divorce

Today was an historic day in family law. A federal, not simply a state court judge, ruled that same sex marriage should be allowed. While the ruling is much more than simply an opinion by a judge that such marriages should be allowed, the real significance is that the burden now shifts to opponents of same sex marriage to overturn the decision on appeal. As any lawyer will tell you, it is always better to be the Appellee than the Appellant (the one filing the appeal).

Far be it from me to attempt a full fledged legal analysis of the decision in this format, but the simple and straightforwad result of this decision is that the concept of same sex marriage has taken a huge leap forward and seems well on it’s way into acceptance, at least in our legal system. While most studies seem to indicate that the legalization of gay marriage was an eventual certainty, this case seemed to move the process along much more rapidly than many expected.

Regardless of your view on this topic, there is no doubt that this is truly an issue that will be discussed over and over, in courthouses and coffee houses.

Past generations have confronted many changes to widely held opinions and positions (Loving v. VA-interracial marriage; Roe v. Wade-abortion; Brown v. Board of Education-segretation in schools). Yes each issue is different, but the fact that in America we can examine, debate, vote, litigate, appeal, then vote again, is a wonderful thing. The checks and balances and open processes we use are extraordinary. There is no way to please everyone, but what an interesting issue and what interesting times we live in.

Argentina celebrates first same-sex marriage since new law enacted.

Many divorce cases involve complex financial issues which may often be simplified by the engagement of a financial professional. The employment of an experienced financial expert (combined with an attorney who frequently handles complex financial cases) can be particularly helpful in such situations especially when one spouse is a financial professional such as a C.P.A. While many attorneys are certainly able to make cogent legal arguments about the alleged income of an opposing party or equitable division of various assets or debts, and the judge to rule on such issues, a financial expert can be instrumental in forensically researching and clearly explaining what exactly there is to divide and how their numbers where calculated.

For example, suppose the Wife in a divorce is a partner in a business formed prior to her marriage to her Husband. This situation invites a host of possible disagreements between the parties including the income of the Wife, the overall worth of the business, the Wife’s portion of the business’ worth, and the marital value of Wife’s portion. A trained forensic accountant would be able shed light on each such quandary, as well figure out the most cost-effective way to divide the marital portion of the business and any relevant tax ramifications for such division.

Oftentimes, both parties will hire financial experts in such a situation. While this sometimes invites divergent expert opinions on the same set of facts, it is very common for the experts to agree about the basic numbers at stake, regardless of how things will be divided. This brings a great amount of clarity to what began as a murky financial picture. Indeed, if the experts can agree about what there is to divide, it is much easier to begin settlement discussions. It also becomes easier to make arguments in court if both parties stipulate to the value of the marital estate.

At Kessler, Schwarz & Solomiany we value our relationships with forensic accountants and other financial experts. Not only do they make our jobs easier, they help our clients tremendously.

Why would an attorney withdraw from representing a client? There are many reasons limited only by the number of reasons relationships go sour. Yes, sometimes the dispute is over money. The client may not be paying the fee originally agreed to, or in the manner and time desired. But often that is not the reason. Unfortunately, that reason gets all of the attention, because it is the best way to protect the client. In other words, if a lawyer withdraws from a case, isn’t it better for the world, and the court to believe that it was a simple dispute about money, instead of one of the many other reasons? What other reasons? How about a client that refuses to tell the truth? Or a client who curses at an attorney or his or her staff. In these types of situations, a professional attorney will not disclose why they are withdrawing because to do so would create a negative impact on the client’s case. For instance, if it is a custody dispute and the client is accused of not being able to cooperate with his or her spouse, wouldn’t it severely hurt the client’s case if the lawyer’s grounds for withdrawal were “non-cooperation of client”?

Sometime lawyers become the “fall guy(s)”. That is okay. If my client’s spouse wishes to hate me instead of their spouse, that is probably better for their children. Even if I am urging my client to cooperate, the other side often thinks I am telling my client not to cooperate. But if I set the record straight, my client, and maybe the children, may suffer. So who will know when a lawyer is telling his or her client to do the right thing? The lawyer and the client. And if the client doesn’t follow the lawyer’s advice, or doesn’t cooperate with the attorney, the lawyer will often withdraw from representation. Hopefully this is a last resort, but no client should be forced to work with a lawyer they do not want to work with, and vice versa. This also then frees the lawyer to devote more time to the clients who he or she works well with and for and who deserve nothing but the full attention of, and best and undistracted efforts of their lawyer.

As attorneys, our roles are varied and unique depending on the situation. But it has always been interesting to me that attorneys are often referred to as “counselors”.

