Public policy does not prohibit the parties to a divorce stipulating to an unmodifiable, limited-duration floor on the husband’s child support obligation, the Wisconsin Supreme Court has ruled in affirming judgment.
Two years after divorce, the husband filed a motion to modify his child support payments for the parties’ two children. In resolving that dispute, the parties stipulated that the husband would pay $1,203 per month for a minimum of 33 months. In addition, the parties stipulated that the husband could not file for a reduction in his payments for the full 33-month period.
A year and a half later, the husband moved for a reduction of his support payments, arguing that the stipulation violated public policy.
But the court concluded that such stipulations can be enforced.
“The parties freely and knowingly entered into the stipulation at issue and the terms of the stipulation were fair and equitable. Furthermore, the agreement is not contrary to public policy because the [trial] court retains its equitable power to consider circumstances in existence when the stipulation was challenged that were unforeseen by the parties when they entered into the agreement if those circumstances adversely affect the best interests of the children. [The husband here] has not demonstrated the existence of such circumstances,” the court said.
Is maintenance still relevant in the 21st Century?
A March 4 article in The New York Times raises that issue, discussing how various states are considering and enacting laws designed to make maintenance or alimony more equitable.
The article quotes a Florida physician who said he was ordered to pay his former wife 89 percent of his income. His answer to my initial question would likely be a vehement “No.”
Now, I have seen some wide-reaching exercises of judicial discretion over the years. But if a judge actually made such an order, and there are no compelling circumstances to merit it, I want that judge the next time I represent a payee!
According to the article, “Because laws vary greatly from state to state and grant judges broad discretion with few guidelines, alimony judgments diverge wildly, sometimes within the same jurisdiction.”
This is certainly true in Wisconsin, where maintenance is within the “sound discretion” of the trial court, constricted only by the requirement to consider broad factors, ending with “any other factor” the court deems appropriate to consider.
These factors are so broad, in fact, that the legislature might as well repeal all the factors, other than “any factor which the court deems appropriate.”
The difficulty, however, in establishing guidelines is demonstrated by an attempt by a Wisconsin legislative special committee to do so last year. After lengthy study of the issue and various proposals, the result was a benign bill (PDF) that focused on the termination of maintenance when one party dies, and required notices regarding maintenance terminations in court orders. Notably absent was guidance to trial courts. It didn’t become law.
Perhaps the reason guidance was missing from the bill was the wide disparity of proposals considered by the commission, ranging from abolishing spousal support altogether, to continuing to allow unlimited (sometimes mischaracterized, even by the courts, as “permanent”) maintenance.
An emotional issue
From the payor’s perspective, he or she works hard to create income. It’s bad enough to have to share it with the taxing authorities, and even worse having to share it for child support. But to share it with an ex-spouse? As a Texas divorce lawyer (twice divorced himself) once told me, “It’s like feeding oats to a dead horse.”
Of course, the payee has a quite different perspective. The law, quite properly, no longer values child care as less valuable than earning a paycheck. In addition, since most Americans spend every penny earned (and sometimes more), there’s typically no property division available to compensate the spouse who provided the noneconomic services. In fact, in most cases, the enhanced income of the payor is the only “asset” to be divided — although there may be plenty of debt to be divvied up, too.
The emotions of the payor are increased if he or she does not want the divorce and believes that he or she did not commit “fault” as traditionally defined to cause the marriage’s failure. As one potential payor lamented: “I was a faithful and loving husband and a good father. I did nothing wrong. I love my wife and don’t want a divorce. Yet, not only does she have the right to terminate this marriage, but also I will have to pay her, perhaps for an extended period of time? Tell me why that is fair.”
The answer, of course, is, fairness has nothing to do with it.
Wisconsin got out of the fairness game, at least in this context, when it adopted no-fault divorce more than 40 years ago. Virtually no one wants to go back to fault. But, that’s another article. For now, let’s just accept that what’s fair to one party might be quite unfair to the other.
Guidelines might help
When I first started in this field more than 25 years ago, child support “guidelines” were merely one factor for the court to consider. The result was increased litigation, as the playing field was far more open.
