Divorce in the Trenches

Perspective

2012-03-04T21:05:00.000-05:00

     For those who don't know, I coach the Mooresville High School Mock Trial Team. Yesterday we capped off our 6th season with a tough loss in the North Carolina State Finals after winning the Charlotte regional last month.
     First off, let me brag for just a moment on my amazing students, especially my seniors who have given so much of themselves over the past several years to help build our program into one of the best in the state. When I was a teenager, I was an immense geek - heck I was a legendary intellectual snob at A.L. Brown back in the day - but I never would have put as much heart and as many man-hours into an extracurricular activity as these kids have given me. Hats off!
     I always tell the team how much I learn from them in the process of teaching. It's true. Judges and lawyers, particularly in district court where all family cases are heard in North Carolina, don't spend much time arguing proper objections or practicing good cross examination. In fact, most practitioners and jurists butcher both on a regular basis. I credit mock trial with keeping me brushed up on those techniques.
     This year I got reminded of something else - the importance of appearances and perception. Without pouring salt on a fresh wound, let's just say I took major exception to the behavior of one of the judges scoring my team this weekend in the round we lost. Something completely cosmetic swayed her against us, something having nothing to do with our skills or our case but that cost us major points just the same.
     It was a tough loss, but it reminded me how lawyers and laypeople look at things differently. I believe judges ignore 75% of the things juries focus on. Non-verbal cues, appearance, anecdotal clues to a witness's personal background, etc. A judge looks for the legal problem so he or she can apply the prescribed remedy. Juries, on the other hand, have a funny way of deciding for themselves what their job should be.
   The lesson for me this weekend is to remember my audience. I should always spend some time imaging what the decision-maker will think of my case, not just what I think of it. The lesson for you, my Someday Client, is to trust me when I tell you that win or lose I will have done everything I can under the law to help your cause.
      P.S. - For those who might be interested in our Mock Trial Program, please take the time to like us at www.facebook.com/MHSMockTrial

The Paralysis of Perfection

2012-01-31T23:01:00.000-05:00

    I envisioned opening this post with a play on the title. Something clever that intimated my "perfection" as a litigator. Ultimately, I decided to play it straight lest you, my Constant Readers, fail to grasp the sarcasm.

    Perfection Paralysis is a term I first heard from a client a few months ago. She won't mind me telling you she gets flustered when too many items get heaped on her plate. The idea is you can juggle a few discrete tasks, but when your To Do list piles up beyond what you can comfortably manage it becomes impossible to focus. You can't handle everything, so you handle nothing.

    Unfortunately, divorce cases come in waves. Pleadings beget discovery. Discovery begets depositions. Depositions beget hearings. Hearings beget hurt feelings and handsome attorney bills (hopefully I'm inflicting the former and collecting the latter). If you're uncomfortable keeping multiple balls in the air, this is a taxing process.

The best advice I can offer is to think of your divorce like a part-time job. Give yourself permission to punch the time clock, both on and off. I'll find plenty of work for you when it's time to work. You be sure to find something to fill the rest.

     In the interest of full disclosure, I'm something of a paralytic, too. My business has been picking up for a while, but in the last three months the levies have burst. It's exhilarating mostly, but occasionally I find myself staring at the files on my desk and realize I haven't picked one up at least 15 minutes. I'm sure my mind has been engaged the whole time, but I just don't have anything to show for it. Not to worry, I don't bill you for that time!

Run Like Hell

2011-12-10T09:35:00.000-05:00

The holidays are a bit of a dead period in terms of new clients. Sometimes an acute situation drives people to separate around the holidays, but people who have been thinking about leaving for a while generally hold out so as not to ruin the holidays for their families. As a corollary, January and February are usually busy for me as those same people trickle into my office. In other cases, people wrestle with the decision for years before getting up the nerve to talk to an attorney.

I'm always interested to learn what leads to a client's first visit, especially the ones still struggling with the decision to separate. It's frustrating because I want to help every client I see, but that first and most critical decision - whether to separate - is a personal decision, not a legal one, so I spend most of my time in those consultations pretending I'm a therapist, not a lawyer.

If you are one of these Hamlet-onian individuals standing paralyzed between an unhappy marriage on one side, and the prospect of a bitter divorce on the other, I invite you to join me in an experiment. Go to iTunes (or the legal music downloading service of your choice!), and purchase the latest album from The Airborne Toxic Event called "All At Once."

First off, if you are unfamiliar with Airborne Toxic, you're welcome! :-)

Now for the experiment. Put on your jogging shoes and head for your favorite treadmill, elliptical, or (if you're like me) empty industrial park. Whatever your normal running distance may be, add an extra 5 minutes so you're sure to reach that point where you have to rely on attitude and a kick-ass running song to get you through. As soon you feel yourself reach that point, cue up the title track on your new favorite album, "All At Once." It's a great song with a straight, galloping rhythm, but more importantly the lyrics are a piercing, perfectly drawn ode to the brevity of life.

