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Posts Tagged ‘Divorce’

Will using smoking as a factor in child custody decisions lead family courts to regulate what children can eat, etc.?

SpitkidA parent who smokes can pose a health risk to a child. Can anyone honestly dispute that premise? I know a parent’s smoking can be a factor in a custody decision because I have seen it happen. A child with some fairly serious respiratory issues would tend to come home from the non-custodial parent’s house with ailments ranging from the sniffles to bronchitis, and we had the medical records to prove it. I represented the custodial parent, obviously. The parent’s defense, in essense, was that no one was allowed to smoke in the house when the child was visiting. They smoked in the house when the child wasn’t around, and they smoked outside when the child was there. The parent did not seem to understand the tendency of the particulate matter put off by cigarettes to hang around an enclosed space long after the cigarette goes out. That would be what was making the child sick. The judge, in ruling in our favor, noted that the non-custodial parent did not seem to have much understanding of, or concern for, the child’s health.

It brings up a sort of interesring question: if courts can consider smoking as a factor in determining custody, how much further can they go in making decisions for the child’s health. Can one parent use the court to dictate everything the other parent feeds the child? Attorney Myra Fleischer, writing at the Washington Times last month, describes these concerns and pretty much dismisses them, which I think is correct:

Civil libertarians and parents may argue that the state may expand its intrusion into other family affairs if it is allowed to limit the right of a private citizen to smoke as a condition of being a parent. What if the child drinks too many sugary sodas, or plays violent video games? Most people bristle at the thought the state can monitor what a child eats, even though most people understand that a high fat, high sugar diet can lead to serious medical problems such as obesity and diabetes. If the state can control smoking by parents, couldn’t the state also control the type of diet a parent provides their children? It’s doubtful we will slide down this slippery slope, since the consequences of second hand smoke are well documented scientifically, giving the state an interest.

But this argument might as well be saved. Many courts have already decided that smoking should be a factor in custody decisions. Judge William F. Chinnock, visiting Judge to the Ohio Supreme Court, said in a law review article that a “considered analysis of family law across the United States leads to this inescapable conclusion: a family court that does not issue court orders restraining persons from smoking in the presence of children under the court’s care fails those children whom the law has entrusted to its care.”

The difference between smoking and the examples cited is that smoking has no benefits whatsoever for a child. Video games are fun and fatty foods are yummy, and in moderation neither is necessarily harmful. Particularly in the case of video games, there is nowhere near the body of scientific evidence demonstrating harm like there is with smoking. Prohibitions on smoking are nothing new in society. Restaurants maintained non-smoking sections long before cities and states enacted smoking bans. To my knowledge, no one has created a non-fatty food section in a restaurant (i.e. a place where fatty foods are banned). I suppose it’s possible, but it’s hard to imagine and relatively easy to guard against.

If a parent is feeding a child nothing but hot dogs, soft drinks, and ice cream, then that is a specific problem a parent can take to a family judge. If a child, with either the permission or acquiescence of a parent, plays “Call of Duty” to the exclusion of school and other responsibilities, that is also a significant impact on the child’s welfare. Most states’ family codes empower family judges to make orders that protect the “best interest of the child.” This tends to be a maddeningly ill-defined phrase, but caselaw offers a guide to what a court can and cannot consider.

Considering smoking as a factor in child custody makes sense from a health standpoint. It makes sense from a practical standpoint because, unlike video games or fatty foods, it is not taking something away from a child that the child wants (and if the child wants cigarettes, there is another problem). Finally, existing law already allows it. This should not be a serious issue of civil liberties. Adults ought to have the right to abuse their own bodies as they see fit, for the most part. When science clearly shows a harm that is not mitigated by any benefit to a child, then the law begins to take an interest in a parent’s activities as they pertain to a specific child (bolded because this is not about trying to stop people from smoking, eating ice cream, etc. in a general sense).