Now that we have guidelines, most child support cases settle, as the likely outcome of litigation is known to both parties. However — and this is key — the court always has discretion to find the guidelines unfair in an individual case.
It’s that back door — the court’s discretion to deviate in unusual cases – that must be a critical component of any future maintenance guidelines.
For example, among the proposals considered by the Wisconsin legislative committee, and in the laws adopted by certain states, is a “tie-in” between the length of the marriage and the duration of support. There’s a general, unspoken rule of thumb that indefinite maintenance is available for marriages lasting more than 20 years.
Yet, other factors, including the ages and health of the parties, should be considered. For example, few would think that someone who a healthy person who marries at age 18 and divorces after 20 years should be supported for the rest of his or her life, starting at age 38. However, indefinite support might be appropriate for a 58-year old with significant health issues that prevent him or her from working, even though that person may have been married for only 18 years.
Human dynamics are far too complicated to handcuff a court, no matter how well thought-out and well-intentioned guidelines may be. The variables are too great for any logarithm to be fair in every case.
Getting back to the question that I began with, the answer, at least to my way of thinking, is: Yes, there is still clearly a place for maintenance in American society, where a stream of income may be the only financial asset after many years of marriage.
Moreover, certain generalities are apparent. The length of a marriage, combined with consideration for the age and health of the parties, can be placed into an equation that would be within the range of fairness for the vast majority of cases. By doing so, lawyers would have an objective measuring stick with which to guide their clients toward settlement, rather than the subjectivity of the individual proclivities of the judge randomly assigned to the case.
As long as there is room for deviation where the individual facts of a case do not fit the pattern, allowing the court to individualize the result, guidelines are likely to do more good than harm.
Gregg Herman is a shareholder with Loeb & Herman SC in Milwaukee. He can be reached at [email protected].
A Connecticut judge recently ordered a divorcing couple to share their Facebook and other online social media passwords.
The order was made in response to the husband’s claim that his wife wrote incriminating posts on Facebook about her feelings toward the children and her ability to care for them. According to one news source, this order “underscor[es] the importance social media information plays in family court cases.”
A recent poll by the American Academy of Matrimonial Lawyers found that 80 percent of its members used social media posts, mostly from Facebook, as evidence in a divorce in the past five years.
In addition, a radio ad by a national family law firm (for men!), which has a Milwaukee office, advises potential clients that their spouse’s lawyer will be checking their social networking posts. Really? Is this a common occurrence in family law in Wisconsin?
Not in my experience.
Certainly, part of the absence of this evidence is because Wisconsin is a no-fault state. Courts take that very seriously.
So, for purposes of property division and spousal support, evidence of wrongdoing — whether obtained through social media or otherwise — is inadmissible. In fact, most courts in my experience get rightly angry at any lawyer who tries to introduce such evidence, essentially asking the court to ignore the law.
Custody and placement cases, on the other hand, present a different analysis. In theory, bad acts broadcasted on social media such as Facebook can be important evidence to decide what happens to children.
Why the “in theory” qualifier? Because the evidence needs to be strictly tailored to the result sought. Character assassination is not, in and of itself, related to where the children will be living. There is (fortunately) no requirement that a parent has to be a perfect human being, or even a perfect parent, to have placement with a minor child.
Social media has severe limitations to become admissible evidence. The age of the evidence, for example, might make it irrelevant. Does drinking in college reflect someone’s fitness as a parent? Maybe if that parent is still in college. Not so much if the incidents occurred many years ago.
Similarly, the conduct must be directly related to parenting, and more specifically to the placement schedule. That’s easy if the conduct is severe — for example, if it proves alcohol abuse or use of illegal drugs. Under those circumstances, perhaps placement needs to be supervised, or even held open entirely.
The more difficult question is when, as is frequently the case, the social media postings exhibit poor judgment, but not to the degree where placement needs to be supervised. In such instances, why are the best interests of the children promoted by that parent having one, two or even three days a week less? If the parent’s judgment is so bad that placement needs to denied or supervised, that’s one thing. It’s more difficult where placement needs to be curtailed, as there is no formula equating placement schedules with less-than-perfect behavior.
