Redesigning the Family Law System to Promote Healthy Families

• Date: 01 July 2015
• DOI: http://doi.org/10.1111/fcre.12157
• Published date: 01 July 2015

SPECIAL ISSUE ARTICLES

REDESIGNING THE FAMILY LAW SYSTEM TO PROMOTE

HEALTHY FAMILIES

William J. Howe, III and Elizabeth Potter Scully

Family law professionals should be proactive in seeking and implementing constructive reforms. We identify some successful

cutting-edge reforms: (1) family resource centers, where all kinds of needs can be met; (2) informal family law trials, which

streamline clogged calendars and provide an empowering and efficient forum; (3) licensed legal technicians, who increase pub-

lic access to legal services; and (4) unbundled family law services. Second, we outline a protocol for implementation of reform

developed by the Oregon Task Force on Family Law which is effective and replicable. Thoughtful reform of dispute resolution

processes will serve family health and promote peace.

Key Points for the Family Court Community:

Evolving family constellations, private ordering through pre- and postmarital agreements, an increase in self-

represented litigants, and shrinking judicial resources are changing family law dramatically.

Thoughtful, practical process reforms are needed in order to accommodate these changes.

Practitioners should be proactive about seeking out and implementing such reforms.

Some reforms already finding success include family relationship resource centers, informal domestic relations trials,

licensed legal technicians, and unbundled legal services.

We outline a protocol with a proven track record of success for implementing cutting-edge family law reform.

Keywords: Informal Domestic Relations Trials; Family Relationship Resource Centers; Licensed Legal Technicians;

Protocol; Reform; and Unbundling.

INTRODUCTION

“Change is the only constant,” opined the famed Greek philosopher Heraclitus. Certainly, this

maxim applies to the practice of family law—a lawyer practicing family law in 1970 would find it

difficult to recognize family law practice today. No-fault divorce has been enacted in every state,

mediation of children’s issues is usually mandatory, premarital agreements are now legal, self-

represented litigants now represent a majority of litigants, same-sex marriage and domestic

partnership agreements are accepted, and far more enlightened protocols have developed for the man-

agement of domestic violence and chemical abuse issues. The increasing complexity of rules relating

to inheritances and gifts, as well as those relating to sophisticated issues of retirement assets, business

valuation, and stock options, have made the financial aspects of some marital dissolutions similarly

complex. Family law today is now recognized as a sophisticated legal specialty.

Along with society at large, the demographics of our clients have changed significantly. Unmar-

ried couples and same-sex couples are the new normal. Parties have tremendous freedom to privatize

marriage by determining for themselves, via contractual agreement, the parameters of their economic

relationship. Consumers are increasingly interested in self-help approaches, especially when legal

services are expensive and attorneys are perceived as fomenting, not diminishing, controversy. Proc-

esses like mediation or collaborative law, which seemed outlandish, threatening, and downright

Correspondence: whowe@gevurtzmenashe.com; elizabeth@jssfamilylaw.com

FAMILY COURT REVIEW, Vol. 53 No. 3, July 2015 361–370

V

C2015 Association of Family and Conciliation Courts