Experiences of Family Law Attorneys With Current Issues in Divorce Practice*

• DOI: http://doi.org/10.1111/j.1741-3729.2002.00325.x
• Author: Bruce R. Cohen,Sanford L. Braver,Jeffrey T. Cookston
• Published date: 01 October 2002
• Date: 01 October 2002

2002, Vol. 51, No. 4 325

Special Collection

Experiences of Family Law Attorneys With Current Issues

in Divorce Practice*

Sanford L. Braver,** Jeffrey T. Cookston, and Bruce R. Cohen

A survey was administered at a state bar convention to 72 family law attorneys who reported on their experiences in representing a

total of 3,860 clients. Results showed that lawyers believed that (a) most losers in relocation cases do not or would not ultimately

move; (b) the Family Court Masters system seems to be helpful to families; (c) lawyers’ actions often raise the emotional level of the

dispute; and (d) the divorce and custody system is biased against fathers.

There is a strong impetus in the United States to view

family relationships as an entirely private matter, some-

thing the family members work out largely by themselves

without outside intervention unless they seek it. On the other

hand, many aspects of family relations are governed by legal

restrictions, policies, and procedures.

Because the state is seen to have a valid interest in certain

family matters, in many respects it restricts how family members

may act toward one another. Such restrictions are especially ob-

vious in the instance of family dissolution and divorce. Because

divorce (like marriage) is a legal and familial event, it must be

sanctioned by the law and the courts to be valid. For the most

part, and based on the U.S. Constitution and interpretations

thereof by courts, laws concerning families apply at the state

level, as opposed to lower levels of jurisdiction, such as the

county, or the higher federal level.

Nonetheless, the federal government has immense inf‌luence

on state-level family policy because of enormous f‌inancial in-

centives. For example, the child support policy in each state is

greatly affected by the opportunity of the state to receive Federal

Child Support Enforcement funding, but only if it hones its laws

to complement federal ‘‘guidelines.’’ As a result, virtually all

states have similar child support policies, such as the use of

‘‘presumptive guidelines.’’ Moreover, laws concerning families

are virtually always adjudicated and enforced at the county level

via county superior courts. Therefore the practices and proce-

dures are likely to be in effect countywide. Despite these qual-

if‌ications, the major difference in law occurs at the statewide

level, and there are substantial variations across states in their

laws concerning the matters addressed by the survey adminis-

tered in this study.

Thus, many state statutes, policies, and procedures constrain

the actions of the two divorcing parties. States’ constraints are

maximal when there are contested matters that the parties have

not been able to resolve themselves, and they submit these issues

and themselves to the court to decide or adjudicate. However, it

is surprising to many that the incidence of this happening actu-

ally is small. Braver and O’Connell (1998) report that only 5%

of the more than 300 cases they examined required judicial ren-

*The authors would like to acknowledge Steve Serrano and Steve Wolfson of the

Arizona Bar and the contributions of Kelly Peralta-Vaughn, Toni Genalo, and Jennifer Cum-

mings for data collection assistance; Laura Legge for data entry assistance; and Drs. Irwin

Sandler and Bill Fabricius and Prof. Ira Ellman for comments on previous versions of the

manuscript.

**Department of Psychology, Arizona State University, Tempe,AZ 85287-1104 (Sanford.

Braver@asu.edu).

Key Words: attorneys, divorce, family, law, relocation.

(Family Relations, 2002, 51, 325–334)

dering of decisions, whereas Maccoby and Mnookin (1992) re-

ported a f‌igure of 1.5% based on 1,100 cases.

It might appear that the law’s constraint would not be sub-

stantial in the remaining cases, in which the two parties agree

on all of the various matters they must settle when the decision

is made to legally terminate their marriage. In the case of such

full agreement between the parties on these matters, ‘‘private

ordering’’ (Mnookin, 1985) dictates the settlement of their af-

fairs, and they merely bring their paperwork to a judge who

(generally with no questions asked) typically ‘‘rubber stamps’’

their decisions, making them legally binding. (In the case of

these ‘‘agreed-upon’’ settlements, it may not be a judge, but a

commissioner, hearing off‌icer, or even a clerk who stamps their

agreements with the seal of the court.) However, even in settled

cases, the backdrop of the court and the formal setting has con-

siderable inf‌luence on the family. What Erlanger, Chambliss, and

Melli (1987) term the informal processes of bargaining and ne-

gotiation occur ‘‘in the shadow of the law’’ (Mnookin & Korn-

hauser, 1979.) In other words, how divorcing individuals believe

the authorities will decide if the parties fail to come to agreement

is likely to exert large inf‌luence on their choices. Simply know-

ing professionals’ views of what is best for them can result in

normative pressures to the bargaining session (Braver, Hipke,

Ellman, & Sandler, in press). Unfortunately, littleis known about

these informal processes or the contexts that affect the family

upon dissolution.

In this article, we examine a data source that has been sur-

prisingly overlooked in efforts to understand the inf‌luences of

family law—the perspectives of family law attorneys. There are

several benef‌its to exploring their experiences. First, divorce at-

torneys are privy to many or most of the negotiation processes

and can make informed judgments about how the family mem-

bers were inf‌luenced and how they behaved and felt. They can

comment with authority on the process and know details of the

cases that may never reach the formal f‌ilings or arguments. Sec-

ond, much of the informal process is inf‌luenced strongly by the

attorney. What the lawyer tells his or her client about the chances

to prevail, regardless of whether or not the forecasts are accurate,

can constrain the bargaining of the client (Pruett & Jackson,

1999; Sarat & Felstiner, 1995).

Another advantage of querying attorneys is methodological:

It is possible to ‘‘leverage the N.’’ By asking 20 or so attorneys

to report on their cases, data may be obtained about thousands

of families. Still another methodological advantage involves

overcoming social desirability biases. Former spouses are likely

to report in exaggerated ways on their own and their former

spouses’ actions (Braver, Fitzpatrick, & Bay, 1991; Braver &

O’Connell, 1998; Braver, Wolchik, Sandler, Fogas, & Zvetina,

1991; Braver et al., 1993; Pasley & Braver, in press). Although

lawyers represent only one of the former spouses, they are less