THE BLOG
06/10/2013 05:25 pm ET | Updated Aug 10, 2013

The Law Is a Baseline and Nothing More

People must always remember that the law is a baseline and nothing more. We should also note that as we attempt to get closer and closer to a line, the line blurs and eventually disappears. However, nothing prevents us from acting in a manner that exceeds the baseline.

For example, if a person violates a Penal Code and is caught, they may find themselves charged and later convicted of a crime. However, consider the wide range of things that we can do that are legally permitted.

With regard to family law, absent a finding of domestic violence, a judge in California must equally divide community property. The laws as they pertain to family law basically limit the discretion of a judge, if the matter were to proceed to court. Does that mean that people must agree to an equal division of community property when resolving such issues outside of court? People may agree to anything, as long as it is not illegal or in violation of public policy.

The laws relating to division of property and support and all other laws pertaining to families vary from state to state. Moreover, the laws change over time. One day the laws go one direction and the next day they could change. In other words, the laws are "arbitrary." What makes California's laws on these issues any better than those in Iowa, New York, Massachusetts, or elsewhere? The issues are the same everywhere. Other than the fact that family law in California is governed by California law, what makes those laws appropriate to any given family or situation? Couples fight for their "legal rights" and against their "legal obligations." Do they need or even want that which they are fighting over or are they just fighting for some arbitrarily granted "right" or imposed "responsibility?"

Considering the arbitrary nature of the law, people should not get caught up fighting over things they would not otherwise want or need -- but for some arbitrary laws. When people approach the resolution of their issues from a needs/interests/values/goals/fears perspective, they end up reaching agreements that each party believes is "fair" to them. One person's garbage is another person's treasure. What is "fair" to one person is not necessarily "fair" to another because it is all a matter of perspective. We need to stop imposing other people's (including the attorneys') perspectives of "fairness" on people involved in family law matters. From a letter written to ABA Journal:

It is the responsibility and obligation of the bar to remind the citizens of our democracy that the price of liberty is eternal vigilance.

John Dean spoke at my law school circa 1979 and made an indelible impression. To paraphrase, he said that he (and others) didn't wake up one day and say, 'Let's go break the law.'

He said every day, every decision was one step closer to 'the line.' Each step was small, but one day he turned around and realized he had long ago crossed the line and didn't even know it.

I've incorporated what Dean said into ethics discussions I've led by saying, 'there are no points awarded for how close you can get to the cliff before you fall over. If you see the cliff, move away from it -- not closer to it.'

Consider the impact of a family systems and service based approach, meaning that there are value-added inputs being offered to the families, rather than merely a brokering of deals.