the parties were to later divorce—and, at least statistically, that certainly had to be a very real possibility—taking title in their joint names might not be in the husband’s best interests, as the court might now have the power to award the wife an interest in the property. See, e. g., LaFleur v. LaFleur, 395 So.2d 615 (Fla. 1981); Carter v.Carter, 419 A.2d 1018 (Me. 1980); In re Marriage of Moncrief, 36 Colo. App. 140, 535 P.2d 1137 (1975); Felkner v. Felkner, 652 S.W.2d 174 (Mo. Ct. App. 1983); Gist v. Gist, 537 P.2d 460, (Okla. Ct. App. 1975); Hampshire v. Hampshire, 485 S.W.2d 314 (Tex. Ct. App. 1972). Would it be unethical for the attorney to represent both of the parties at that point? If he did, would he be under an obligation to advise the husband of the implications of his using his own separate funds in this manner? One would certainly hope not. Nevertheless, and given the fact that we have been trained to accept only adversarial considerations, and to ignore all others, there will undoubtedly be some who will raise an objection. To those we would pose the following question. Suppose this husband lived in a state like New York which held that gifts made prior to a couple’s marriage by one of them to the other were considered separate property not subject to distribution at the time of their divorce, while the same gifts made during their marriage were. Suppose also that the couple had come to this same attorney to buy the home in question prior to their marriage instead of afterwards. Would the attorney then be obliged to advise the husband that it might be in his best interest to postpone transferring the funds in question, and purchasing the home, until after they were married since, if he did so before, his wife would have an irrevocable one-half interest in the property, whereas, if he did so later, the court would have the power to return the funds in question to him should it deem it equitable to do so? For the same reason, should he advise the husband to postpone his gift of a wedding ring to his wife until after their marriage?
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Marlow, L., Sauber, S.R. (1990). Legal Myths. In: The Handbook of Divorce Mediation. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-2495-7_2
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