Right as the song hits the bridge your legs will involuntarily kick into another gear you didn't know you had. You realize that today, and every day, we are all running like hell from our own mortality and that the only real satisfaction we ever get is in that escape.

Now, right as you feel yourself getting lightheaded, but before you let off on the throttle, ask yourself one question: If you're running like hell away from death, what are you running toward? If your husband or wife is part of the image that comes to mind, you're good. If it's anything else, it's time that you and I had a talk.

Techno Groove

2011-11-04T22:06:00.000-04:00

I am writing this post on my brand new bluetooth keyboard, paired with my brand new Ipad 2. I just got them paired, and my next trick will be unpairing my bluetooth earpiece from my Macbook so I can mated with the Ipad. The earpiece has a two pairing limit, and the other free channel is already taken by my Android smartphone. All this should be less trouble than figuring out how to use Dropbox on all my various devices.

Why the techie talk? I'm not trying to brag about how tech-savvy I am, or how many toys I have. It just occurs to me how vastly different my daily routine has become in a few short years.

I grew up with an Atari. I thought I was hot stuff with a Commodore 64. My first laptop was a Toshiba; I could stack five Ipads front to back and they would still be thinner than that mammoth.

The practice of law is at the vanguard of the changes brought about by these remarkable devices that populate our lives these days. If your domestic attorney is embracing new technologies, you should be encouraged. Adapting to incorporate new tools and ideas is not a universal quality of legal professionals, unfortunately.

For example, I have started bringing my laptop/Ipad to every hearing and mediation. Traditionally when attorneys settle a case in court they hand write a "Memorandum of Judgment" setting forth the basic terms of the agreement. The judge signs it, and it has the force of law, but one of the attorneys still has to type a formal order, adding in any appropriate boilerplate and verbiage for the issues resolved.

You can imagine the havoc this wreaks. One lawyer's boilerplate is another lawyer's substantive change, and the client ends up paying another four hours in legal fees before getting the benefit of a deal they already made. My goal is to always have a device on-hand stocked with templates I can use to create a final settlement document the first time. My impression is that other lawyers and judges appreciate this practice. Last week for instance, I kept both parties, opposing counsel, and a mediator at my office for an extra hour while we reviewed and revised a final separation agreement and custody order. My client asked why the other side wasn't bitching about the extra time I was taken (like he was). The answer was simple - we didn't finalize documents on a case settled in mediation last month, and we were STILL haggling over the final language. I got out of the office at 7:30 that night, but with a much happier client.

The Only Rule is... There are NO Rules!

2011-09-04T14:40:00.000-04:00

They say the States are the laboratories of American democracy. If that's true, then domestic violence court (a/k/a "50B court" or "DVO court" if you're in the know) is the laboratory of divorce law. I can't tell you how many divorces get settled quick and dirty under the pressure of a pending domestic violence trial, circumventing the normal family law process with often unpredictable results.

Sometimes people need a domestic violence protective order. There's no debating that point. A special dynamic exists between people in a romantic or familial relationship, which breeds a special kind of violence when things go bad. The DVO statute is meant to offer special protection to victims of such violence. Often, though, DVO litigants are just as interested in their marital claims as they are in the outcome of their DVO case.

Some attorneys object to settling custody, alimony, or property issues using a DVO claim as leverage. It bastardizes the purpose of the statute, which (the argument goes) is strictly tailored to protect victims of domestic violence, nothing more.

Hogwash. If that's how you feel, God bless you - go work at legal aid where the taxpayers paying your salary don't let you negotiate anything outside the 50B complaint. My clients pay my salary, and they expect me to worry about the things important to them. They expect me to use the laws, not proselytize about them. Don't get me wrong, I have those conversations with clients all the time. But when I do it's because I don't think we can use the law in a particular way, not because I don't think we're supposed to.

I am often retained by clients after they have taken out a DVO complaint against their spouse or significant other. Sometimes, the opposing side is willing to negotiate a favorable settlement of divorce issues in exchange for a dismissal of the DVO charge. Recently, an attorney representing the DVO defendant took a hardline stance with me, insisting that his client would not "negotiate with a gun to his head." He wanted the DVO dismissed before we settled other matters.

I admired his moxie, but even he understood his position was untenable. Victims of domestic violence are also husbands, wives, mothers, and fathers. So are the perpetrators. They don't put on different hats depending on which courtroom they're sitting in. They also don't have the time or money to draw neat intellectual lines between the need to feel safe and the need to know how they will pay for groceries next week. I explain this to my own clients all the time, especially when I represent the party accused of domestic violence.

