Divorce Lawyer

This was my 2013 post for LinkedIn Influencers (posted in December):

Welcome 2013. While the years roll by quickly, laws are often slow to catch up to the times. Legislatures move slowly, politicians worry about how their votes on new laws will affect their chances for reelection. And judges have much incentive to take the safe road, follow the rules and laws that have been around forever and to be sure they are themselves upheld on appeal. To accept a novel argument or interpretation of the law opens a judge up to much scrutiny and criticism. But there remains so much room for improvement in the area of family law. Not just to our laws, but within our profession as well. We need increased civility between lawyers and between parties. We need better education about the process and the tools available to achieve resolution. And we need better, more modern laws, to handle the new realities of our society.

On a national and state by state basis we must address how to help same sex couples dissolve their relationships in a civil manner. If they are not allowed to marry, perhaps they should still be allowed to divorce? Otherwise they will still end their relationships, but the process will continue to be confusing, frustrating and sometimes violent. When human beings have no recourse under the law, they engage in self help (sometimes called vigilante justice). Why not permit these tax paying and law abiding citizens to use our court system to resolve their disputes like other citizens? Wether you approve of same sex relationships or not, they exist and prohibiting same sex marriage, or same sex divorce, does not and will not stop same sex relationships. Instead, it helps avoid land disputes, child custody disputes, title disputes and many other problems that ultimately cause all of us money since our tax dollars pay for courts, policemen and other services that are needed when disputes get out of hand. Courts, when permitted to help members of society, for instance in same sex divorces, will reduce cost, tension and resources across the board and thereby help all taxpayers.

So what about DOMA (Defense of Marriage Act)? Will it fall this year? It seems inevitable. The federal government which has historically left family law matters to the states, stepped deep into family law when it approved DOMA. It seems the current trend is to to see DOMA as overreaching. I believe DOMA will be undone (by the courts, since a majority of legislators will likely never vote to do something that implies that they approve of gay marriage).

And international custody issues including abductions, denial of visitation rights and even simple communication via new technology should be reviewed. We all remember the Sean Goldman custody case in Brazil. There are so many cases like his that are not reported in our press. Kids get taken from (or to) the U.S. and are never returned. Even in countries that have signed the relevant Hague Treaties, it is often difficult to get a child back. And in others such as Japan, it is nearly impossible. We need to work on this in 2013.

But again, civility. Handling our family matters in a civil and peaceful way is a must. It all starts with family. And we as lawyers must do our part. Yes family matters such as divorce and custody disputes fall into our adversarial system of justice. And for some disputes, it must be so. But so many family disputes can be resolved amicably if we just let emotions subside. If we pause and think about how we want our children to know we handled our differences. Wouldn’t we all be prouder if family law disputes were resolved by the parties involved and not by lawyers and judges who had never known the family when they got along? Alternative Dispute Resolution (ADR) has played an increasing role in family law. Be it mediation, arbitration, late case evaluation or collaborative law, there are many more options in 2013 than there were in 2003 or in 1993. Let’s take advantage of these resources, and lets all, lawyers, judges, mediators, expert witnesses, psychologists and parties, pledge to work amicably. Court decided resolution is never as good as a result agreed to by the people involved. And that can best be accomplished if we act civilly. Especially us lawyers. We do not have to continue seeing the other side after the dispute is resolved. But our clients do. They will go to their kids’ weddings and other events together. Lets commit to doing our best to ensure that these future events and life itself, will be better and easier for our clients because of the efforts we undertake. That’s my commitment for 2013. I look forward to a positive year of helping people and doing my best to ease their burdens and not to increase them.

I have again been fortunate to have been invited to address the Hawaii State Bar Family Law Section as their keynote speaker this Friday.  I have worked very hard on my 3 hour, yes 3 hour presentation.  But this time it’s different.  I will not be speaking about the rules of evidence, or recent caselaw.  Rather, I will discuss how to practice with a passion.  I am lucky to be passionate about what I do.  The rewards are not immediate, but I know I am doing my best to help people, and any lawyer who practices family law should feel that way, IMHO (in my humble opinion) as the young texters say.  This program will cover not only practicing with a passion, but how your passion can help your practice and your life.  And how it can lead to better time management and in fact, the creation of time.  If we can create time by how we practice, we can spend more time focusing on what’s important. Things like our family, our colleagues, and even the big picture of our cases, instead of drowning in the details.  This idea is a work in progress for all of us, but I hope to help the lawyers who attend.  I am nervous and excited.  I hope I merit the invitation.

I am looking forward to this opportunity and already know that I have learned so much, just in thinking about what to say.  Teaching is always a great learning experience.

