family law

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.

In just over a week, the American Bar Association holds it’s annual meeting. This year it will be held in San Francisco. It is a time for leaders in all legal areas to come together, share ideas and learn from each other.

At the meeting, I will have the good fortune of being sworn in as the Chair Elect of the Family Law Section of the American Bar Association. It will truly be a privilege to serve. I have been fortunate to have had some wonderful mentors during my career, and each, without fail, have encouraged bar participation. In 1997 I served as Chair of the Family Law Section of the Atlanta Bar Association and I also will soon serve as Chair of the Family Law Section of the Georgia Bar Association.

While some may think this takes away from my practice of law, the opposite is true. My practice, including every member of our firm benefits from the leadership roles and active participation in which I, my partners and our associates engage.

Attending scores of legal education seminars each year and maintaining relationships with the finest lawyers and judges in the country keeps us all on the cutting edge. If there is a new idea, trend or significant case, we are giving ourselves every opportunity to learn about it first.

While in San Francisco, I fully intend to take advantage of everything the ABA has to offer. From Hot Tips in Family Law, to programs on presentation techniques for the courtroom, I plan to soak in as much as I can. The nice thing is, most of the other lawyers there too are similarly motivated and that is exciting. I look forward to learning from my peers and returning to Atlanta with at least a few pearls of wisdom, learned, borrowed or stolen from some of the best legal minds our country has to offer.

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.

What an example of how different homelife can be from someone’s public personna. The things said on the tapes are despicable and certainly will change many people’s opinion of Mel Gibson. But how it will affect his likely visitation dispute is unknown. Clearly most judges will believe anger management and other counseling is needed. And an expert psychological opinion may be needed before the judge or the mother agree to Mr. Gibson being alone with the child. But there is likely much more to the story. Without being an apologist for Mr. Gibson, other facts, once known, may change our opinion again. Perhaps he was so drunk that he couldn’t even stand up? If so, then he may still be disliked for what he said, but he may then seem less of a physical threat if he has never acted like this when sober or when physically capable of inflicting harm.

The point is, no one really knows anyone else, if their only information comes from the media, or even if it is just from public, social observation. One thing is clear, especially to me as a family law attorney: abusive behavior is certainly not limited to the poor or uneducated. Human traits are specific to humans, all humans. And each situation should only be judged after all the facts are known. Unfortunately, our court systems are overwhelmed and sometimes the full story isn’t told. But a thoughtful, careful review of all the facts is important, even if, as may potentially be the case for Mel Gibson, they ultimately all lead to the same conclusion.

The most telling fact for me, in this situation, is that Mr. Gibson had his second chance. His previous racist comments became public, and he was given a second chance. But it seems, if these tapes are indeed of him and not “doctored” in any way, that he truly has some tough issues to tackle. All anyone can hope is that he acknowledges them and does whatever it takes to overcome them. America loves a comeback, but this one may take some time.

[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.

“You mean she can divorce me without proving I did anything wrong, just like that?”

It seems that, as a family lawyer, I have heard this lamentation many times. People facing an unwanted divorce often profess shock at the fact that, in this state, a divorce may be granted although they did not cheat on, abuse or otherwise grossly fail as a spouse.

It was not always so–prior to 1973 in Georgia, a divorce was only granted if fault grounds were proven. In other words, someone had to have cheated on, or abused their spouse, or become alcoholic or insane. This led, inevitably, to unhappy couples falsifying grounds to get the divorce they wanted.

On the other hand, since uncontested divorce was made available, divorce rates have climbed. Some have responded to this by reintroducing fault as a necessary element in divorce through covenant marriage–in essence, a couple agrees prior to marriage to divorce only when there is fault. This is authorized by law in several states: Louisiana, Arkansas and Arizona. I understand that around 2% of couples marrying in those jurisdictions choose this course.

Covenant marriage is not available in Georgia.

So my question to you is: if you were getting married and had the option to be bound together unless there was fault, would you chose to do so?

Last week in Baltimore, MD, the University of Baltimore Law School and the ABA Family Law Section co-hosted a very special event, The Families Matter Symposium.   The “Families Matter” idea is a platform of three consecutive Chairs of the ABA Family Law Section with the goal of reducing the negative consequences of Family Law on families, and most importantly children.  65 experts from across the country convened, at their own cost, to explore and share ideas on how to achieve this goal.  There were large working groups which broke into small working groups and then reported back to the whole group over the two full days of the Symposium.   There were judges, psychologists, financial experts and lawyers, all working together.  Former Georgia Supreme Court Chief Justice Leah Sears was a featured speaker as was Maryland Supreme Court Chief Judge Bell.

While the program was a great start, it was only that, a start.  There were great ideas that will take a lot of effort and time to implement.  There was a consensus that it is impossible to create a flow chart for a family law case that would work perfectly. Every case is different.  But there was agreement on many needed changes to the family law system.  The concept of “triage”, immediately figuring out what a case needs and prioritizing situations based on different priorities (violence, kids needs, foreclosure?) was considered.  “Early case intervention” was another popular (and similar) thought.  Another discussion focused on law school preparation (and encouragement) of students to practice in this area.   

So what are the next steps?  One step is a comprehensive CLE Program which will be worked into the ABA Family Law Section’s next Spring CLE seminar. Beyond that we must figure out how to assimilate these and other great ideas into the general practice of family law. Judge and lawyer training and specialization? More frank discussions between the bench and bar (and mental health experts)?  Family law is becoming more, not less complex.  Relocation issues, gay marriage issues, international custody issues are all on the rise.  Without consistently taking the time to study and try to improve our family law system, we do a disservice to our community.  

Kudos to all those (and there are so, so many) that take the time and effort to work to better our system.  Our superior court judges and their staffs, the many governmental agencies that are overburdened, and the legal and mental health practitioners who see the problems daily are all doing their part.  The question is what else can we do.  Certainly we all agree more needs to be done.  So let’s keep exploring what can be done, and of course, lets do as much as we all can.

Please visit the blog maintained by the Center for Families, Children & the Courts: http://ub-cfcc.blogspot.com/