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Matrimonial and Family Law Litigation in Disarray

Peretz Family Law & Mediation, P.C. zealously and represents clients and mediates family law and matrimonial matters. I personally strive to give my all in my advocacy for my clients. The process is emotionally diffcult, time consuming, and very expensive. The process is even more difficult when the court system is ineffective, unpredictable and inconsistant for litigants and attorneys alike.

A Fall 2012 Family Law Review column written by Elliot D, Samuelson, Esq. made several excellent points and offered insightful observations and suggestions, many of which I echo. I write to add some points and hopefully make additional insightful observations and suggestions, as a divorce and family lawyer and as a former clinical social worker and child and family therapist.

The New York State Supreme courts (and Family Courts) are overburdened with the amount of divorces (and family court petitions) filed. However, this volume does not have to create the often inconsistant, unpredictable and frustrating matrimonial litigation process. The procedures, legal processes, and the case results differ greatly from courthouse to courthouse and from judge to judge within the same court. One judge can offer time and guidance in a productive settlement process, while another judge faced with a similar set of facts can offer no faciliation and can even be counter productive.

Suggestion: Bring back the Judicial Hearing Officers. New York State budget cuts have reduced the amount of jurists in the courts to handle the volume of cases. JHO's have the experience handling trials and many of them are familiar with the divorce laws and rules and were talented and accomplished litigators themselves.

The court can create an atmosphere of angst and impatience. The court can become an adversary - it has its own agenda of moving cases along and meeiting its time goals. Judges are often in a tremendous hurry, which impedes everyone's ability to properly problem solve. One role of the court in divorce and family law litigation is to try to avoid litigation. Another role of the court is to provide speedy justice. This can make amicable problem solving more difficult, resulting in exactly what the court is trying to avoid - more cases on its calendar and more trials scheduled.

Suggestion: Provide training to judges, law secretaries and court staff so litigants are treated with respect, undertstanding and so litigants encounter a more productive court environment, which will hopefully facilitate more than impede what all the players want - the amicable resolution and end to their case.

Litigants are faced with the presentation of their personal lives to court staff - strangers - which is often received in a dehumanizing and insensitve manner. The litigants are going through a divorce (or family law dispute), one of the most stressful and emotionally challenging events an individual can experience.

Depending on the assigned judge, rules are enforced strictly, inconsistantly, cavalierly, and sometimes barely at all. It is quite unsettling for litigants, and their attorneys, to have this unpredictable environment govern an already stressful and unpredictable event - the end of their marriage. The "Uniform Rules" are often anything but uniform.

I, and many colleagues, have personally witnessed courts refuse to punish litigants for their non-compliance and the refusal to punish attorneys for this non-compliance, which was clearly unethically advised by the attorney. This creates an incentive to break the rules. Mere hand slapping for rules violations is written off by the attorney and litigants as a cost of doing business.

Suggestion: Mete out penalties with teeth for non-compliance.

Suggestion: Judge's part rules should be unform, at least by county. The rules that govern the procedures of divorce and family law should actually be enforced.

In federal courts, when a litigant does not adhere to the rules and procedures, strict and predictable penalties follow. This should also be the rule in the divorce and family courts.

The divorce and family law process is expensive, time consuming and emotionally very costly. Litigants spend alot of money on attorneys; they take time from their children and they have to take time from work. The overburdened courts often make litigants wait an entire morning, and sometimes an entire day, for a conference that actually takes minutes. This is costly.

Suggestion: All appearances should be schduled as a time certain. Do not have all parties appear at 9am or 9:30 and then often wait for their turn for hours.

The divorce and family law process is hard enough.


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