GA Family Law Institute a Success

The annual Georgia Family Law Institute just ended. I am relieved and sad (that it is over). As Chair of the Institute, it was my job to plan the three day program. I think it was well received and I know I learned a lot. Each morning about fifteen Georgia judges presented sample opening statements or closing arguments. Some were emotional pleas for relief, others were straight, to the point outlines of the facts and relief sought while yet others made great use of humor to drive home what should, and perhaps more importantly what should not be done. The overriding theme, as one judge put it, was to follow the advice of The Spice Girls and “Tell me what you want, what you really, really want”.

There were other great speakers including Patricia Apy educating us about International Custody Issues (she was the successful lawyer in the Brazil custody case), John Mayoue discussing the status of DOMA and gay marriage and Mark Sullivan who wrote the book on military divorce. All in all it was a great weekend for the approximately 500 lawyers and judges who came. In fact, it was wonderful. I can’t wait for next year’s Institute.

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Family Law Institute for the Georgia Bar

The annual Georgia Family Law Institute starts this week in Amelia Island, Florida. Over 450 lawyers and judges are planning to come learn about family law, the new trends, cutting edge issues and practical ideas and solutions for family law matters. The agenda is filled with these types of issues and can be seen by clicking on the following link: FLI 11 Blasted Brochure

It is an exciting event. There are over forty judges coming as well as many family law experts from across the country to speak on issues such as military divorce and international custody. It is no too late for lawyers and judges to register. We expect a total of 500 people so come join the fun. If you want to come, sign up using the brochure linked here: FLI 11 Blasted Brochure I hope to see you there.

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Double Dipping in a Divorce

There is a concept that divorce lawyers are very familiar with: “Double Dipping”. A simplistic explanation is that in a divorce, sometimes an asset like a business is valued and divided, but then the income from that asset is used to calculate and pay child support or alimony. Is this fair? There are multiple arguments. One argument is that to pay the spouse his or her share, it would be as if the payor is making a hypothetical sale of the asset and paying the other spouse. In such a “hypothetical” sale, there would be no more asset to use to calculate or pay child support or alimony.

But here’s the big news (at least to family law attorneys): California is considering passing legislation to avoid this dilemma. Here is the text of the proposed legislation:

(n) The extent to which income for support was already capitalized
and paid to the other spouse in the division of community property,
to avoid double counting the income when the result would be
inequitable, based on all of the circumstances presented.

Whether one agrees with this bill or not, at least it will, if passed, give the California courts guidance in thsi area. Hopefully other states will follow this example.

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Prenups are not romantic, especially for the Prince and Princess

There is no question that a Prenuptial Agreement is unromantic (although I have heard of a man getting down on one knee to offer a prenup to his fiance’). Whatever the reason a prenup may be desired (a bad first marriage and expensive first divorce, for instance), asking your intended to sign a prenuptial agreement is very unromantic. But then again, many things about marriage are unromantic. The decisions about the wedding, for instance, are often a struggle between the desire for the most beautiful, exotic wedding in the world versus the finances available. Or whether to even have a big wedding and invite everyone, or save the money for a first marital home? Even the question of who to invite to the wedding can be very unromantic and often the cause for dissention. Should a relative who has been unfriendly to the fiance’ be invited? Do step-parents walk down the aisle? So the issue of whether or not to sign a prenuptial agreement is not the only practical question an engaged couple faces. But it may be the most troubling. After all, isn’t the request to sign a prenuptial agreement bascially a nice way of saying I don’t trust you one hundred percent? Or at least, maybe it is a way of saying I don’t trust me, or us, one hundred percent. Either way it casts doubt on a couple’s certain belief that their marriage will last forever.

But many, about half of all marriages don’t last forever. And what really should be avoided is a contested divorce. And that is the one true potential benefit of a prenuptial agreement. It can avoid, or at least reduce litigation and the related costs.

