Friday, February 29, 2008
TGIF: A Rare Friday
Leap Day creates a bonus visitation weekend this year, but parents shouldn't plan on it again for a while. The next time Leap Day will be on a Friday will be in 2036.
Thanks to Harry Tindall, Houston Collaborative attorney, for calling this event to my attention.
Friday, February 22, 2008
Good Advice for Parents
Recently, J. Benjamin Stevens of the South Carolina Family Law Blog printed an excellent guest post which should provide guidance and inspiration for all parents, whether in intact families, single parent households or step parent relationships--
The following article is from one of our regular guest columnists,Dr. Trey Kuhne:
A few months ago, a friend sent this to me through the email. I am uncertain who the original author is but was moved so much by it that I thought it might be an encouragement to parents who wonder if their children are ever watching them or not? It is called “When you thought I wasn’t looking.” Take a brief read.
"When You Thought I Wasn’t Looking" by a child
When you thought I wasn't looking, I saw you hang my first painting on the refrigerator, and I immediately wanted to paint another one.
When you thought I wasn't looking, I saw you feed a stray cat, and I learned that it was good to be kind to animals.
When you thought I wasn't looking, I saw you make my favorite cake for me and I learned that the little things can be the special things in life.
When you thought I wasn't looking, I heard you say a prayer, and I knew there is a God I could always talk to and I learned to trust in God!
When you thought I wasn't looking, I saw you make a meal and take it to a friend who was sick, and I learned that we all have to help take care of each other.
When you thought I wasn't looking, I saw you give of your time and money to help people who had nothing and I learned that those who have something should give to those who don't.
When you thought I wasn't looking, I saw you take care of our house and everyone in it and I learned we have to take care of what we are given.
When you thought I wasn't looking, I saw how you handled your responsibilities, even when you didn't feel good and I learned that I would have to be responsible when I grow up.
When you thought I wasn't looking, I saw tears come from your eyes and I learned that sometimes things hurt, but it's all right to cry.
When you thought I wasn't looking, I saw that you cared and I wanted to be everything that I could be.
When you thought I wasn't looking, I learned most of life's lessons that I need to know to be a good and productive person when I grow up.
When you thought I wasn't looking, I looked at you and wanted to say, "Thanks for all the things I saw when you thought I wasn't looking."
As children, we saw just about everything our parents did and said and we modeled ourselves after them, good, bad and indifferent. Now as parents, you are worried about everything you do because you realize that your children are watching you! Your children deserve excellent parents!
Dads, let your children see you loving and kissing mom, let them see how a man loves a woman with respect. Dads, let your children observe how you handle difficulties and come to consensus in matters of disagreement.
Moms, let your children see and experience you praising Dad for his love, leadership, and faithfulness to God. Moms, let your children observe how you make decisions, how you consider different possibilities and derive solutions.
Let your children hear your prayers out loud. Let your children see you disagree and then come to consensus again. Teach your children through modeling the kind of behavior that you appreciate so much in your life.
Basically what I am saying is to not withhold from your children the experience of life. They are going to experience it at school, in sports, and with their friends and what better way for them to get it right by experiencing it through the two (or one) of you.
Grace and Peace, Dr. Trey Kuhne
Dr. Trey Kuhne is a pastoral counselor and licensed marriage and family therapist with Pathways Pastoral Counseling located at St. Christopher’s Episcopal Church, 400 Dupre Drive, Spartanburg, SC 29307. He specializes in working with individuals, couples and families. Call (864) 542-3019 for an appointment. He may be reach via email at: firstname.lastname@example.org.
Friday, February 15, 2008
"I Want the Meanest Lawyer I Can Get"
I was recently in a divorce case that took about five years to complete. We had two full trials, numerous temporary hearings, lots of written discovery, several depositions and two trips to the Court of Appeals. The other side hired, and somehow paid for, a very good attorney who used a strategy of being mean and aggressive toward my client. In the end, the wife got approximately what we had offered and what my client proposed in trial. It only cost her twice the attorney's fees that my client paid and she left with a mountain of debt. She was distraught through most of the process, but she kept paying for her attorney to maintain an aggressive and bruising attack. The problem was that she didn't come out ahead. She'll probably blame the court system, her attorney, her spouse or anyone else, except for herself. That's usually the way it works out.
