Category Archives: divorce

Scribes-The American Society of Legal Writers

I recently attended the annual meeting of Scribes, which is a legal writing Honor Society. I was inducted as a member a few years ago. It is always a thrill for me to rub shoulders with some of the finest legal writers in the country. Scholars, judges, lawyers and other professionals attended. Retired Supreme Court Justice John Paul Stevens was awarded a lifetime achievement award (via video). Judge Diane Wood from the Seventh Circuit Court of Appeals spoke on legal writing and the importance of clear thinking and communication in the law. In the hurly-burly world of family law, it is difficult to maintain the high standards of communication espoused by Judge Wood. But, it is vital. I am constantly reading and learning of ways to improve my communication skills, both written and verbal. I regularly buy books on legal writing written by Brian Garner (also a Scribes member) as well as other distinguished legal writing scholars. One of the great challenges of the practice of law is the need to constantly improve. If you’re not getting better you’re getting worse!

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New Case Law: When does the Obligation to Pay for College End?

May 20, 2010

In re Marriage of Baumgartner, Ill, No. 109047 (per Freeman)

FACTS:

In their judgment for dissolution of marriage, Susan and Craig Baumgartner both agreed to contribute to the postsecondary educational expenses of their son Max. After Max was convicted of a criminal offense and was serving a three-year sentence, Craig motioned the court for the removal of the couple’s obligation to pay postsecondary educational expenses for Max.  Without receiving any evidence on Craig’s motion, the circuit court ruled sua sponte that son Max’s incarceration constituted his full emancipation and that any future obligation on Craig’s part to pay for Max’s college education was abated.  The circuit court denied Susan’s motion for reconsideration. Finding no authority to support the argument that Illinois would recognize incarceration as a self-emancipating event, a divided panel of the appellate court reversed, finding the trial court erred in ordering the termination of Craig’s obligation to contribute to Max’s education expenses based solely on the basis of Max’s incarceration.   

QUESTION:

Whether the trial court erred in determining that incarceration alone is a self-emancipating event for a minor?

HOLDING:

Yes.  The trial court erred in determining that incarceration was a self-emancipating event for a minor. Appellate court judgment affirmed. Cause remanded.

REASONING:

The minor’s incarceration alone was not dispositive as to whether he was emancipated.  Although lengthy incarceration is one of the many situations in which a minor may be found to be emancipated, based on the circumstances of a particular case, the circuit court failed to complete the required analysis to determine the minor’s status in this case. The circuit court record contained no evidence whatsoever pertaining to the parents’ care, custody, control, or support of the minor or whether the minor voluntarily abandoned that support. Minors can emancipate themselves, i.e., place themselves beyond the care, custody and control of their parents. However, emancipation cannot be presumed.  Whether a minor is emancipated depends upon the relevant facts and circumstances of each particular case.

Further, emancipation is not necessarily a continuing status.  A minor may become unemancipated if there has been a sufficient change in circumstances.  The burden of proving emancipation is on the one asserting it.  Changes in life circumstances for a minor such as entering into marriage or the armed services may or may not lead to emancipation, depending on the resulting effects on the minor’s status relative to his or her parents.  Even the commission of a crime by the minor, by itself, is not dispositive of emancipation, although lengthy incarceration is one of many situations in which the minor may be found to be emancipated. The inquiry is whether the minor has become self-emancipated by any means other than reaching majority age, which was not addressed in this case.

ANALYSIS:

The basic ruling here is not necessarily radical. The trial court probably should have heard some evidence before ruling.  Neither the statute nor the case-law automatically presume emancipation. But what I find interesting about this case is the notion of emancipation potentially morphing back to unemancipation. Under this ruling, a child could be married for ten years, divorce, and then potentially have a court order one or both  parents to contribute to her expenses.  In my mind this is particularly egregious in light of the fact that children of in tact families have no right to any contribution from their parents.  The legislature needs to correct this legal anomaly. SNP

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Filed under Case law, child custody, divorce, Divorce court, Uncategorized

What will Happen to Children of Divorce?

The future of the family.   Read Noble Prize-winning economist Gary Becker’s thoughts on the topic.

http://uchicagolaw.typepad.com/beckerposner/2010/04/the-effects-on-children-of-the-decline-in-marriage-becker.html

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10 Common Misconceptions about Divorce

1. You can beat the system.  Nice try. That brilliant idea–the one that will allow you to avoid your legitimate obligations– has been thought of before and the law has remedies. Like the guy who sold his business to his brother for $200, the court won’t tolerate this nonsense. Your brilliant idea will undoubtedly backfire.

2. It’s simple. Divorce is not simple. Issues involving the division of property, post-divorce parenting, and the litany of other issues are far from easy. Family law is one of the most complicated areas of law, incorporating tax law, financial planning, asset valuation, principles of child development and other complex legal and factual issues. The resolution of these issues will have affects on the rest of your life and possibly generations to come.

3. You can avoid support by quitting your job. Really??? Do you think it’s that easy? The law has mechanisms to counter this type of behavior. Go ahead and get a job at McDonalds. You will still be paying support as though your income was the amount before you quit your high paying job.

