Societal shifts, backlogged courts and Baby Boomers are driving the latest trends in family law.

“We’re seeing a spike in [divorcing] older Americans,” says attorney Beth Silverman, pointing to a study by sociologists at Bowling Green State University called “Gray Divorce,” which shows Americans over 50 to be twice as likely to divorce as those their age 20 years ago.

The reasons could include the fact that people are living longer with more years of retirement to share, and women’s financial independence seems to factor into the trend for divorce in later years or after a long marriage, Silverman says.

Technology also continues to have a hand in marital undoing, with infidelity and addictions leaving behind a traceable electronic trail.

“Peoples’ lives are so much more easily discovered because of technology,” Silverman says. It’s almost become cliché to hear of things such as high school relationships rekindled on Facebook or indiscretions exposed via text messages or emails.

Despite the proliferation of this type of human intrigue, the law has yet to catch up.

“The collection and use of electronic evidence continues to evolve and expand,” says Greg Adams, attorney and partner at Croswell & Adams. “The law is struggling to keep pace with changes in technology.”

Regardless of what gets them to the point of divorce, “helping middle-aged couples through this process often presents unique challenges,” Adams adds.

Ralph Ginnochio, attorney and partner at Schimpf, Ginocchio & Kehres, says there are four ways to divorce: litigation, negotiation, mediation and colloboration. These days, divorcing couples in general prefer sidestepping costly and contentious litigation, which fits in well with the court’s need to lighten its load. They’re calling on increasingly sophisticated options that fall under the Alternative Dispute Resolution (ADR) umbrella, such as mediation, collaborative negotiation, cooperative negotiation, arbitration (either binding or non-binding), the use of parenting coordinators and neutral evaluation.

“Mediation has been around a long time and Hamilton County has been referring issues related to parenting time to mediation with some success,” says attorney Tom Meade. “However, the court is overburdened by the caseload and it’s now the court, not potential clients, looking for other ways alleviate the backlog.”

The court is doing so through its programs like Early Judicial Intervention and the newest one, Early Neutral Evaluation. The idea behind both programs is to provide early assessment and triage help to minimize conflict, says Lisa M. Gorrasi, court administrator for Hamilton County Domestic Relations Court.

Early Judicial Intervention provides the litigants, attorneys and assigned judge a forum early in the process to fully discuss the pending matters still in dispute. The judge engages litigants and attorneys in an on-the-record yet somewhat informal discussion to advise them as to what the options are as they begin the process.

“Dispute resolution is explained and encouraged, as it has been shown to reduce acrimony and improve the relationship between parties post-divorce,” she adds. “The early involvement of the judge may lead to reduced expenses and time to disposition for the litigants.”

Early Neutral Evaluation (ENE) targets divorcing couples that have parenting issues such as visitation or custody. The program engages a social worker and a magistrate (one male, one female) to hear the details of the case from the parties.

“The evaluators then deliberate and issue a confidential, non-binding finding that explains what they think the outcome should be and why,” he says. “The goal is to encourage settlement and discourage litigation by providing a kind of weather vane as to the prevailing judicial winds in given case.”

Meade notes that the process has encouraged most of the attorneys with whom he’s spoken even though it was just introduced and still has some kinks to work out.

“The stick accompanying ENE is a drastic increase to the cost of parenting investigations,” he says. “The courts were charging too little for the cost of these mandatory investigations and now they are finally recouping more of the expenses involved.”

While ADR offers the benefit of sparing people from litigation, Meade is careful not to set unrealistic expectations.

“On the client side, parties are looking to save money on the cost of divorce. ADR offers them that hope. However, I never sell ADR as a money saver. There is no guarantee that meetings are cheaper or more efficient than court.”

When it comes to trends in actual litigation of disputes, Gorrasi notes that dysfunction within some families precludes good decision-making and the ability to co-parent going forward post-divorce.

“This is where the court intervenes and causes an investigation of the family by our Parenting Services department,” she says. “The assigned social worker issues a detailed report outlining recommendations and if the parties are unable to agree, then the matter is set for a trial before the assigned judge.”

More trends in family law include:

Unmarried parents—A great increase of unmarried couples having children is pushing courts to decide custody issues when legal rights haven’t been proactively sought by the couple, Silverman says.

Spousal support—Men’s rights’ groups are currently engaging in a state-by-state effort to significantly restrict the amount and duration of alimony, Adams says. They recently succeeded in Massachusetts. In Florida last year, the legislature passed such a bill, but the governor vetoed it. Efforts are also afoot in New York. Interestingly and perhaps due to societal expectations, Silverman notes that spousal support is no more popular when required of women.

Same-sex relationships—Same-sex marriage advocates have somewhat successfully resorted to the courts, as family law attorneys are increasingly charged with finding ways to help people efficiently obtain and protect rights arising from their relationships. Finding these ways provides a creative challenge, according to Scott Knox, an attorney whose niche within family law has been LGBT issues. He adds, “The law is catching up with reality.”

International issues—Increased globalization means that international law and treaties must keep pace, Adams says, pointing to a recent example in a Hague treaty addressing the collection of child support internationally.

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