Legal

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.


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.

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.


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.


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.


Is infidelity epidemic for athletes?

Is infidelity epidemic for athletes? I think not. But I do think that famous people have more opportunities for, are given more opportunities for, or are solicited more for extra marital relationships than the average person. Does that make it okay? No. Does that make it a little easier to understand, yes.

I am often asked why athletes or other famous people seem to have more extramarital relationships than the average person. First I am not convinced that is true. But second, if it is true, there must be some explanation, even if we don’t like the explanation. One such explanation is that the offer or opportunity is probably much more present for these high profile folks. Should they resist, sure. Are they human, sure. Is it human to cheat?????? Having sex is human. Seduction is human.

ESPN just wrote an article on this topic and interviewed me about it (that is what gave me the idea for this blog entry). You can see the article by clicking here. What is interesting to me is not the cheating, but America’s fascination with it. Stories of infidelity amongst the famous are always big news. Tony Parker, Tiger Woods, A-Rod, Bill Clinton and on and on. Why do we care? Perhaps it is because we expect more from our heroes. We expect that those whom we admire, those who are more athletic than the rest of us, more successful than the rest of us would also be more moral than the rest of us. After all, we are supposed to play by the rules, why shouldn’t they, especially when they already have so much. Perhaps the fascination is with the fact that the rich and famous are never satisfied, even though we would be if we had a tenth of their wealth, fame or success (but would we?).

To me the real issue is the relationship that is being hurt. If there is a family that is otherwise working well, extramarital affairs are quite an obstacle. In my experience, it seems that most such affairs start well after the marriage is on the down turn. Yes new relationships should wait until a marriage has fully ended, but we are not a patient species.

I do not have the answers, but I do enjoy asking the questions, which is a good place to start. Tell me what you thing by commenting.


Eva v. Tony, “upping the prenup”?

Just like the rumors in the Tiger Woods divorce, there are rumors that the first time Eva Longoria caught Tony Parker cheating, she asked (or told?) him that the amounts she was to receive in their prenuptial agreement, in the event of divorce, must be increased. And if true, he likely complied because he loves his wife, wanted to stay married and felt guilty.

Relationships are very interesting and are what makes the human world go around. Money as punishment? Is that right? Well it happens all the time. Personal injury awards grant a victim of a car crash money, but does money replace a loved one, or a fractured bone? Slander claims often result in money damages, but does that undo the damage to reputation? I would submit that this example of “upping the prenup” is a way to artificially incentivize people to be monogamous or faithful. Is it right? Who knows, it is not for me to judge. But just thinking about the concept is interesting, at least to me. We use money to incentivize, to punish and to reward. Shouldn’t we be able to accomplish what we want without that? If the cheated on spouse still loves the other and wants to stay together, why ask for more money? If the cheater is truly regretful, why not just give the other whatever he/she asks for? In the end it seems we are all individuals. Maybe I am jaded as a divorce lawyer, but even I believe there are many, many people who instead of discussing money would simply discuss the relationship. If they both want it to continue, it will, if not, then it’s over. But of course it’s never that easy, is it?


Judicial Elections, what is a lawyer’s role?

Most people don’t know much about judicial elections, and most don’t care. Why should people care? What are the chances that the particular judge up for election will actually be asked to decide an issue for an individual voter? Very small. On the other hand, Governors, Senators and Representatives in the House will vote on issues that affect everyone.

But here’s the rub. If a judge does end up deciding an issue for an individual (a criminal case, divorce, business dispute or other matter), that elected official will have more input into that voter’s life than any other elected official, including the President of the United States. In Georgia we elect our judges so we have a choice in who we want resolving our disputes. Many people complain about judges, but we (or they) voted them into office.

I have heard judges discuss how interesting it is that judicial races are so far below the radar. There is no general polling and not much interest in judicial races compared to other elected offices. Yet judges, of all elected officials, carry so much power. Who else has the ability to impose a sentence of life imprisonment (or sometimes death), to remove your children from you, to kick you out of your home, to order you to pay or receive large sums of money following a car wreck? Yes, sometimes a jury can answer these questions, but judges still govern the courtroom and in child custody cases, there are no jury trials.