The recent case involving Lindsay Lohan is illustrative of my point. After her sentence was determined, she hired well known attorney Robert Shapiro. While the sentence had already been meted out, surely there was something he could do for her? Many opined that he would rush in and save her from serving time in jail. But in my opinion, based on the very limited information I have via the press, it seems he was truly hired as a “counselor” at law. His credibility together with his personal history (he lost a son to issues similar to the ones Ms. Lohan is dealing with) made him the perfect candidate to assist Ms. Lohan with a more holistic approach. I believe he tried to discuss with her an overall, long term solution as a good lawyer should.

Perhaps nowhere is the phrase “Attorney and Counselor at Law” more appropriate than in family law. It is interesting that the Merriam-Webster OnLine dictionary defines the term “Counselor at Law” as: “a person who gives advice or counseling-marriage counselor”. Interesting that “marriage counselor” is right there in their first definition.

In most other types of lawsuits, clients can discuss their case with their spouse, their family and their friends. But in family law cases, like divorce, the parties cannot confide in their spouse (who is the opposing party) and they often do not discuss the details with family members for many reasons, including embarrassment. This puts the family law attorney in the unique position of attorney and valued confidant. And it is an obligation of supreme importance. Should a lawyer file every motion he or she can think of, just because he or she can? The interesting part of family law is finding out what the client’s ultimate goal is, and figuring out the best way to get there. Sometimes the answer is through a trial, but often, as discussed in a previous blog entry, mediation and alternative dispute resolution is best.

The field of family law is not one of “fill in the blanks” and there is no such thing as a “cookie cutter” divorce. Each situation must be evaluated on it’s own with consideration given to all the moving parts: relationships with and between their children, their family members, business partners and geographical considerations in case one party wants to “move back home” where his or her parents are. A good divorce lawyer will know how to listen very carefully. Our job is not to get what we think the client wants, but to actually learn what the client wants and to be sure we are achieving their goals, not ours. The case and the result are the client’s to live with and we must do our very best to help them achieve their goals and put them in position to move forward once their case is over.

[youtube]http://www.youtube.com/watch?v=HaZP92d4kk8&feature=player_embedded[/youtube]I recently served as a mediator for a contested divorce case. Each side was well represented and prepared. But it still was a difficult situation. While the details of the case including whether it or did or did not settle are confidential, I am confident the process was beneficial. I enjoy serving as a mediator and do it three or four times each year. As an advocate, when representing someone going through a divorce or family law matter, I am probably involved in ten or twelve additional mediations per year.

After a full day of mediation, parties often realize that failure to reach resolution only ensures more attorneys fees, more stress and delayed closure. Spending time together, even if separated during the day, allows the professionals and the parties to focus on resolution. Smaller areas of disagreement succumb to discussion of the larger issues. Having a neutral third party (mediator) often helps refocus everyone on total resolution which often means foregoing minor goals.

Family Law mediation and resolution is a complicated process. Rarely does anyone get all they want. But if the goal is closure, finality, cessation of fees and hostility, it can be accomplished. Why, because those goals are worthy of significant concession on lesser matters.

There will always be cases where settlement is impossible, but as a lawyer and mediator, if everyone has really given settlement a good try, litigating the case is much easier on the conscience. Litigating without giving your best to get it resolved short of trial is, in my opinion, a shame. But once all efforts at settlement have been exhausted, then we are of course left with the remaining alternative of presenting the strongest case we can to the court. A well presented case can achieve good results, but if if we can achieve those results via settlement, even better (and usually less expensive) for our clients.

Each summer, thousands of parents reach for their custody papers.  They need to re-read them to confirm which week is theirs, or if their ex can really insist on a certain schedule with the children.  Inevitably, visitation issues arise which were not anticipated, or for which no arrangements had been made.  While many standard visitation schedules include parenting plans and “notice” provisions to ensure each parent may have some uninterrupted time with the children, there are always things which were not considered or planned for.  For instance, family weddings and funerals.  These events happen, and it often seems that they happen when the party who wants the children to attend them does not have parenting time scheduled with the children.  So what can be done?  Obviously foresight is the best plan.  Adding language to settlement agreements that allows a party to have the children at such events may help.  But the next best option is to always consider what is best for the children.  Even though a parent may have the right to have the children during a certain time period, if it is best for the children to go with the other parent (due to a wedding or other event), then hopefully an accommodation can be made.  This issue will almost always come back eventually and hopefully a favor will be returned.

Another related issue is what to do about step, or half siblings?  While a non-custodial parent may prefer to only take their own biological child to Disney World, if there is a step or half brother, perhaps that child should come along too?  That certainly will not always be best or even possible, but from a child’s perspective, think of the dilemma for the child.  They get to go to Disney World or somewhere fun while their sibling stays home and becomes jealous.  Wouldn’t it be better, in some cases, to let them both go, so they could both enjoy it and reminisce together about the fun trip they had?  Certainly there are other issues that go along with this, but perhaps the parents, and step-parents ought to at least consider this, even if it means spending money on their “ex’s other child”.  That child is also their child’s brother or sister.