4. Revenge is sweet. Nonsense– revenge is destructive all the way around. If you have been hurt, lick your wounds and move on. Getting trapped in a vengeful proceeding is expensive– both emotionally and economically– and never brings the type of emotional closure one is looking for. And don’t worry—Karma is pretty potent!

5. Lawyers are hired guns. Not good lawyers at least. Lawyers should try to temper your intense emotions, not act as legal hit men. A lawyer’s job is to manage and minimize your conflict, looking at the big picture. Family conflict penetrates generations and lawyers who perpetuate it should be ashamed of themselves. Lawyers who mindlessly jump at your command are not doing you or the system any good.

6. Courts will punish a transgressor. Unfortunately not. Courts look at all issues through a no-fault lens. Your spouse could have been an incorrigible philanderer and the courts are prohibited from considering this. Don’t proceed as though you will be rewarded for your loyalty and discretion. Get the best settlement possible and move on.

7. Courts can solve all of your problems. Not so. Courts are there to resolve specific legal problems, not necessarily solve them. Bad parenting and poor judgment by your spouse are not curable by a court order. Courts can protect children from physical harm, but rarely from emotional harm unless it is extreme and provable. If possible, figure out solutions to counter this without court intervention. Counselors and mental health professionals are much more appropriate resources than courthouses.

8. A divorce ends your relationship with your spouse. Unless there are no children, you will have an ongoing relationship for years to come. While no longer partners, you will continue to be parents. It makes no sense to engage in a protracted conflict destroying any chance you both have to maintain a constructive working relationship for the sake of the children.
9. Your spouse is evil. Maybe…but probably not. After all, you married this person. At one point you loved them. While people change, it is not constructive to demonize them. It is much harder to settle a case with the devil. Try to look at your spouse, not as a villain, but as someone who lost their way. Things will go much better.

10. You can win. Nobody wins at divorce…except perhaps the lawyers. Work it out and get on with your life. Success is the best revenge.

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Ten Ways to Screw up Your Divorce Case

After practicing family law for nearly 25 years, Lex has seen a full -range of behavior in divorce court. Probably the most disconcerting  is witnessing people that are  self -destructive. The following is a compilation of the ten ways people ruin their lives in divorce cases:

1. Self pity.   Buck up and deal with it.  When people get mired in self-pity– they lose focus on resolving the conflict and instead focus on their perceived victimization.  If people drive their car looking in the rear-view mirror, instead of the front windshield, they ultimately crash. Same with a divorce.

2.  Ignore your lawyer’s advice. Why would someone hire a lawyer and ignore their advice? It sounds implausible, but it happens all the time.  Find the smartest and most mature lawyer available and  listen and follow their advice.  Lawyers are paid for their wisdom and experience–not to help satisfy client’s self destructive impulses. This is why it is so important to get competent representation.

3.  Play games with  your lawyer. If you aren’t honest with the lawyer, how can they help? Let a lawyer make representations that aren’t true and the lawyer won’t be around for very long. Or don’t cooperate when the lawyer asks for information. All of these behavioral problems just end up in a disastrous result.

4.  Transference of anger. Sometimes people transfer their anger at their spouse towards their lawyer. If you are hostile with your lawyer or his staff, how effective do you think they can be?  Get a counsellor and work  through the anger . The lawyer is not the enemy and should not be treated as such. They are there to help.  And if they aren’t helping–fire them and get one that can help.  In general, anger = trouble in divorce court.

5.  Understand the nature of the relationship. The attorney client relationship is a professional relationship. Treating the lawyer as a friend, therapist or the enemy (see above) is not particularly helpful. Boundaries benefit everyone. The lawyer must remain clinical and detached enough to help guide you through the tumult. Blurred boundaries help no one and actually become destuctive.

6.  Using your lawyer as a  therapist. Not helpful. Lawyers are not typically trained as therapists and frankly, using them as such will quickly exhaust a litigation budget.  Let the lawyer manage the domestic conflict and use a therapist or coach to help to manage the toxic emotions that need to be appropriately addressed.  

7. Pick a lawyer from the phone book. The two most important professionals you rely on are your divorce lawyer and doctor; neither of whom should be chosen based upon the size of their yellow page ad.  Get a referral and research the competence of your lawyer. A bad lawyer needs the bigger ad–not the better lawyer. Too much is a stake to pick a name at random. And for that matter, there is a reason why some lawyers cost significantly less than others. You get what you pay for.

8. Have unrealistice expectations.  If the bar is set too high, the crash landing is more painful. Unrealistic expectations prolong litigation and the pain to the family. In general,  avoid an egocentric world view.  Make your best deal and get on with it. People that get stuck on the litigation carousel sometimes never get off–a painful and miserable existence.

9. Relying on friends and family for advice. While they mean well, they sometimes are less objective than the person actually involved in the divorce. People that follow well-meaning family member’ s advice over their attorney’s ususally end up getting screwed by that advice–a poor choice.  The delicate world of divorce negotiations cannot and should not be impacted by angry  friends or relatives–too upset to understand the implications of their advice.

