Getta’ loada’ THIS guy!

D-moneyI rarely do this, but – you think your ex (or soon-to-be-ex) is a jerk?  Getta’ loada’ THIS guy!

Mr. and Mrs.  “Michaels” were married while Mr. Michaels was finishing his education at a prominent New York law school.  Mrs. Michaels worked two jobs so they could afford a decent place to live while her husband started his own litigation firm and built a clientele.  After about 10 years of marriage, a decent nest egg accumulated, and a respectable law practice in full-swing, they moved to the suburbs and had a baby.  Mr. Michaels kept working, but moved his practice to the town where they lived.  Mrs. Michaels made child-rearing and house maintenance her new career.

Shortly after their son graduated high school, his father announced that he wanted a divorce.  He told his wife that if she cooperated with him, he would “always take care of her,” so she cooperated.  They sold the marital residence, and split the profit without her ever seeking any legal advice on her own.  She moved into a small apartment and put the rest of her share into a savings account, waiting for her husband to give her half of their retirement accounts and savings.

She took a job working in retail to make ends meet, because he never gave her any money at all and she needed to pay her rent.  When she would ask him about alimony for rent payments he would tell her that since they were still married he could not pay her alimony.  She should just pay her own bills to the best of her ability and he would pay her back once he settled their accounts.

18 months after they separated, Mr. Michaels called his wife and told her that they were “automatically divorced” by the laws of the state because they had been living apart for 18 months.  He further told her that there was no money left in their accounts, he had spent it all on his own needs, and furthermore she was making more than he was on their tax returns, so he would be looking for alimony from her.

I am not making this up. A bright articulate woman in her 50s walked into my office and asked me whether she was automatically divorced, what had happened to all of their money, and whether she would be responsible to pay her ex-husband-the-lawyer alimony from her minimum wage job. The answers are:  there is no such thing as an automatic divorce, I did not know where the money went but I was about to do my best to find out, and the circumstances would have to be pretty extreme for her to have to pay him alimony.

Here is what we found out.  He declares income of about $500 per week, and rent of $750 per week.  His restaurant charges alone are more than $500 per week.  He just doesn’t report any of it as income.  He has no credit cards or other debts, purchased a new motorcycle for himself over the summer, and goes on monthly vacations out of state.

Last time we went to court he told the judge that he could not defend himself against my motion for alimony because he is “indigent” and could not afford an attorney.  The judge looked as if she was about to give him some time to hire a lawyer when I interrupted. “Excuse me you honor, but the Plaintiff himself is an attorney,” I told her.  The courtroom full of people gasped and chuckled at his audacity, and we were given our hearing.

The fact that this woman wants to trust her husband is one thing.  He is a lawyer and she has spent almost 30 years trusting him.  But as soon as she began to understand that he is lying to her, and apparently trying to defraud the court and the IRS into the bargain, she was smart to get her own legal counsel.    There is an old saying, “Trust, but verify.”  It is okay to believe what people tell you, but there is no harm in making sure it is true, and a good lawyer is just the person to verify when things look sketchy.

WHAT WE LOVE:  Divorces have an objective discernible truth, and given the opportunity to look for it most judges will find it.

Advertisements

What is Discovery and when is it necessary?

DiscoveryMost of my divorce practice is uncontested and amicable.  I help two consenting adults conduct the equivalent of a business transaction, so that both can move on with their lives and keep as much of their assets and dignity intact as possible.   In many of these cases the couple knows their own and each other’s financial situation.  They have a comfortable familiarity with who earns how much and where the money goes after it is earned.   They can both recite with confidence and accuracy the couple’s earning ability and expenses. Sometimes these are people with two jobs (or more); they might have debts or no debts; they might have one job, one mortgage; or several mortgages and a looming foreclosure.  The financial situation is not what dictates who knows what about their finances.  The people themselves are what determine their level of knowledge.

Spouses who go into a divorce with eyes wide open and all financial information already on the table are more comfortable negotiating with each other and mapping their individual futures.

But let’s face it between day-jobs, taking care of kids, and getting to and from work/school/chores/errands, there isn’t always time to stop and analyze your financial situation.  And, when times are tough and you’re trying to save your marriage, it might feel like it makes more sense to “forget it all,” and have a nice dinner date in a restaurant than to stay home and see if you can balance the checkbook.

