Take a Good Deal When You Can!

If the attorneys in a divorce are doing their jobs, a lot of things should go smoothly. Child support follows a guideline set by each state. It is very easy to determine the amount that is due. The attorneys should tell their clients the amount and should either have one party start paying it on his or her own or should create an order and file it with the court. Litigation is not necessary for guideline amounts of child support.

If reasonable questions arise about some of the offsets or deductions that go into the child support calculation, the attorneys should work out a compromise. Again, litigation should not be necessary.

Sometimes, attorneys will make a good offer to save litigation costs and the other party refuses to take it, many times against the advice of his or her own attorney.

Why? Anger? Distrust of the other side? Some vague feeling that he or she simply should not have to pay any money to the other side because of fighting during the marriage?

Here’s the news: it doesn’t matter what the person’s feelings or reasons are. A bad choice is being made and if that person goes to court, they will end up paying the full amount and legal fees.

A lot of family law is a given. You hire an attorney to make sure you get credit for everything that you should get credit for, much like hiring a tax accountant to get you your deductions on your tax return. Very few people decide that they won’t pay their taxes because they are too high and that they will instead take their complaint to the federal district court. The few who have done this have lost every time and ended up paying fines and late fees.

Discuss offers from the other side like you would discuss tax planning or any other economic decision that you make in your life. Dispassionate financial planning is one of the keys to happiness in life.

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Why are the laws so complicated?

I am often told by people that the laws are complicated. They mean, of course, that it is too complicated to do even the simplest things. A no-fault divorce with no assets, for example, still has a confusing number of procedures. The other party has to be served with a “Notice of Intention to Request Entry of Divorce Decree,” with a counter-affidavit, followed twenty days after successful service with a “Praecipe to Transmit the Record.”

There are worse examples. In a divorce with assets, an Inventory, a Pre-Trial Statement, and some motions are required, but discovery deadlines are in there, too. Confusing, except to a lawyer, well, even to lawyers.

There are two main reasons for these rules. Neither of these reasons involves confusing everyone. The first one is the need to guarantee that the other side has been informed of the rights that are at stake and has had several chances to do something about it.

The second reason for these rules is simplicity for the court. Courts are usually overburdened with cases. So the court staff needs to be able to quickly determine if everything has been done properly. They need a quick and easy rule to go by. They look at dates to determine whether deadlines have been followed, they double check to make sure people have been served. If the judge has to do that, the court system would freeze up. So instead, we have black letter rules and they get complicated because of reason number one.

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Depression & Divorce, Part 2

What should family law lawyers do when a client is having trouble dealing with the emotional trauma of a divorce? Is there anything that an attorney do to help?

Attorneys are in a difficult position in family law. Few who do not carry the weight of a lawyer’s responsibilities can understand the issues involved.

An attorney is not exactly a friend. Maintaining emotional distance is crucial to the practice of law. If you get too close to the issues you cannot give well-reasoned and dispassionate advice. Emotions affect your judgments. Emotions are reactions that tell you the kinds of thoughts you should have regarding a situation. Attorneys who get too close to the situation begin thinking like the client thinks, and that destroys the very thing that the client needs – a neutral perspective.

An attorney is not a therapist, either. Not exactly. Legal training does not prepare one to delve into the psyche of a client and sort out the psychological issues. Not only would doing this make the attorney more emotionally connected to the client, but it would confuse the client.

But after writing all this, I still claim that family law is a type of therapy. It is short-term, goal oriented therapy that focuses the client on more than just the law. It focuses the client on the future beyond the case.

The only way to do this is to adopt an attitude of care that helps the client sort the emotions that he or she is feeling and put them in perspective. The law is that perspective because it dictates what is and is not reasonable to expect. It also sets the boundaries between the newly divorced and, if children are involved, it sets out the rules for being two separate families.

With these rules and boundaries set out more or less clearly, the newly divorced can get on with their lives, confident is their expectations.

To make this happen, the attorney must not only make the law clear to the client, the attorney must also look for the emotions that get in the way of the client respecting and taking advantage of the law.

We see it over and over. After only a few cases, a family law attorney should be able to warn the client about the feelings he or she has and how those feelings will effect the case. Clients who are still listening to a manipulative spouse because of the terror that sudden loneliness causes is on the road to destruction. So are clients who cannot set up a plan for the future such as finding a good place to live when a house needs to be sold.

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Depression & Divorce, Part One

Of all the emotions felt during divorce, depression is one of the worst. I don’t mean it’s the worst mentally or spiritually. I mean the worst on all levels, because it takes one away from the task at hand.