So the issue of whether or not to execute a prenuptial agreement is a balance bewteen practicaity and romance. And for a couple being looked upon these days as the epitomy of romance, the Prince William and his bride, Kate, the Duke and Duchess of Cambridge, it is understandable why apparently no prenuptial agreemen was signed (click here for press coverage of that issue). It is understandable why they may have opted for romance, but even so, it was a required consideration, and likely that the question at least caused the Prince to consider it. There is nothing wrong with weighing options, even if only for a millisecond, especially for a future leader (at least a future figurehead leader) of his country. But for a fairytell wedding, it seems a prenuptial agreement just would not have fit the storyline. And they are not the only ones to feel that way. These questions and emotions are not unique to British Royalty. In my practice I have seen this exact dilemma often, and can never predict whether a prenuptial agreement will actually be signed. But the process is intriguing and one of the most human endeavors I have the opportunity to witness from time to time.

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New law-Custody for Military Families

A new law was enacted this week in the Georgia Legislature. It grants certain protections to military personnel in their custody and visitation disputes. An AJC article outlines it well (click here for the article). The bill was passed with overwhelming support and prevents final orders changing custody to be entered simply because a parent is deployed. A draft of the proposed Act can be accessed by clicking here.

For years advocates for military personnel have complained that armed services members were often penalized for simply serving our country. The delicate balance is between rights of those serving our country and the best interests of children. No answer will be perfect for every situation, but this bill was drafted, considered, reviewed, debated and finally passed. No law is perfect, but hopefully this law will help military families and their children, and hopefully does not reduce the emphasis that must always be placed on ensuring that we do what is in the best interests of the child.

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ABA Family Law Section meeting starts in Amelia Island

It is always exciting to get together with fellow practitioners and judges from across the country to learn the latest trends, practices and innovative ideas of our profession. This year, our Spring seminar will focus on “Families Matter”. The seminar is from April 6, 2011 to April 9, 2011 and will devote much time to helping alleviate much of the pain, cost and discomfort of family law matters (click here for the full brochure). The agenda is great (click here to link to the home page for the program).

There are many cutting edge topics, such as “Oh, the Tangled Web We Weave: irs rules and regulations Effect on payments and Expenses in Third party reproduction” and “The alphabet soup of Military pay and Family support”. If you are a family law practitioner, I strongly urge you to consider joining us. And if you can’t make this one, join us in late October in Las Vegas at the Wynne-Encore and then next April at the Eden Roc in South Beach (Miami Beach), Florida. I look forward to learning and blogging what I learn.

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NFL Lockout and child support continued

What will happen if the NFL Lockout continues? What happens to pending child support cases involving NFL players? What happens to the players who are paying thousands for child support but now have little or no income? Time will tell, but it is my guess that the longer it drags on, the more likely it will be that there will be child support reductions, significant reductions.

Awards based on earnings of several million dollars per year must now be adjusted to reflect earnings of a few thousand dollars per year. Is it worth it to a player to seek a reduction today? Maybe, but as the Lockout continues and the income remains at zero or close, players will have to reduce their expenses, including child support. Will the courts concur? Only time will tell, but the longer it goes, the longer players remain unemployed, the more likely it is that they will see their child support obligations reduced, in my opinion.

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“Civil Gideon”

The ABA has long pursued the concept of “Civil Gideon” which, loosely defined, means the right to a lawyer in civil cases (Gideon v. Wainwright was, of course, the case that guaranteed the right to counsel for criminal defendants). At the ABA Annual meeting in San Francisco in August, 2010, the resolution passed (click for related article). The resolution can be accessed by clicking this sentence.

This week the Fulton County Daily Report published an article about a lawsuit in Georgia which attempts to guarantee the right to counsel for certain civil defendants, particularly those at risk of incarceration for failue to pay child support (click to read article).

What a dilemma? While states such as Georgia are struggling to find funding to provide lawyers for defendants in criminal cases, there are now lawsuits being filed, such as the one referenced above, to require funding for lawyers for defendants in civil cases. The goal is noble and well intentioned, but the potential pitfalls are numerous. For instance, why should only the defendant receive such assistance? Perhaps the plaintiff who may be filing to receive support is even more worthy of the public’s assistance?

The beauty of America is that we can have this debate. While aspirational goals are great, when there is only so much funding available, sometimes aspirations must yield to practicality. It will be interesting to see where this case goes.