It is perfectly human and understandable to get to the moment of meeting your divorce attorney and realizing that you cannot answer simple questions like, “How much debt do the two of you have?”  “How much equity is in your house?”  “If you were to move out, how much rent could you afford to pay?”

Luckily, there is a legal process available for those people who want to reach a fair agreement, but don’t feel well informed about the family money.  This process is called “Discovery.”

Discovery can be the undoing of an amicable divorce, or a useful tool in getting to the bottom line.  If both parties cooperate fully, they just bring all of their bank statements, credit and debit cards, retirement accounts, pay stubs, tax returns and mortgages to the table, giving each other, the mediator, the lawyers, or any financial advisors free reign.  It is then a somewhat black and white picture of who can afford how much and when.

Reluctant parties however, may find themselves faced with having to answer questions, called “Interrogatories” about their spending habits, such as when and where they shop, when and where they eat, when and where they vacation, and with whom, names and addresses of employers, bosses, business associates, and friends. They may also be ordered to hand over every pertinent document (“Requests for Production”) including credit card records, phone records, medical records, bank statements, contracts, stock options, golf club by-laws, family Wills and Trust documents and more.

Finally, and maybe the most invasive form of Discovery is the “Deposition,” in which a lawyer interrogates a witness (who might be one of the divorcing parties, or any of their friends, family, employers, work associates, or anyone else reasonably likely to know about the couple’s situation) in front of a court stenographer who captures every word the witness says and creates a written manuscript of the entire proceeding.

The more time lawyers spend seeking Discovery, the more money it costs the parties.  This might cause people to want to skip Discovery and get right to the negotiations.  But a divorce agreement written without a full and truthful accounting of all finances can end up costing everyone much more in the end.

What We Love:  Divorce is one of the few types of law in which the parties themselves can help control their legal bills just by being forthcoming with their own information.

– Sharon Oberst DeFala

When Lawyers Can’t Agree..

courthouse

One of my favorite trips to court is on a busy family docket day.  One reason is that it is fun, is I get to run into so many lawyers that I happen to know from the area, all dressed-up and looking clean and smelling nice.  Most lawyers are on their best behavior in a courthouse.  There are usually lots of smiles and handshakes all around.  No hard feelings, we are all colleagues when we stand in front of the bench – the great equalizer.  Another reason is that it can serve as a reminder to me and to my clients of how truly different their path to divorce is from many of the other cases we see around us.

I was asked to help out on a case recently. The lead attorney was on vacation, and my job was to go to court, meet opposing counsel, and pick a date for the next hearing.  I reviewed the file. There had been a hearing scheduled in mid-May, but our client would not be able to attend, because he was scheduled for spinal surgery the same day.  We had a doctor’s note in the file advising the client that he should expect to be incapacitated for 6 weeks following the surgery.

No judge is likely to order a hearing while a client is recovering from surgery. So, I knew that the continuance would be granted. It was just a question of comparing calendars with the opposing attorney and finding a mutually agreeable date.  Since the lawyer would not return my phone calls, and did not respond to a letter I sent looking for his dates, I figured he was just busy, and that we would be able to talk in the hallway at the courthouse.

The day of our hearing arrived. I went to court, saw all my lawyer friends, and found the attorney I needed, we can call him Attorney Ferdinand.  I showed him the letter, and asked if he would be available the first week of July.  To my shock, he responded by offering me two weeks – the beginning of June.  I pointed at the words on the page, thinking he might have missed them, 6 weeks, I showed him.  My client will be ready in 6 weeks.

“No,” Attorney Ferdinand said, “he just can’t work for 6 weeks. He can come to court.”

“Really?” I asked.  “What kind of work does the client do?”

“I don’t know,” he admitted.  “But if it is laparoscopic surgery…”

I looked at the paper again, wondering where it said laparoscopic.  I did not see any description of the type of surgery.  I asked Attorney Ferdinand to point it out to me.