The interesting part is when people start to debate what activities of the parents directly harm the children. I happen to think very few of a parent’s activities done well out of the presence of their children directly harm them (particularly ones that do not produce secondhand smoke), provided the parent does a good job of keeping them separate.

Photo credit: By Opa (Own work) [Public domain], via Wikimedia Commons.


Ill-timed (and ill-conceived) statement may lead to ethics complaint

I’m no stranger to saying dumb things without thinking. Mine usually come in the form of trying to make a joke too soon, as opposed to today’s story. Let me switch from snark to outrage.

An unbelievably tragic situation in California has bizarrely led to the threat of an ethics complaint against Sacramento lawyer Nabil Samaan. In short, after a bitter custody battle, it appears Mourad “Moni” Samaan and his 2-year-old daughter, Madeline, died in a murder-suicide from carbon monoxide poisoning. As of August 21, police are officially still investigating the cause of death, but murder-suicide is the prevailing theory. This occurred shortly after a court awarded the child’s mother, Marcia Fay, full custody of Madeline.

Marcos Breton at the Sacramento Bee said it best:

It doesn’t matter if husband and wife are bickering and fundamentally divided.

It doesn’t matter if the court system is a terrible arbiter for family disputes.

It doesn’t matter if one side is right and one side is wrong or both sides are right and both sides are wrong.

It doesn’t matter if you feel cheated and betrayed.

There is no justification for taking the life of a child – for taking any life.

One would hope that this is an axiomatic concept in this day and age. Perhaps Samaan was angry at the court system or his ex-wife. What would possibly lead to what he did? It’s a mystery to me, but apparently it’s not to to Samaan’s brother, Nabil Samaan, who had this to say:

I think he did the right thing. I’m proud of my brother and now he’s in a better place. He’s at peace. His daughter’s at peace. She’ll have one name now, and we can move on. And hopefully the court will learn a little thing about justice.

I take issue with words like “right” and “peace” in this instance, but the Center for Judicial Excellence has taken it a few steps further by stating they intend to file an ethics complaint against Nabil Samaan over his statement.

I have to say that, while such statements certainly “shock the conscience,” I’m not sure I see where disbarment would come in. He didn’t say anything that specifically affects an ongoing case in which he is counsel, and he could plausibly claim that his statement is protected by the First Amendment (it’s always the statements we deplore that test First Amendment protections.) It is also entirely possible that he spoke mostly out of grief or shock. I am not aware of any specific rule of attorney conduct that says a lawyer cannot be a complete and total jerk (hypothetically, of course). If there were such a rule, I suspect a great many lawyers would be in trouble.

That said, it’s not like there will not be any repercussions for the guy. I leave the final thought on the matter to ethics attorney Jerome Fiskin, who had this to say: “What kind of people search out an attorney who, um … yeah.”

Could not have said it better myself.


NOTE: I seem to be writing about ethics a fair amount, so I decided to create a new category for ethics. Now I have to go back and edit all my earlier ethics-related posts. Ugh.


“Bad mothering” can lead to even worse lawsuits

The world is full of bad parents. Some parents give their daughters a new car that’s the wrong color. Others lock them in the basement and father multiple children by them over decades. There is obviously a vast, yawning gulf between those two examples, but I think it is fair to say that the legal system only needs to intervene in cases closer to that utter waste of genetic code from Austria.

Others may disagree with me.

Others like Steven A. Miner II and Kathryn R. Miner, feeling dissatisfied with a childhood free of basement imprisonment but also devoid of clever birthday cards, may decide to sue their mother, Kimberly A. Garrity, for the emotional distress caused by  such omissions (h/t Geri Dreiling).

What horrible acts gave rise to their claim? The Chicago Bar Tender blog reported at the time the suit was filed:

- Garrity will invite one child to an event without inviting the other.

- Garrity would purchase things for Kathryn without purchasing anything for Steven.