Although I can normally represent someone effectively in any divorce circumstances, I usually refer those prospective clients (who are seeking a mean lawyer) on to someone else because there's no way to really satisfy such a client. No matter how mean and unreasonable I act, the client will pick out the tiniest detail and convince himself or herself that things are not going his or her way, despite the fact that the client may have gotten 75% or more of what he or she wanted.
Besides, being mean just doesn't pay off in court. Judges and juries don't like it. A client may feel a little satisfaction about humiliation or suffering being heeped on a spouse, but that is a fleeting experience. Being rude and obnoxious just doesn't score points on legal issues or establish facts needed by a decision maker. All other things being equal, a party utilizing a strategy of being mean or rude will rarely get the benefit of a doubt.
In addition, the spouse's attorney will probably be under pressure from the his/her client to retaliate. That means the strategy will result in escalating meaness and that both parties will end up being the targets of personal attacks. Usually an attorney who specializes in being mean has just two strategies: being mean or being meaner.
Another consideration is that being mean is expensive. An attorney can be mean by creating a lot of work for the other side, such as extensive discovery requests and depositions. Sending lots of letters and scheduling a lot of court hearings also can be mean behavior by the attorney, but they will increase the cost to the client. All of the activities and little tricks have to be paid for.
Ultimately, very few clients just want to jerk around their spouse. Most everyone, at some level, wants to get the divorce over with. If a client is interested in finishing the divorce quickly, being mean is probably a bad strategy because of all the extra work. The process will be slower. Additionally, being mean often leads to similar behavior in return and bad results.
The bottom line is that it is a complete waste of time, money and energy to choose a strategy of being mean; the costs will greatly outweigh the benefits. If you are looking for that approach, I'm not the one to help you.
Wednesday, February 13, 2008
The Top 10 Things NOT to Do During Your Divorce
The following post is from the The Oregon Divorce Blog:
Divorce is not easy. There are many pitfalls and traps awaiting parties that have not educated themselves about the process. People often make bad decisions under stress, or without the guidance of an experienced lawyer. Don’t be one of them. Divorce law isn’t rocket science, but it isn’t always intuitive. Avoid the following 10 divorce pitfalls to get a better result.
During your divorce, you should NOT:
1. Lie to your lawyer: We are here to help you. Your communication with us is privileged, meaning we can’t tell others about it, except in certain child abuse scenarios. The more we know, the more we can help. We need to know everything, the embarrassing, the ugly, and the secret. If you have a drug, alcohol, or gambling problem, tell us. You have two options: (1) Disclose and likely hear from your lawyer that your secret or problem is irrelevant to the court process, or (2) Fail to disclose and have your case hurt at trial because the other lawyer knows facts you haven’t told your lawyer.
2. Lie to the court: If you have a trial, the result is directly affected by your credibility. Judges are generally experts at determining who is telling the truth, and who is lying. Not only is lying to the court a crime, but your lawyer may have a duty to stop the proceeding and tell the court if he or she knows you are misrepresenting facts! If you have areas of your case that are sensitive, work with your lawyer on what you are going to say, but don’t misrepresent.
3. Involve the kids in the process: If your case involves a custody or parenting time dispute, nothing will draw the wrath of the court faster than involving your kids in the dispute. Don’t talk to them about the case. Don’t use them as pawns in the battle against your spouse. Don’t use them as your therapist, or treat them as your peers. Don’t put your spouse down in front of the kids. You are not only harming your case, you are harming your children.
4. Hide or fail to produce documents: You have an absolute right to see your spouse’s financial documents. Your spouse has an absolute right to see your financial documents. I have seen many cases that could have been simple turn complex and expensive when someone decides to not voluntarily produce records. The court can force you to produce records, and order that you pay your spouse’s lawyer fees incurred in getting the records. Good clients and good lawyers produce documents quickly and voluntarily. I had a case where we asked for some email records from the other side. They did not produce them, and when we filed a motion to compel their production, they tried to tell the court that they had been destroyed. The stunt seriously impacted the opposing lawyer’s credibility with the court.
5. Refuse to cooperate with a court appointed expert: In divorce and custody cases, experts called “custody evaluators” are routinely appointed to gather information about a family and make a recommendation regarding an appropriate parenting plan. If one is appointed in your case, cooperate. Be on time for appointments. Treat the expert with appropriate respect. Ignoring the requests of the evaluator can seriously harm your position and credibility with the court. An evaluator will likely make negative assumptions about you if you cannot comply with a court’s order to cooperate.