“Oh, I don’t know what type of surgery it is, but if it were laparoscopic…”

So, to my shock, we wound up having to wait in the courthouse another 30 minutes until a judge could see us.  We stood before the Judge, who granted our continuance and told us to meet with the clerk to get a date.

Another hour passed before the clerk was able to meet with us.  He took one look at the doctor’s note, looked at the court’s busy docket, and gave us the date of September 15th.  Not the two weeks Attorney Ferdinand wanted, not the 6 weeks I had expected, but 5 months.  Plenty of time for my client to heal. . .   and for Attorney Ferdinand to cool his own heels.

So, the family savings got depleted by $1000 and instead of the 6 weeks both clients could live with, his client had to wait an additional 3 and a half months.

Well, not really. I wrote a letter that afternoon making a reasonable suggestion to my client.  He showed it to his wife. She told her lawyer to agree to it rather than wait 5 months, and the hearing never happened.

I will never really know Attorney Ferdinand’s motivation that day, but I do not think that his client benefitted from him taking such a hard line.

What We Love:  Sometimes lawyers (or their clients) make no sense, but the court frequently gets it right, anyway.

– Sharon Oberst DeFala

Don’t Let Divorce Define You

NoFaultYesterday, once again, I left the courthouse beaming with pride at what my clients have accomplished.  We sat in the courtroom most of the morning waiting until the judge could take our uncontested divorce action.  We waited through status conferences in which people fought over what date they would exchange financial information.  We sat through case management updates in which lawyers bickered with each other over how much information was necessary, and when the confidentiality agreements would be signed.

Not my clients.  They were in court on the day that their mandatory waiting period expired, and they were there with a generous and humane agreement.  The Judge was so shocked by how well my clients got along, and the civil nature of their agreement that he said this to the husband, “I have been on the bench for 40 years, and I have never seen anything like this before.”

We happen to live in a “No Fault” state, which means that there is an absolute right to divorce, and no one has to allege, or prove, the grounds for the divorce.  There are states in which a judge is not supposed to approve a divorce until one of the spouses proves that the other did something egregious – abandonment, mental cruelty, and adultery are common allegations in those matters.  There is a higher tendency for long-term damage between the parties after one accuses the other of such behaviors, especially in a court of law.  The No Fault divorce is couched in terms of “irretrievable breakdown,” a nice, passive voice concept in which no one is to blame.

The point of a No Fault divorce is to grant every person the absolute right to get a divorce.  If there is an issue of abandonment, or infidelity, or abuse, it might be too embarrassing for the innocent spouse to tell anyone about it.  By making reason and fault irrelevant, people are free to assume it was something as simple as having grown apart.

Being anchored to each other by an unwieldy housing market, my clients are among so many of the recently divorced who need to continue co-habiting as roommates post-divorce.  They understand that they will be housemates for the foreseeable future.  We worked for a lot of hours together to envision how that could work while still also giving each of them their unique and separate lives.

The agreement was tricky to create and painstaking to write.  I knew a judge would not be comfortable signing something so unusual.  I wanted it to be accurate to their lives, reliable as a road map for the future and supportable under the laws of our state.

I felt confident that I had accomplished all of these goals when the judge sat reading it, looked up from the bench, and began by commenting that plenty of people who stay married do not get along as well.  Finally, despite the state’s intentional disinterest in the answer, the judge looked at the wife on the witness stand and asked her point-blank, “Why are you getting divorced?”

She simply explained that they no longer function as a couple, which satisfied the judge.  He granted their divorce, and wished them both the best of luck.  Personally, I feel like this is a couple that makes their own luck.  I hope that someday a generous and balanced divorce agreement will be the norm, and not something that makes a judge stop and scratch his head.

What We Love:  Divorce does not need to define the parties. The parties need to define their divorce.

Getting to the Negotiation Table

negotiatingTwo lawyers stood before a judge and argued whether financial affidavits should be exchanged by the 15th or the 30th of October.   They stood in a crowded courtroom and with straight faces told the judge that they were too far apart to decide which date the documents should be complete.  Neither of them made a cogent argument as to why one date mattered more than the other.  Luckily, the judge was able to have a sense of perspective and split the difference between them.   This case was billed as one hour.  15 minutes to drive to court; 30 minutes to wait their turn; 15 minutes to say their piece, get a ruling, and walk out of the courthouse; and fifteen minutes to drive back to the office.  One hour of billing for each lawyer.

