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Look ahead to 2022 with family law

Gregg Herman is a family law attorney with Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. He welcomes comments at gherman@loebherman.com.

Gregg Herman is a family law attorney with Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. He welcomes comments at gherman@loebherman.com.

Last month’s column took a look back at the developments in family law for 2021. So, it seems appropriate to dedicate this month’s column to a look ahead to 2022.

Of course, any “look ahead” needs to be prefaced with a quote from my favorite philosopher, Yogi Berra: “Predictions are very difficult to make – especially about the future.”

For over ten years, I have put together a family-law case and legislation-update program for the State Bar of Wisconsin, the American Academy of Matrimonial Lawyers and the state family-law judges and court commissioners. Ten years ago, there were five published family-law cases.

The following year, there were fewer published cases, but there were fifteen unpublished, but citable family-law cases. When planning the 2022 programs, so far there have been zero (as in none) published cases and, excluding contempt cases, which are almost always fact specific, there have been two unpublished, but citable decisions.

This trend has good and bad aspects. The good (which far outweighs the bad) is that the cause of fewer reported cases is that more cases are being settled rather than litigated. Much of this, no doubt, is due to the prevalence of pro se parties and to mediation. The bad is that there is less guidance available to give clients as to the gray areas of family law practice.

One trend which I fear will be reduced in 2022 is having hearings using Zoom. My dear late mother used to say that it’s an awfully ill wind that doesn’t blow some good. COVID is sure an ill wind, but hopefully by forcing courts to conduct most proceedings via Zoom, they have learned to appreciate the efficiency of the process.

Of course, contested proceedings can be difficult without the nonverbal communication which can only be assessed in person, but most family law proceedings are simply pretrials or status consequences. It has never made sense to require both lawyers to show up in person – and frequently the parties as well – just to get a new date. With Zoom, the parties save significant attorney fees and time off work plus save day care expense with no negative effects.

It appears, without rational explanation, that courts are at least contemplating a return to personal appearances. Please don’t! In fact, there is no reason to even require parties to appear for a default hearing. Most states do not require an appearance and there are no ill effects. I’m predicting regression rather than progress in the area of efficiency in 2022, but I sure hope I’m wrong.

Finally, one trend which can only improve in 2022 is a reduction in legislative tinkering with the statutes. While the law can always use improvement, the political process is a poor means for doing so. This trend is likely to be reduced in 2022, not because the legislature won’t be trying (the concept of “if it’s not broken, don’t fix it” is foreign language to politicians), but rather due to the large number of revisions last year. The good news is that most of them did no harm, but that is hardly a ringing endorsement.

Since no one ever ran for office on the platform of “let’s leave things alone”, there will undoubtably be an active legislative season, but probably fewer enacted bills than the swarm in 2021. Let’s hope so at any rate.

Best wishes for a happy new years to anyone who actually reads my columns. Here is one prediction which I can guarantee: I will do my best to make these columns both informative and entertaining in 2022.

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