6. Settle without analyzing your case: Divorce can be unpleasant and emotionally painful. One reaction is to try to get it over quickly. Do not give into the urge to be done with the case before you have a full understanding of the assets and what a fair distribution looks like. You don’t want to be in a position where you are contemplating settlement and your spouse knows more about the assets than you. Prepare and go over a proposed distribution of assets and liabilities with your lawyer. Make sure you know the nature and extent of the assets, and get additional discovery if you don’t. Do not settle prematurely, before you know what is fair.
7. Fail to try to resolve the case outside of court: Don’t settle early without analysis, but also don’t fail to try to settle. Good lawyers and reasonable people settle most divorce cases without a trial. Many clients benefit from mediation, either through the county courthouse or through a private mediator. Our experience has been that many very difficult settle in mediation with the guidance of a trained expert mediator. You should always consult with your lawyer during the process to make sure you are getting a fair result. Settling also means you choose the outcome rather than have a judge impose an outcome on you. Parties that settle are generally happier long term, and have less ongoing conflict. Even if the other side is unreasonable, you should still make an offer to create a record of your position.
8. Take out your stress in unhealthy ways: This is the wrong time to up the drinking or other unhealthy behavior. Expect stress from the conflict and plan for it. Take out your stress in healthy ways, like at the gym, sports, or in talking to friends or a counselor. Don’t take it out on your children, or your body through unhealthy behaviors.
9. Be economically irrational in negotiations: At some point in every case it costs more to continue arguing than what is at stake. Approach your case with a business like mind. Are you really winning if you spend $1000 on lawyers to argue over a $50 lamp? Some (bad) lawyers insist on arguing about every point, without regard to cost. Every issue is a new battle front. A request to resolve one issue results in two more contested issues. In our opinion, these lawyers don’t serve their clients well. Pick your battles. If it costs $1000 to argue over something you can replace at Target for $20, buy a new one, and focus on what is really important.
10. Be your own lawyer if your case is contested and your spouse is represented: Many judges dislike unrepresented parties. Even experienced divorce lawyers hire experienced divorce lawyers for an objective opinion. Many unrepresented people who think they have a great case find out otherwise after a judge rules against them because they can’t tell the judge everything they want to because of the rules of evidence. If you disagree over property or custody, and your spouse has a lawyer, seek representation.
Source: "Top 10 List: Top 10 Things to NOT Do During Your Divorce" by C. Sean Stephens, published at The Oregon Divorce Blog. I actually saw Stephens' post in the Georgia Family Law Blog by Stephen M. Worrall and in the South Carolina Family Law Blog by J. Benjamin Stevens, two of my favorite sources.
Monday, February 11, 2008
Valentine's Day: How to Stay Happily Married
Your read the title right! This is an odd post for a blog with "Divorce" in the name. Today, just in time for Valentine's Day, we are providing something to help you stay happily married, if that is your goal. I'm betting that a number of readers will be interested in this topic. To listen to a podcast or read some helpful tips, click here.
I have run across a web site, http://stayhappilymarried.com/, which is an excellent resource for people wanting to work to improve and preserve their marriage. The web site is managed by the Rosen Law Firm in North Carolina. Their main web site deals with Family Law in the context of North Carolina law, but most of what you find on the web site can benefit people anywhere.
The topic of this post may seem out of place in a blog about divorce. Actually, I know that a variety of people read this blog and come from many different situations. Probably most people who find this blog are either already going through a divorce or have decided to get a divorce.
But there may be a substantial number who are interested in preserving their marriage. Things may have not been working out well in the marriage and their spouse may have filed for divorce or the two parties may have been discussing divorce or maybe just one of the parties is considering a divorce, but it's not a foregone conclusion.
For those people, and for most people already in the process of getting divorced, it is common for one or both parties to have second thoughts, doubts about whether they should be following through with a divorce. Other people may be looking around while they are trying marriage counseling as a last-ditch effort to save the marriage. Whatever your situation, listen to the podcast and read some of the articles. It won't hurt to try out some of their suggestions.
Who knows, maybe you'll learn something that will help improve your marriage.
Friday, February 8, 2008
Is There a Divorce Season?