The next case was called.  One lawyer stood up and asked for sanctions against another attorney for refusing to return phone calls.  This was a 45 minute bill:  time to and from court, plus the 15 minutes in front of the judge.

On the next case, 5 lawyers stood up — one for the wife, two for the husband, an attorney for the children, and a guardian-ad-litem — all unable to reach consensus as to when they should have a settlement conference.  If they can’t even find their own way to the table, I shudder to think how much they will argue once the judge finally orders them to sit down together.  This case was probably 2 hours of billing per lawyer:  30 minutes of travel; 30 minutes waiting for everyone to get there; half hour of bickering before they saw the judge; and the half hour it took for each to get a turn to speak on the record.

Every time two attorneys stand up to argue a motion they are both billing the same family for their time.   So, if one attorney costs $350/per hour; two are $700 per hour. And if it takes one lawyer one hour to drive to court, ask the judge for a ruling and leave.  It takes two lawyers all of that time, plus the time arguing their points to the judge.  One hour can quickly become two.  So, what could have cost a family $350 now costs $1400.

And that doesn’t even include the cases in which there are attorneys for the minor children, guardians ad litem, and expert witnesses.

The clients who are paying these attorneys likely each think that it is the others who are being unreasonable, certainly not their own lawyers.  Maybe the clients would prefer to pay their lawyers to stretch out the proceedings, rather than let their spouses have a single victory.  I can imagine a conversation between a lawyer and her client going something like this:

Attorney:  They want to see your financial affidavit by October 15th. Can you do it, or would you prefer I fight it?

Client:  I could do it by the 15th, but then they will win their motion.  I won’t turn it over until the 30th. Go to court!

Attorney:  You understand if both lawyers go to court for the 2 hours it will take us to get heard, at $250 per hour per lawyer, that’s $1000 for an argument you might not win.

Client:  I know, I know. It’s crazy, but I would rather spend our family’s assets on lawyers than hand in my discovery two weeks early.

It is likely more emotional than rational.  Maybe the client is tired of feeling bullied by the other spouse.  Maybe the client does not feel ready to be divorced and hopes that making each step take longer will give them more of a chance at reconciliation.

Sometimes it is the client who says,  “This is too crazy.  How do we get to the negotiating table?” Sometimes it is a lawyer who refuses to be petty and would rather just spend the billing time on substance instead of form.  Sometimes, this happens before the family runs out of money.  Too often, it does not.

What We Love: Sometimes it is the client, who says, “get me to the negotiating table.”

Are you Ready or Hesitant?

divorcecompromiseMarriage affords people certain benefits.  There are compromises and pay-offs that married people balance and weigh all of the time.  It might actually be impossible to spend decades living with another fully-functioning adult and never get on each others nerves.  We are talking about marriage between human beings, after all.

Divorce happens when those compromises no longer make sense.  When the cost/benefit analysis suddenly looks like all costs and no benefits to one or both of the parties.  If it is both parties, the divorce can go pretty smoothly.  If only one partner’s scale has tipped to one side, it can be a much more difficult time.

When one spouse has spent years feeling over-used and under-appreciated, the other partner probably has no idea – whether or not they have been told.  It is a very rare person who would intentionally take his or her spouse for granted with no thought of repercussion.  So, we frequently see one partner who is anxious to get out, and one who is completely blind-sided and dumb-founded.  Let’s call them “Ready,” and “Hesitant.”

Ready will frequently try to make any compromise imaginable, just to make the divorce happen sooner. Whereas Hesitant might feel self-deluded into thinking that with enough time and effort Ready’s mind will change and things can go back to “normal.”  Hesitant might ask to try couple’s counseling, vacations together, or a temporary separation.  And, while any of these suggestions just feel like a waste of time to Ready, Ready might agree in the hopes that it will lead to an eventual divorce.

An angry Hesitant might use the opposite approach. In an effort to stay locked into each others lives, Hesitant might want to find every reason in the world to fight.  People can fight over kids, custody, money, pets, assets, debts, and even whose fault it is that we are getting a divorce in the first place.