- Garrity offered to provide college financial assistence to Steven and not Kathryn.

- Garrity did not provide Christmas or birthday gifts to Steven from 1996 through 2005 or Kathryn in 2007.

- When Steven took back a popsicle jewelry box he made Garrity, she called the police because she asserted there was a diamond necklace in it.

- Garrity told Steven that if he didn’t wear his seatbelt, she would drive to a local police station and tell the cops.

- Garrity smacked Steven on the head for no reason in 1994.

- Garrity did not provide “so much as a care package to Steven while he was away at college, while other parents send their children items and packages on a continuous basis.”

- Garrity “refused to assist Kathryn with the purchase of a dress but, provided Kathryn with the use of an automobile for homecoming; and then proceeded to contact her at midnight while she was with her friends and made her return the automobile.”

Photo by Scott Liddell

I picture the Miners' childhood being exactly not like this (photo by Scott Liddell)

I read the complaint, and while it sounds like there was certainly a strained relationship between the children and their mother, nothing sounds too different from the thousands (if not millions) of other children of divorced parents around America. Some of the allegations relate to payment of child support and reimbursement of medical expenses, claims usually made by the other parent or the state (but maybe Illinois is different). Lest you wonder where their father has been through all of this, don’t worry. He’s one of the kids’ lawyers.

Maybe their childhood really was pretty awful. I know for a fact that it is hard to view one’s own childhood through a perfectly objective lens. We tend to remember our childhood with a child’s mind, not a rational adult mind, no matter how old we are. Still, once you are an adult, you are supposed to be able to deal with life on life’s terms, or to seek help from those qualified to offer it. A crappy childhood is not an excuse for misbehavior as an adult (except in some pretty extreme circumstances). The plaintiffs in this case are adults–barely adults, but adults nonetheless. They don’t need a lawyer to confront their maternal abandonment issues. They clearly need better therapists. However bad their childhood may have been, this is not the way to deal with it.

This is really, I suspect, just a case of a post-divorce parenting plan that did not work out very well. Happens all the time. It doesn’t sound like Garrity would have ever won any mothering awards, but that’s not exactly actionable. They allege some abuse by the mother but never really delve into it. Is this some contorted way of confronting real childhood demons, or a couple of teacup children acting out? I guess we’ll never know.

And what the H-E-double-hockey-sticks was their dad doing helping with this???

The case was dismissed, and the plaintiffs appealed. No, really.

An appellate court dismissed the appeal this week, renewing some semblance of my faith in our judicial system.

“Such alleged actions are unpleasant and perhaps insensitive, and some would arguably fall outside the realm of ‘good mothering,’ but they are not so shocking as to form a basis for a claim for intentional infliction of emotional distress,” said Judge Kathy Flanagan in a court statement, adding that ruling in favor of the children ”could potentially open the floodgates to subject family child rearing to … excessive judicial scrutiny and interference.”

Garrity’s lawyer had some choice words as well:

In court papers, Garrity’s attorney Shelley Smith said the “litany of childish complaints and ingratitude” in the lawsuit is nothing more than an attempt by Garrity’s ex-husband to “seek the ultimate revenge” of having her children accuse her of “being an inadequate mother.”

“It would be laughable that these children of privilege would sue their mother for emotional distress, if the consequences were not so deadly serious” for Garrity, Smith wrote. “There is no insurance for this claim, so (Garrity) must pay her legal fees, while (the children) have their father for free.”

On very rare occasions, “loser pays” doesn’t sound like such a bad idea.


Lame practical jokes: post-divorce edition

I’m not sure this story even needs my commentary:

Saying his ex-wife Isa had always wanted a “big rock,” Dany Lariviere of Montreal gave her one last weekend for her birthday. She will not be wearing it on her finger, though, because it weighs about 20 tons:

Bonne Fete

Bonne fête, Isa

As you may have surmised, the two have not been getting along very well since they were divorced last year, after being married for ten years. Apparently they have continued to argue about financial and custody matters, and each has accused the other of harassment. From the report it’s not really possible to tell who has the better argument there, although I guess Lariviere has now dropped off 20 tons of evidence that it’s not him.