Actually, it appears that January is a popular month to file for several reasons. First, many families put off the separation until January so the holidays are not spoiled for their children. Second, some people get caught up in the holiday spirit in December and decide to give the marriage one more try. Third, for some, the stresses of the holidays push one or both parties over the edge. Fourth, some wait to file until January when they have enough money to pay an attorney after spending their extra cash on gifts in December. Fifth, some people get caught up in making New Year's resolutions and decide to make a fresh start without their spouse. And there are undoubtedly other reasons that lead to decisions to file in January.
Actually, January through early Spring is often a time that is popular for filing for divorce. Different people take different amounts of time to decide to file. Some people wait for their tax refunds or wait for their bonus from work to arrive before filing. Some wait for their spouse's bonus to arrive before filing.
There really is no time of the year for filing that is better or worse than any other. No matter when you file, there will likely be difficult times ahead. Planning ahead, working with an experienced lawyer who is compatible with you and staying focused on what's really important will help minimize the problems, but they can't all be avoided. Getting counseling before, during and after a divorce is a wise course of action.
My best advice: Be careful because we are still in the Divorce Season.
Wednesday, February 6, 2008
Insist on Your Right to Visit Your Child!
I found the post below from Brent Rose to be very interesting. He makes a great point in a very unusual and compelling way. I hope that this post makes my readers think about this issue as well.
There's something I like about both the NRA and the ACLU. I know they're such different organizations. One is considered very liberal, the other very conservative. But they have one thing in common: they don't sit back and expect their rights to simply be handed to them. They fight for their rights. If they think their rights are being abridged or abused, they take charge. They go public. They get angry. They sue.
I get upset when someone says, "My ex won't give me visitation!" Well, why do you expect your ex to give you your visitation. Do you think the NRA or the ACLU expects the government to just give them their rights? Visitation is a right. Sometimes rights have to be demanded. Sometimes you have to get angry. Sometimes you have to sue.
No, it's not that the other parent didn't give you visitation. You just didn't take it. You are as much a parent as the other person is. You have a right to visitation. The law is pretty simple: the other parent can't deny you visitation. If he or she does deny you visitation, you file an action to have your visitation determined by the court. And if the other parent still won't give you visitation after a judge orders it? Watch how quickly custody changes. Maybe you agree with NRA and/or the ACLU and maybe you don't, but there is something to be learned from them. Don't expect your rights to just be handed to you. Go to court and demand them.
Source: "The Other Parent Won't Give You Visitation" by Brent Rose, published at The Orsini & Rose Florida Divorce and Family Law Blog.
Monday, February 4, 2008
A Children's Bill of Rights
I have posted previously the Children's Bill of Rights from the American Academy of Matrimonial Attorneys. This is another good list from DivorceHQ, stated from the child's perspective:
We the children of the divorcing parents, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish these Bill Of Rights for all children.
I. The right not to be asked to "choose sides" or be put in a situation where I would have to take sides between my parents.
II. The right to be treated as a person and not as a pawn, possession or a negotiating chip.
III. The right to freely and privately communicate with both parents.
IV. The right not to be asked questions by one parent about the other.
V. The right not to be a messenger.
VI. The right to express my feelings.
VII. The right to adequate visitation with the non-custodial parent which will best serve my needs and wishes.
VIII. The right to love and have a relationship with both parents without being made to feel guilty.
IX. The right not to hear either parent say anything bad about the other.
X. The right to the same educational opportunities and economic support that I would have had if my parents did not divorce.
XI. The right to have what is in my best interest protected at all times.
XII. The right to maintain my status as a child and not to take on adult responsibilities for the sake of the parent's well being.
XIII. The right to request my parents seek appropriate emotional and social support when needed.
XIV. The right to expect consistent parenting at a time when little in my life seems constant or secure.
XV. The right to expect healthy relationship modeling, despite the recent events.
XVI. The right to expect the utmost support when taking the time and steps needed to secure a healthy adjustment to the current situation.
Please realize that this is NOT law, anywhere. The "Children's' Bill of Rights" is not legally enforceable, but rather suggestions made to keep the best interest of the child a priority.
Saturday, February 2, 2008
What Was the Judge's Reasoning?
Usually, the answer is, "I don't know."
