Divorce

Every New Year the divorce cases pile in

Another blog I recently wrote for LinkedIn:

It’s a New Year. Why does that so often mean divorce? Every year in January we receive more calls from people who want to learn about, discuss or file for divorce. Some may think January is a time to renew efforts to keep a relationship together. But in my experience many people often think and believe a new beginning at the beginning of the year makes sense. It’s a fresh start.

But really, it means it will be a year of transition. Very few divorces happen quickly. Aside from disputes over money and children, delay is most often the result of one party not being ready to “let go”. Divorce is seldom a simple business transaction between two reasonable and willing negotiators. The idea of reaching a “settlement”, to many people, is the ultimate in giving up on the relationship. While almost certainly one party has made that decision, often the other has not (yet). And thus the source of much friction. The one who is ready for the relationship to end is often impatient. Maybe due to a belief that their life will improve once the relationship is over. It may be because they are anxious to begin a new relationship. It maybe because they have already begun a new relationship? Whatever the rationale, when one side wants closure and the other is not ready, problems arise.

So filing for divorce in January rarely means an immediate new beginning. It may well be the start of a new beginning. But filing for divorce in January or at anytime, must be well considered and thought out. And if done peacefully, especially when both sides are ready, it can be a shorter, less costly and maybe even positive experience. If both sides see a benefit to a divorce, then they should do so in a cooperative fashion. And that means compromise and more compromise. And if there are kids, there is no price you can place on the value of cooperation and avoiding litigation.

Of course there are times when parties reconsider and thus the slowness of the process has given them time to keep it from ending. But really, if two people want to remain together, or to reunite, it should not matter whether they have finalized their divorce or not. Divorce is about setting rules for interaction between two people who are not married and how to divide their assets and debts. Once they reunite, these issues should become irrelevant. And my hope is that whether or not they reunite, either way, the more civil they can be to each other, and the better their cooperation on all issues, the better for their children and our society.


Welcome 2013

This was my 2013 post for LinkedIn Influencers (posted in December):

Welcome 2013. While the years roll by quickly, laws are often slow to catch up to the times. Legislatures move slowly, politicians worry about how their votes on new laws will affect their chances for reelection. And judges have much incentive to take the safe road, follow the rules and laws that have been around forever and to be sure they are themselves upheld on appeal. To accept a novel argument or interpretation of the law opens a judge up to much scrutiny and criticism. But there remains so much room for improvement in the area of family law. Not just to our laws, but within our profession as well. We need increased civility between lawyers and between parties. We need better education about the process and the tools available to achieve resolution. And we need better, more modern laws, to handle the new realities of our society.

On a national and state by state basis we must address how to help same sex couples dissolve their relationships in a civil manner. If they are not allowed to marry, perhaps they should still be allowed to divorce? Otherwise they will still end their relationships, but the process will continue to be confusing, frustrating and sometimes violent. When human beings have no recourse under the law, they engage in self help (sometimes called vigilante justice). Why not permit these tax paying and law abiding citizens to use our court system to resolve their disputes like other citizens? Wether you approve of same sex relationships or not, they exist and prohibiting same sex marriage, or same sex divorce, does not and will not stop same sex relationships. Instead, it helps avoid land disputes, child custody disputes, title disputes and many other problems that ultimately cause all of us money since our tax dollars pay for courts, policemen and other services that are needed when disputes get out of hand. Courts, when permitted to help members of society, for instance in same sex divorces, will reduce cost, tension and resources across the board and thereby help all taxpayers.

So what about DOMA (Defense of Marriage Act)? Will it fall this year? It seems inevitable. The federal government which has historically left family law matters to the states, stepped deep into family law when it approved DOMA. It seems the current trend is to to see DOMA as overreaching. I believe DOMA will be undone (by the courts, since a majority of legislators will likely never vote to do something that implies that they approve of gay marriage).

And international custody issues including abductions, denial of visitation rights and even simple communication via new technology should be reviewed. We all remember the Sean Goldman custody case in Brazil. There are so many cases like his that are not reported in our press. Kids get taken from (or to) the U.S. and are never returned. Even in countries that have signed the relevant Hague Treaties, it is often difficult to get a child back. And in others such as Japan, it is nearly impossible. We need to work on this in 2013.