So what can we all do? Get educated. Learn about the current judges and those running against them. And who best to learn from? Lawyers, especially trial lawyers. Those of us who are in the courtroom regularly have a duty to tell our friends, our clients and anyone we know what we think about judges. Who the good judges or candidates are. True this will just be our opinion and may be no more valid than anyone else’s, but we have at least seen the judges in action and heard about the judges’ general reputations from our respected colleagues. And perhaps even more importantly, judges are at a disadvantage. To maintain their professionalism, there are severe limits on what they can or should say. They cannot comment about certain cases and generally stay out of public debates. So who will speak for them? We must.

So if you are a lawyer and if you are concerned about our future as a society governed by laws, spread your knowledge. And if you are not a lawyer, or not a trial lawyer, ask the trial lawyers you know what they think. That spot on the ballot for “judge” may just be the most important box you check.


ABA Family Law Section to meet in Fort Worth

This Wednesday through Saturday, the ABA Family Law Section hosts it’s annual Fall seminar (next October we are meeting in Las Vegas). True to form, the programming is excellent, filled with excellent speakers on excellent topics of interest to family law practitioners. New and interesting topics include “Using Stock Options and other Executive Compensation to fund Alimony” and “Parenting Plans for Children Under 3”. There will also be debates/discussions about many far reaching issues, including the need for a uniform act on child support guidelines and the Model Act of the Representation of Children.

Of course, the informal education that comes from the interaction of lawyers from across the country between sessions cannot be overestimated. I look forward to seeing many old friends and to meeting new ones this week in Fort Worth.

The brochure for the program can be found at: http://www.abanet.org/family/events/fall10brochure.pdf

If I can answer questions, before during or after the program, please let me know.


Temporary Custody should not automatically = Permanent Custody

Often in divorce court, a temporary ruling on the issue of custody means there is a near certainty the same result will follow the final trial. But this is not what the law suggests or even allows as a presumption. Nonetheless, many divorcing parties and/or their lawyers focus heavily on temporary custody so that they may be in a much better position to achieve an award of custody on a final basis (I know, I hate the terminology like “achieve” or “winning” when we are talking about the lives of children). However, a recent Georgia case has made it very clear that a trial judge may not simply “do the same thing, based on what he or she already heard at the temporary hearing”. The case is Pace v. Pace, in the Supreme Court of Georgia and has been given the number No. S10F0843 (Oct. 4, 2010).

The trial judge may rely on evidence adduced at the temporary hearing, with advance notice to all, presumably so that the parties will know what evidence the court has in front of it even before the final trial begins. But the court may do so only after “notifying the parties of its intent to do so [rely on evidence from the temporary hearing]”.

One thing the Pace decision did not clarify, is what amount of weight the evidence from the temporary hearing should be given: “Neither the statutory provisions nor the court rules governing the conduct of child custody proceedings addresses the extent to which a trial court may rely on evidence from the temporary hearing in reaching its determination on permanent custody.” The court did however point out how limted temporary hearings can be and that final trials offer the parties a much better ability to present evidence.

Another thing the Pace case did not emphasize, is that even if the evidence was strongly in favor of a custody award to one party at the temporary hearing, things change. Child custody and visitation decisions must always be made with an eye toward what is going on presently. There are many parents who have done bad things. This goes for parents who are not in a divorce or custody struggle. But the real question should be what is in the child’s best interests right now and going forward. Yes the past is important, but if there were poor decisions made years ago that have not been repeated, we should closely examine how best to ensure a good future for the child or children instead of punishing a parent who has made mistakes in the past. There is no question that custody decisions are difficult. No one can predict the future. But if we, and importantly the judges, can know the very present, then we are more likely to formulate plans for our children that will work now, and hopefully into the future.


Lump Sum Child Support upheld in GA

About a year ago, we represented an NFL footlball player in a matter where he had been ordered to fund a trust, in case he missed child support payments. The trust was a sort of collateral. That trust was upheld by the Georgia Supreme Court and this week, they have upheld a payment of “lump sum child support”. The case is Mullin v. Mullin.

While the goal of ensuring the child’s best interest is always paramount, this case presents a few complications (all of which are resolved in favor of allowing the award, since it is in the child’s best interests). Some of those concerns are that should circumstances change, the usual course would be for one party to seek a modification of the monthly payments. But in this case, the payments will have already been made. What if the child moves in with the paying parent one day, or with his relatives? Mother has already received hundreds of thousands of dollars, and then there may be no money left for the new caretaker(s) of the child.

While there are many interesting legal angles, it is hard to be upset with a court sytem that seems to err on the side of protecting children. After all, if the parents are fighting with each other, shouldn’t the court be the one voice that speaks first and foremost for the children?