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March 2011 Archives

Family Law in the United States -- An Uncivilized, Unenlightened and Barbaric System

In 1996, the Australian government reformed its family law system in an effort to make it "more responsive to families in need, by making it simpler to negotiate appropriate outcomes." It accomplished this by shifting "the focus from litigation as the first choice for the resolution of family law disputes." Since then, mediation has become the "primary dispute resolution (PDR) in family law." The Australian government recognized that " litigation is usually slow, expensive and by its nature, adversarial." The government found that " in family law matters, such behaviour may make it difficult for the child to maintain an ongoing relationship with both parents and for parents to maintain their ongoing responsibilities." " But when people are able to settle matters for themselves, the arrangements they make are far more likely to suit all parties, they will have been reached more quickly and will cost less than if they are determined in Court." Since its initial reform, the Australian government has continued making improvements to the family law system. Currently, whether the case involves parenting issues, financial issues or both, "each prospective party to a case in the Family Court of Australia is required to make a genuine effort to resolve the dispute before starting a case." Moreover, "unless there are good reasons for not doing so, all parties are expected to have followed these pre‑action procedures before filing an application to start a case" and "there may be serious consequences, including costs penalties, for non‑compliance with these requirements." This process is no longer known as "primary dispute resolution (PDR)", but is now referred to as " family dispute resolution (FDR)." " FDR is the legal term for services (such as mediation) that help couples affected by separation and divorce to sort out family disputes.... You can only apply to a family law court for a parenting order when you have a certificate from an accredited FDR practitioner which states that you have made a genuine effort to resolve your dispute through FDR." In 2004, the Family Law Court in association with the Federal Magistrates Court published a book entitled, " The Family Law Book" which is about the "realities of the family law system as it works in the Courts in Australia today." According to that book, "the Courts aim to help families resolve their disputes without the need of going to a trial before a judge or federal magistrate. The Courts encourage separated couples to attend mediation before starting court action, and in the case of the Family Court pre-action mediation is a requirement in many situations.... Experience shows that mediation can help when you are having difficulty communicating with your former partner, which is something that often happens around the time of the separation, when many adjustments have to be made to your relationship. Mediation provides professional help that may assist you to come to terms with separation and divorce, including making the best arrangements for your children and the fair distribution of property. It does so by providing an independent third party and a neutral location to discuss and resolve issues that might allow each of you and your children to reorganize your lives." England and Wales are following Australia's lead and are making similar reforms to their family law system. On February 23, 2011, the British government announced that effective April 6, 2011, "divorcing couples will be referred to mediation [for child custody and/or financial issues] to sort out most disputes before they are allowed to use the courts." Justice Minister Jonathan Djanogly stated, "our proposals aim to radically reform the system and encourage people to take advantage of the most appropriate sources of help, advice or routes to resolution - which will not always involve the expense of lawyers or courts." The Justice Minister said, mediation was "a quicker, cheaper and more amicable alternative" to the over-worked family courts.... "Nearly every time I ask someone if their stressful divorce battle through the courts was worth it, their answer is 'no'.... It gives people the opportunity to take their own futures in their own hands." According to the minister, "programme statistics suggested that more than two-thirds of couples who took up mediation were 'satisfied with the results.'" "Family law in the United States is a state matter.... Power is decentralized in the United States; and this is more than a matter of structure, it is also a matter of culture. Structure, however, does matter.... The United States is fragmented, decentralized." Many states have a mandatory divorce mediation requirement. However, with few exceptions, the mandatory "mediation" is limited to child custody and visitation matters. California is one such state. The "mediator" will assist the parents in reaching a parenting agreement. However, each county enforces the mandatory "mediation" requirement in its own unique way.

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