What this attorney was really saying was that he liked his chances of winning the DVO case and didn't intend on pushing his client to accept a less favorable custody or child support arrangement in exchange for my client dismissing the DVO. All I can say is, I hope he feels the same way when I'm done cross-examining his client!

Client Meeting Haiku

2011-07-08T18:58:00.000-04:00

I say, "A or B"

Your response is, "I agree!"

My toil continues...

What Happens in Vegas… Happens Because You Went to Vegas!

2011-06-18T22:19:00.000-04:00

Several years ago, a client and I were sitting outside the courthouse in Statesville discussing strategy for a custody hearing. We had to overcome some negative facts, including an altercation he had with his ex-wife in the parking lot of his son’s school. My client lost his temper and kicked a dent into the door of his ex-wife’s car in front of his son. Those were the undisputed facts, but my client steadfastly refused to take any measure of responsibility for his behavior.

Actually, that’s not a fair characterization. He admitted it was wrong to kick the car, but he insisted she was the instigator – that she goaded him beyond the limits of human tolerance, thus excusing his outburst.

This college graduate and accomplished businessman was utterly convinced his testimony about that day’s events would illustrate perfectly for the judge the type of devious torments he’d endured through 20 years of marriage, thereby clearing the path for him to be granted primary custody of his two kids.

Let me be clear. This man was a good father. He was kind, attentive, engaged, and 100% invested in his children’s futures. Trouble was, so was his wife.

Neither parent had any criminal record, no history of mental illness – nothing objective that might concern a judge about putting a child in his or her care, except this outburst by my client. Unfortunately for our case, my client’s wife had only worked part-time for the last 9 years and was clearly the primary caretaker for the children during that time. His odds of achieving primary custody were slim.

My client didn’t see it that way. He had bastardized the history of his marriage in his mind, morphing it into a complex mythology in which his wife was his constant tormentor, he the hapless victim.

Case in point – to convince me his criminal defacement of his wife’s car door was, in fact, the smoking gun that would win his custody case, he printed out a Google Earth map of the parking lot zoomed in tight enough to single out the parking space where it happened. The map showed the position of his car in red marker, several other parked cars in blue, and then his ex-wife’s car in green positioned so that it partially blocked the exit.

It was true the parking lot was crowded, and it was true we couldn’t prove that his ex-wife even knew he was there when she parked there. But none of that mattered because according to my client his ex-wife “knew that his car has a low clearance and knew parking where she did would force to jump the curb to get out.”

If this argument doesn’t sound farcical to you, you must already be one of my clients. Stop reading right now and fill out the paperwork I’ve been hounding you about for the last two weeks! Just kidding, I love you all and appreciate that new retainer you are about to bring me.

Now, back to my story. Client management is all about finding the right explanations for your client. In this case, the analogy I came up with to explain how my client’s expectations were skewed was this: Imagine you’re in Las Vegas with a friend. You’ve spent the night gambling and drinking and just realized that next month’s mortgage payment is now winding its way through the counting rooms of Caesar’s, Harrah’s and the Wynn. Is it your fault for gambling? Or is it your friend’s fault for agreeing to drive the car to Vegas?

Regardless of what role other people play in bringing you to the precipice of a bad decision, only you can decide to act poorly. No forces you to make a wrong choice. My client had to come to grips with this principal that day in court. The judge allowed the opposing attorney and I to preview the evidence for her in chambers, gave us a strong indication of her likely ruling, and my client (to his credit) was able to negotiate a fair custody schedule for himself without putting his son on the witness stand. It wasn’t what he hoped for, but it was a lesson well learned. That’s what you get for waking up in Vegas.

The Tao of Avoiding Credit Card Debt in Your Marriage

2011-04-11T21:44:00.000-04:00

I was sitting in a mediation recently (hour 6 of a 10-hour marathon) when my client hit what runners affectionately refer to as "the wall." Her ex-husband had just countered our last offer with a low-ball alimony figure. We'd waited almost 75 minutes for the mediator to bring us a legitimate offer, and when his proposal didn't measure up my normally warmhearted and gracious client lost her sh%#! She beat the table. She cursed. She questioned the mediators professional commitment. She questioned her ex-husband's parentage.

My client went on like that for over 10 minutes. I didn't make any move to stop her. If nothing else, her ex-husband was going know the full weight of her displeasure when the mediator stepped back across the hall (after a stop in the washroom to re-apply his deodorant).

When the mediator left, I spent about 20 minutes talking my client down from the ledge. After a while, we were laughing about her outburst. I had to remind her that no one would be forcing her to settle unless she was certain it was the right choice. I also reminded her that she had been unfaithful several years ago, that she later admitted the affair, and that her alimony claim was on somewhat shaky ground.

