GA Supreme Court makes “Pilot Project” for Discretionary Appeals more permanent

The Georgia Supreme Court of Georgia has just changed it’s “pilot project” rule regarding discretionary appeals for domestic relations cases. This process, which has been a “pilot project” for about ten years, is now more formalized. To view the Court’s Order, click here..

The Family Law Review issued a bulletin which summarizes it well (which can be accessed by clicking here). Take a look, and those of you who practice law in Georgia, please review it carefully. Most importantly, let’s be sure we do not abuse this wonderful opportunity the Supreme Court has given us to help clients in need, those who have a meritorious basis for appealing. The court has entrusted us with discretion to not overwhelm the Court with non-meritorious appeals. Let’s oblige.

Do children of divorce suffer poorer grades?

National TV Network news agencies are working on stories based on reports that children of divorce fare worse in school than others. USA Today just printed a story about poorer math scores for children of divorce (click here for the link).

As a divorce lawyer this concerns me greatly. My opinion, based purely on my experience and the experience of the other lawyers in our office and friends throughout the bar, is that it is not necessarily the divorce that can harm children, as much as the kind of divorce that occurs. Certainly a ‘good” divorce between two mature adults might be better for children than a really bad marriage with much tension (or even violence) in the household every minute of the day?

There is life after divorce and the way the process of divorce unfolds may well set the tone, not just for how the parties interact going forward, but how the children do in school and in life. Children that see two parents who treat each other with respect, even if they are divorced will likely do better than children who see their parents consistently embroiled in arguments and litigation. Those children must, at the least, be very distracted by their parents’ tension. Worse yet, many may feel that they (the children) have a duty to support each parent and to comfort them (or at least one). This must take time away from school work and social development.

So what’s the solution? A “good” divorce (if a divorce is going to happen). The parents must recognize that their tension always trickles down and is felt by, and affects their children. There is an old Jewish saying that the best thing a father can do for a child is to love their mother. Well if he can’t love her, he should at least treat her with respect and pleasantness, and it should go both ways. Not for the parents’ sake, but to allow their children to continue to grow socially and educationally and to not be distracted and held back by their perceived need to be a “cructh” or support system for their parents. Such a feeling of having to help a parent through a divorce can certainly not help a child spend the needed time to excel in school and socially.

I know that I am not a psychologist and that these words and thoughts are just those of a lawyer who has practiced family law for almost a quarter of a century, but I believe them to be true and hope lawyers and litigants consider these issues as they proceed through their family law cases each day.

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.

“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. 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.

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 opportunities, 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 fory ears. 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.

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.

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.”

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).

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.

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.