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Facebook and Divorce discussed in WSJ

The Wall Street Journal had an interesting piece about Facebook and Divorce today. It was written by Carl Bialik, “The Numbers Guy” (click here for a link to his blog and to the article). Feel free to read the article, which focuses on the issue, but it really just scratches the surface. Facebook cannot “cause” a divorce any more than a plane can “cause” a crash. People initiate, respond and act. Facebook may facilitate things. Facebook may create introductions, or re-introductions to former friends (or to friends of friends). But human beings are the actors, not Facebook.

Yes, as divorce lawyers we see Facebook arise in all sorts of ways. It sometimes provides a vehicle to gather evidence (photos of a spouse kissing a paramour or vacationing in Florida while the other spouse thinks they are in Boise?). But even before Facebook, the internet did the same thing, but perhaps not so easily. There were emails, Chat Rooms, Dating Sites and even “Histories” (a list of recent websites visited by a computer user). But as a divorce lawyer who has practiced family law since before the Internet, I don’t think human nature has changed, or been changed by Facebook. Human beings seek happiness. Sometimes they find it in a good book or movie. Sometimes in alcohol, sometimes in a lover, and hopefully, in the best case scenario, they simply find happiness in themselves and their loved ones.

No, Facebook doesn’t “cause” divorce. But can it provide opportuities, connections and introductions? Sure. But so can other avenues. The difference is that Facebook feels safe, innocent. Typing from your home is much easier and less aggressive than going out to meet people, especially if the intent is to meet someone to be unfaithful with.

Cheaters will find a way to cheat, facebook or no Facebook. But there are folks who may not otherwise cheat. Perhaps they didn’t have the courage to flirt? Perhaps they had no way to meet people (they may live in a remote area)? Perhaps they are just shy? Facebook (and really the internet) eliminates these obstacles.

So what can be done? Nothing. It is really the same dilemma that has been around foryears. Do spouses trust each other? In the past it may have been do you trust your spouse to work late, especially if there is someone at work to whom he or she may be attracted? It all comes down to love and fidelity. Some people just have it. And they are the lucky ones.

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NFL Lockout and child support

So the NFL Lockout may begin at midnight (see story by clicking here)? What does that mean for players who pay child support (and mothers who receive child support)? In the short term, it probably doesn’t mean much. But if the lockout lasts a while, there could be some real child support consequences. The first obvious consequence is that players may not have the cash flow to remain current on their child support obligations. Hopefully they choose correctly and pay child support before some of their other ongoing expenses (car payments, etc.). Not only should child support be at the top of the list, judges who have the power to incarcerate child support obligors may be much less sympathetic to the NFL player who was paid millions and did not save for this “rainy day”.

The next concern is litigation, two types. The first type of cases that will be brought may be the ones seeking to enforce court orders against those who have stopped or slowed their payments. The second is the actions to be filed by players to seek a reduction (temporary or permanent) of their support obligations. While courts may or may not be sympathetic, such lawsuits at least show the court that the player is not ignoring the obligation, but instead is trying to make it reflect his current financial situation. Of course lawsuits cost money so before a player files, he must feel that the work stoppage will not be short-lived.

The third, and best course of action, is for players and the women to whom they pay support, get together and reach agreements. In this way, there could be an agreed upon temporary reduction. If the player is ultimately reimbursed the full salary, then child support would be fully reimbursed. Or once the situation is resolved, there could be renewed discussions and possible agreements prior to running to court. Of course, if there is no season, players should have (and spend) more time with their children. This can also be agreed upon instead of litigated.

But the best suggestion is communication. Child support obligors and recipients should always communicate. Communication, good, effective communication is almost always the best first step to resolution. It’s what we encourage at KSS Family Law, and what we hope all attorneys, advisors and counselors do.

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DOMA no longer to be defended by Federal Government

The Obama administration moved closer to officially recognizing the right of same sex couples to marry. It was done in a reverse sort of way. As reported by the Washington Post “The Obama administration said Wednesday that it will no longer defend the federal law that bans the recognition of same-sex marriage because it considers the legislation unconstitutional….” (click here for full story from the Washington Post).