This is not to say that divorce lawyers should not participate in social media. Indeed, in addition to following my own kids’ exploits (fortunately, most of it rather tame), I’ve found another valuable use.
Family law is a great practice area if you love human beings and the human drama in which they are involved. During a divorce, we learn intimate details about our clients and develop an interest in their lives. The best reason to practice in this area is to help people, including their children, improve their lives. (What, you thought it was to make money?)
However, after the representation is concluded, we tend to lose contact with these people whom we were trying to help. Some of that is due to attorneys drawing the line between professional concern and personal involvement. Some of that is due to our being a reminder to the clients of a bad time in their lives.
“Friending” clients on Facebook allows me to stay in touch with their lives without being intrusive. Since you can only “friend” (a great verb!) another person with permission, you are not being a spy. But, you can still keep up with his or her life.
The same, of course, is true of other people with whom I don’t hear from as much as I’d like. So, please, “friend” me. As a divorce lawyer, I need all the friends I can get!
Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. Herman can be reached via email at [email protected].
Family — marital obligations — prenuptual agreements
Terrence J. Kettner appeals from a judgment of divorce. The issue on appeal is whether the circuit court erroneously exercised its discretion when it ruled that Terrence and his ex-wife, Georgeanne F. Kettner, were jointly responsible for a mortgage that the two of them entered into. Terrence argues that the terms of their prenuptial agreement require Georgeanne to pay the entire mortgage. As we hold that the circuit court did not erroneously exercise its discretion, we affirm the circuit court. Not recommended for publication in the official reports.
Steven Wirtz appeals an order regarding child support. He asserts the court had no authority to sua sponte modify child support and he was not “properly put on notice” for the hearing. We affirm. This opinion will not be published.
Daryl Dostal appeals a postdivorce order concerning modification of child support. Daryl argues his financial circumstances warranted a reduction in his child support obligation. We disagree and affirm. This opinion will not be published.
A few years ago, it appeared that collaborative divorce, and its cousin, cooperative divorce, would be the “new thing,” revolutionizing the practice of divorce in Wisconsin.
It recently felt like time to update the study – which resulted in some very different conclusions.
My office examined two additional years of divorce filings in Waukesha County. We chose Waukesha because it has a sufficient number of divorce filings and collaborative lawyers to make the study meaningful, while not being so large as to make an examination of all divorce filings unmanageable. The raw data we relied upon is posted on my office website.
First, for comparison purposes, our 2008 study revealed that over a three-year period, of 3,927 divorce cases filed in Waukesha County, 75, or less than 2 percent, were collaborative cases. Of these 75 cases, eight, or 11 percent, resulted in a breakdown of the collaborative process where the parties had to retain new lawyers. The remainder either resulted in a settlement within the collaborative process or a dismissal, presumably due to reconciliation.
Our updated study examined 2,579 divorce cases filed over a two-year period. Of those cases, 35, or less than 1.4 percent, were collaborative cases (we excluded one case with a “collaborative agreement” because one party was pro se, which means the case could not have involved a disqualification agreement). Of these, one is still open at the time of this writing (which is a year and a half from filing — not a good sign). Five cases were dismissed. Of the 29 cases that went to judgment, 24 settled within the collaborative framework. In five cases, or 17.24 percent of the cases that went to judgment, the collaborative process failed.
Two aspects of the data are disturbing, for those who believe in the collaborative process.
First, the number of collaborative cases is declining, from an average of 25 cases per year to an average of 17.5 cases per year. Second, the failure rate is way up, from 11 to 17.5 percent, an increase of 55 percent.
Disqualification is both the key to the collaborative process (which is why when one party is pro se, it is not a collaborative case) and its greatest risk. If the collaborative process fails, the cost to the parties of finding and retaining new attorneys is significant. As a result, the disqualification agreement is designed to encourage the parties to reach an agreement within the collaborative process.
