Legal

ABA Section Officers Meeting

Each Fall, the American Bar Association holds it’s annual Section Officers Committee meeting in Chicago. This year it begins this week. Each section, division, forum, etc. of the ABA has officers who are new each year. Those officers all come to Chicago to learn how to best perform their roles as Secretary, Vice Chair, Chair-Elect, etc. of their particular group (for me it will be as Chair-Elect of the Family Law Section). It is great to be around so many lawyers who are committed to improving the practice of law. Each lawyer sacrifices two to three days of work to be at the meeting, yet it never feels like a sacrifice. There are “big picture” discussions about the general practice of law, things we can do to help our communities, things we can do to help educate the public about new laws and how we can improve the overall workings of the entire ABA. There are also “small picture” discussion groups focused on how we can each help our particular group (family law, business law, criminal law, etc.). Click here to see the SOC page on the ABA website describing SOC.

While some may say it is inconvenient, especially since each of the officers attending also typically attend four or five other ABA programs each year, including a Spring and Fall program for their area of law as well as the ABA annual and mid-year meetings, it is valuable. It is a chance to step aside from the basic programming and educational aspects of the ABA and to focus on how we can each use our strengths to better our individual areas of practice as well as the ABA as a whole. I am looking forward to it and to actively participating. It feels good.


CPA Seminar

Tomorrow I will be lecturing before Georgia CPAs. Unfortunately, lawyers and CPAs often fear each other. This is a shame since we can so often both assist our clients, especially when we work well together (I have blogged about this previously). I get excited when I have an opportunity to meet other professionals that can help me do my job better. And that is how I view CPAs (professionals who can help me do my job better, and thereby help our mutual clients).

I am excited to be working with the Georgia Society of CPAs and AICPA (for a program in Boston in three weeks, and in Las Vegas in May) and NACVA on various programs. Every time I attend a seminar for professionals other than lawyers, I learn so much. Tomorrow should be more of the same. And the best part is, I always learn something, not only from the presentations, but from the interaction between sessions and before and after the program. All of our lawyers are encouraged to attend as many family law related CLE events as they can and I think and hope, it makes us a better firm.


Japan “Divorce Ceremony”

There is a joke about how, we all have it wrong. There should be a large retainer to get married and getting out would be quick and straight forward. That way people would be slower to marry and hopefully then be in it for the long haul. And when they want out, they could simply end the marriage with a brief ceremony, sort of like a reverse wedding. Well along those lines, apparently in Japan, where divorce is much more highly frowned upon than in the U.S., there is a new ceremony gaining in popularity: the divorce ceremony.

As silly as it may sound, there is something to it. It may well serve as a cathartic moment needed by those going through a divorce. A symbolic gesture of closure. Unfortunately, the symbolic gesture of closure for many divorcing parties in the U.S. is a trial. Some going through a divorce believe that once a trial judge hears their complaints about their spouse, all will be well. And nothing could be further from the truth.

Closure is never obtained through trial. After trial, one, or both parties feel(s) they were wronged and spend time thinking about how to make it right. That may be by appeal, refusal to follow the court’s order or by simply absconding. Sometimes mediation or other forms of alternative dispute resolution can provide some catharsis, but perhaps a divorce ceremony, like the one described in the story linked above, is worth considering? It may sound silly, but then again, so are most of the ultimate arguments that prevent a peaceful finalization of the end of a marriage.


Closing a door, opening a window (Sandra Bullock for example)

The saying “When God closes a door, he opens a window” can sometimes be very appropriate in family law settings. Sandra Bullock’s situation is a prime example. While a door was closed for her (divorce with ugly allegations that her husband Jesse James cheated), perhaps a more important window was opened, the adoption of a baby boy (Washington Post story can be viewed by clicking here). Her love for her child is so apparent that it is clear that perhaps she was freed of a bad marriage to make time for a person who she could love even more and who could return the love equally and unequivocally.

In our experience as divorce lawyers, we are often fortunate enough to see clients after the divorce has passed. While some struggle for years, many, if not most, move on and find happiness that they may not otherwise have found. That is one of the most gratifying parts of our job. Since the future is never certain, and is almost always frightening for anyone going through a divorce, the ability to watch people go through it and survive and succeed is an awe inspiring experience. Almost everyone who goes through a divorce, never ever dreamed of the possibilty of a separation or divorce. Then, to accept the failure of their marriage, a project they worked on, planned and tried their very best to make work, is always difficult. And much more so when children are involved. Yet inevitably life moves forward. New relationships are formed, different connections are made, and life goes on.

The bottom line is that change is inevitable and when it is as significant as a divorce, everything changes. But as human beings we strive to improve our circumstances, no matter what is thrown at us. And guess what, many people succeed in that. No, not everyone moves on and is better off for divorce. Money is tighter, logistical difficulties preventing non-custodial parents from seeing their kids arise, but we learn to cope with these issues. Of course there are times when the path of divorce was too quickly chosen. But in the majority of cases we see, the die has been cast, as in Sandra Bullock’s case. When the couple has passed the proverbial “point of no return” (one party cheating with porn stars?), then the real question is how to move on respectfully and with dignity. And I suggest that Sandra Bullock, at least from what we can glean through the press, has done exactly that. It is refreshing to see and likely inspirational to many.


Why is the McCourt’s divorce unique?

Why is the McCourt’s divorce unique? Because lately the high profile cases in the news have been resolved out of court (Think Tiger Woods, Sandra Bullock and A-Rod). In fact, most high profile matters our firm is involved in are settled without any press and with very little expense. Actually going to trial with so many dollars at stake (and so much public reputation to lose) is becoming rarer and rarer. But the McCourts are there (click here for link to UPI story). No doubt the lawyers tried their best to guide the parties to resolution. Lawyers of that caliber always do. But when one party (or both) think their position is blatantly reasonable, or is an obvious “winner” in court (there is no such thing), it can be hard to settle a case. Some cases are just easier to try.