But again, civility. Handling our family matters in a civil and peaceful way is a must. It all starts with family. And we as lawyers must do our part. Yes family matters such as divorce and custody disputes fall into our adversarial system of justice. And for some disputes, it must be so. But so many family disputes can be resolved amicably if we just let emotions subside. If we pause and think about how we want our children to know we handled our differences. Wouldn’t we all be prouder if family law disputes were resolved by the parties involved and not by lawyers and judges who had never known the family when they got along? Alternative Dispute Resolution (ADR) has played an increasing role in family law. Be it mediation, arbitration, late case evaluation or collaborative law, there are many more options in 2013 than there were in 2003 or in 1993. Let’s take advantage of these resources, and lets all, lawyers, judges, mediators, expert witnesses, psychologists and parties, pledge to work amicably. Court decided resolution is never as good as a result agreed to by the people involved. And that can best be accomplished if we act civilly. Especially us lawyers. We do not have to continue seeing the other side after the dispute is resolved. But our clients do. They will go to their kids’ weddings and other events together. Lets commit to doing our best to ensure that these future events and life itself, will be better and easier for our clients because of the efforts we undertake. That’s my commitment for 2013. I look forward to a positive year of helping people and doing my best to ease their burdens and not to increase them.


Spyware and Divorce

(The following is a blog entry I contributed to LinkedIn as one of their “Influencers”):

Gosh the laws are in a state of flux on this topic.   I contributed to a front page story in the wsj a week or two ago and have received a lot of feedback.  Where are we in the electronic age?  Well eavesdropping still seems to be bad.  But is looking at your spouses email really the same as tapping their phone calls? Is it perhaps worse?   It again all comes down to the expectation of privacy that our country tries so hard to protect. The South Carolina Supreme Court just weighed in on the issue saying that looking at your spouse’s email may not be wrong?  See: http://www2.counton2.com/news/2012/oct/15/supreme-court-rules-favor-women-who-hacked-mans-e-ar-4761793/.  But other courts differ.

My real question, is should there be a divorce exception?  It is one thing for a company to steal important information from a competitor, but the desire of a spouse to know whether their companion has been faithful (romantically or even financially) is a hard desire to suppress.   Not that wiretapping or invading privacy should be legalized for divorcing couples, but perhaps the punishment should be lowered?  It is just such a hard urge for mst people to suppress, and while ignorance of the law is no excuse, most do not know they are committing a crime. After all, keystroke and other software is so readily available, and spouses usually feel that they are only “invading” their own computer, since after all, they are married and everything they own, they share, right?

It will be interesting to see what happens next.  I am looking forward to the development of this issue as more cases reach the courts.


Guess what? You are not the mother, the kids are mine!

HLN (formerly “Headline News”) recently called me to help them explain/discuss the legal issues in a very interesting case about whether a “surrogate” mother is also a legal mother (To see the interview, click here: /video).

The case arose when a woman who could not have kids of her own agreed to have a child with a long time male friend.  They decided to use a donor egg, his sperm and she would carry the baby.   But when she gave birth, she was immediately served with papers saying that he was the only legal parent and would be raising the child with his male lover/partner.   They even obtained a restraining order to prevent her from breastfeeding.  We don’t know what documents were signed (but it was likely a “surrogacy” agreement disclaiming any rights to the child, probably thinking she was merely signing documents needed to get the donated egg), but no matter what, she was devastated.  And the interesting legal point is: Is a surrogate mother a legal mother?  What happened? What did she sign? Was she defrauded? Do the normal rules of contracts (meeting of the minds, absence of fraud) even apply, or should there be a higher standard to meet before the father can enforce such a contract.  As of the time I was interviewed, the father had custody and the woman (should we call her the mother?) was suing to get rights to the children.

So why is this such a new thing? Because artificial insemination is only thirty years old.  Before that there was no possibility of such a problem.  And even then, it was all very controlled.  Now that surrogacy and ART (Artificial Reproductive Technology) is becoming commonplace, this issue, and many like it are arising and challenging us.  Law vs morality.  Social values vs. strict contract terms.  And that is where we as lawyers can help.  Until the legislatures of the states and perhaps of the United States can predict and resolve all such dilemmas in advance, great lawyering and judging will have to get us through.