10. Maintain a sense of entitlement. Nobody is entitled to anything! If you dwell on the notion that you are owed–trying to fill an emotional void brought on betrayal–the end result will never compensate and will only cost.  While a trite idiom, life is indeed unfair sometimes. But to dwell on that instead of trying to figure a way forward will be hazardous and destructive.

 

 

 

 

      

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The Parenting Trap

Divorce is a life event that invites many people to re-evaluate their lives.  During our day to day lives, we often lose sight of our priorities, instead questing  for professional or economic  success at the expense of meaningful relationships. And when people ignore these relationships in favor of external rewards, family breakup often follows. This notion is no great insight but a tragic reality in our “go go” culture. What Lex familia finds interesting, however, is the court’s unwillingness to allow people to reprioritze and reconsider these relationships after the breakup. Apparently, there are no second chances in family court.

Consider this. A succesful professional regularly works a 60 hour week, both because he is a workaholic and to maintain the family standard of living. He never attends his children’s school or extracurricular events.  As a result, he  knows very little about his children and relies on his wife for periodic updates.  While his career ascends, his relationships with his children never develops. Then comes the divorce…and the hard charger is jolted into a focus on the importance of his children. He realizes that he has been going down the wrong road and now wants to change course. However, when he decides to reduce his hours to a more reasonable 40-hour week, thus reducing his income by 30%, he is accused of intentionally reducing his income to avoid paying child support.

The problem that confronts family court judges is the  inability to discern the well motived reduction versus the dead- beat looking for a way to beat his ex-wife out of support. Our experience is that courts will rarely, if ever, allow a non-custodial parent to argue that he should be entitled to cut back on work (and thus his income) so that he can spend more time with the children.  This is the trap that confronts many parents. Families disintegrate because of inattention. Divorce follows. People take stock and re-evaluate priorities, realizing the importance of the relationships. However, when the pursuit of relationships costs the family in terms of reduced income, it is effectively denied by courts refusal to recognize the reduced income as legitimate. Thus the support-paying parent may cut back on work, but will likely pay support based upon his former higher income. This requires him to finance the rebuilding of the relationship. One could argue that this is fair since he created the breakdown in the first place. However, in some cases the excess work is due to economic necessity to maintain an extravagant lifestyle. Should that person be “punished” and forced to work excessive hours to maintain the former status quo, at the cost of continued neglect of his children? Lex Familia thinks not.

One of the truths of divorce is that everything changes. Many people cannot accept this fact and expect that because “it is his fault, ” there should be no disruption in the family’s standard of living. The truth is that there is always plenty of blame to go around and things must necessarily change. Courts need to sensitize themselves to good faith attempts of support-paying parents to rehabilitate their relationships, even if it means reduced income. While Lex Familia is not advocating that parents quit their jobs to spend more time with their children, we also cannot tolerate courts denying a second chance to well-meaning parents.  We all sometimes get trapped in our pursuit of “things” without recognizing the costs. Redemption too has a price. 

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Filed under child support, divorce, Parenting

The Friendly Divorce

Lex Familia has been seeing many articles recently concerning the advent of collaborative divorce, which is a system designed to civilize the divorce process. In collaborative divorce, the parties and their lawyers agree to work out the issues, relying on joint professionals such as accountants and social workers, to help them  “collaborate” on reaching an agreement. In the event the dialogue breaks down or the issues become irresolvable, the collaborating attorneys must agree to withdraw from the case thus prohibiting them from prosecuting any issues in court. This prohibition serves as an incentive for the lawyers to facilitate as opposed to interfering with a peaceful resolution of the divorce.

David Crary, in an Associated Press article writes, “Lawyers by the thousands want to be part of the trend. ‘Most of us had that moment where we realize the adversarial process is so damaging for the clients — and there’s a recognition that we can do better,’ said Talia Katz, executive director of the International Academy of Collaborative Professionals.”

Lex Familia thinks, as an aspirational goal, everyone getting along and playing nicely together is a great notion. However, the reality for the vast majority of people who feel betrayed, frightened, angry and rejected, is that they cannot realistically utilize such a process. Our experience is that great love eroded can’t be resolved by a sterile businesslike negotiation.

Of course divorce lawyers would like to avoid the sloppy and nasty aspect of their jobs that require us to deal with people in crisis; however, to deny the passion of the break up does our clients a disservice.

True legal professionalism requires conflict management, not conflict avoidance. Each case is different, with different emotional dynamics and unique facts and circumstances. Attempting to take all cases under the “let’s be friends” umbrella is as nonsensical as litigating every case as mortal enemies. Divorce lawyers should work to facilitate settlements. However, we need to recognize that sometimes it is in our client’s interests to have the opportunity to tell their story in a controlled setting like a courtroom, in order to avoid outbursts in less controlled settings like the dinner table.  We must validate but at the same time discourage the emotions of revenge and anger. To deny them ignores the very real human emotions incident to the death of a marriage.

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Filed under Collaborative Divorce, divorce, Divorce Lawyer, Uncategorized