Why are there fewer collaborative divorce filings?
Certainly, collaborative divorce was never intended to be for everyone. Rather, it works well only for certain parties. When giving a presentation once on settlement techniques, I said that collaborative divorce may not work in cases where one party is trying to hide assets, there is mental illness or allegations of domestic violence or alcohol or substance abuse. A judge in the audience interjected: “You have just described every case in my court!”
The statistics showing the decreasing percentage of cases that elect the collaborative route and the increasingly high failure rate may be related. After all, the failure of a collaborative case hurts not just the client, but the lawyers as well, who lose the client and the future fees and referrals generated by satisfied clients. The maxim “once burned, twice shy” might be applicable here, and attorneys may be increasingly reluctant to sign the disqualification agreement.
There are numerous other potential explanations, including a blip in the timing of this study, a failure to adequately train collaborative lawyers and, perhaps, the limited utility of this methodology under any circumstances. Possibly the weakened economy of the past few years has played a role as well, with fewer divorcing couples overall being able to afford legal counsel, either traditional or collaborative; we didn’t pursue that angle in our limited study and it could be a subject for a whole different article. But arguably, the weakened economy – one might think – would lead to more collaborative cases, as it can save the parties money, when there is less money for litigation and less to litigate about.
Anecdotally, I can say over the past few years, I’ve had fewer clients elect the collaborative process. It’s troubling to me, since I still believe the process works very effectively in appropriate cases, and I was the founder of the collaborative group in Wisconsin.
In any event, numbers don’t lie and the collaborative movement — and those who care about the process — should take heed.
There’s an old joke about a husband not wanting to pay his wife any maintenance. The judge, after hearing the evidence, finds she is entitled to support and says, “I’m going to give her $1,000 per month.” The husband responds, “Damn nice of you, judge. I’ll kick in a couple hundred bucks of my own.”
Few financial issues are more emotionally fraught than maintenance. From the payor’s point of view, he (or, increasingly, she) works quite hard to earn his income. He’s already upset about having to share it with the government, not to mention to pay for his health insurance. Also sharing it with someone who – in his opinion – is not working for it, makes getting out of bed and going to work difficult to justify.
On the other hand, since most red-blooded Americans spend everything they earn (and frequently more), frequently the only “asset” to show for years of marriage is their ability to earn income. To the recipient’s point of view, she (or, increasingly he) earned that income just as much as her husband did. Maybe more.
While guidelines for child support have existed for many years – and arguably have worked pretty well for the most part – no such guidelines exist for maintenance.
In Wright, the Wisconsin Court of Appeals found that the trial court did not properly exercise its discretion, despite the trial court’s decision of 121 pages, containing 1,062 findings of fact. As I said at the time, in a decision of that length, there has be an exercise of discretion in there somewhere!
Despite my advice, the high court denied review in both cases. Shows you the respect I get (assuming the justices read my column…).
Legislative committee to weigh in
In the absence of better directions for the courts, the Wisconsin Legislature has stepped into the vacuum.
For the past several months, a “Special Committee on Review of Spousal Maintenance Awards in Divorce Proceedings” has been meeting and considering maintenance guidelines.
The committee, chaired by Rep. Tony Staskunas, D-West Allis, is tasked with studying:
“(a) [T]he purpose and goals of awarding maintenance; (b) making application of the maintenance considerations given in s. 767.56, Stats., (http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=767.56) more uniform and predictable; (c) whether the statutes should provide guidance to the courts relating to amount and duration of a maintenance award; (d) whether cohabitation should be considered when revising maintenance orders under s. 767.59, Stats.; and (e) whether marital fault should be considered when determining a maintenance award.”
While such guidelines may serve a worthwhile purpose, the makeup of the committee creates grave concerns. While (fortunately) there are some judges with experience, there are no representatives from the Family Law Section of the State Bar of Wisconsin or from the Wisconsin Chapter of American Academy of Matrimonial Lawyers – two organizations that could lend impartial expertise to these issues.
