domestic relations

As written for my “Influencers” post:
Once a year I travel to meet with about 20 of the finest family law attorneys in the country. This is that week.  I always learn something and gain an optimism after each yearly meeting that lawyers can make a difference.  We deeply explore systemic problems and ways to fix them. We discuss helping individual clients as well as how to assist the legislatures and the courts to better understand the needs of individuals embroiled in family law cases. But most importantly, the sometimes very depressing work we do on a day to day basis looks and feels much more positive when we realize we all struggle with the same dilemmas. How to convince a client that settlement is better than court. How to explain to a client that even though their spouse cheated, the children still love them both and want them to get along.  How to ensure they are financially protected without spending all their savings on discovery and other legal procedures.  These are dilemmas. But I know that my colleagues are good, decent people trying their best to help. This is refreshing and inspiring. I respect them and am honored to be able to join them. And I look forward once again this year to being inspired and educated.  I owe it to my clients to learn as much as I can to help them. And learning from experts from around the country is one of the best ways to do that.

The 2011 American Bar Association Annual meeting which begins this week in Toronto, holds special meaning for me. On Friday August 5, 2011 I will be sworn in as Chair of the Family Law Section (FLS) of the ABA. I am so honored and excited. The FLS has 10,000 members who are all interested in the practice of family law, whether they are lawyers, judges or law students (over 9,000 are lawyers). Our goal, and mine, is to improve the practice of family law and to minimize the negative impact family law can have on families. My platform will be a continuation of our “Families Matter” project which has the reduction of such an impact on families as its goal.

Practicing family law has been gratifying, knowing that we can and have helped many families. It also can and has been frustrating. When bad results happen to good people, especially to children, it can be devastating. But our job is not to be devastated and depressed, but to persevere and find better solutions. Through the ABA we are working to improve the system and to hopefully help all families achieve better results that are better for the whole family. Of course this is a difficult task, but it is one that any civilized society must undertake. All family law professionals (lawyers, judges, psychologists, accountants and others) play a role. Is our system perfect? No way. In fact, our systems vary from state to state and from community to community. But we are evolving. Today, family law is not an area of the law that is looked down upon. To the contrary, it is an area of the law viewed by many as one of the most important areas of law that exist. What other area has the ability to affect families and futures as much as ours? And with that comes a significant burden, a burden to help families and a burden to improve society.

I am glad to be in a position to help families. In my practice I often have that opportunity, and as Chair of the Family Law Section of the ABA, I have been given an even greater opportunity. I will try my best not to squander it and to do what I can to help families and professionals who are helping those families. If there is anything I can do, I hope you will call on me to serve you. It will be an honor to serve and I am sure, an experience I will never forget.

A Georgia Public Broadcasting article suggests birth rates and divorce rates are down in this poor economy. But is this a good thing? We must remember that divorce, is a legal proceeding, not a determinative identification of which marriages are stable and which are not. Perhaps the economy is preventing some folks from filing legal papers or hiring lawyers, but does that really mean more people are staying together (and if so, happily?). I think not. From my perspective, many people who have struggled for years trying to maintain a marriage have had it. On top of years of marital or relationship troubles, the stress of a poor economy puts many couples over the top. The economy may be the proverbial “last straw”.

Couples who are in distress, especially those living in separate residences, often need the court’s assistance to decide how funds are shared between the parties and how time with the children is allotted. But in a poor economy, many cannot afford an attorney so they often ignore the legal process and engage in self help. This may work on an ad hoc basis, but troubles are inevitable. And if we do see a decrease in divorce, unfortunately, in my opinion, we will see a rise in other legal areas, such as child kidnapping, criminal claims of abandonment and even domestic violence as people take out their frustrations on each other (frustrations which a “good divorce” or “good divorce agreement” might have avoided).

So, the real issue is not whether divorce rates are down, but are marriages healthier? Are people now staying together and resolving their issues. Or are they simply not able to afford the safeties and resolution mechanisms divorce courts provide?

First Family Court in Georgia nolonger

One day in late 1996 or early 1997 while I was Chair of the Family Law Section of the Atlanta Bar Association I received a telephone call from Fulton County Superior Court Judge T. Jackson Bedford. Judge Bedford had previously been Chair of the entire Atlanta Bar Association and was and is a proponent of lawyers and judges working together to better our court system. It was not, and still is not common for a trial lawyer to receive a call directly from a jduge. But this was important he said. Fulton County was about to announce a project which would attempt to create the first Family Court in Georgia. He told me where the announcement would be made and that lawyers, especially family lawyers were invited and should attend. I went.

I volunteered our family law section to work with the judges in any manner they desired. We then invested thousands of hours of lawyer and judge time. We met monthly (judges and lawyers). The lawyers became the scriveners of a whole new set of rules that would apply in this new family court. We debated the name of the court (Family Division, well, we tried?) and we decided the cases would no longer say him vs her, but it would now be him and her. We invited experts who had established family courts around the country to come teach us what to do. I became Chair of the American Bar Association, Family Law Section’s Family Courts Committee and the ABA, with the help of then ABA President, Bill Ide, donated many resources and much time. It was well received throughout Atlanta (1998 WSB News Story-family-court ).

But one big issue was how to create a “new” court. Well really, it was the same court with the same judges, but it was to be a new division of that court. The Supreme Court authorized it as a “Pilot Project” and I am happy to report, that after twelve successful years, the court is no longer a “temporary” pilot project (see AJC story by clicking here).