He may have a hard time convincing a court of law that he is not being harassing, I suspect. Incidentally, he is the mayor of the town where they live, and he owns an excavation company and a quarry. Even if he didn’t admit to doing it…

Do people get all of their ideas about how to behave in a divorce from TV? It’s as though this guy watched The War of the Roses without realizing it was supposed to be a comedy.


Lawyers as problem solvers

Attorney Mark Baer was recently interviewed by the Pasadena Star-News about the role of lawyers:

“Law schools train attorneys to spot problems but not how to solve them,” Baer said. “By teaching lawyers to identify problems but not training them to solve them, the practice of law has shifted from resolving conflict to creating it. This is particularly detrimental in cases dealing with children and families as it causes wounds that often last a lifetime.”

I have seen time and time again in divorce cases where situations that might have come to a peaceful resolution with a bit of guidance, or that might even have worked themselves out, were made worse by an overzealous lawyer. Lawyers, in the cases where they actually make matters worse, do not always do so out of malice, but also out of overzealousness or even just habit. Lawyers are indeed trained to spot problems and to look for ways to persuasively present a position, but not necessarily to consider all positions and work towards a compromise. Lawyers are trained to be warriors, or at least carpenters–to quote Abraham Maslow, “If you only have a hammer, you tend to see every problem as a nail.?


Is alimony sexist?

Photo by Stephen Coles

Photo by Stephen Coles

A client once came to my office in a panic. He wanted a divorce, and he wanted one as soon as possible. It turned out that he and his spouse had separated years earlier, and that after the separation she had settled in California while he had moved around the country. He had lived in Texas for a few years at the time. There were all sorts of jurisdictional and venue issues, as it was not at all clear where the two of them had last cohabited as husband and wife. The issue for him, though, was that he wanted the divorce granted in Texas, because she wanted a divorce in California and she wanted alimony.

It struck me as odd that, after years of living apart with little to no contact, she might be able to claim alimony under California law. My understanding of alimony is that it is intended to help one spouse get on their feet after years of being supported by the other spouse. It was possible, though, that this person could be stuck with an alimony bill from someone who had been supporting herself in a different state for the better part of a decade. Is that fair to him? Also, is that fair to her? Because to award alimony to her would be to assume that, despite her years of presumed self-sufficiency, she really still needs the support of her husband. I realize she may not have seen it that way, and that as the attorney for the husband, I am not the best person to argue for her interests. Still, it troubles me that this could happen.

Alimony was recently in the news in the Arnold Schwarzenegger/Maria Shriver divorce, with the rumor mill buzzing about Arnold initially refusing to pay what was described as “alimony,” then changing his mind. This sounds to me more like a $400 million property division between two absurdly wealthy people, but the word “alimony” is being used extensively. Another way to look at it, at least hypothetically, is some form of compensation to Shriver for her husband’s infidelity. It does not make for much of an object lesson on alimony for anybody else, unfortunately.

Texas has generally held alimony to be against the state’s public policy, but has allowed for “spousal maintenance” in the event that:

  1. The parties have been married more than ten years, and one spouse either (a) has significantly lower earning capacity and cannot meet basic needs, (b) has an incapacitating physical or mental condition, or (c) has custody of a child requiring substantial care due to an incapacitating physical or mental condition; or
  2. One spouse has a conviction or deferral of adjudication for  criminal offense involving family violence.

The two rationales for spousal maintenance in Texas would be either to support a spouse who cannot support themselves or needs extra support for a child at the time of the divorce, or to compensate a spouse for abuse during the marriage. Unless the spouse requesting maintenance can prove an ongoing disability, spousal maintenance in Texas cannot be ordered for a period exceeding three years.

