by Professor Mary O’Connell
Every November, I make my way to Dedham, Massachusetts – which is not on my usual itinerary. There I meet with the judges of the Massachusetts Probate and Family Court as part of the Court’s annual Freedman Retreat. The retreat is a rare opportunity for the judges to leave the courtroom for two days and come together to talk about issues of interest and concern in the ever-changing landscape of family law.
Unlike law school, where I get to give the assignments, the judges tell me what they would like to cover. Usually, we focus on recent changes in the law: Massachusetts’ trail-blazing alimony statute and its perhaps partly unforeseen tax implications; new rules for child support computations that try to be fairer without being more complex. But the last portion of my “class” is always the most interesting – and challenging—for all of us. We talk about the changing shape of the American family, and what that means for family courts and the work they do.
The facts of this sweeping demographic change, once limited to dry academic journals, are fast becoming the topic of new stories, popular culture and day-to-day conversations. Last year, for example, the American birth rate hit the lowest point since that data first began to be collected (in 1920). Marriage rates hit a new low as well. We have probably all heard that Americans are marrying much later in life than they did 50 years ago, but some of the numbers are stunning: the marriage rate for 2011 was 31.1, meaning that among every 1000 unmarried women, 31.1 married. In 1920, the rate was 92.3. In 1960, 72% of all Americans were currently married. By 2011, that had fallen to 51%. We seem to be on our way to a society in which unmarried individuals are the majority.
The judges are not moralizers. They are far more accustomed than most of us to a dazzling array of family forms and family problems. But they see firsthand what the demographers are just beginning to publish: that the most advantaged Americans are choosing the most traditional paths. They are by far the most likely to marry, and they mostly avoid divorce. While some have children before marriage, the numbers are small. Ninety-four per cent of the babies born to college educated mothers in 2011 were born to mothers who were married. For women with a high school diploma or less, only 43% were married at the time of the birth of their first child. The divorce rate, long stuck at the 50% of lore and legend, seems to be closer to 40% as we move through the 21st century. But here too there is an economic and educational divide. A recent study by the National Center for Health Statistics found that 78% of women with a bachelor’s degree or more made it to their 20th wedding anniversary. For women with only a high school diploma, only 41% celebrated that landmark.
During our discussion one of the judges uses the term “turbulence”. He opines that many of the families in the court are struggling through enormous turbulence. They experience a great deal of job turnover, which may lead to the loss of an apartment and the need to double up with family till the next job appears. Children may have to change schools, and then change again when a parent finds work. And data strongly suggest that unmarried couples with children tend to break up at much higher rates then couples who are married.
It is a truism of family law that it always lags behind the culture. But for the judges who daily hear requests for desperately needed child support payments, heart-breaking stories of being denied access to a child, bitter disputes over the divvying up of pitifully small assets, “the law” is right now, and what they can do, should do and hope to do in their crowded and busy courtrooms, working, for the most part, in the absence of lawyers.
This last piece, perhaps, is most within our reach to remedy. As lawyers’ fees have increased, more and more lower income families have been forced to represent themselves in cases where the most intricate deals of their lives are on the line. Can models that have allowed some attorneys, using much more technology and much less real estate, to keep their prices low bring help to the family courts in a time of need? This is an active, ongoing conversation at law schools around the country, and there is great hope that that conversation can become a reality in the course of the next few years. Lawyers, of course, will not stop the turbulence so many lower income families experience. But lawyers can position themselves as hubs in a network of help: employment counseling (and applications for unemployment benefits if those might be available), school issues (homeless children, for example, have a right under federal law to stay in the school they were attending when they became homeless), help finding housing and using available subsidies.
As our seminar draws to a close, I ask the judges about this possible return of the lawyers to the family courts. One judge closes her eyes. “Could you do it tomorrow”? she asks.