It seems the administration recognizes that sooner or later the fedral law defining marriage as between man and woman will be overturned. But in this manner, he seems to making it easier for the courts to make that determination, since it may take a very long time for the legislature to do so.

Like the ancient Chinese proverb says “We live in interesting times.”

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Technology and Family Law

Today I served as Co-Chair for the Institute of Continuing Legal Education’s Georgia Technology Seminar (click here for a link to the program agenda). Steve Best, the Co-Chair really did all the work. He put the program together and invited the speakers, etc. So what did I do? I learned. I spoke a little on how technology is useful in a family law practice, but mainly, I learned. Chairing, speaking at or even simply attending continuing legal education seminars always offers a chance to learn and improve.

I learned that I should blog more often. I learned that we are really just in the beginning stages of understanding how much technology can improve our law practices, and more importantly, our lives.

It was also a time to reflect. I have chaired this program for about ten years. When I was first involved, many attendees did not have email and most did not have a website. How far we have come!

It seems much of the focus of the program was on remote computing, in addition to good law office management. Remote computing! What a concept. Computing as a concept is not new. But working on your primary computer, from any location? That is amazing, and common today. Today lawyers can really focus on what they do best, advise. They need not wait for a letter to come in the mail, or even by facsimile. They know what their clients want, not just because of cell phones, email and texting, but also because voice mail allows a client to let the lawyer hear the tone of their voice (and how desparate they may be).

The tips included how to talk into your cell phone and then receive an MSWord version of the document you dictated to your phone five minutes ago. Or how to translate, by simply speaking to your phone, and having it repeat it back, in another language! The materials for the program are probably still available, but if you missed it, come next year. And in April the big version is in Chicago, the ABA Techshow (click here for a link to the website for the ABA TEchshow). That is one really worth attending.

I can’t wait to see what next year’s program brings. As my grandfather used to say “I was born too early”.

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Super Bowl 2011

So this entry has little to do with Family Law, and more to do with how this Family Law Attorney enjoyed the Super Bowl. Last year, as a lifelong New Orleans’ Saints fan, I had the chance of a lifetime to watch my hometown team go to and win the Super Bowl. It was an unreal experience. As my brother and I watched from the very front row in Miami, he turned to me and said “It’s the greatest thing in the history of things”. So of course, this year could not top that, especially when the Saints were knocked out of the playoffs in the first round.

But I still went and had a blast. My law partner and I flew in Sunday morning. We had Tex-Mex lunch (all you can eat tacos and guacamole), stood in line for 2 hours to get into the stadium, and then saw the greatest building every constructed by human beings in my lifetime. The building was as impressive, if not moreso, than the game. There were fanatical fans like the woman in our row from Pittsburg with a cheesehead on her head, with a plastic butcher knife and fake blood protuding and oozing from it, as well as celebrities like Andy Roderick, Coach Jim Mora, Jr., A-Rod, Ashton Kutcher, George W. Bush and many others.

But perhaps most amazing, is that in this day and age, we were able to fly in, go to the game, go to a late dinner, return to the airport and get on a 5am flight, all without even needing to check into a hotel. It was a very full 24 hours. I feel so fortunate to have been able to go. The game was terrific, but really, the whole day, the whole experience of spending a Sunday like that, was unforgettable.

How does this relate to family law? It doesn’t, unless you think that on this day, most Americans were happier than usual, or at least distracted from their every day problems long enough to enjoy the game (or at least the commercials.)

It was fun, but of course Monday always follows Sunday and it too was a full day, culminating with teaching my law school family law class until 9:00p.m. Monday night. But sleep cures a lot and here we are, counting down until the next Super Bowl in Indianapolis, hoping the New Orleans’ Saints return as well.

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Adultery in the Marital Bed

I would never have thought this was such a hot topic. But this week I was interviewed by the New York Times (click here for a link to the interview in the New York Times) and by the Today Show on NBC (click here for a link to the interview on the Today Show). Spouses cheating in the marital bedroom apparently is a topic of much interest. And it makes sense. While adultery is usually hurtful, adultery in the bed where spouses share not only intimate romantic moments, but where they also share their hopes and dreams, not only for themselves, but the hopes and dreams they have for their children, is often much more offesnive and painful.

