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.
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.
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.
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.
A Georgia Public Broadcasting article suggests birth rates and divorce rates are down in this poor economy. 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?
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.
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.
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.
What a time for the annual ABA meeting to be in San Francisco. I land in 20 minutes and it already feels like there is a buzz in the air. The plane is filled with Georgia lawyers all headed to various ABA meetings for different areas of the law.
But it is in San Francisco and same sex marriage has just been judicially approved with the striking down of Prop 8. I look forward to the feel of legal interest and discussion throughout the city. And I imagine that our group, the Family Law Section will be discussing it ad nauseum. I look forward to seeing what my peers have to say, especially those from California.
I hope I always feel this same sense of excitement about the law and our legal system. By no means is it perfect. But unless good men and women continue to debate, discuss and challenge our laws, the system would stagnate and eventually fail.
I am proud to be a lawyer and a member of the ABA. I look forward to learning and sharing over these next few days.