The New York Times recently ran a story on “Divorce Hotels”.  It’s not such a strange concept.  Click here for the NY Times story. A divorcing coupe stays at the same hotel to ensure the process moves forward. No delays. Lawyers there focus on that case. Paying attention to a case often helps “get ‘er done”.

Is this the wave of the future? Probably not.  Is there a place for it? Maybe.  The real bottom line is that once people are ready, emotionally and with all of the facts (an understanding of all finances/incomes/property values, etc.), divorcing parties should get together, be it for mediation or a settlement conference, or even a weekend at the “divorce hotel”, and they should not stop trying to reach resolution until it is done.  The alternative, trial, is expensive, costly and very, very imperfect.  Keeping hold of your own desitiny is vital.  Mediation, and maybe even the “divorce hotel” offers an opportunity to do that.

The 30th annual Georgia Bar, Family Law Institute is this week in Amelia Island, Florida. There are already over 500 people signed up. This is the final seminar for my year as Chair of the Family Law Section in Georgia and I must thank Kelly Miles for putting together such an outstanding program. Click here for the entire agenda.  The whole seminar is filled with Cutting Edge topics in Family Law, Hot Tips, case law update and a surprise speaker at the end.  There will be ample opportunity not only to learn, but to network and meet other family law attorneys whom you may have litigated against, or with andothers who you certainly will meet for work in the future.  Why not come to the program and try to meet them now, while you have no cases against them.  It will make it much easier to handle cases together if you develop that relationship independent of any client directives or litigation which may make for a rougher start to a relationship?

I look forward to seeing those of you who have signed up and those of you who still may.  Let’s learn and have fun together.

“SoBe”…South Beach in the Spring, what could be better? Please consider joining us April 18-21, 2012. After a very successful CLE program in Vegas this past October, we are on a “CLE roll”. The programs scheduled for Miami include:“How to Impress Judges: Analytical Steps to a Well Organized, Concise, and Engaging Trial”, “Social Networking for the Family Lawyer..” and “If you love me, put it in writing.”
And one more time, the location…the Eden Roc Hotel in South Beach, in the heart of Miami Beach, is old style Miami art deco, but fully renovated and hip. It’s a great place to learn and to mingle with family law attorneys from across the country. There will be family law discussed not only indoors, but pool side and at the beach. Isn’t that better than your conference room? I hope you will consider joining us for this fun filled educational meeting. See you in the sun!. – Randall M. Kessler

I was recently asked to comment for CNN (click here to see the video clip of my appearance on “Newsroom” with Don Lemon) about a new fad: Divorce Insurance. My first reaction, as I told Anchor Don Lemon, is that the best insurance against divorce is not getting married. Of course that was said “tongue in cheek”, but really, if you plan to get married and want to pay, monthly, for divorce insurance, it seems very strange if not counterproductive to the goal of a long-lasting marriage. Let’s explain it this way. If a couple, or even just one spouse is considering a divorce, AND they know the expenses of a divorce are already paid for by insurance, isn’t that just one more thing that facilitates them moving forward with divorce? It is almost like saying “hey, we paid the insurance, let’s collect on it”.

Prenuptial and postnuptial agreements can predetermine division of assets and alimony. Once those things are decided, only issues related to children remain. And how can you predict the cost of issues relating to children. There are so many variations on parenting time, decision making, travel expenses, etc. How can we insure against all such costs?

Yes, divorce insurance sounds like a nice, safe bet. Why not limit your exposure? But when you start to think about the concept, it unravels. For instance, if I want to be sure I have the best divorce lawyer, is there any guarantee that the best lawyer will accept my insurance company (since insurance companies typically pay reduced rates to lawyers)? And what about a wealthy spouse who can afford a good lawyer and then, when the other spouse says “well, I need a good lawyer too”, the court’s reply may be “You have insurance so use that”?

I am all about prevention, but smart, effective prevention. To me, that is a prenuptial agreement. A prenuptial, or post nuptial agreement forces a party to think about all of the possibilities specifically. It is unclear to me how divorce insurance can address evrything, but if it makes someone more comfortable getting married, then perhaps it is not that bad. But for the best protection, I would suggest a consultation regarding a prenuptial agreement (which of course must be prepared and reviewed by an attorney in the proper jurisdiction, and I am certainly offering advice since prebuptial agreement laws vary from state to state). And besides, isn’t it nice flying without a safety net sometimes? Yes, I am a divorce lawyer saying that. Perhaps the thrill of a good marriage is that each spouse is voluntarily continuing to commit without fear of consequence. But if that thrill has been spoiled once by a bad divorce, then perhaps a prenup is right for round two.

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.