BY LISA STANSKY
Originally published in Student Lawyer magazine (American Bar Association Law Student Division), Vol. 30, No. 2 (October 2001)
Matrimonial law requires toughness to handle a wide variety of issues
The most challenging feature of matrimonial or family practice-the human heart- has no tangible place in the annals of the law. Place that heart in a world reeling from shifting demographics and exploding technological advances and you've got an area of practice that's racing to keep up with the evolution of human society.
The legal tangles of matrimonial law are dense. The field spans divorce, custody, pre- and post-nuptial agreements, and even "ART"-artificial reproductive technology. Questions about taxation, property, trusts, estates, pensions, health insurance, and perhaps bankruptcy will pepper your practice. Your clients will often be in distress. This is no turf for lightweights. "You have to be a specialist in family law; you can't just dabble in family law," says Linda Elrod, immediate past chair of the ABA Section of Family Law.
Worried that family law will be ho-hum? Take a look at In re Marriage of Buzzanca, a 1998 California case. A childless couple contracted with a married woman to carry and give birth to a child. The surrogate received an anonymous, donated embryo, and the baby was on the way. The husband of the childless couple then filed for divorce, declaring that there were no children in the context of the marriage.
No way, said an appellate court in southern California, declaring that the husband contracted for the baby, and that he was a lawful parent who owed a duty to support the child. "For all practical purposes John caused Jaycee's conception every bit as much as if things had been done the old-fashioned way," the court said.
"That's an issue that would not have come up 20 years ago," says Elrod, a law professor at Washburn University.
Even the changing nature of what society calls a "family" is creating new challenges for the law. Single-parent households, unmarried partners, and same-sex partners-with or without children-raise new issues. "The law is going to have to seek ways to recognize these new family formations," Elrod says.
Even modest social changes are creating new legal problems. Just 15 years ago lawyers rarely encountered grandparents staging court battles for visitation rights, says Sharon Corbitt, a Tulsa, Okla., lawyer who is chair of the Family Law Section. Last year, the U.S. Supreme Court considered a visitation battle between grandparents and a child's mother, in Troxel v. Granville. The decision struck down a Washington state law that allowed judges to award third parties visitation rights without assessing the parents' view of the child's best interests. Bear in mind regional demographics, including the social and cultural mores and norms that will color your practice. Family court judges are products of their communities, says Nashville solo Edward Gross, co-chair of the marital torts committee of the Family Law Section.
In his town, Gross rarely sees fathers lining up to do battle for child custody, noting that the community (and its judges) generally looks to mothers as the primary caretakers of children. "Your practice is probably more impacted by those things than anything else," he says. "Ninety percent of most domestic law is discretion on the part of judges."
Client contact is a huge factor in family law, practitioners say. "Much, much of domestic practice is listening," Gross says. "Emotions are just raw." He fears that the emotional intensity of divorcing parties in court is driving younger law-yers away from this arena. Barton Resnicoff, who chairs the Family Law Section's marital property committee, is upfront about the angst factor in matrimonial law. He fires this question at prospective associates: "Why would anyone in their right mind want to practice matrimonial law?"
"It's a very tough area of the law," says Resnicoff, a sole practitioner in Great Neck, N.Y. After 22 years he's still there, "helping people get through a very difficult time in their lives."
As a law student, Chicago solo Kimberly Anderson knew she wanted to join the ranks of family lawyers. Back then, she was horrified by the glacial pace of the notorious "Baby Richard" case-where Illinois courts took years to decide the fate of an adopted child. The co-chair of the ABA Young Lawyers Division family law committee hopes to build a practice that focuses on adoption. For now, however, she's managing the demands of clients dealing with a host of family law issues.
Be ready for "high-maintenance" clients, Anderson warns. "It's huge; they call you all the time," she says, noting that some clients need to speak with her daily.
Another plus for new lawyers building a family law practice-work. "I think there's tons of work out there," Anderson says. "I don't think it's too hard to go solo right away."
In her former professional life, Anderson was a chef and restaurant owner. Managing a kitchen and a small business, she says, was good training for the rigors of matrimonial practice, which also requires "doing 50,000 things at the same time."
So, what's a student to do to toughen up? "You need to get out there and do some things," Anderson says. "I think the biggest thing to do is to get some practical experience right away." She did that by working at the child support enforcement division of the state's attorney's office, followed by a stint at a firm with a family law focus.
Gross advises law students to volunteer with an organization that provides counseling services to families undergoing reorganization following a divorce to get a taste of the issues and the personal turmoil of the parties.
As for course work, Anderson says to put trial advocacy on your docket. There, you'll learn things you can't glean from books, like how to address a judge on the bench, how to ask for permission to approach a witness, etc. One of her regrets was not having added a course in alternative dispute resolution (ADR) to her course load.
ADR is not merely an option for family lawyers these days. Many jurisdictions mandate that disputes-especially those involving child custody issues-proceed to mediation before the court takes a crack at the case.
"We're trying more client education, and we're trying to be less adversarial," Elrod says. Easing the antagonism of litigation is for the good of all parties, for Elrod notes that "almost always you are dealing with people who have continuing relationships."
One advance in this arena is "collaborative law," Elrod says, explaining that the process involves securing a commitment from clients to agree to settle the dispute as a condition of working with a particular lawyer.
And the mettle of a lawyer is the degree to which he or she helps people move on. "Good family lawyers," Elrod says, "give clients the tools to rebuild their lives in its restructured form."
Lisa Stansky (nolawritestuff@cs.com) is a lawyer and freelance writer in New Orleans.
Resources on Family Law
If family or matrimonial law is in your future, consider joining ABA entities with the resources and contacts that can give your practice a boost. Of course, there's the Section of Family Law, which offers a host of committees on various areas of interest- the marital torts committee, the property committee, and the reproductive technology committee, to name a few. For $6.50 a year, you'll receive Family Advocate and Family Law Quarterly, plus the opportunity to meet practitioners at the section's three yearly meetings.
Also consider the General Practice, Solo, and Small Firm Section and its family law committee. You'll benefit from eight issues of GPSolo magazine and four installments of Solo newsletter, along with the networking opportunities the section provides. Membership for law students is free.
Don't forget about the Young Lawyers Division, which has committees on family law and children and the law. ABA/LSD members are welcome to join the division for $5 a year, which includes a subscription to The Young Lawyer monthly newsletter.
To join an ABA section, call 800-285-2221.