San Diego, CA—After working on over 100 trials involving everything from construction law to personal injury, Gerald McMahon says he still thinks of family law cases as being some of the most challenging and rewarding cases an attorney can work on.
McMahon, who is Chairman of the Board and head of the Litigation Department at San Diego's Seltzer Caplan McMahon Vitek, told laws.com in a recent interview that his fascination with divorce law stems from the first divorce case he ever worked on. “I had been practicing law for five years and handling all types of litigation, but never a family law case. My then-senior partner brought into my office a lifelong friend of his who was enmeshed in a divorce proceeding.”
The friend, who had unsuccessfully tried negotiating his divorce with his wife's first and then second attorney, was desperate for legal help. “I explained to the prospective client that I had never handled a family law case,” McMahon recalls, “to which he responded, 'you can't make it worse.'”
The case went to trial, and McMahon says he found it “frankly, more enjoyable” than the other kinds of cases he'd been working on, which kept him interested in family and divorce law.
Today, he says that divorcing couples need to realize that “attitude is everything. If the couple shares the same attitudes about recognizing the inevitability of a permanent separation and avoiding unnecessary expenses and personal trauma, they should be advised that attorneys generally are not qualified marriage counselors.”
When choosing a lawyer, McMahon says that each spouse “should select an attorney who is competent and experienced in handling family law litigation, and one who does not view initiating a settlement overture as a sign of weakness.”
Some couples are more likely to use mediation to resolve divorce disputes, while others are more likely to go to trial, in McMahon's experience. “The parties' respective knowledge of their assets, their attitudes—do they share the common goal of a swift, relatively inexpensive resolution?—and attorneys—do they also share the same goal—make a couple more likely to resolve their case through mediation, as opposed to a resolution through lengthy and expensive litigation.”
Today, McMahon sees the divorce landscape changing primarily due to changing needs for disclosure. He says there has been an “increased scope of disclosures each party is required to make about assets, liabilities, income and expenses.”
Couples who are considering getting married should consider discussing their expectations of their marriage before entering into it, according to McMahon. In some cases, they may even want to discuss whether a pre-nuptial agreement might help them to better resolve disputes in case of a dissolution. “Where a substantial disparity in existing or prospective wealth exists between the parties, they early on should consider pre-nuptial or cohabitation agreements.”
The latter kind of agreement can be drafted between couples who are living together or plan to live together but have no intention of marrying. If the couple later decides to split, these agreements make it easier to divide property and resolve any other issues that could otherwise become contentious.