The problem was whether we could prove her husband "condoned" the adultery. In alimony cases there is something called "condonation," which is when the aggrieved spouse forgives the cheating spouse on the condition that it not happen again. Sometimes, it's as hard to prove condonation as it is to prove adultery in the first place. There are disputes over what the innocent spouse knew, when he/she knew it, and whether the forgiveness was affirmatively communicated, or, uh, consummated by both parties.

In this case, my client had a strong case for condonation, but not airtight. In any good mediated settlement both parties have to give up enough to expose the other side to some risk if they walk away. To rationalize accepting a compromise that I knew was in her best interest, I told my client her affair was like running up a $1000 balance on a high-interest credit card, then ignoring the monthly statements for the next five years. By not telling her husband sooner and dealing the problem, she compounded it, just like accruing interest.

I had never used that analogy before with my clients, but since that mediation I've been trying it out in other contexts and I'm convinced it applies to many common problems surrounding the end of a marriage. If your spouse disciplines your child in a way you find inappropriate, deal with it now. Don't wait to mention it in my office five years down the line as a reason you should be granted primary custody, when you've accepted it for years. If your marriage is unhappy, either invest your energy in making it happy or get out. You think my rates are high? (totally worth it, btw!) The interest rate you pay for ignoring such problems is downright usurious.

So, like, how long is this gonna take? -OR- Merry Christmas to ALL!

2010-12-29T11:59:00.000-05:00

Christmas time... is the right time... to talk about... well... time.

You're standing in line with an armful of gifts. You have three other stores to get to before going home for dinner. You left work early and yet somehow a chorus of morons on the roadway and in the store aisles has stolen back every second you carved out for yourself to get your shopping done. Your head is now splitting and the last bit of sanity you had in reserve to get your through New Years Eve is oozing out.

You want, really want, to achieve that laid-back mental attitude you get (or used to get) on Christmas morning when all you do is open presents and go eat fattening meals with family and friends. Unfortunately, the debilitating duties of adulthood seem to leave less and less time for you to enjoy that feeling each year.

Christmas, while wonderful in many ways, creates this unique brand of frustration - you know there's happiness out there to be felt but the only way to get it is by trudging through a gauntlet of repetitive, unpleasant, soul-sucking tasks.

Now, imagine a disease that afflicts you with this same sense of restless anxiety 24/7, only you don't even get the assurance of a pre-determined end point like December 25th. That, ladies and gentleman, is divorce.

When new clients ask me for a timeline for their case, I always give them a generic outline of the ligitation process:

1. It will take me a few weeks to prepare the Complaint to start the case, or the Answer if the client has already been served.
2. The opposing party will have 30 days to file a response, which can be extended to 60 days by filing a request with the clerk of court.
3. After that, depending on the facts of the case, a hearing date may be set for certain specific issues, or the parties may engage in discovery to obtain necessary information from each other. Either option can take several months to achieve the desired results.
4. Most cases involve temporary hearings within the first few months if they don't settle, and then leave the possibility for more permanent hearings at a later date, but again this interval can be a few months or more than a year depending on the case.
5. Ultimately, most cases wind up in mediation, and if you are lucky both parties will act reasonably and the case will settle out of court. Sometimes, though, you have to kick a little butt to make things work, so you have hearings, THEN mediation. Other times you just have to let a judge decide the whole thing.

Notice how my "outline" doesn't contain any specific numbers past item no. 2? That's not accidental. Every case is unique and there are so many variables that it's hard to be specific after the first 2 or 3 months of the case.

You might think I'm trying to dissuade you from fighting hard for what you're entitled to in your divorce. Not at all. The purpose of this post is to make you a more effective advocate for your rights by arming with you with information. I find that clients often have stronger will than I give them credit for, and they are better at exercising that will power if they know what they are getting into up front. It's the people who let themselves think everyting will be wrapped up in a neat little bow (like a Christmas present :-) in a week or two that end up hating life.

My well-informed clients either settle and appreciate all the time/energy/money they have saved, or they fight to the end satisfied that they've done the right thing. Just like standing in that ubiquitous check-out line every Christmas - survival is all about achieving the right mental attitude. Merry Christmas everyone, and have a GREAT New Year!
-Ron (aka the GDC)

Court or Sport?