Double Duty, Quadruple Duty Family Law Day; Divorce Seminar, Child Abuse Seminar and 2 TV interviews

Double Duty, Quadruple Duty Family Law Day; Divorce Seminar, Child Abuse Seminar and 2 TV interviews (Kelly Rutherford Custody Case and Paparazzi and Divorce, and yes, it started with the Kate Middleton Story)

On Friday, September 14, 2012, in addition to working on client cases and matters, I had a full, quadruple duty family law day.  I had scheduled a day without trials so that I could present at two very important programs.  The day started out with my presenting as the lead-off speaker at our annual “Nuts & Bolts of Family Law Seminar” sponsored by the State Bar of Georgia, Family Law Section.  I presented on “How to Present Your Case When Time is Short”.  I think I was effective, and at least I finished on time, since going long would have been disastrous, given my topic.  The program agenda can be viewed at: http://www.iclega.org/programs/8025.html.

As soon as I finished speaking there, I left to go Chair and speak at maybe the most important seminar I have ever been a part of (there were well over 200 people attending the “Nuts & Bolts of Family Law Seminar”, so I had to try my best to leave discreetly, but that was impossible). The program I then went to was called “Stewards of Children” and it was a training session to teach people how to prevent or help prevent, child sexual abuse.  The numbers of sexually abused children astounded me.  I thought I knew something about children and the issues they face.  I had no idea.

The seminar was a success and everyone who attended was moved by it and motivated to do more.  For information and full brochure: http://www.iclega.org/programs/8030.html

That was the “Double Duty”.  Then came part two.  As we went to break during the second seminar, I received a call from CNN/Headline News.  They invited me to come comment on the Kelly Rutherford Custody case, where her former husband who now lives in France was just awarded custody of their two very young children.  I agreed, studied up, and went over as soon as the “Stewards” seminar ended.  As I walked over, the telephone rang again and it was CNN/Headline News.  I thought perhaps my segment was getting cancelled. Instead it was another department asking if I could appear on the Jane Velez Mitchell Show to discuss paparazzi and celebrities, including Kate Middleton.  I agreed, especially since I was on my way to their studios anyway.  Without getting into much detail, it was a whirlwind of an afternoon.  The bodies of the Americans who had perished in Libya at the Consulate attack had just arrived in the U.S. and Secretary of State Clinton and President Obama each gave speeches right when my segment was scheduled.  Needless to say my segment was delayed for a while.  But I can’t tell you how interesting it is to be there and to watch the news unfold.  This happened once before as I was at CNN to discuss a custody case and right between my two segments, the news broke that Michael Jackson had died.  I tell you, reputable news organizations like CNN/HLN work so hard.  You should see the experts and professionals scrambling to ensure the news is accurate and that it is delivered quickly and professionally.  They have to learn the story and then explain it to the world, all in a matter of moments, and they do and they do it well.  AND IT IS A LOT HARDER THAN IT LOOKS!  Imagine trying to learn all about ten stories you will cover in just one hour.  Stories about the far east, the middle east, medical stories, celebrity stories, politics, weather, sports and other topics.  No one can be an expert in every area, but they become experts in all of it.  But I digress.  I eventually made it from one interview to the next and enjoyed every second of it, including the last second changes, personnel changes and time changes.  The first interview can be seen by clicking here.

So why do I feel good about all of this?  I guess part of it is to be able to accomplish a lot of different things within a day.  But as I think about it, I know I had a chance to help.  On a day to day basis I hope I help my clients (and yes, I spent about four hours in the office on client matters to on Friday).  But on this day, I hope I helped family law attorneys learn to present their cases more efficiently, other lawyers to be able to better help protect children from sexual abuse, and viewers across the country to better understand the custody laws and concepts as well as how travel and international diversity can affect court rulings.  I didn’t do anything complex or change anything or anyone, but I did my little part, using the knowledge I have, to try to improve lives.  And that made the day wholly worthwhile.


Tom Cruise and why we should care

I was interviewed a lot in the last few weeks about the Tom Cruise/Katie Holmes Divorce. People Magazine, CNN (CNN International, Headline News, etc.) and others asked me about it. Maybe I am biased because I know and respect Katie Holmes’ lawyers Jon Wolfe and Michael Mosberg, but I consistently suggested it would be worked out privately and quickly (see my blog posted June 30, 2012). Not only because there were good lawyers involved, but because frequently, when there is a lot of money combined with potential for a lot of negative public publicity, cases resolve quickly. They make news when they don’t. This one reached resolution quickly, and that is of course, beneficial to their daughter. Bravo to the parties and the lawyers. That’s how cases should get resolved and hopefully this divorce will be a good example of why it is good to get it done quickly.


