Tuesday Tips: Death and Taxes

On April 15, it's easy to remember the old saying that the only things certain in life are death and taxes.


Maybe it's also a good time to remember why people get married (other than the more favorable tax treatment!).  If you are married, talk to your spouse today, or any day or everyday, about why you're glad you're married.  You might get a nice dividend!

How to Encourage Fighting in Litigation

Let me be clear.  I think it is a really bad idea to encourage fighting in litigation.  Still, there are many attorneys who do just that.  Sometimes, it's because that's what the attorneys think their clients want.  Other times, it's because that's how the attorney was trained.  Some attorneys believe that fighting it out in court will lead to the right result.  I don't subscribe to that point of view, but there are many attorneys and some judges who still believe it.

In the interest of full disclosure, I strongly advocate using Collaborative Law, wherever possible.  Where it's not used, the parties should at least use mediation.  I am a mediator, also, so there's some bias there as well.

Part of the reason why I got into mediation and Collaborative Law is that I saw, through years of practice, how people wasted lots of money, got stressed out and angry and damaged family relationships by battling in court.  It is rarely a satisfying experience for anyone, even the "winner".  Usually, both parties lose a great deal.

If you want to avoid the pitfalls of destructive litigation, here are some signs to watch for and avoid.

1.     Encouraging unrealistic expectations.  If a client is angry and has been hurt by the ending of a marriage, getting revenge, getting even or getting a pound of flesh are natural, emotional responses.  A good attorney will suggest getting help, such as counseling, for such an upset client, but will not encourage a client to put a lot of effort into a revenge-type strategy because ultimately, courts usually don't pay attention to that.  If an attorney is encouraging a client to make extreme demands, and I have seen that, it will not benefit the client in the long run.  It will result in substantially higher attorney fees, however.

2.     Encouraging more fighting.  Some attorneys will follow a client's emotional responses and allow and encourage actions that extend the fighting between the parties.  In the end, it usually doesn't improve the settlement or judgment for the client.  It does shrink the assets because attorney's fees keep adding up as the fighting continues.  Even wealthy people reach a point when they don't want to keep paying the attorneys to fight.

3.     Encouraging positional bargaining.  The most common type of bargaining that we instinctively use is "positional"  bargaining.  If you buy a car, you may start off with a low offer because you know the sales person has given you a high, but negotiable price for the vehicle.  Going back and forth, you and the seller work toward a middle trying to find a number you both agree on.

 In contrast, in Collaborative cases, we use "interest-based" negotiations.  In that approach, we identify what's actually important to each party and try to meet the important needs.  Rather than demanding 65% of the assets, we talk about the need to have some interest financial help for a spouse going back to school and the need to have some retirement security.

With interest-based bargaining, there are always more settlement options than with positional bargaining and we focus on the most important needs, rather than just using arbitrary numbers to divide things.

4.     Focusing on winning -- all or nothing.  There are so many issues to be considered in a divorce that it is hard to actually define winning.  There's also the problem that a party who gets an arbitrary percentage of the assets may not have a way to support himself or herself later on or they may end up with assets they really can't use and don't want.  The results may not help them at all.  On the other hand, focusing on meeting the needs of both parties can result in satisfaction for both, if they are willing to compromise and try new approaches.

5.     Focusing on the negative.  While emotions often run high during divorces, they don't have to dominate the process.  Some attorneys encourage and support their client's efforts to prove blame or fault in the breakup.  In almost all the cases where there's fault, there are many other reasons for a court to grant more assets to one party than the other, such as health issues, greater earning capacity, etc.  Arguing those issues will not generate the fight that trying to prove fault in the breakup does.  Focusing on negative issues will run up the attorneys fees for both parties, and that means less to be divided in a settlement or judgment.  When it's all over, it's little comfort that the other party has been blamed when both parties end up with less money and less assets.  You have to wonder if the fight was really worth it.

If you or your attorney engage in any of the above practices, be prepared for the consequences.  I predict that you won't feel as good as you expected when the dust settles.  There's still time to switch tactics.  If you don't want to be fighting, tell your attorney to stop.  If your attorney won't stop, get a second opinion.

Don't Listen to Bad Advice!