2010-10-28T17:26:00.001-04:00

I am in a three-way horse race for the regular season title in my fantasy football league. College basketball season is almost upon us, and with it a new and glorious Duke Blue Devil dynasty ascends. With these potent distractions weighing down my productivity, I thought I should write a short post about a particular type of attitude I sometimes encounter as a divorce attorney - the divorce jock.
Divorce Jock is usually a nice enough man or woman. Someone I would like to have a beer with. Most of the time, when I root through the details of their story, I find it really easy to root for Divorce Jock and, by extension, easy to develop legal strategies to meet his/her goals. Divorce Jock has only one fatal flaw - a unquenchable competitive instinct.
Did you know that child support is based upon your gross income from any source? Wages, commissions, gifts, bonuses, lottery winnings, quetionable "loans" from relatives that you never really pay back, fringe and in-kind work benefits, all fit the definitation of gross income. A recent North Carolina Court of Appeals case adopted the standard that if you receive money or some other benefit that in effect reduces your present living expenses, or could be used without penalty to reduce you present living expenses, it should be included as part of your gross income for child support purposes.
I more or less knew this to be the standard before this case. In fact, every divorce lawyer I know would pretty much say "Duh!" if you showed them a copy of this new case. Why, then, would a well-seasoned divorce lawyer take such a case to the Court of Appeals? The answer is Divorce Jock.
Divorce Jock might be the most ethical, fair-minded human being you will ever meet, but when someone faces him/her on the other side of the big "V." Divorce Jock loses sight of everything but the competition. The other party must be vanquished! Suddenly questions of equity and right & wrong get distorted. Maybe it's because a byproduct of all the rules, both express and implied, that govern divorces.
Over time, I have decided it's not really that Divorce Jock loses his/her morality; it's that Divorce Jock gets overwhelmed by all the intrcacies of the legal process, many of which they don't understand. In response, Divorce Jock adopts the attitude that if any rule or technicality can be spun to their advantage, it would be wrong not to spin it. It's similar to a baseball player who gets the benefit of a bad call; imagine if Derek Jeter refused to take his base if the umpire called a ball on a clear strike!
Looking at divorce as a quasi-sport can be a alternative to getting depressed and demoralized by the process. If you think you may be a Divorce Jock, don't beat yourself up about it. Just make sure that from time to time you look at your child, look at the opposing lawyer, and yes, look at your soon-to-be ex-spouse for what they are, not trophies to be won or members of the opposing team, but people who are a part of your real life. If you do that, I promise all those funky rules I'm explaining to you as your lawyer will make a little more sense in the long run.

The Most Authentic Legal Moment in Television History!

2010-09-16T08:37:00.000-04:00

My wife and I love Friday Night Lights. The fact that NBC has won't commit to bringing it back for a another season frustrates us to no end. I like the show because the mese en scene feels so familiar. It takes me back to my high school days in Kannapolis, except to be honest in the world of FNL I would probably play a band-geek without any dialogue.

If you ask my lovely wife why I watch it, she'll say in a faux Texas drawl, "Ron just wants to stare at Tammy Taaaylor!"

While I do find the lovely Connie Britton's portayal of Coach Taylor's wife mesmerizing, today I want to tell you about an episode last season that captured the essence of my life as an attorney so perfectly that it changed the way I talk to clients forever.

In the show Mrs. Taylor, the Dillon High School principal, got into some hot water when she advised a young student on her options for handling an unplanned pregnancy, including the option to abort it. Things went public and the ensuing controvery threatened Tammy's job to the point she sought legal advice from a local attorney. The consultation scene in the lawyer's office was the most realistic depiction of lawyer/client relationships I have ever seen on TV.

Incensed by the politicization of her job, Tammy asks whether she can sue the school board for wrongul termination. She was also concered about the defamation of her character in the media. The attorney advises her (correctly) that yes, she could sue the school board and the community leaders who are lambasting her on local radio and TV, and she may even win.

Then the attorney, with full sympathy in his eyes, lowers the boom and says, "Mrs. Taylor, there's law and then there's life." Yes, you might win in court, but if it comes at the cost of your ability to find a job at any other school, what have you really won?

The "there's law and then there's life" line is now a staple in my domestic consults, because it fits so many common divorce problems:

- What if I move out and my spouse doesn't pay the mortgage which is in both our names?
- What if my children start taking my spouses side?
- What if I want to date someone before this god-forsaken case ends?

Each of these are problems for which the law provides no remedy, or a painfully inadquate and expensive remedy. The bank can foreclose and ruin your credit regardless of whether you've had time to seek property division from the courts. No one is going to monitor your spouse's every conversation with your children; your own time with your kids is often the best and only way to defend against parental alienation. No one can stop you from dating, but your spouse has every right to probe that relationship as it may relate to alimony or child custody.

Every client must at some point start to look at the services I provide in the context of a bigger tapestry interwoven with legal, social, financial, and emotional questions. I can answer some questions, and I will do my best to advise you on the others. At the end of the day, you're the star and I just play the role of your the faithful sidekick in this mellodrama.

