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.
If I can answer questions, before during or after the program, please let me know.
This is always an interesting question: the right to seal divorce records. A recent AJC article (click “story” for it) illustrates how the public clamors for details, especially when the party is running for office. A very similar situation unfolded a few years ago when the Speaker of the Georgia House of Representatives had his divorce case sealed.
But what about less famous people? Should the public have a right to know the details of the average divorce? When children will be dropped off? How much money each side gets? Why not keep those things private? I do not think the public’s right or need to know should outweigh an individual’s ability to keep these matters private. Just because a relationship ends, why do the financial details become private? Married couples can keep their information private. Just because a relationship ends, is publicity another form of punishment we should heap upon people already suffering the end of a relationship they once thought was forever? For me the answer is clear. Why not allow some privacy? Absent some major need to know (examples are hard to find), I say keep it private.
Today I presented on Hot Topics in Family Law for the AICPA National Forensic Accounting Conference in Boston, Massachusetts. These CPAs were very interested and interactive. They asked probing questions and really seemed eager to learn. It was very refreshing and a little intimidating. They wanted to learn and asked some great questions. The gist of the program was a combination of technical legal issues combined with practical application. Or, what are the rules, and how are they applied. They seemed to know the rules and focused more on the nuances, the exceptions and the practical application: do judges follow the rules; how can you argue one position one day and another the next day for a different client and other tough ones.
But perhaps more important than the program was the interaction before and after. Interacting with professionals who are so vital to family law practice and who can help quickly resolve financial differences and disputes made me realize not only how important it is to rely on experts, but easy it can be. Once an expert, such as a forensic accountant, understands the basics of family law litigation, they can save lawyers time and clients money. I am looking forward to consulting even more with such experts in the future, and to more joint learning programs. In May, 2011, the ABA Family Law Section will host a joint conference with the AICPA in Las Vegas to help young forensic accountants and lawyers get a headstart in understanding each other and how we can all work together to help our mutual clients.
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.
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? 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.
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.
In July, a U.S. District judge in Massachusetts, in Gill v. Office of Personnel, found part of a federal law allowing states (or perhaps the federal government) to refuse to recognize a gay marriage from another state to be unconstitutional. But he has just put a “stay” on his ruling to see if the government will appeal (click for a link to the story). The case is not so much about whether gay people may marry, but whether the federal government must respect a state’s determination of whether someone is married or not. The actual decision (not the “stay”) may be read by clicking on this sentence.
This seems to be one more case weakening “DOMA”, the Defense of Marriage Act. These are interesting times.
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.
Today, August 15, 2010, the Governor of New York announced that he signed a bill permitting “no-fault” divorce in New York. So what exactly is “no-fault”? Well it varies across the country, but generally it means that one need not prove the other spouse was at “fault” in the break up of the marriage. That is, if one person believes the marriage is over, that is all that needs to be proved. And that will make “uncontested divorces” easier.
But does that make fault irrelevant? In many states the answer is no. Georgia and many other states permit introduction into evidence, proof of “conduct” such as adultery, drug use, spousal abuse and gambling. These types of conduct can affect the decision of the court on issues such as alimony, custody and division of property in some states.
But what no-fault divorce allows, is a less confrontational divorce for many who have peacefully and amicably come to the decision that their marriage should end. The removal of the need to prove “fault” removes the need to accuse anyone of being the cause of the divorce. While such conduct issues may be relevant in some states for some issues, many people simply desire to move on and resolve their differences in a non-confrontational manner. This new New York law makes it a bit easier in New York to do what people elsewhere in America have done for years, to divorce without pointing fingers or laying blame. It is about time.