In Texas, and probably all states, a trial court rarely announces reasons for their decisions. People often expect long written opinions explaining the judge's reasoning, but that usually only happens in appeals courts or on TV shows. Judges don't have to explain their reasoning, so they don't do it. Basically, judges don't give explanations for their decisions for several reasons.
- They probably want to avoid arguments with parties or attorneys. There's nothing to discuss if the reasoning is undisclosed. Often when a decision is announced after a hearing, one or both of the parties is angry, and it may be better to make a brief announcement of the decision and then let them cool down.
- They want to avoid reversal, so they don't want to give a clear target. Judges have a lot of discretion in making many of their decisions. The appellate rules for reviewing decisions favor upholding whatever the current order is.
- Judges have a lot of discretion in making rulings. It would take an extremely erroneous decision to cause it to be reversible. Judges like to use their discretion and not have it questioned.
Occasionally, a judge will discuss the reasons for a decision with the attorneys for both parties. Sometimes, the judge will tell the parties some or all of the reasons for the decision. After a hotly contested hearing on some issue, it is unlikely that the judge will give detailed explanations.
Although I would also like to know the reasons for some decisions, I understand the value of not detailing the reasons for decisions. I have sat as a temporary Associate Judge in Tarrant County and I had to make and announce decisions in cases. Not giving the reasons makes sense for me in many cases. In a few cases, it may be beneficial for one or both parties to learn why the judge ruled as she did, but the judge can decide whether to make the announcement.
Bottom Line: It's strictly up to the judge as to whether we can learn the reasons for a judge's decision. Most of the time, we just won't know.
Friday, February 1, 2008
Kind Words From Another Blogger
My Roundup of Law Blogs Part 4
My concluding chapter on family law blogs (you can find number 3 here):
familylawtaxation.com Family Law, Divorce Law, Estate Planning, Family Law Taxation. Appears to be a fairly new blog but I do think the post, Family Law Lawyers Are Specialists Of Law does a very good job of describing our work as family law attorneys.
Chicago Family Law Blog. This looks like one of the LexBlog blogs. Which means it looks good, but is also update often and has a bit of different information than what I publish or what I see elsewhere - mostly tax and financial issues.
Preventive Family Law for Nevada. One of the great blog titles, its purpose is very clear. What I had not thought of when starting this blog was the ability to educate laypeople about preventive measures. Sure, I could see educating non-lawyers about Indiana law affecting them in divorces and paternity cases, but I missed the idea that we could inform about even more. In my defense, for twenty years I have usually seen people after the horse has left the barn and is galloping for the county line. Posts like Checklist - If You Are Thinking About Divorce show the preventive side of the family law and apply to more than Nevada.
Divorce and Family Law in Tarrant County, Texas. I had the opportunity to speak with Mr. Price some time back and I like how his ideas. He is not listed here for that reason or that he refers to one of my posts but for his emphasis on collaborative law and for posts like 5 Ways Not to Notify Your Spouse About a Divorce.
Ohio Family Law Blog. Another one I did not know existed till I started looking, and with some good points. From what I see, the blog started in December of last year. The post on relocation caught my attention. I am sure my regular readers know the attention that I have put on our new relocation statute. I would say that Ohio has a similar problem as does Indiana. I noticed some points in that article which might be of use in Indiana.
Alabama Divorce & Family Law Attorney Blog. This site has an overwhelming emphasis on Alabama law but that is not why I mention this blog. While the blog seems only recently created, I have not seen anyone work name recognition for marketing purposes as I do with this blog.
Family Law Prof Blog: Probably not a layperson's cup of tea, and maybe not for all family law attorneys, but worth taking a look at for the view from the law school on family law issues.
Dads Divorce Blog. A new one for me and not one I can say much about. From what I see of the content, I will be keeping any eye on this one.And that ends my round up of family law blogs.
I have learned that this sort of this is not as easy as I thought it would, and it does take time. I want lawyers and non-lawyers to recognize that there is a lot of information out there and these blogs I have pointed out help in sorting out the information. I hope I can do as well as these in presenting news and information in intelligible terms. All that said, these blogs give to the public a chance to learn and not just ask questions. Look through all of the blog - I can tell that many leave here without even looking for more information.
Oh, for the lawyers who do not blog: Bella is Bewildered About Blogs. Those that do blog will, I think, find this as amusing as I did.I suggest Justia for keeping up with new family blogs and keeping track of some I mention here and earlier.