Jorts for Justice

2010-06-20T21:42:00.000-04:00

This post will be more autobiographical than most, but go with me, there's a legal point here somewhere.
I am the proud owner of two pairs of jean shorts. No cut-offs, mind you; denim shorts by design. I wear them in precisely two situations - while doing manual labor in the summer heat, and during my annual Nascar vacation in May when my friends and I camp out for the Charlotte races.
About three years ago, I naively changed into my jean shorts at the office before leaving for a fun weekend at the track. My colleague, a shirt-tale Southerner from North Virginia, sounded as though she were actively choking back her lunch when she said, "I cannot believe you wear jorts!" For the first time, that clever bit of American slang entered my life.
It turns out, my wife felt the same way. In fact, every woman I know hates my jorts. Most of the men can't handle them either, truth be told. Turns out, 98% of mankind make no distinction between jorts and a full on Canadian tuxedo (no matter what you match them with).
To those would-be clients who would shun my durable, functional summer-wear, I say have no fear. I still fill out my courtroom suits with the same urbane, confident swagger you have come to know and demand. This post, however, is for all you "two-percenters" out there who have ever been dissed for sporting your denim. I am also here for you.
You see, in an anecdotal and totally non-statistical way, I find that men who wear jorts often share a basic mistrust of lawyers and legal system. Quite frankly, you've got a point there. Often the justice system like the democratic system - it's the worst possible form of governance, except for all the other ones!
Unfortunately for you, it only takes one party to push a divorce case forward. You either defend yourself or get mowed down. Neutrality is simply not an option. Therefore, (and here's the big legal conclusion you've been waiting for) if you wear jorts as I do, and you find yourself staring down the barrel of a painful separation, let me suggest that you find an attorney who knows what it's like to walk a mile in your denim. You'll be glad you did.

Give them an inch...

2010-05-05T09:57:00.001-04:00

Did you know that grandparents have standing to seek custody of their grandchildren in North Carolina? It's true, but only in certain situations. Biological and adoptive parents have a constitutional right to parent their children that supersedes everyone else on the planet, so for the most part if you don't want your child to see Grandma, your word is law.

But... there are exceptions to every rule. The two most common exceptions to parents' protected status are (1) when the parent (or parents) with custody are shown to be unfit parents or at least to have acted inconsistent with their constitutionally protected status; and (2) when grandparents seek to intervene in an ongoing custody dispute between parents.

The important thing to remember if you find yourself in a custody litigation involving grandparents is that if the court grants them specific visitation rights, the grandparents will have a seat at the custody table from that moment forward until your child reaches age 18.

I recently had to research this issue in a case where the maternal grandparents were granted visitation in a court order. The child's mother then passed away unexpectedly leaving the father with sole custody, except for the grandparents court-ordered visitation. I was surprised to learn that the law makes no ongoing distinction between the father and the grandparents when reviewing the original order. Anyone who has been granted visitation rights has standing to seek a modification of custody if they can show a substantial change of circumstances has occured affecting the child.

Before your freak out, let me say the father in my example still had his constitutionally protected status against the grandparents. So, while they can request modification, the law appears to restrict the Court from granting the grandparents more than "reasonable visitation." This would mean legal custody (i.e. decisionmaking authority) rests solely with parent in this situation, but I'm troubled by the fact that the appellate courts in NC have put no explicit limitation on what visitation the grandparents can have. Presumably, they could be awarded anything less than 50% physical custody and that could arguably be called "visitation."

A Wink and a Nod to the Audience...

2010-03-25T18:57:00.000-04:00

Being "self-referential" has a long and distinguished history in the theater, from Shakespeare's "play within the play," to Ferris Bueller narrating all the way through his "Day Off." In that fine tradition, this entry will be an online essay about child custody in an online world.

Not too long ago, I tried a "relocation" case there Mom wanted to move out of state with her two small children to be closer to her parents. I represented Dad, who wanted the children to stay here in North Carolina. The judge allowed Mom to move, but gave my client liberal visitation rights, including a mandate that Mom establish a webcam at her new residence so Dad could "visit" his children online.

It turns out our judge was a few months ahead of the curve. Recently, the North Carolina General Assembly passed a law clarifying that online mediums like email, Skype, and even online video gaming could be the subject to custody orders by North Carolina judges.

Arguably, this was the law already. Judges are generally empowered in North Carolina to order parents to do anything the judge determines to be "in the best interests of the child." The value of this new law, however, it two-fold. If a judge didn't know these avenues were available to parents to communicate with their children, now it's part of a familiar statutory scheme all judges rely on. If a judge was already experimenting with online contact as a formal means of visitation, the law also makes it clear these new online options should supplement, not replace, traditional in-person visitation.

If you find yourself in a situation where your former partner is now living, or plans to live, a great distance from you, "virtual visitation" is an issue you should be discussing with your attorney. In my experience, if your judge isn't already thinking about online visitation options, he or she will probably be open to the idea as long as you take the time to present evidence about it. Make sure your judge knows you are Internet savvy. Make sure you explain to the judge what Skype is and why it's important to put online access to your children in your custody order. I think you'll be pleasantly rewarded.

Down Goes Frazier!!!