On January 1, 2007, Georgia’s most recent child support guidelines and related calculators went into effect.  While there are child support guidelines in Georgia, there are no alimony guidelines, but rather factors that the finder of fact shall consider.

According to O.C.G.A. 19-6-5, the finder of fact shall consider the following factors when determining the amount of alimony, if any, to be awarded:

(1) The standard of living established during the marriage;

(2) The duration of the marriage;

(3) The age and the physical and emotional condition of both parties;

(4) The financial resources of each party;

(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;

(6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;

(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and

(8) Such other relevant factors as the court deems equitable and proper.

Given these factors, and especially in light of the last factor, the dilemma may arise as to the predictability of how much alimony, if any, shall be paid and for how long.  Different courts in separate counties may result in very disparate alimony awards.  Attorneys experienced in family law can often predict what the likely result will be, but the lack of consistency between courts may give some parties the perception of an unfair result.  Of course, when a case involves unrepresented parties or attorneys unfamiliar with family law or lacking experience in front of the assigned judge, the lack of familiarity and/or experience may result in very different views on alimony, which in turn can become a roadblock to settlement.

So should Georgia adopt alimony guidelines and formulas similar to other states?  Would such an approach give more predictability, consistency, and a sense of fairness to alimony awards?

Or would such guidelines and formulas unnecessarily restrict judges and limit their abilities to judge each unique case on its own specific merits?   Would formulas have the unintended consequence of making judges akin to a computer that just displays a number?

There are pros and cons to both approaches.  Nevertheless, it is prudent for a party to at least consult with an attorney who is experienced in family law so that the party can ascertain his or her rights and potential obligations as they relate to alimony, whether or not the law provides for a “factors” or “guidelines” approach.

There is so much speculation about the impending Tiger v. Elin settlement, that it is hard to know what the agreement will be.  It seems Tiger wants Elin to keep things private and it looks like Elin will be compensated well for that.  But $750,000,000.00?  That seems like quite an overpayment and I imagine the settlement numbers will be much lower.

But so what?  It is their business.  He earned the money and she is his wife and the mother of his children (paternity claims of others notwithstanding).  My point is that these two have shared things that no one else can fully understand or appreciate.  Any settlement is a compromise between two people where each obtains something they want.  Based on the public speculation and intermittent reports, it seems Tiger wants privacy and Elin wants financial security. What do those terms mean?  It is up to them.  Sure we can all speculate and say that she is overreaching or that he is overpaying (some say there is no amount he can pay for what he did, but many would feel that several million would be a good start if their spouse tried to purchase their forgiveness).

But the real answer to what will the settlement be, is: whatever they choose.  They both have able counsel and will ultimately each get what they want or they will not reach an agreement.  Tiger can seemingly afford a luxurious settlement amount and Elin, with such financial security can likely be convinced to keep it all private. She has so far.  If it was truly all about vengeance, it seems she would have gone public by now.  So, good for each of them.  For working on it privately and for possibly resolving such a large division of assets rather quickly, efficiently and secretly.

In recent years, unemployment and interest rates have skyrocketed while the stock market and the economy have plummeted. Domestic relations litigation and its importance to the involved families, however, have remained constant. But, the current economic climate has certainly impacted the family law field in several distinct ways.

For instance, because the values of many 401(k) and other retirement plans have diminished significantly, there is often much less asset division between divorcing parties. Couples who have been aggressively saving for their future can be left with very little after years of retirement contributions. This situation presents a timing dilemma in some cases; parties often consider “waiting out” the bad economy to divorce at a time when the marital assets are worth more. Obviously, that can cause a host of other problems, especially if the parties are not being amicable towards one another.

Some parties have been so impacted by the downturn that they feel like they cannot afford family law attorneys at all. This has led to many more cases being filed pro se. Pro se litigants often run into problems when their spouse or former spouse hires an attorney who knows the system and who can exploit the relative lack of knowledge of the pro se litigant. So, the decision to save money on an attorney needs to be carefully made and balanced against the important interests that are involved in the lawsuit at hand.

Another area that has been greatly affected by the economy is the judiciary. For instance, not only has the Georgia legislature put a moratorium on the creation of new judgeships in the state, but it has actually allocated even less resources to the judicial branch as a part of state-wide budget reductions. This has led to great backlogs of cases in many counties, and has thus delayed many family law cases from being heard in a timely fashion.

These are just a sampling of the many issues facing families who are going through or contemplating a domestic relations action. At the very least, these issues should highlight the need for careful consideration and the benefit of effective and efficient legal counsel.