California provides a long list of criteria for determining alimony or spousal support, and it appears to have the same overall rationales as Texas. Some states, such as Massachusetts, have broader criteria, but are considering scaling back. There is a movement afoot to reform so-called “permanent alimony” in favor of a system ostensibly like Texas’, which allows the payee spouse time to get on their feet, but only so much time.

So my question is this: is a system that compels one spouse to pay for the support of the other spouse after divorce for the rest of that spouse’s life in any way sexist? While the history of alimony is undoubtedly one of men paying it to women, that is not always the case anymore. As women comprise roughly half the workforce, it is not uncommon anymore for a wife to be the breadwinner of the family and to find herself owing alimony after a divorce. And women are apparently not at all happy about this:

The idea that men can receive spousal support from their wives may feel like a freakish concept, but as women have become higher earners, it’s increasingly common.

And as men set their sights on women’s earnings, women have become more protective of those dollars. In fact, according to the American Academy of Matrimonial Lawyers, 44% of attorneys included in a recent survey said they’ve seen an increase in women asking for prenuptial agreements over the last five years, where in previous decades, prenuptial agreements were almost always sought by men.

A lot of women are indignant now that the shoe is increasingly on the other foot, says Carol Ann Wilson, a certified financial divorce practitioner in Boulder, Colo. “There’s this sense of, ‘What’s yours is ours, but what’s mine is mine,’” Wilson says. “My first response to that is, ‘All these years we have been looking for equality; well, this is what it looks like.’ I think women get angrier about having to pay than men do.”

Why does an ex-wife paying alimony “feel like a freakish concept”? Because no one expects a woman to be more successful than a man–the concept of men always being the ones to pay alimony is a cultural artifact from the era of working husbands and housewives. While there are undoubtedly many cases where spousal maintenance is appropriate, e.g. a highly-paid professional married to a stay-at-home parent with a high school diploma, or an incapacitated spouse dependent on the other spouse who is the respondent in a divorce case. See also victims of domestic violence who should be entitled to some form of compensation. The statutes themselves make no mention of gender at all. Still, we assume that men are the ones to pay alimony, and it seems odd for a woman to be ordered to pay. These assumptions can harm men by forcing them to make payments long after they seem necessary or fair. They also harm women by perpetuating the false notion that women ultimately cannot take care of themselves and need a partner. Many alimony laws provide for termination of alimony payments once the recipient remarries or cohabitates with someone, since presumably now there is a new person to support the recipient. While payment of alimony may be becoming more “equal” in the sense that more women are being ordered to pay it t0 men, the whole system is still based on a rotten foundation of old-timey sexism towards women.

There are two ways to bring equality among the genders in this system. One is to start making more women pay alimony, thus spreading the misery as evenly as possible. The other is to reform the laws to limit alimony to situations where a spouse truly cannot support her/himself without support, and conditioning that support on the recipient making reasonable efforts to become self-supporting with a reasonable time limit on alimony appropriate to the specific situation. Of course, that requires thoughtful, nuanced consideration of each individual case by attorneys, mediators, judges, and spouses. Will the pain of staying in our current system of bellyaching lead us to a better, fairer solution?

Okay, that last bit was a rhetorical question.


Solo lawyers are not prostitutes

Photo by ehpien

I got a surprisingly small number of results when searching for royalty-free images labeled "pole dancer" on Google (photo by ehpien)

The title of this post may be offensive to some. Especially to prostitutes. I got the idea from a post from The People’s Therapist, in which he compares practicing law at a big law firm to doing sex work.

Many of my big firm lawyer clients aren’t sure what they’re doing at the office or why they’re doing it. You keep showing up in the morning and keep leaving at night. Sometimes you aren’t doing much of anything. Other times you’re slaving away at a task you half-understand. People keep smiling and saying hello when they pass you in the hall – and that paycheck, the point of the exercise, keeps getting deposited in your bank account. As long as the firm keeps paying – heck, you’ll make phone calls, chase down research, prepare a closing table, do doc review…or whip quivering buttocks, dance on a pole, or murmur gentle exhortations while your toes are licked. What’s the difference? Who cares?