2010-02-21T17:16:00.000-05:00

This post is a little off topic, but I have to give a shout out to my wonderful and talented students on the Mooresville High School Mock Trial Team, who just won the Charlotte regional competition to earn a spot in next month's state finals!!!

I started the mock trial team in 2006 as a way to get involved with young people in Mooresville. I was a mock trial competitor in law school, and its one of the most exhilarating experiences available to a young student interested in the law.

My students made the state finals in 2008 after placing 2nd in the Charlotte region to Victory Christian Center High School. Victory Christian is a stalwart of high school mock trial in North Carolina. Last year, the VC Mock Trial team placed 2nd in the nation among high school mock trial teams. The sustained excellence of their program is something I aspire to, and I know my students look up to Victory Christian as a model for success.

Yesterday, my students took down Victory Christian in one of the closest, most gripping mock trial rounds I have ever attended. VC was led by a proud group of seniors, much like MHS, and as much as my heart goes out to our opponents who came up inches short, I am filled with gratitude having seen the looks on my students faces when we were announced the regional winner.

I apologize for somewhat welshing on my pledge to make every post on this blog useful for the husband or wife facing the prospect of divorce, but in this instance I was simply overwhelmed by the need to share my excitement over a remarkable and hard-earned victory by the students of the Mooresville High Mock Trial Team.

"Isn't She Entitled to..."

2010-01-23T09:52:00.001-05:00

I was sitting in my office one day typing a letter when my paralegal Leona came in with a question. She was proofreading a separation agreement I had just drafted and couldn't believe our client's wife was planning to sign it. No alimony; no car; very little personal property; no share of her husband's retirement; plus a sweetheart deal on joint custody. She would be signing away just about every marital right she had! Leona asked me a perfectly reasonable question: "Isn't she entitled to something more?"

The answer to this question is a matter of perspective. For instance, did I mention the wife had just been caught cheating on her husband? Legally, this only means the wife is barred from claiming alimony. She can still get half the marital property, including half the equity in the house, half of my client's retirement, half of the household furnishings, her car, etc. And, unless her adultery directly affected her son, the affair should not prejudice her standing for custody.

I think what Leona was really asking me was, "Aren't we taking advantage of her guilt over her affair to get our client things he couldn't get in court?" The answer? Heck yes!

I'm being tongue-in-cheek here, but in fact this is a tricky case that must be handled delicately to protect my client. I represent my client's interests, and my client's interests alone, so ethically I have no problems drafting a separation agreement like the one Leona asked about. However, if you find yourself in my client's situation (betrayed by your spouse), there are some significant risks to pushing for a totally one-sided agreement like the one I drafted.

Just how much is your cheating spouse's cooperative demeanor owing to his or her guilt, and how much are they just trying to make a graceful exit so they go off to pursue their new romantic interests? Not a fun question to ponder, I know, but it makes a real difference when assessing how likely your spouse is to seek her own legal advise. In the case above, if my client's wife had taken the time to have her own attorney review the agreement, she would know my client was making demands for things he couldn't win in court. If she then refused to sign, that's anywhere from $1000-1500 my client just flushed down the drain. Now, he has to start all over again with a new, bigger fee to have me gear up for a prolonged court fight.

I make sure my clients understand the risks in a case like this up front. Sometimes, it leads the client to take a more even-handed approach. Other times, the client decides to take a calculated risk and push forward with a heavy-handed bargaining posture. There is no right or wrong answer here. Just remember, if you find yourself in this situation, you are probably acting under just a much emotional stress, if not more, than your spouse. Remember to take a step back to look at how the terms of your proposed settlement are likely to affect you, your spouse, and your children over the long term. As long as you can do that, I'll be in your corner all the way, whatever you decide.

"It's where you've been living this whole time."

2010-01-09T14:02:00.000-05:00

If you're married and own a home, a business, or a favorite coffee mug, this post is addressed to you!

The title to today's post is taken from an episode of NBC's "The West Wing" that aired in June 2001. Whether you loved or hated the politics of that show, you cannot deny its penchant for giving viewers great Trivial Pursuit knowledge. In this episode, two members of the White House staff are cajoled into meeting with representatives of "The Organization of Cartographers for Social Equality."

At first, the staffers are visibly annoyed by having to take the meeting, but the map-makers quickly get their attention when they unveil a copy of the "Peters Projection World Map," which corrects centuries-old distortions in the familiar world map we all remember from grade school. For example, Greenland looks almost equal in size to Africa on most U.S. maps. In truth, Africa is 14 times larger. "What the hell is that?!" the White House press secretary exclaims when she sees the map. The cartographer smiles and replies, "It's where you've been living this whole time." (If you want to watch the scene, here's a link I found online - www.odtmaps.com/what_they_are_saying/west-wing.asp)

The press secretary in this scene feels a lot like many of my clients feel when I explain the principles of Equitable Distribution, or "ED."

