The Revolution in Family Law Dispute Resolution

This article surveys a wide range of procedures that divorcing parties now use, including self-representation. Lawyers sometimes provide “unbundled” legal services to help parties who want to divide responsibilities for legal tasks between themselves and their lawyers. Parties often use mediation, arbitration, and private judging. Norms for lawyers’ professional roles have emphasized the importance of cooperation and some lawyers offer “planned early negotiation” processes such as Collaborative and Cooperative Law. Family courts engage in a wide range of activities beyond traditional litigation and adjudication. Many courts manage or mandate parent education and services related to domestic violence. Courts regularly appoint professionals including advocates for children, custody evaluators, early neutral evaluators, and parenting coordinators.The revolution in family law dispute resolution is still underway. Changing circumstances and limited resources can contribute to deterioration of family court services, frustration of family law professionals, and, most importantly, increased family dysfunction. These pressures create incentives for family law professionals and courts to use dispute system design methods to collaborate more effectively to serve family members and the public. The great challenge for family law professionals is to continue to create better ways to serve families in conflict and transition

A Case Against Collaboration

In family law, as in other legal disciplines, the use of alternative dispute resolution has dramatically increased. In a process called collaborative divorce, separating spouses hire attorneys who agree to work together—almost entirely outside of the court system—to reach a settlement ending the marriage. A team of experts, including mental health professionals, financial neutrals, and parenting coordinators, helps the parties resolve conflicts and settle property, support, and custody disputes. For divorcing couples, the collaborative process promises emotional healing and avoidance of contentious litigation. Advocates for collaborative divorce describe the transformational effects of the process in an evangelical tone. But collaborative divorce has costs. Collaboration can include considerations of marital fault that feminists helped eliminate from divorce laws. By focusing on conflict resolution, even for the purpose of building post-divorce relationships, collaborative negotiations introduce judgments of “good” and “bad” marital conduct, potentially reinforcing stereotyped gender roles, such as the blameless wife and the guilty husband. These heteronormative paradigms are out of date: gender roles have evolved, the population of married people has changed, and marriage rights have extended to couples of the same sex. Collaborative processes also have distributive consequences. Collaboration privileges wealthy parties who may understate their bargaining power. At the same time, collaboration may not reach vulnerable spouses who could benefit from therapeutic interventions. Collaborative divorce can be blind to situational power and structural inequality. The purpose of these critiques is not to undermine therapeutic approaches or to argue that law should ignore spousal misconduct. Rather, this Article suggests that advocates for collaborative divorce—including some feminist scholars who have theorized the shortcomings of no-fault divorce laws—might understand better how parties negotiate, and what they may sacrifice, within a collaborative framework

Revisiting Revocation upon Divorce?

In an increasing number of states, divorce presumptively renders an ex-spouse ineligible to benefit from the testator’s will. Divorce may also impact other revocable dispositions in favor of the ex-spouse and exclude the ex-spouse’s family members from benefitting in any way from the decedent’s death. Revocation upon divorce statutes have become more common as divorce itself has become more common, and courts have been quite rigorous in interpreting the statutes, creating an almost irrevocable presumption of revocation. By contrast, other countries vary in their approaches to the effect of a divorce on testamentary and nonprobate transfers to an ex-spouse and family members. This Article challenges the utility of the presumption of revocation upon divorce. In raising questions about the appropriateness of the presumption, this Article traces developments in divorce law—from the purely fault system to the no-fault system to contemporary, and more collaborative, approaches to divorce—to show the historical shifts towards contemporary attempts to dissolve the acrimony often associated with divorce. This Article also explores the relatively limited sociological and empirical material on actual individuals’ preferences for disposition of their estates to ex-spouses and their families. And it examines the class, gender, and race aspects of wealth ownership as part of an effort to determine who is most likely to have probate and nonprobate assets affected by the revocation statutes. Finally, this Article discusses alternative approaches for states to consider