I’m not entirely sure if this is more a denigration of big firm lawyers or of sex workers, or of both equally, or of neither. I think the point is that big firm life is an unpleasant slog done almost exclusively for the money, with about as much emotional appeal as licking toes (unless you’re into that, of course). At first, his post put me in mind of my quasi-libertarian arguments on why much sex work shouldn’t be criminalized the way it currently is (a topic for another post later, perhaps), but then he went on to address the type of legal work he (presumably) respects.

It does raise an issue: Are there lawyers who aren’t prostitutes?

I never shook off a strong regret surrounding my legal career – that I never learned how to practice law. You know – real law. Like when your friend calls because his cousin got arrested for a DUI. I have no idea what to do with a DUI. I wasn’t even a litigator – I was on the corporate side. I wouldn’t know where to start.

Here are some other things I know next to nothing about, other than in some vague, theoretical bar exam sense:

How to file for divorce.

How to close on a house.

How to write a will.

How to handle the legal necessities of a small business.

At this point, if a friend rang up with any legal question short of how to prepare for the closing of a multi-million dollar merger – or proof a securities offering – my advice would be useless.

There are lawyers out there who are not proletarian sex workers, right? Lawyers not owned by the capitalists. Lawyers who possess the means of production (as Uncle Karl would say.) Lawyers who crawl out of bondage and ascend to the petite bourgeoisie. Lawyers who “hang a shingle” and do real law. Lawyers who work for themselves.

I have never worked for a big law firm, nor have I ever desired to do so. What I have done is nearly all the work listed above. I have filed (or defended) over a hundred divorces. I have closed on sales of houses, both as an attorney for a party and as an escrow agent. I have written a will. I have seen dozens of new businesses through their “legal necessities.” I am secure in the knowledge that my work over the past nine years has benefited real people, not just giant faceless corporations. I have made a difference, for good or ill, in the lives of hundreds of people (maybe more).

What’s the trade-off? Money, of course. A friend at a big firm was once telling me about a new, small case his firm has just started. I asked him what constituted “small” in his universe, and he told me that they expected about $100,000 in legal fees. That would have been a good two-year period for me at the time. Many of my law school classmates made upward of $120,000 in their first year of practice, while I earned the rough equivalent of minimum wage (since most revenue went to overhead).

At times I think there is no single legal profession, but rather those who practice for ordinary folks inhabiting the same earth as lawyers who practice some astronomically larger, yet infinitely less personal, form of law. There are also government attorneys, but they do not fit in my dichotomy so I will not mention them again. I do not even have a real concept of what these well-paid, overworked lawyers actually do during their 40+ billable hours per week. I encountered some confusion as to my daily routine from big firm colleagues as well. Courtroom time and “client contact” are like the proverbial pot of gold to many young big firm associates; I had both in droves within the first few months of my practice (and found them a mixed bag at best.)

I’m happy to know that I am not a prostitute (again, no offense intended to prostitutes by comparing them to lawyers). I’m also flattered to know that at least some big firm attorneys look at the sort of practice I have had with something that resembles admiration or even envy. I can honestly say that, aside from the big paycheck, I do not feel that I missed out on anything I wanted by choosing my path. Each lawyer has their own path to follow, and each path seems to lead to one of two worlds (or government).


When “best interest of the child” meets the First Amendment

A Pennsylvania man has started a free speech debate, of sorts.

A bitter, divorced Pennsylvania man’s blog has triggered a free-speech debate, officials say.

Doylestown resident Anthony Morelli created his blog,, in 2007 as a way to blow off steam about his ex-wife, The Philadelphia Inquirer reported Sunday.

