Divorce For This Century – Proposal
You didn’t have to go to court to get married. You don’t have to go to court to dissolve a corporation/business organization. Why should you have to go to court to dissolve a marriage?
Divorce is not the time, divorce court is not the place and divorce lawyers are not the people for family social work.
Divorce as it is today profits only divorce lawyers and incentivizes the conflict that every person who has been involved with a divorce knows is harmful to the divorcing parties and devastating to children of the divorcing household.
The proposal is to structure divorce as an administrative process run like an on-going mediation:
0. The filing fee for a divorce is $3,500. The fee is intended to cover the expenses incurred in the administrative process. (In addition, the fee for a marriage license will be increased to $1,500; at the time of marriage, parties will be required to file personal financial statements.) Fees also indicate the seriousness of the undertaking. Fee discounts are available to the indigent.
1. An administrator/mediator trained in -conflict resolution- is assigned at the start to manage the case/process. The administrator doesn’t have to be a lawyer or administrative law judge but will have special training. The administrative process is not a legal case but the administrator may issue and enforce orders. The administrator will assign to the case (a) a staff accountant and (b) a parenting coordinator (if there are minor children). The administrator may also assign a counselor. Divorce lawyers are not permitted to appear in the administrative proceedings. Parties may retain a divorce lawyer at their own request but the divorce lawyer will not participate directly in the proceedings.
2. The parties are required to exchange standard information disclosures (e.g., asset statements from dates of marriage and divorce filing) and proposals for settlement (e.g. for division of existing assets). The administrator may request additional information. The administrator will have the staff accountant to review financial records of the parties. The administrator may order that the parties meet with the staff accountant. At the start of the case, each party will be ordered to set up their own individual financial accounts.
3. If there are dependent children, the parents are required to meet with the parenting coordinator and submit a joint parenting plan. If the parents cannot agree on a joint parenting plan, the administrator and parenting coordinator will address that issue first. If the parents cannot reach an agreement, the initial order is that the parents will share equal parenting time during the proceeding and for two years after the divorce is final. Persons who were formerly employed as custody evaluators can be retrained and to instead serve as parenting coordinators (facilitators) tasked to help the divorcing parents reorganize their respective lives and households for the benefit of the children; parenting coordinators will remain assigned to the case and available to the parties/parents until the children reach the age of adulthood.
4. Parties are able to make all submissions made using standard fill-in forms (simple and understandable). Parties can revise their submissions during the initial months of the process. At certain points in the process certain disclosures will be required under penalty of perjury.
5. Starting presumptions: (a) equal shared custody/placement of children is best for the children and that each parent is entitled to equal parenting time; (b) equal division of property obtained during marriage is equitable; (c) the return of divisible/documented pre-marital property to each spouse is equitable; (d) no alimony/maintenance is required to either party. Evidence/proof is required to overcome presumptions.
6. The administrator initially sets up a case resolution plan. The case resolution plan requires monthly mediation sessions with the parties and the administrator; no postponements or rescheduling. The administrator will meet/mediate with parties once a month every month until case is fully resolved. The staff accountant assisting the administrator will provide a recommendation for asset division and support obligations (if any) as a starting point. Parenting plans will be reviewed and refined. The parties can submit issue lists to the administrator to be addressed in the mediation. The parties are obligated to attend monthly mediation sessions; failure to attend will result in a ticket and fine and possible contempt orders (in egregious cases).
7. If parties do not resolve all issues by mediation within 18-24 meetings/months, the administrator will decide any remaining unresolved issues. The parties can seek review/determination of the issues by an appeals panel within the administrative agency. The appeals panel consists of three senior-level administrators; the appeals panel will conduct a hearing for the appeal and then issue a written decision.
8. Child support payment obligations are not part of the negotiation. The parents are each required to submit a proposed budget for their respective households. The parents are required to attempt to prepare a joint budget for child support expenses that are to be shared, such as for activities, special medical care, orthodontia, college savings. Budgets will be reviewed by the accountant as against records of actual expenses; final budgets will be based on actual expenses of child support. Both parents will be required to pay child support into a fund based on their income and their parenting time and the budget. Each parent is entitled to withdraw a specified amount from the fund each month (e.g. by debit card); if the parents share equal parenting time, each parent is presumptively entitled to withdraw the same amount from the fund. Parents are required to submit an annual statement providing a report/accounting of the use of amounts withdrawn from the fund and on actual child support costs/expenses.
9. The administrator has authority to issue and enforce orders. The administrator may issue tickets imposing fines/sanctions for non-compliance with orders and rules/regulations. The administrator may also issue tickets and impose fines if parties make false/misleading statements and omissions. The administrator may apply to a court to obtain a contempt order (in egregious cases of non-complaince); the administrator may refer a party for criminal prosecution for making false statements. The administrator may also order the parties to meet with other outside experts if needed; the parties will be obligated to pay the expenses of outside experts.
10. If the administrator determines that the case is a high-conflict case (according to criteria), the parties will be required to pay a surcharge of $2,500. The first goal in any case will be to reduce conflict by removing any incentive for the conflict; the administrator has the discretion to return a portion of the surcharge to the parties if the conflict in the case are resolved appropriately. If a credible allegation of abuse is made, the administrator assign an investigator. The administrator will structure the case to maintain proper distance between the parties during the investigation. The investigator will report on findings from the investigation. (Abuse will be referred for criminal prosecution; false allegations of abuse will be ticketed/fined.)
11. Issues relating to “quality of parenting” are not addressed in the proceeding. The goal of the parenting coordinator is to help each parent establish a suitable household for the children. If one party/parent has objections to the parenting of the other party/parent, the objections are to be presented to an appropriate/different agency in a separate proceedings – e.g. to the child protective services agency. If the parenting coordinator sees a substantial risk to the child, the parenting coordinator may refer the case to the child protective services agency.
12. Judicial review in the trial court is available for issues determined by the administrative appeals panel (with due deference to the
administra-tor/panel). The initial determination of the court will be whether both parties participated in the administrative process in good faith; if the court determines that there was not good faith, the parties will be ordered back to the administrative process for up to one year under court supervision (monthly reports from the administrator). Otherwise the trial court can conduct a hearing or other proceedings to resolve the case.
13. After the case is concluded, in cases where there are minor children, the parents will be required to submit an annual report to the administrator in the status of the case (form questionnaire) which will remain in the file; the annual filing will be due on or before the anniversary date of the dissolution. If any issues arise after the dissolution, the issues will be presented by filing a request for relief with the agency; the request will be assigned to an administrator (the same administrator if available). The parenting coordinator will be available for handling informal issues between the parents.