Hesitant tends to rack-up attorneys’ fees in an effort to prolong the process.  Ready tends to give away his or her rights in the hopes of getting it over and done quickly.  Neither approach results in the best possible outcome, because they are both making decisions with their emotions when logic would be a better guide.

So, how can Hesitant and Ready put their feelings aside and make the best decisions for themselves and their families?  There are many possible solutions.  Using a trusted advisor, such as a neutral mediator, a second-opinion attorney (also sometimes called “Review Counsel” because it is an attorney who reviews another lawyer’s work), a financial advisor or a therapist can help bring an objective opinion to the process.  Ambitious parties can do some of their own legal research on line and try to get a sense of what Judges in their jurisdiction typically order in cases like theirs.  Or, waiting a few months after the mandatory waiting period, just to make sure that everyone’s jets have cooled can sometimes have the surprise effect of turning Hesitant into Ready.

What We Love:  There is no state that mandates a time in which you must divorce.  Once you know where you are headed you can take as much time as necessary to make sure that everyone is making the most rational decisions they can make.

What is the difference between a Guardian Ad Litem (“G-A-L”) and an Attorney For the Minor Children?

In cases involving the custody of minor children there are times when either one of the parties or a judge will suggest that the children need someone to represent their interests.  Sometimes, parents fail to recognize their own inherent conflict of interest with their children.  Frequently, this conflict of interest can result in disaster for the children.

I do not mean disaster necessarily in terms of the child being forced to visit, or live with, “the wrong parent,” that is usually something that can be re-addressed and re-decided within reason until the children reach the age of majority.  By disaster I refer to the long-lasting emotional and financial damage that a protracted custody battle can create.

So, enter the neutral third party.  A Guardian ad litem (“at law”), or an Attorney for the Minor Children.

The first question is: what’s the difference?

An attorney for the minor children is an attorney who has the job of representing the children’s desires to the court.  Just like any other party’s attorney, the attorney for the minor child keeps his or her own beliefs out of the picture and merely reports (and id necessary, advocates for) a child’s preferences.

A G-A-L, on the other hand, is not always an attorney.  These can be therapists, counselors, and social workers (or, also attorneys) who are trained in identifying and advocating for the best interests of minor children, regardless of what a child, or a parent, claims to want.  A G-A-L will take a child’s preferences into consideration, but only as one component of a larger picture.  A G-A-L must take into consideration all of the factors that are in the child’s best interests; even if it is different than a child’s wishes.

So, not just that fact that all of her friends attend the same school she does; but whether the Father’s new house is in a more appropriate school district.

Not only whether siblings get along well with each other; but also the relative psychological damage of separating them at this point in their lives.

Not just whether Dad is the more fun parent; but whether Mom has been the one consistently helping with homework and enforcing chores.

The second question is:  if things have gotten so bad that we are hiring extra professionals to tell us what our kids want and need; how can we still love our divorce?

So far in the divorce process, you and your spouse may have hired lawyers who do not see the big picture, do not have a way of encouraging the two of you to complete the process, and have only helped increase the emotional and financial costs of the divorce.  Now we have a new set of eyes (or maybe two new sets), and it is a chance to re-boot the entire divorce.

Consider allowing your children’s attorney the right to tell you exactly what your children want; and consider receiving the news with an open mind.  Even if it is the opposite of what you might have hoped to hear.  Your children are sending you a message and this is your opportunity to let their voices be louder than your own, or your lawyer’s voice.

Remember that a Guardian Ad Litem did not have an opinion of you or your family before being hired.  Any information you are able to receive from this person is a gift of insight into you, your children, and your family dynamic.  While it might not be what you want to know or hear right now; it might be information that can have a positive influence on the way you parent, or even co-parent long after your divorce is over.  Picture yourself at your daughter’s wedding reception, congratulating her other parent, your ex-spouse, and being genuinely happy.  Getting to that moment might have been as simple as listening to a tip from a G-A-L when your daughter was still in elementary school.

What We Love:  Divorce is an opportunity.  No matter where in the process you are, it is never too late to bring the best part of yourself.