Perhaps it is the sheer disregard for the other spouse’s feelings (wouldn’t an affair anywhere be enough), or maybe that it may seem to be a more deliberate attempt to harm a spouse, but either way, cheating in the marital bedroom is always going to generate more emotional reaction than an affair outside the home.

Does it matter legally? I know of no law that states that an affair in the marital bed, or even the marital home should be treated any differently than an affair in a hotel room. But when the trier of fact has to decide how to divide property, the fact that one spouse cheated, in the marital bed, may be more harmful to that spouse. Especially in Georgia where a jury can be used to decide such cases. We need to remember that people (judges or jurors) who decide cases make value judgments. And an affair in the marital bed is at best inconsiderate, and at worst highly offensive. But then, people who have affairs in the marital bed are probably not thinking long term (as in what might a judge think), and that, like many actions during a marriage is the biggest problem (not thinking ahead).

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Another foot in (or out) the door for gay marriage (or at least for gay divorce)

A very interesting case from Texas is in the news. A lesbian couple left texas to get married in Massachussetts. They returned to Texas and subsequently sought, and obtained a divorce. The Texas Attorney General then intervened, but so far that intervention has been been ruled as coming too late (click here for a link to the story).

Perhaps Texas law had previously not allowed gay divorce since it does not allow gay marriage (and in essence, granting a divorce to a gay couple basically acknowledges a gay marriage). While this case may not set reliable precedent, it does seem to be an indicator of where things are headed. And, had the court not granted the divorce, how would this couple have resolved their issues? Sticks and stones? It seems to me that allowing them access to the court to resolve their differences is what we should do in a civilized society. This debate is long from over, but it certainly is interesting.

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Why does new year bring divorce filings?

Every January, it seems divorce suits are filed at almost double the rate of December divorce filings. Is this because people slow down at the end of the year, rethink their goals, or maybe just hope for one last chance at the magic reappearing around the holidays (and then when it does not, they file in January)? I am not sure, but what I do know is that as soon as the new year hits, the phones ring. Perhaps it is that sense of not wanting to live one more year in the same situation, or not wanting to spend one more year hoping that things will get better.

We all want to improve our lives. For most of us, divorce is a very last option. And perhaps, one sign of needing to use that “last option” is the realization that time is passing. The end of one year and the start of another is a good benchmark to make that point. Perhaps this is why the term “fresh beginnings” is often heard in our office. The decision to divorce is never easy. It means lots of change. Perhaps the idea that there will be a whole year to get through it, and that hopefully by the end of the year the change will be complete, makes it more digestible? I would be foolish to suggest I know the answer. And of course, the reasons for filing for divorce vary from situation to situation. But it is clear that divorce filings increase each January, and perhaps understanding why would help us all?

I welcome all opinions, especially from those in the fields of psychology or other studies of human nature. Please feel free to comment or email me your thoughts.

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Why not seal divorce records?

Why shouldn’t we allow divorce records to be sealed? Since when is the public’s right to know more important than a couple’s right to keep private the division of their assets and the whereabouts of their children. Married people need not publicly disclose how they share assets or time with their children. So why must divorcing couples be subject to public scrutiny of their most personal dealings?

This has always seemed odd to me. In Georgia a few years ago, much was made of the Speaker of the House’s divorce being sealed (click for wikipedia info). But I think the outcry was not so much about his case being sealed, but more about why was his case sealed, when many others weren’t. The answer should have been: “Let’s seal them all”. Instead, the opinion of the majority seemed to be: “no special treatment for him”.

Currently, as reported by the Washington Post, the Montana Supreme Court is considering restricting public access to such records (click for story). As a family law attorney, I think the potential benefits are tremendous. Why should information about where children are being dropped off be public? What about agreements to sell property for a certain price? It may take a philosphical shift about court records, but family law is different. The parties, if they have children, will continue to interact and be somewhat interdependent on each other after the divorce. Why allow more roadblocks, like allowing outsiders to know their private business, to make their life any harder than it already will be?

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2010, the year in family law.