Instead, the committee includes three maintenance payors and no maintenance recipients.
As an example of how that could play out, one committee member’s suggested legislation provides that the duration of a maintenance award would be determined as 1.5 years for every 10 years of marriage. So, in a 30-year marriage, the recipient would be “awarded” four and one-half years of maintenance. Gee, I wonder if the committee member who suggested that is one of the maintenance payors? Of course, that proposal is better than the one that would eliminate maintenance entirely.
Since I’ve always advocated getting involved to make change, rather than just complaining about it, I’ve decided to write to our lawmakers and the committee members. See next week’s column. I need to ask this committee just a few questions.
Gregg Herman is a shareholder with Loeb & Herman in Milwaukee, which practices exclusively family law. Herman can be reached via e-mail to [email protected].
Attorney Richard Hart displays Facebook on his computer in his Milwaukee office. Hart has used Facebook posts as evidence in divorce cases. (WLJ photo by Kevin Harnack)
It’s no secret that people post incriminating information on Facebook.
Divorce lawyers are taking notice and mining social media sites for evidence, to contradict financial hardship claims by a spouse or showcase crude behavior by a parent in a custody battle.
Both the admissibility and credibility of Facebook postings are debatable. While attorneys see it as a viable source of information that bolsters their arguments, presiding Milwaukee County Family Court Judge Michael J. Dwyer said in his experience, the evidence is often irrelevant to the legal crux of a case.
“Usually, it’s fuel for a fire that the court is not interested in,” he said. “It’s the emotional side of the argument that people want to pursue and it’s more atmospheric, not the facts.”
That’s if a Facebook post is even allowed as evidence, which is a rarity in Dwyer’s court.
Social media posts present similar admissibility issues as e-mails or text messages, said Dwyer, because of the difficulty in authenticating the source.
In some instances, text messages have been verified by telecommunications providers, but the judge has yet to see that done with Facebook posts.
“I think there are very big obstacles,” Dwyer said. “How do you authenticate a Facebook page?”
Given the difficulty in authenticating the source of a post, they amount to little more than hearsay, he said.
“If a party denies making the post, it’s not admissible,” Dwyer said.
Stafford Rosenbaum attorney Anthony J. Menting argued that when someone “self-authenticates,” that serves as confirmation, and he has never had someone deny posting a written statement or picture on their page.
Public postings are no different than someone who takes an ad out in The New York Times, said Phillips & Gemignani attorney Charles I. Phillips, and are discoverable.
The Waukesha divorce lawyer advises clients that anything they have on their page could be subject to discovery.
Even if a party cops to the posting, the usefulness of the evidence is often limited, in part because Wisconsin is a no-fault divorce and marital property state.
But attorneys argued the value of Facebook posts, pointing out that they can be supporting evidence in custody or other arguments.
Facebook postings are better sources than third-party conversations, said Milwaukee divorce lawyer Richard H. Hart, because if admitted to, they are a first-hand account of what a person said or did.
“In the past, we always had people on both sides, or a friend or relative and you never quite knew,” he said. “If you have the people themselves saying it, that’s probably the best evidence you can get.”
Hart has utilized Facebook evidence to strengthen child custody arguments for clients and they provide better ammunition than “he said, she said” testimony.
On more than one occasion, he has used posts or pictures to contradict statements by a spouse that he or she doesn’t drink, swear or engage in behavior that would negatively influence a child.
“I’ve seen judges, based on those posts, say that the other parent gets more time and more control because they just cannot trust the person to be responsible,” Hart said.
In his experience, Facebook postings have been “fair game” as evidence because they are public communications.
Even pages which require a login or “friend” status tend to become available from an acquaintance of one of the parties.
“If a party doesn’t tell, we can subpoena it,” Hart said.
Menting has had similar success with using social media as evidence in divorces. He was recently involved in a case in which he used the opposing party’s MySpace page as leverage for child placement with his client.
“A statement is a statement and a photo is a photo,” he said. “The person is putting this out for the world to see and it’s not as if someone is intercepting this conversation or taking photos of the person.”