Tom Cruise Divorce?

Tom Cruise is getting a divorce?  Why is this news? Why is it interesting?  Because he, superhero extra ordinaire, is going through what so many others have gone through, yet again.  No one is immune.  Perhaps that’s the appeal of the story?  I learned about it Friday when CNN called and asked if I could comment on the “breaking news” that Tom Cruise and Katie Holmes were getting divorced.  I didn’t have too much to add, except to say that rich or poor, famous or not, everyone should try to reach settlement of their own issues, and I am sure they will do their best to do that.  And the path should be open to them.  Jonathan Wolfe, one of the finest lawyers in the New York area is representing Ms. Holmes and I know he will do his utmost to resolve the matter amicably, while simultaneously representing his client zealously.  And that, is the test of a true lawyer.  To be professional and to obtain good results for his client.  I am hopeful that the next public statements, or at least a future public statement from either party, will reference the efforts each has taken to resolve the matter out of court.  I know good lawyers are crucial to the process and that may be the lesson.  If you can afford one, get a good lawyer.  Their job is to bring peace and resolution.  Yes they are able to do battle when needed, but for good lawyers, that is always the last option.


Divorce Hotels?

The New York Times recently ran a story on “Divorce Hotels”.  It’s not such a strange concept.  Click here for the NY Times story ( NY Times Story).  A divorcing coupe stays at the same hotel to ensure the process moves forward. No delays. Lawyers there focus on that case.  Paying attention to a case helps “get ‘er done”. http://nyti.ms/Lvv6F3.  Interesting idea?


Social Media Implications in Family Law Cases

The landscape of evidentiary tools available in today’s divorce cases is rapidly evolving, and the courts in this country are becoming more openly accepting of them. With the advent of social tools like Facebook and Twitter, incriminating evidence has never been easier to obtain. You now must be extremely mindful and filter the information and pictures that are posted to your profile page, because such evidence can be used against you and possibly deal a devastating blow to your divorce and/or custody case.

One recent example of a court ruling in favor of full disclosure of social media profiles comes out of a personal injury lawsuit in Pennsylvania, Zimmerman v. Weis Markets, 2011 Pa. Dist. & Cnty. Dec. LEXIS 187. The employer being sued filed a motion to compel disclosure and preservation of the employee’s Facebook and Myspace information on the non-public portions of the websites, which would require disclosure of user names and passwords to the employer. The basis for the employer’s motion and the rationale for the court’s ruling was that because there was evidence contrary to the employee’s claim available on the publicly accessible portions of the websites, it was reasonably likely for there to be other relevant information to the claim on the non-public portions of the pages.

The court granted the motion, reasoning that “no privilege exists for information posted in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal.” The court agreed that allowing a party to a lawsuit to hide behind privacy controls on a website which enables people to share social information risks depriving the opposite party of access to relevant material and a fair trial. The court also held that such a ruling does not violate any fourth amendment rights, which protects people, not places; further, there is no reasonable expectation to privacy on a social website, and privacy concerns are far less where the objector voluntarily disclosed the information. The court strongly closed their opinion, stating that “any relevant, non-privileged information about one’s life that is shared with others and can be gleaned by defendants from the internet is fair game in today’s society”.

The rationale adopted in this case is yet another example of how litigants should be extremely careful when navigating through social media.   Remember, once you post something, it is extremely likely, if not certain, that such information will be used against you in a family law case.


Divorce Hotel?

The New York Times recently ran a story on “Divorce Hotels”.  It’s not such a strange concept.  Click here for the NY Times story. A divorcing coupe stays at the same hotel to ensure the process moves forward. No delays. Lawyers there focus on that case. Paying attention to a case often helps “get ‘er done”.

Is this the wave of the future? Probably not.  Is there a place for it? Maybe.  The real bottom line is that once people are ready, emotionally and with all of the facts (an understanding of all finances/incomes/property values, etc.), divorcing parties should get together, be it for mediation or a settlement conference, or even a weekend at the “divorce hotel”, and they should not stop trying to reach resolution until it is done.  The alternative, trial, is expensive, costly and very, very imperfect.  Keeping hold of your own desitiny is vital.  Mediation, and maybe even the “divorce hotel” offers an opportunity to do that.