There are many stories about the development of the court, from establishing the procedures (status conferences, etc.) to the selection of judicial officers, but the overall experience, although extraordinarliy time consuming, was once in a lifetime. I was lucky enough to be a part of a new endeavor that directly affected my clients. I am a firm believer that instead of complaining about rules and processes, lawyers should be a part of the planning. If you can help create the blueprint, then you are more likely to be satisfied with the outcome. The Fulton County Family Division is by no means perfect. There will always be problems when trying to devise a formula to care for and resolve some of our most basic human issues, those of parenting, support (for food, education, etc.), health insurance and shelter. But a court strictly devoted to family law matters inherently has an advantage over courts that manage family disputes one week, murder trials another week and car wreck cases the next week. And while the court is no longer a “pilot project”, it will always be a “project” as is our entire judicial system. I was lucky enough to be a part of it when it started and fortunate enough to still practice in it as an advocate. I encourage anyone who has an opportunity to improve our system to volunteer to do so. Even the Fulton County Family Division still has a need for good lawyers. The Family Law Information Center (F.L.I.C.) which was another part of the project can always use lawyers to donate time to counsel parties who cannot afford counsel.

I am excited that the court now seems more “permanent”, but we should always encourage improvement in our system and cooperation between bench and bar. The Fulton County Family Division is one good example of what such joint efforts can achieve.

Hilary Swank apparently views her divorce after 14 years of marriage as a sign of 14 years of success in marriage, rather than a failure. At least this is what USA Today reports (click for a link to the story).

When Diane Sawyer signed off after ten years as an anchor of one of America’s most loved news programs (Good Morning America), she quoted Dr. Suess (the story of her leaving GMA can be viewed by clicking here). The quote was “Don’t cry because it’s over, smile because it happened.” What a way to view such a big change.

If people going through a divorce could try to use this perspective, what a difference it might make. While it can be debated forever whether divorce in general is a good thing, the truth is, once it happens, about all one can do is to try to manage it in the best way possible. Dr. Suess’ philosphy, reiterated by Diane Sawyer is one magical way to take a difficult situation and view it in a whole new light. For a guy who had such an influence on kids, adults could learn a thing or two from him as well.

[youtube]http://www.youtube.com/watch?v=HaZP92d4kk8&feature=player_embedded[/youtube]I recently served as a mediator for a contested divorce case. Each side was well represented and prepared. But it still was a difficult situation. While the details of the case including whether it or did or did not settle are confidential, I am confident the process was beneficial. I enjoy serving as a mediator and do it three or four times each year. As an advocate, when representing someone going through a divorce or family law matter, I am probably involved in ten or twelve additional mediations per year.

After a full day of mediation, parties often realize that failure to reach resolution only ensures more attorneys fees, more stress and delayed closure. Spending time together, even if separated during the day, allows the professionals and the parties to focus on resolution. Smaller areas of disagreement succumb to discussion of the larger issues. Having a neutral third party (mediator) often helps refocus everyone on total resolution which often means foregoing minor goals.

Family Law mediation and resolution is a complicated process. Rarely does anyone get all they want. But if the goal is closure, finality, cessation of fees and hostility, it can be accomplished. Why, because those goals are worthy of significant concession on lesser matters.

There will always be cases where settlement is impossible, but as a lawyer and mediator, if everyone has really given settlement a good try, litigating the case is much easier on the conscience. Litigating without giving your best to get it resolved short of trial is, in my opinion, a shame. But once all efforts at settlement have been exhausted, then we are of course left with the remaining alternative of presenting the strongest case we can to the court. A well presented case can achieve good results, but if if we can achieve those results via settlement, even better (and usually less expensive) for our clients.

On January 1, 2007, Georgia’s most recent child support guidelines and related calculators went into effect.  While there are child support guidelines in Georgia, there are no alimony guidelines, but rather factors that the finder of fact shall consider.

According to O.C.G.A. 19-6-5, the finder of fact shall consider the following factors when determining the amount of alimony, if any, to be awarded:

(1) The standard of living established during the marriage;

(2) The duration of the marriage;

(3) The age and the physical and emotional condition of both parties;

(4) The financial resources of each party;

(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;

(6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;

(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and

(8) Such other relevant factors as the court deems equitable and proper.

Given these factors, and especially in light of the last factor, the dilemma may arise as to the predictability of how much alimony, if any, shall be paid and for how long.  Different courts in separate counties may result in very disparate alimony awards.  Attorneys experienced in family law can often predict what the likely result will be, but the lack of consistency between courts may give some parties the perception of an unfair result.  Of course, when a case involves unrepresented parties or attorneys unfamiliar with family law or lacking experience in front of the assigned judge, the lack of familiarity and/or experience may result in very different views on alimony, which in turn can become a roadblock to settlement.

So should Georgia adopt alimony guidelines and formulas similar to other states?  Would such an approach give more predictability, consistency, and a sense of fairness to alimony awards?

Or would such guidelines and formulas unnecessarily restrict judges and limit their abilities to judge each unique case on its own specific merits?   Would formulas have the unintended consequence of making judges akin to a computer that just displays a number?

There are pros and cons to both approaches.  Nevertheless, it is prudent for a party to at least consult with an attorney who is experienced in family law so that the party can ascertain his or her rights and potential obligations as they relate to alimony, whether or not the law provides for a “factors” or “guidelines” approach.