Menting hasn’t encountered accessibility roadblocks either. In each of his cases which involved social media, parties have never contested the evidence.
“I’ve never had someone say, ‘I didn’t do that’ and never had to argue that point before a judge,” he said.
At the very least, Milwaukee divorce attorney Richard J. Podell said the posts he’s provided in cases were allowed as a rebuttal where a spouse denies an extramarital affair.
But he and others admitted that the outcome of a divorce doesn’t hinge on a derogatory Facebook post.
“It’s supportive,” Menting said. “But you have to have a case with substance and one or two entries in Facebook are not real substantive.”
Dwyer conceded that Facebook is a “font of information” but said most people don’t post things that are central to their case.
One situation he commonly encounters is where Facebook posts are submitted to contest the financial situation of one side or the other, such as one spouse claiming poverty in court, despite bragging about living the “good life” in a post.
“There is usually a perfectly good explanation,” he said “but on Facebook, you want to look good.”
The idea of charging a flat rate for divorces may sound absurd to most family law attorneys, but the concept is starting to take hold in Wisconsin.
By offering a flat-fee divorce, firms can entice clients that may otherwise try to do a pro se divorce. Clients benefit from knowing exactly what their cost will be.
But some attorneys say they can’t imagine offering a flat rate. Even firms that do have strict requirements on what is and is not covered.
Horizons Law Group offers flat fee options for both mediations and contested divorce cases.
Prices are set dependent upon whether children are involved in the case, said firm founder Michelle B. Fitzgerald.
For example, a contested divorce involving kids would cost about $4,000, but that quote does not include pretrial or trial services.
A new retainer agreement would be reached before trial, at which point the client can take a different flat fee or switch to an hourly rate, which ranges between $175 and $250 per hour.
“Given the marketplace, I think we’re still on the low end,” Fitzgerald said. “But I would say it has worked out pretty well for us.”
Three-lawyer family law firm Hansen & Hildebrand is developing a flat-fee divorce mediation model for clients who favor mutual and low-conflict resolutions.
Partner Susan A. Hansen said the firm is still in the “brainstorming” phase as far as costs, and attorneys will assess each case to decide whether a flat fee is a viable option.
Variables such as assets, children and the age of the client will be determining factors as to how much is charged for a mediation.
Michelle B. Fitzgerald
“There will be incremental flat fees to take into account the nature of the issues to be resolved,” Hansen said, noting that traditional hourly rates can price people out of legal representation.
State Bar of Wisconsin Family Law Section Chair Ellen M. Frantz agreed that cost can be a deterrent for hiring a divorce lawyer, evidenced by the growing number of people who appear pro se.
Flat rates provide an attractive option for those who assume attorneys are too expensive, she said, and also allow lawyers to market mediation in a different way. And, it prevents someone from making a mistake an attorney could have avoided.
“Someone who presents a model that looks like I know what I’m getting into for the consumer, may be appealing to those folks who can’t afford or choose not to hire legal representation,” Frantz said.
But outside of non-adversarial mediation, attorneys questioned the ability to provide reasonable cost certainty to clients in divorces.
Murphy Desmond family law attorney Stephen C. Beilke said it would be “suicide” to do a flat fee structure because of all the unpredictability involved in divorces.
“I’ve not met one attorney that is looking at that,” he said of a flat-fee model. “An hourly basis across the board is the only fair way for clients and attorneys.”
A flat fee for litigated divorce cases is a tough sell, even for Hansen, who said there is a risk of overcharging and undercharging clients. For example, just because two cases involve a recently unemployed client with two young children, that doesn’t mean an attorney will spend the same amount of time on each.
She said crafting a fee structure for mediation requires more than just “picking a number.”
While it’s true that no two cases are the same, there are predictable elements in divorce cases which attorneys can use as a basis for flat rates, Minnesota divorce lawyer Robert W. Gadtke said.
Last month his firm, Gadtke & Beyer, began offering clients the option to pay a flat fee for representation in contested divorce cases.
