When the general practitioner thinks about Family Law, the usual topics considered are divorce, custody, support, equitable distribution, and perhaps, adoption. However, Family Law today includes far more than these classic topics. The solo lawyer should be aware that he or she needs to be knowledgeable on a whole range of new and different topics. One example of societal change reflected in the law is that most attorneys have never drafted a cohabitation agreement, yet it is more than likely that within the next several years at least one couple will walk in and request this to be drawn for them. The couple could be a heterosexual couple or a homosexual couple. They may be adopting children or going through assisted reproductive technology. They may already have substantial assets. They may already own real property as joint tenants or tenants in common. The practitioner must be careful to remember that he can only represent one party. While it is tempting to represent both, especially if the parties are apparently in agreement, to do so would be perilously close to a violation of the cannons of ethics and is clearly a conflict. It is impossible to properly represent two people when they have an adversarial relationship which, no matter how convinced they are when they are in your office that they want exactly the same thing, eighteen months from then, when the relationship breaks up, the first one they will look to blame is the lawyer who represented them both.
While cohabitation agreements are similar to prenuptial agreements and so, at least, seem familiar, family law is also on the leading edge of technology both at the beginning and end of life. Problems that were never even dreamed of in law school are becoming common place. Family lawyers are now dealing with the whole issue of the reproductive technology, and should be well versed in that issue. Problems arising out of this reproductive technology are numerous. Who are the parents? Who owns the frozen embryos if there is a divorce? Does a parent have a duty to support a child born years after a divorce? Can a husband's new wife carry a frozen fetus created with the first wife's egg? Can a widow be fertilized with her deceased husband's frozen sperrn? If she is, does that child inherit? What about social security? Can frozen embryo be adopted by third parties? All of these are new and novel issues, most of which have not been litigated in any state. Often, when they are litigated, they are idiosyncratic to the facts presented and therefore there is little precedental value. As assisted reproductive technology continues to becorne more cornrnon, the family lawyer will see more and more of these types of problems in his office. They will represent a larger part of his or her practice, and the lawyer who is not familiar with the technical language or with the technology itself will find herself falling behind. At the other end of life, family lawyers deal with the issue of who has the right to rnake life and death determinations. Often, as part of divorces, wills are drawn, and as part of this new estate plan, new health care proxys and powers of attorney should be executed. These are issue which should be the bread and butter of a solo or srnall firm practitioner. Any client should be made aware of the problems of not having a health care proxy or a living will. Every state has legislation now that
provides for such documents. Without such a document, often times chaos erupts when the family is least capable of dealing with it. It is a family lawyer's obligation to try and prevent a family from being torn apart at a time of crisis and to help a client make sure that it is their wishes that are followed since they are no longer capable of communicating such. The drafting of these documents is simple and not time consuming. Most of the time needed will be spent helping the client to confront his own mortality and the need to deal with these issues in the present, and not put them off to a later time. In view of all of the above, it is clear that a family lawyers job is more than simply divorce and custody. In a rapidly changing in society, new and different pressures on the family and on family lawyers create a need to respond to a varied range of problems. Indeed, most solo or small practitioners are the gatekeepers for these issues. It is to them that people will turn when their family is in crisis. It is these lawyers that will create innovative solutions. These new issues make the practice of family law something new, exciting and creative.