But then his ex-wife, Allison Morelli, found out about the Web site and became very upset, calling it “heartbreaking” and potentially harmful to their 9- and 12-year-old sons.

At a June 6 custody hearing, Bucks County Court Judge Diane Gibbons ordered Anthony Morelli to take down the Web site and banned him from mentioning his ex-wife “on any public media” or saying anything about his children online “other than ‘happy birthday’ or other significant school events.”

At that point, Mr. Morelli did not stop posting, and the judge ordered that the site be taken down. Did this violate Mr. Morelli’s free speech rights? Many people believe it did, to the point that a campaign has begun to bring his website back:

We are asking for help in this defense because it is an issue that faces any parent that is divorced. Imagine a judge telling you that you cannot talk about your children on “any public media” – which would include things like Facebook updates, Twitter, or your personal blog – or you will lose custody.  Imagine the far-reaching consequences for bloggers everywhere if orders such as this one are left unchallenged?  There goes your online support group.  There goes your Facebook and Twitter updates.  Your website, personal OR commercial – ordered gone under threat of incarceration and having your beloved children removed from your custody.  This order flies in the face of our civil rights, and your civil rights, too! Imagine trying to protect your children from abuse and a judge telling you that you must hide the abuse and protect the abuser by not allowing you to talk about the abuse in public, we can’t let this stand.

While you're busy blogging, your children might be lost in a cornfield!

This does not appear to be a question of defamation, in that I don’t think the mother is specifically charging that statements on the blog were untrue, but rather that they would be harmful to the parties’ children if the children saw them. Most states, Pennsylvania included, follow the “best interest of the child” doctrine when determining child custody and orders relating to parenting. The question is, does the best interest of the children trump the father’s First Amendment rights?

I am very hesitant to support curtailing anyone’s freedom of speech and expression based on the extremely fuzzy “best interest” standards. In my experience, though, judges often place “best interests” above any rights of the parents, basic common sense, and the laws of gravity. Since I cannot directly review the blog in question, all I can say is that it seems to have contained some rather unpleasant stuff (just as anything at the forefront of a free speech debate does). I can see how the contents of the blog would be relevant to an ongoing custody case, since the nature of the parents’ relationship affects the children  on a daily basis. I can see a judge exercising some sort of review to make sure neither parent is defaming the other (in any medium, really). To issue a blanket injunction against most forms of communication with (or about) the children, though, does not sit well.

The blog seems petty, to me at least. Even if his ex-wife is a psycho, he is taking the low road. The point is that the low road ought to be his to take if he wants.


Why people stay in dangerous relationships

Holly at The Pervocracy (a blog dealing with gender and sexuality issues from an unconventional perpsective, so I’ll go ahead and call this NSFW for language and maybe subject matter) has worked as a paramedic and therefore spent a good deal of time in emergency rooms. From that, she has heard just about every excuse people make when they come into the hospital with injuries caused by a family member. “I fell down the stairs” is only the most famous one. It is far too easy in such situations, for someone who does not know the people involved, to conclude that weakness or stupidity could be the only reasons why someone might stay in an abusive relationship. That is simply not true, and it is especially important for lawyers and people embroiled in the family law system to understand why people may choose to stay with an abuser. Holly has made a list of many of those reasons.

To be clear, any gender in any sort of relationship can be an abuser (Holly mixes up the genders in her examples for that very reason). Abuse can be man-to-woman, woman-to-man, man-to-man, woman-to-woman, person-to-polyamorous-partners, etc. And “abuse” doesn’t just mean hitting, shoving, or breaking bones. It could include yelling, belittling, controlling, or anything else that would make one partner perpetually subordinate to another.

It is worth reading the whole post. She ends her post with a plea to her readers, and I pass that same plea on to you.