Sadly, the task at hand is only a short term task. Anyone can get through it with the right plan.

Divorcing is a process that involves many levels of change. Finances change, suddenly you don’t have money to spend or the security of the retirement benefits that you had when you were married.

Your personal life is destroyed. Many times half of the social network that you had during marriage disappears. It’s alienation, disconnection, disorientation. Who can you count on? Who is there for you? Where do you turn to for help?

Even more difficult is the change to your parenting. The breadwinner now has to invent him or herself. During the marriage, the other spouse, earning less, often put more time in taking care of the children, and the breadwinner could swoop in after work and have fun with the kids without the hassles.

Now the children have to be taken care of, but the importance of the breadwinner’s career is even more important to those children who now face a future with two separate households spending double the money than before. Where will the breadwinner find the time to spend with the children now, with work and caring for the children’s needs suddenly taking up so much time?

Depression destroys one’s ability to face these issues head on. A depressed person cannot formulate a plan or follow through on a plan for dealing with these issues.

Depression takes away one’s ability to make new friends, to seek out support from those who might be able to give it.

The energy for career and for children’s needs seems to be yanked out of one.

Getting through these issues is the all important goal. Coming up with a plan that will make it through the depression is the key. My next posts will deal with this from the perspective of the lawyer.

We lawyers need to spend just a little time in a role that goes beyond the legal issues and reaches to the divorcing client’s attitude toward the law and the facts of his or her case. We can help our clients get the right perspective.

But ultimately the person who is divorcing will have to decide how he or she will respond and react to the situation.

Empowering people to do so will be the focus of this blog.

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Pennsylvania on the road to gay marriage…

Pennsylvania is now going to be recognizing gay marriages. A Federal judge – appointed by “W” of all people – declared that PA’s law banning gay marriages be relegated to the ash bin of history. I guess it was going to happen sooner or later, but PA seemed so dedicated to its ancient ways that I am still surprised. Click here for the article.

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The most important thing in custody…

Custody question: what is the most important thing to do if you want primary custody of your children?

Answer: Take care of all their little needs each day. Pick them up at school, drop them off at soccer practice, buy their clothes.

Daily care is the single most important thing for the children, and therefore in the eyes of the court.

When daily care develops into a strong, friendly relationship, the children are better off and your importance in their lives, every day, cannot be doubted.

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Custody Battles with a Horrible Added Twist…

If custody battles can get ugly, custody battles where one parent with ties to another country and runs away with the children can be even worse. It isn’t just in America. Here is an article that appeared last month in the Ottawa Citizen.

Countries that signed onto the Hague Convention on International Child Abduction supposedly will return children who have been unlawfully removed to within their borders, but it is a complicated process.

If the country has not signed on, no set process exists and so it can be even more difficult. Read the article here.

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Supreme Court defines domestic violence broadly, upholds denial of guns

The U.S. Supreme Court has recently handed down a decision that strengthens the laws against domestic violence by giving a broad definition to the word “violence.” A Tennessee resident named Castleman pleaded guilty to a misdemeanor domestic violence offense. The charge did not require any kind of physical force.

The federal authorities sought to deny Castleman the right to bear arms under the federal state found at 18 U.S.C. section 922(g)(9), which denies such right to anyone convicted of “misdemeanor crime of domestic violence.” As every lawyer knows, justice requires that the definitions of one statutory scheme must be compared to, or synchronized with, the definitions of any related statutory scheme.

In this case, Castleman raised an issue with the definitions of violence found in the statute to which he pleaded guilty and the federal statute which was used to deny his gun rights. His argument was that the Tennessee statute includes all sorts of behaviors within its definition that are not physically violent. Therefore, one might conclude that the state definition is too broad to be used fairly under the federal statute. Or to put it another way, the federal definition of domestic violence should require some element of physical violence before denying anyone the right to bear arms.

The judges who heard this case were truly divided on the proper standard to use. The District Court trial judge held that “violent contact with the victim” was required. The majority of appeals judges for the Sixth Circuit held that the standard for physical force should be the same as for violent felonies under federal law. One dissenting justice argued for the broader definition found in the Tennessee statute.

Justice Sotomayor wrote for the majority. She interprets Congress’ intent based upon the common law definitions, and therefore decided that “force” in this case should be interpreted as “offensive touching.”

This is a much broader definition and covers many more behaviors, which Sotomayor suggested would not be considered violence in a non-domestic setting. She defined the term violence as “a substantial degree of force,”  and domestic violence as “a term of art encompassing acts that one might not characterize as ‘violent’ in the nondomestic context.”

