Section Review

Comments from the Family Law Section chair

Pauline Quirion is chair of the Family Law Section and specializes in domestic relations law at Greater Boston Legal Services.
The Family Law Section Council has a full agenda for the upcoming year. This includes planning educational seminars and addressing legislative and other issues of concern to the domestic relations bar.

Promoting civility and respect for our profession

Much has been written about the decline in civility over the last decade. Some commentators have surmised that for some lawyers, the practice of law is no longer a profession, but merely a business wherein impersonal or abrasive confrontations have replaced the tradition of congeniality among members of the bar.1 At our recent Annual Family Law Conference in Lenox, Roberta Benjamin chaired a panel on civility that provoked lively, humorous and insightful conversations among judges, panelists and participants throughout the day.

As Benjamin pointed out, our practice involves some of the most intense, difficult and emotionally charged cases and clients. On occasion, another lawyer's conduct also may try our patience and make it challenging to remember that the opposing counsel is also our colleague. However, some kindness, humor and basic courtesy go a long way in helping us get through even the toughest cases, and foster more positive images of the bar and judicial system. For our "divorce basics" seminars, it brings to mind that stressing civility and highly ethical conduct may be as important as teaching the nuances of the law. We will try to keep members well-informed about the law through educational seminars and conferences, but also continue efforts to promote collegiality and civility through our programs.

Time standards

New Probate and Family Court time standards went into effect on Oct. 4. The standards are available online at http://www.mass.gov/courts/courtsandjudges/courts/probateand familycourt.

Time lines for lawyers. The standards put divorce cases on a 14-month "track," meaning that these matters should be tried, settled or dismissed within 14 months after the cases are filed. Paternity, modification and guardianship cases have eight-month tracks. Any motion to change a tracking order must include proposed new dates and specify the reason for the extension. The standards also provide that if there is a past or present restraining order, or a history of domestic violence, the judge "shall" consider the safety of the victim when ruling on a motion to change a tracking order. A motion filed jointly by the parties or their counsel to change a tracking order may be allowed "on the papers" without the necessity of anyone appearing in court if the motion contains proposed new dates and is accompanied by an affidavit outlining the reasons for changing the tracking order.

Time lines for judges. The standards impose deadlines for judges to issue decisions as was suggested by lawyers at the public hearing in Boston for comment on the matter of time standards. The deadlines for judges are: 14 days to issue temporary orders after a hearing; 30 days for judgment after a trial for a day or less; 60 days for judgment after a two-day trial; 90 days for judgment after a trial of three to seven days; and 120 days for judgment after a trial lasting more than seven days.

Time standards in the domestic relations context. Time standards may help to eliminate case backlogs and better ensure that justice is not denied by lack of a timely disposition. Tracking orders may also help parties schedule events around their court cases and avoid confusion or frustration about just how long a case should take. On the other hand, there are concerns about whether the "one size fits all" nature of time standards can work in the Probate and Family Court.

Family law cases are unique in that they center on relationships and are far different from summary process, contract or other civil litigation. Clients may need the benefit of an automatic "restraining order" on marital assets that occurs upon filing of a divorce or separate support case because it protects both spouses from dissipation of marital assets, but not be ready to go any further. Mental health professionals have long recognized that the end of a relationship involves a period of grieving and adjustment for both parties. Parties may have second thoughts about getting divorced, or decide that couples' counseling, a trial separation, substance abuse treatment or other counseling should be attempted before the case goes any further.

Rushing people to get divorced or go to trial when neither party is ready to do so is not always a good idea. Sometimes both parties want the case on "hold" and trial can be ill advised because it may involve public airing of negative information which in turn, exacerbates existing tensions or generates ill will that can fuel conflict for years to come; it also might put a victim of domestic violence at risk. There is also worry that time standards will encourage judges to become bureaucratic or to measure their success by how many judgments they churn out when the focus should be on whether the law was correctly applied, the facts carefully considered, the parties and counsel treated with respect and the result was just. Clearly, assembly line style case processing will never be a substitute for justice or sensitivity to the needs of children and families. While it is too early to assess the impact of the standards, their success will hinge on whether judges are flexible in appropriate cases about how they apply the standards.

The Probate and Family Court and CJAM should be commended for holding many public hearings, and providing the opportunity for suggestions and feedback from the bar before issuance of the final version of the time standards. This may bode well should the standards need some tweaking in the future.

Registers' efforts to assume judicial powers

While the primary function of elected registers of probate is to maintain court files, registers from some counties have lobbied again for a law that would that would take the power to hire and oversee "assistant registers" and "first assistant registers" away from the Probate and Family Court and give that power to elected registers of probate, instead. Registers of probate have never had this power because assistant registers are assistants to the judges, not the registers. The job title of "assistant register" is a misnomer because the position involves front-line courtroom duties, quasi-judicial functions and other work that is critical to judges and to dispensing of justice. Thus, judges are in the best position to hire and oversee their assistant registers. The MBA has repeatedly opposed these register bills because the judiciary is in the best position to run the courts. The present separation of powers should remain intact.

Post-Goodridge activity

Few people likely question that the landmark Goodridge marriage case was the most important family law case of the year.2 The MBA's Same Gender Marriage Task Force and the Family Law Section Council will be looking at the Goodridge decision to examine what statutes might need to be amended to be consistent with the ruling.

End notes

1. Cathleen Cavell, Please Please Me: Voluntary Civility Standards for Lawyers, MBA Lawyers Journal (Feb. 2001).[back]

2. Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941 (2003) (denial of the right to marry to same-sex partners does not meet the rational basis test for either equal protection or due process). [back]

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