At the intersection of someone looking for support and someone wanting to be helpful, bad advice often rears its ugly head.  People going through a divorce are naturally anxious and vulnerable.  They worry about what is happening, what could happen and what didn't happen.  Many people worry a lot.

At the same time, other people are natural caregivers and supporters.  They want to give emotional support to their friend who is obviously struggling in a difficult situation.  They have good motives, but end up being unhelpful in most cases.

I have witnessed many times the combination of a needy person going through a divorce and a friend who wants to help who gives advice. The result is usually confusion and actions conflicting with what the attorney would recommend.

Here are the common actors in that situation; Don't Listen to These People!

Law-related:  Current or former court personnel, legal assistants, legal secretaries, law students, lawyers who don't practice family law, therapists and other professionals who sometimes work in the legal arena.  Sometimes such people who operate or worked on the fringe of the legal system may carry an impression of being knowledgeable, but they're not!  These not only are not your attorney currently representing you, but each one is not really qualified or appropriate for giving legal advice in a case they are not involved in.  What may (or may not) have been true or worked in another case may be ineffective or inappropriate in your case.  Their experience makes them seem qualified to help, but they're not.

Close by-standers:  Relatives, neighbors and friends.  The intention is usually good, but their experience or what they heard 2nd, 3rd or 4th-hand doesn't really work for you.

Non-law-related professionals:  Police officers are a prime source of unintentional misinformation.  Other professionals generally don't have good information for you either. 

What all of these have in common is that they are not the lawyer representing you in your family law matter.

Some common, problematic advice can include such topics as:

• A suggestion to take an action without discussing with your attorney.

• Telling you that you shouldn't, or don't need to, comply with a court order.

• Directing you on what to say or write to someone.

• Suggesting what you can do with some asset.

• Advising whether or not you should go to court.

The Best Advice:  Please just get legal advice from your attorney handling your family law case.

Why You Shouldn't Be a Jerk!

Some people just can't help it.  They are jerks.  I prefer to think that anyone and everyone can behave well if they choose to.  For some, it takes a lot of concentration, and then some occasional backtracking to undo an initially rude or inappropriate reaction.  I believe that almost everyone can act right, if encouraged and reminded, and if they understand it is in their own best interest.

In general, everyone will need a favor, such as getting a hearing reset, an agreement to allow more time to respond to something, leniency or the benefit of the doubt.  Jerks don't often get the favors.  

Here are some specific ways being a jerk can affect you in the legal system.

1.  You may face stronger opposition from the other side.  They are less understanding or forgiving.  If you (figuratively) slap them in the face, they probably won't turn the other cheek in litigation.  Mad people fight back!

2.  The Judge won't like you.  The Judge is bound to follow the law, but he/she is not a robot.  There will always be matters, especially in Family Law, where the Judge is allowed a wide range of discretion to decide outcomes.  You need the Judge to like you when he/she is deciding property division, allocation of bills, support, visitation and other issues. Like it or not, most legal decisions are not precise applications of the law which produce mechanical results.  Most decisions are discretionary.  You don't need to fight the Judge.

3.  Other important officials who don't wear robes may not like you.  Humans fill the roles of court clerks, court coordinators, bailiffs, child support office workers, employees of the Domestic Relations Office and employees of the Texas Attorney General's Office.  You may not ever think about some of them, but they see, know and talk about you (that's not just paranoia) and they can influence how easy or how difficult your life is in the future.  You are better off if they don't remember you, because they normally just remember the "problems".

4.  Your own attorney may not stick around.  Most attorneys are busy.  Very few want to waste time and put up with aggravation from a difficult client.  

5.  It will be harder to find witnesses and allies willing to help you out.  Forcing someone to come to court and testify is usually a bad idea.  Yous want voluntary witnesses.  You want people coming forward and wanting to help you out.  An ungrateful, vindictive, mean person usually has a hard time getting help from others.

Bonus Point:  The more you fight, the longer it will take and the more it will cost.  Don't complain about those things if you choose to be a jerk!

Got Skeletons in Your Closet?

During this Halloween season, we often see skeletons as decorations for parties or businesses or for Trick-or-Treaters. We see so many that they usually lose their fright-invoking powers. It's all in fun for a good time.

However, in other contexts, skeletons in a closet can be a real problem.