Unfortunately for the McCourts, it appears the court will decide their divorce which is guaranteed to make one, if not both parties displeased with the outcome.

On ocassion we encounter a stubborn opponent (opposing party or opposing lawyer). Even then, steps are taken to try to reach resolution. Mediation, settlement conferences and even pre-trial conferences with the judge are usually attempted to promote settlement. We also sometimes utilize a process known as Late (or Early) Case Evaluation. This process entails hiring a family law attorney who is respected by both sides to give everyone a “reality check”. Sometimes that does the trick. But when someone is truly unreasonable, the only way to resolve a case is trial. But even then, the good lawyers can only ease their conscience if they have truly attempted settlement first. But once settlement efforts are exhausted, trial becomes inevitable. Perhaps the one benefit of the McCourts actually going to trial is that others will realize how risky and costly trial can be, and thus become more determined to resolve their own cases privately. Let’s hope the message is sent, and heard, loudly and clearly.


Divorce and birth rates down?

A Georgia Public Broadcasting article suggests birth rates and divorce rates are down in this poor economy (Click here for a link to the article). 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?


Contributions to Judges?

Politics and judgeships shouldn’t mix, but they do. Across the country judges are elected or appointed as part of the political process. Where they are elected, as they are here in Georgia, should lawyers who appear before them be allowed to contribute to their campaigns? Or, maybe the opposite makes sense, lawyers should really consider contributing since lawyers are in the best position (usually) to know which judges are better than others?

The Georgia Supreme Court is now taking a serious look at the issue (click here for a link to the story). The good news is that it seems this is not a “rush to judgment”. There has been a study group and the apparently many different aspects and factors are being considered. The point I made in the first paragraph illustrates the dilemma. On one hand, is it right for lawyers who appear before a judge to contribute (or to refuse to contribute) to a judicial campaign? Does that indiciate a potential for unfair treatment (favorable for donating, unfavorable for not donating)? Perhaps? But if contributions are made to ethical candidates, then the risk is reduced. On the other hand, if lawyers are prohibited from contributing to judicial campaigns, then the contributions will come from less informed sources who may not have had nearly as much experience with the particular judge. Wouldn’t we prefer that those in the know help guide the rest of us?

This is a fascinating issue. There are lots of “workarounds”. Lawyers can (and should, in my opinion) participate actively in opinion polls about judges. Lawyers should educate their clients and friends about judicial races given the insight lawyers, at least trial lawyers, may have about certain judges. But all too often we sit on the sidelines. We know which judges are excellent and we should strive to keep them in place. This benefits society as a whole and lawyers are in a unique position to help and can, and should do their/our part.


International custody

There are hundreds if not thousands of horror stories about international custody/kidnapping and support. This entry will not cover the Sean Goldman case or many of the other ones recently in the news, but I decided to write this post when I read an article about a man in Germany who has finally been relieved of paying child support for a child wrongfully taken from him, 10 years ago (click here to read the story).

While getting off the hook for child support may be a relief, the big issue of retrieving an unlawfully removed child still remains. This is an issue that not only causes much pain and suffering for children and their parents, but also haunts many family law attorneys who have been unable to effectuate the release or return of a client’s wrongfully taken child. During my year as Chair of the Family Law Section of the American Bar Association I intend to work on this issue and shine more light on this problem. There are International Laws, but not every country has agreed to them, and the rules are not applied uniformly and consistently. Educating our politicians is one good way to start and I hope the ABA can help in that regard and others.

For those of you who are lawyers practicing in Georgia, we will try to address this issue at our annual Family Law Institute which I urge you to attend next Spring. On a national level, we will try to also address it at future Continuing Legal Education Seminars throughout the country. These cases are so important and time passes so fast that unless we as family law attorneys understand the rules and laws, children may go unreturned for too long, and in many cases they may never be returned. We must all be diligent, as citizens, and those of us in the legal business, must remain educated and up to date on this issue and the rules and laws in this area.


Michael Douglas’ ex seeks money based on post-divorce efforts

Marital property is a topic that is defined slightly differently from state to state. But in almost every state (perhaps all), money that is acquired after the date of the final divorce is not marital and is not subject to division (unless otherwise agreed). Nonetheless, actor Michael Douglas’ ex wife is seeking monies Mr. Douglas receives based on a film which may not have even been conceived, but certainly on which Mr. Douglas had not worked during the marriage (click this sentence for a link to the Associated Press story). This sounds like an attempt to obtain property earned after a divorce. Yet Ms. Douglas has made an interesting claim. Since her divorce papers entitled her to proceeds from work Mr. Douglas did during the marriage even if the monies came after the divorce (such as residuals), she now claims that a sequel to the movie “Wall Street” qualifies as related to work he did before the divorce. I don’t buy that argument. A simple analogy would be a professional athlete. If, after a divorce, an athlete receives a new contract to receive money for playing his or her sport, isn’t that related to work during the marriage? But my point is that the easiest, and most logical interpretation of the Douglas’ divorce document would seem to be something like “money that flows in, without requiring work by either party, but rather merely as a pure result of effort during the marriage, should be subject to division”.

Family law is never boring and I look forward to the result of this claim, especially if a court’s interpretation is required. My best guess is that this will be resolved out of court by the parties, but at a minimum, it does seem like Ms. Douglas has an argument, albeit in my opinion, a losing one.


Fulton County Family Division finally here to stay

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.