She goes on to include in the definition hitting, slapping, shoving, grabbing an arm so hard as to cause a bruise, and other physical acts, non of which alone would be given a second thought but that, over time, add up to domestic violence. This definition is an attempt to define domestic violence according to findings of the social sciences on this topic.

Justice Scalia concurred, meaning he agreed with the decision of the majority but for his own reasons. He argued that federal cases had rejected the common law definition of battery but that Tennessee’s definition of misdemeanor domestic violence still fit the federal definition. Pointing to the definition of physical force that Sotomayor rejected, Scalia pointed out that under federal law, the physical force definition was a felony and that the federal government specified misdemeanor domestic violence. Under Johnson, misdemeanor violence would be “force capable of causing physical pain or injury, serious or otherwise.” So by Scalia’s standard, Castleman was still guilty. But Scalia’s standard was narrower than the majority’s definition, which used the phrase, “term of art” to define domestic violence.

The majority’s definition can include any behaviors that would not be violence except in the domestic setting. It seems to be discretionary under this definition as to what adds up to domestic violence. Scalia’s definition sets out a clearer rule of law. However, either way, this decision clearly moves the country towards better protections for the victims of domestic violence.

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Tough decision in Rutherford child custody case

A judge’s ruling sends two American children to France to live with their father in the Rutherford child custrody case. This case shows how difficult it is to make a decision as to the best interests of the children in a child custody case. Although this article is highly critical of the judge’s decision, the judge’s reasoning is typical of child custody cases where the custodial parent and noncustodial parent live far apart. The judge here ruled as she did based upon several key factors. First, she seemed to feel that the mother and father had been raising the children in both the American and European cultures, so the children would fit in in either country. Second, the mother tipped off the feds about the father’s shady business dealings to get him deported, thus showing a hostile attitude towards the father’s parental rights. Finally, mother commutes between NYC and LA, so the children were not being pulled out of a stable social situation and would not miss friends and teachers. She decided to send the children to France where they would go to school and mother could visit. This would give the parents as close to 50-50 time as possible.

The judge clearly focused on the facts that she found most compelling, such as the fact that father could not visit his children in America, but mother could visit them in France. This is important because both parents are important to a child. Fathers play just as important a role in a child’s life as mothers.

But as the article points out, this father has questionable business dealings. No one knows exactly what they are except him, but they got him deported. Is this the kind of father who will play an important role in his children’s lives? He would not even testify as to what his business dealings are. This is the one of the most important facts that has everyone questioning the judge.

Another important question is whether pulling children out of their native culture and language is really in their best interests. Why not send them to father over the summer vacation and several holidays such as Christmans-New Year’s every year? Wouldn’t that equalize parenting time? I myself find it hard to believe that such a radical change in life style would be in the children’s best interersts, even if they were introduced to the culture by the parents in the past.

This case is a perfect one for discussion of child custody issues. It has all of the big questions.


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The New Limits on Abortion

One state after another has been passing legislation banning abortions some time at or near twenty weeks. Arkansas went so far as to place the limit at twelve weeks, only to see the law struck down in federal district court. But twenty week bans may be acceptable.

This article, entitled “Neurodevelopmental Changes of Fetal Pain,” reviews the debate on the subject and the difficulty in even defining pain at the fetal level: Click here for the article.

The Royal College of Obstetricians and Gynaecologists’ 2010 report on fetal awareness of pain sets a high level of development for fetal sensation of pain. The purpose of the report was to determine if analgesia should be used in surgeries performed on the fetus. Its conclusion is that pain can be felt by a fetus at around 24 weeks. The conclusions states:

From the clinical perspective, there is increasing awareness of the complex nature of the fetal response to stimuli in utero and a better understanding of the nature and circumstances of the stress response, including the likelihood of any short or long term consequences. These issues become particularly relevant when placed in the context of the normal processes involved in vaginal, or indeed caesarean, birth. Infants born vaginally demonstrate a chemical response to the birth processes that can be characterised as a stress response. This response can be provoked by a number of non-painful stimuli, such as hypoxia, but it is not clear that the response is merely that, rather than a physiological preparation for extra uterine life.

They go on to write that “this more recent review has concluded that the evidence that the fetus can and does experience pain is less compelling and accordingly the benefit of administering analgesia is less evident, while the risks and practicalities of so doing remain.” They then conclude that “analgesia is no longer considered necessary, from the perspective of fetal pain or awareness.” Click here for the report.

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