What are they?
Politicians and public figures worry that bad behavior may be found out any time of the year. It's sometimes said that everyone has some skeleton in their closet -- something that could be embarrassing, illegal or just private, that they wouldn't want other people to know about. Sometimes the skeletons are from current activities or they might be indiscretions from their youth. Hopefully, the skeletons won't be massive or involving major liability in terms of criminal laws or civil damages.

Skeletons in family law contexts
In family law matters, skeletons sometimes come into play. They can be big or small. Quite often, they get built up in someone's mind so that they appear to that person to be huge, when in fact, they are not a big deal at all. On the other hand, some things really are big deals. Arnold had a huge skeleton uncovered when his love child was discovered. Affairs can become not just a skeleton, but an albatross around someone's neck, to mix metaphors. Criminal activities, financial mismanagement and addictions are all serious issues that can have a major impact on divorces and other family law litigation. In most divorces, there's something each side would prefer to keep quiet or, preferably, unknown. But it always seems to get out!

What should you do?
Rule #1: Tell your lawyer. Don't be worried about whether your lawyer won't like you or respect you. Chances are, your attorney has heard and seen much worse. One thing lawyers hate is to be surprised by the other side. Don't let your attorney first learn about the skeleton by hearing the other side break the news. Prepare your attorney with all the facts. Believe it or not, attorneys can usually put bad news into context and minimize it, if given the chance. If your counsel first hears some bad news as it is being drug out of you, there's not much the lawyer can do for you.

Quick Summary:

Lawyers Don't Like Surprises!

You need to tell your attorney the bad facts as well as the good ones so he/she has a chance to help you. You need to let the skeletons out of the closet.

Five Common Sense Rules for Divorce

Daniel Clement writes an excellent blog, the New York Divorce Report, where he had some good lessons for anyone going through a divorce in a post on October 26, 2010. Because it was so well-written, I have reproduced it below:

"Contemplating divorce or already engaged in one? No matter where you are in the process, five common sense rules apply to all family law cases:

Don't underestimate the fury of a scorned spouse.

" 'Heaven has no rage like love to hatred turned. Nor hell a fury like a woman scorned.' Anger, jealously and feelings of betrayal inspire the need for revenge. A divorce premised on the need for revenge will be costly (economically and emotionally), bitter and damaging to all.

You can listen to your friends, but maybe don’t pay attention to them.

"Divorces are fact specific. The facts of your case are different from your neighbors your friends, and your co-workers. The facts of your case will determine the outcome. So, when a client tells me that 'My hairdresser said that I should do. . . ' or that 'I am entitled to. . . .' I try to find out when the hair dresser started practicing law. By analogy, I don’t tell my mechanic how to fix my car.

Don't write or say anything that you don't want to be read or heard in court.

"Social network postings, pictures, and even causal asides will be used against you in a contested divorce or a custody fight. Your own words could be the strongest evidence against you. If you don’t want something to be used against you, exercise discretion and don’t say it, post it or photograph it.

Don't let any anger, guilt or remorse get in the way of a reasonable and fair settlement.

"Settlements should objectively fair, based upon the facts of the case. The emotions of anger and guilt cloud judgment. For instance, a spouse who feels that he/she betrayed the other by having an affair, may be willing to 'give away the farm' to satiate feelings of guilt. On the other hand, the betrayed party may have a knee jerk reaction rejecting a fair settlement offer because it does not provide for loss of the other’s body parts. Accept the advice of your attorney and financial advisors in order to resolve your case.

Hire a lawyer who practices matrimonial law, not someone who handles divorces only occasionally.

"Due to the complexity of the issues involved in the dissolution of a marriage, ranging from the valuation and distribution of assets to the custody and care of children,you should seek representation from an attorney well versed in this particular area of law, not from someone who dabbles."

Needless to say, divorce has serious consequences. Unfortunately, some people don't consider the long-term effects of what they do and say during a divorce. It is easy to give in to emotion and act irresponsibly in stressful and uncertain times. Instead of reacting quickly and in anger, it is much better to stop and consider your choices and act in ways that will reduce the fighting and put you in a better position to get a good resolution. In other words, stop, think and avoid the temptation to gain temporary, but immediate gratification. Consulting with your attorney before making important decisions is a good way to avoid creating bigger problems.