Usually I end these “long-list” posts with a cheery little “add your own!”, and while that invitation remains open (sadly, I’m sure there are tons that I missed), I’m going to add something to this one:

If any of these sound like you–even if they sound like you in a “yeah, but” sort of way–even if your partner never laid a finger on you physically, it was just some yelling–even if you’re a man and she’s a woman and it doesn’t work like that–even if you swear your situation isn’t abuse because–call this number:

TTY: 1−800−787−3224

It’s the National Domestic Violence Hotline and they will talk to you. They are not going to call the cops on your partner (or you). They are not going to tell you that you have to leave your relationship. Calling them is not a commitment of any kind–you can always call them and decide to stay in your relationship after all. All they’re going to do is talk to you, give you an outside perspective from people who are trained to recognize and deal with abusive situations, and help you find resources for getting out of your situation if you decide that you want them.

There is much that lawyers and the family court system can do, but there is only so much. There are tools out there, if you are in an abusive situation, to help you help yourself. Please read Holly’s list if you think there’s even a chance you are in a bad situation, and please stay safe out there.


One of the (many) dark sides of divorce litigation

A friend and colleague sent me a link to an article about adultery issues in divorce cases in Texas.  The article, from the Beal Law Firm in Dallas, Texas, addresses issues that rarely if ever come up in my cases, but that got me thinking about how much I value collaborative law and the collaborative process.

A good litigator will always look for the facts or legal principles that will best serve their clients’ interests.  At the same time, a litigator wants those facts or legal principles to negatively impact the opposing parties.  Litigation is usually a zero-sum game this way; if it helps my client, it probably hurts the other guy.  This is often why litigation is such a poor mechanism in many (not all) divorce matters.  These are not litigants in a business dispute or opposing sides of an auto accident.  These are people who are married, who once felt confident enough to stand up in front of their family and friends and recite vows.  When such a relationship ends, as many must, is it ideal to impose a zero-sum framework like litigation?  While it may be unavoidable in some cases, I would say no, it is not ideal.  The article begins with a thought that could apply to any financial dispute as easily (if not more easily) than a marriage:

When those clients [whose spouses have committed adultery] come in, the first question any creative attorney would ask himself is, “What can I do to gain an advantage and really give the other side something to lose?  You want something more than just the threat of a “disproportionate division” using adultery as a fault ground – that’s often not much of a threat.  “I’ve got it, there must be a Tort that will work,” you think.  Maybe there is.

The article goes on to describe various civil tort claims (claims for injury or negligence) that have been brought against a spouse who has committed adultery, or even against the person who was the other party to the adultery.  The gist of the article is that such claims are generally barred in the state of Texas, either by statute or by court ruling.

Make no mistake, it is not for anyone, let alone me, to discount the emotional (and perhaps financial) toll when a spouse has committed adultery.  Perhaps the lack of trust that would obviously result would make such a divorce a poor candidate for collaborative law.  What this article brings home for me is the type of situation in which the collaborative model would not work at all.

I would therefore add “significant distrust” to the list of situations in which litigation in a divorce is necessary. Elizabeth J. Kates, writing for Collaborative Lawyers, Inc., offers an excellent summary of the types of cases where collaborative just won’t work:

[T]here are cases for which collaborative law is not appropriate. These would include cases involving serious domestic violence or coercive control, elder abuse, child abuse, or mental illness. Additionally, if one party can intimidate the other because of matters other than the issues involved in the case, collaborative law would not be appropriate.

The key is deciding whether any of the above factors present a “point of no return,” where the risks inherent in pursuing litigation in something as personal as a divorce case are outweighed by the risks of trusting the other spouse or leaving oneself open to further abuse or duress by that spouse.  I suspect (without any real scientific backing, I realize) that cases where litigation is absolutely necessary are not the norm.

I therefore wish to respectfully disagree with at least one point of the above-quoted article: where the author argues that “any creative attorney” would first ask how to gain an advantage in a divorce case, I believe the first question should be whether looking for an advantage is even necessary.