As 2010 comes to a close, I can’t help but look back and realize how much “family law” was in the news (click on the stories for articles on each). There was the Goldman international custody case between U.S. and Brazilian citizens as well as gay marriage debates, laws and rulings nationwide, culminating with perhaps the most reported case of all, Proposition 8 in California (click for Associated Press Video).

There were countless celebrity divorce and family law cases in the news. Just think of Mel Gibson, Tiger Woods, Octomom, Kate Gosselin, Sandra Bullock and perhaps the biggest of all, The McCourts (Owners of the L.A. Dodgers).

There is the Tony Parker v. Eva Longoria case and the Charlie Sheen divorce.

It is time for the media to start looking back and summarizing the stories that made news. CNN has already written one on celebrities’ troubles (click for link to it).

Still, what continues to amaze me, is how interested the public is in other people’s lives. Have we become a voyeuristic society? Or do we simply take comfort in knowing that even those who seem to have it all are not immune from the same type of pain and emotional (and often financial and physical) agony the rest of us may endure?

As a family law attorney it is often difficult to see so much hardship. But our role as lawyers is to help reduce that pain. To counsel and to make a bad situation a little better, or at least tolerable. Often we are the only ones who can see the light at the end of the tunnel; that there will be a tomorrow. So perhaps the most important thing we can do is to reassure our clients that tomorrow does come. And look, here it is, 2011. Many people have suffered in 2010, but many have made it through to a new year. Here’s to hoping that things get better for those who had a rough 2010, and that those who didn’t, continue to be blessed in 2011 and beyond.

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International child related issues on the rise.

As the Chair Elect of the ABA’s Family Law Section, I have made it clear that one of my priorities will be to focus on international custody issues. Given the many widely reported cases of international kidnapping and custody battles, such as the Goldman case, it seems we must focus more on these situations to protect all children.

But now there are much more complex issues relating to children across the globe which go beyond mere custody battles. Issues such as surrogacy and adoption. What if one country’s laws do not allow for a certain type of adoption or a certain type of articifial insemination? There are now ways to work around laws in one country by using another country as a vehicle for certain procedures. And this can be dangerous.

A recent Wall Street Journal article entitled “Assembling the Global Baby” discussed these issues in fine detail (click here for a link to the story). There are American companies orchestrating surrogacy and reproductive technology across the globe. While the term “orchestrating” may sound negative, that was not my intent. My intent was to demonstrate the internationalization of child related issues. What body or organization will set the rules? Is this something for the United Nations to look at? Conferences like The Hague will certainly look at these issues, but then a country’s willingness to sign a treaty is purely voluntary.

This internationalization of child birth, adoption and reproduction may be a very good thing. It seems very well intended. The problem is with the unintended consequences. When things go wrong, who is accountable? Which country’s laws apply? Is it more important where the birth occurs, where the semen was taken, where the parties live or which country the egg came from? These are fascinating issues that we must consider before they overwhelm us. I have no idea where we go from here, but I am sure that we need to start asking the right questions which will hopefully lead us to the right answers, or at least to the right forums and formats for seeking comprehensive answers to these emerging issues.

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Divorce financing by private companies?

It seems there is a new trend in divorce (there are always new “trends”, but this one does seem new), the private financing of a divorce by a for profit company. In other words, when someone needs a divorce but cannot afford a lawyer, instead of borrowing from relatives, or if there is no way to borrow, there may now be a new option. It seems that if the stakes are high enough, or if there are enough assets to ensure a return on investment, people going through a divorce may now be able to borrow money with the settlement monies used as a sort of collateral. There is a story in the New York Times about this (click here for the story).

Is this a good thing? That’s a very good question. The obvious discussion might be “why don’t divorce lawyers simply do this?” The not so obvious answer (until you hear it) is that it would be highly unethical. Why? Because divorce lawyers should not be motivated to simply obtain as much as they can for their client, unless that is what the client wants. So, what if a lawyer’s fee is dependent upon a large recovery, and then their client decides they want to walk away with no money? Then there is a potential conflict because the lawyer will not be paid if the client walks away, yet the lawyer’s duty is to be governed by the client’s wishes. So perhaps this new idea, a loan or investment by a third party could help? I have not yet thought about it long enough to know if I support the concept or not. What do you think? Please post a comment.

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