Certain things, such as if a temporary hearing is needed, can be predicted and Gadtke said in his experience, the vast majority of people want their disputes resolved as soon as possible.
“The fear is always that somehow the hourly billing rate keeps family law clients in check,” he said. “I just think that is not accurate.”
Fitzgerald said one of the benefits is that the flat fee provides another option for the client, rather than being locked into an unknown expense.
For her and her associates, on occasion, the work done on a case will exceed the amount charged, but for the most part, it’s been a worthwhile alternative.
“There are a few that are going to be over, time-wise,” she said, “but a lot more that are under.”
Despite the unpredictability and the chance of making less money than through the billable hour, supporters of a flat fee for divorces suggest that there are benefits to the model.
Cost certainty: An attractive option for clients who may have otherwise elected to not hire an attorney
Client communication: Without the “meter running” clients are more willing to discuss case details with attorneys, which can lead to a quicker resolution
Transparency: Flat fees broker more trust between a lawyer and the client if the individual knows at the outset how much representation will cost
I had a very nice lunch recently with a judge who handles a family court calendar, swapping war stories and such.
There’s never any shortage of good war stories in a field like family law. I still remember the very first family court hearing I ever witnessed.
The first case of the morning was called, and the judge said something like this: “The court is not going to revisit these issues, Mr. Smith. The court has already found that you planted cocaine in your ex-wife’s house and called the police on her. The court has already found that you quit your six-figure-salary job so that you could stalk your ex-wife full-time. Pay her what you owe her by 8:30 tomorrow morning, or you are going to jail.”
Of course, not all hearings are that dramatic. Most transcripts look more like this:
Mrs. Jones’ lawyer: Is the marriage irretrievably broken?
Mrs. Jones: [triumphantly] Yes, it is.
Mr. Jones’ lawyer: Is the marriage irretrievably broken?
Mr. Jones: [sheepishly] I guess so.
At least that’s what the transcripts would look like if court reporters added stage directions like playwrights do.
Divorce is harder for men; they don’t just lose their wives; they lose their children, houses, and indeed, their entire social networks. And all they get in exchange is the freedom that Kris Kristofferson called, “just another word for nothing left to lose.”
But that’s just the way it is, and always will be. One aspect about modern divorce, however, doesn’t have to be accepted that passively: the high percentage of couples who get divorced pro se.
The judge at lunch spoke wistfully about the good old days when an experienced family lawyer could walk into court in the morning with eight different couples, and get them all safely divorced without even breaking for a cigarette.
Nowadays, he said, the majority of cases are pro se, and it takes forever for the parties to bumble and stumble their way through the process.
This is an outrage. Any couple that is wealthy enough to suddenly switch from supporting one household to supporting two households is wealthy enough to hire a fine Wisconsin attorney to guide them through the process, rather than imposing an undue burden on the nice judge and the rest of the court employees.
Even more outrageous is that the court system and Wisconsin bar associations exacerbate the problem by making it easier for the wealthy to divorce without hiring licensed Wisconsin attorneys. They actually provide free forms to enable these people to waste the court’s time.
The judge said that only once in a while will he require a couple to hire attorneys – when they have plenty of money to do so, and they have clearly demonstrated an inability to prepare a Qualified Domestic Relations Order on their own.
But forcing divorcing couples to hire attorneys should be the norm, not the exception.
The problem is, divorce is a fundamental right, just like sex and abortion. And whenever something is declared a fundamental right, people expect others to go out of their way to make it easy for them to exercise that right.
But the State doesn’t expend resources to enable people to have sex, as they do in Zamyatin’s dystopian novel, “We,” or in Huxley’s blatant rip-off, “Brave New World.” If you want to have sex, you have to go find your own willing partner.
And the State doesn’t pay for abortions. You hire a doctor and pay for it yourself.
Yet, the State provides free forms to facilitate people in clogging up the already overburdened court system, just because they woke up one morning and decided they were no longer happy together.
It’s an outrage. This is the United States of America, for goodness’ sake. We have the best court system in the world. Let these people hire attorneys like real Americans!
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