ED is the statutory framework that tells courts how to identify and distribute marital property during a divorce case. The central idea is that all property you acquire while married, with a few important exceptions, is considered "marital" and is split 50/50 between the parties, unless good cause exists to make an unequal division.

Here are a few frequently asked questions that I answer in the majority of my consultations about Equitable Distribution:

1. Can my spouse touch my retirement? - Yes, indeed. Retirement benefits accrued during marriage, whether in a 401(k), IRA, or a traditional pension are marital property and are routinely divided in divorce cases. I am surprised by how many clients express shock at this answer. Couples save on the assumption they will be together when they retire, so why shouldn't those benefits be divisible upon divorce? Benefits are usually divided by using a special court order called a Qualified Domestic Relations Order. These orders are very technical and generally cost more to prepare, so I try to avoid using them if the opposing party can be compensated elsewhere for his or her interest in my client's retirement.

2. Can the judge make me sell the house? Not directly, but yes. The ED statute instructs the judge to make an in-kind division of all the marital property, if possible. In other words, once the judge decides what percentage of the total marital estate each spouse will get, she is supposed to divide the assets to achieve that percentage without forcing either side to cut a check for the difference. In many cases, the math simply won't allow this, so the judge has to make what's called a "distributive award" to one party. If you are separating and the equity in your house is your single biggest asset, then look out. The judge won't say you must sell the house, but he'll order you to pay the other side a cash sum so large your only choice is to sell it.

3. I built my business from scratch while my spouse stayed at home; I can keep it, right? Sure, but go ahead and pull out your checkbook. Business interests, whether held in stock, membership in an LLC, or just assets in the name of an unincorporated "d/b/a" are marital property like anything else. Businesses are amongst the hardest assets to value, especially small businesses or professional practices where the continuing involvement of one spouse is vital to the business's continued survival. I strongly encourage clients to be reasonable when deciding how to value businesses for purposes of settlement in ED cases. It can take tens of thousands of dollars in fees to outside accounting firms to properly value a business. That money is usually tapped from the marital estate itself, so nobody wins! Don't get me wrong, expert valuations are unavoidable in some cases, but make your decision based on dollars and cents, not emotion.

I chose the questions above because they elicit some of the strongest emotional responses from new clients. When a husband or wife looks at me in astonishment and asks, "How the hell can this be the way it is?" sometimes I just smile sympathetically and say, "It's where you've been living this whole time."

"Divorce & Oncology" - The Initial Consultation

2009-12-28T20:56:00.000-05:00

Every divorce lawyer starts to see patterns in the stories told by his or her clients. We sometimes develop stock explanations or metaphors to help us explain the divorce process and answer common questions. This first post is devoted to that all-important point of first connection between lawyer and client - the initial consultation, and to organize the discussion I've decided to use one of my favorite divorce metaphors - Cancer!

I discovered the "cancer correlation" several years ago after meeting three new domestic clients in one afternoon. At some point, each client heard me say something they did not like, to which they replied: "Well, my [friend, sibling, coworker, second cousin twice-removed, etc...] was in this same situation and her lawyer got her this!"

In reality, no two divorces are alike. There are countless factual permutations that will yield vastly different results in two apparently similar cases. But how was I to convey that to my clients so that it finally stuck? The answer hit me on the way home. A lady was giving an interview on talk radio about surviving breast cancer, and she kept using the phrase "my cancer."

"Wow," I thought, "that's perfect!" A million other patients might share her diagnosis, but no one else on earth shares her cancer. Every survivor's experience is unique, and nothing that works for one patient is guaranteed to work for the next.

I tried the cancer metaphor a few days later, and it was like flipping on the light in a darkened room. The client seemed instantly willing to accept that maybe, just maybe, I could give her better legal advice than her friends and family. Thus, the ethos of the "divorce lawyer as oncologist" was born. Besides the revelation that every divorce is unique, here are "cancer correlation's" other main principals:

1. Like cancer, divorce attacks indiscriminately. In Iredell County, we have Nascar drivers and millionaire financiers, but we also have shift workers and day laborers. All of them come through my office door in no discernible pattern. If you find yourself confronted with divorce, don't agonize over why, at least not in my office. I would love to help you find those answers, but I hold a law license, not a counselor's license.

2. Like cancer, the object of divorce isn't winning, but surviving. OK, I admit it - this one is hard to obey sometimes. When other lawyers pull cheap stunts, like making useless procedural motions or asking the judge for a continuance I know they don't need, it's hard to resist going to the mattresses. But then I remember that this isn't my divorce, and even if the client is itching for a fight I'm not doing him any favors by fighting for the wrong reasons. 9 out of 10 divorce cases are resolved by settlement, not by a judge, and honestly that is a good thing.

I find if clients adapt their goals and expectations for divorce as though facing a life-threatening disease, they focus more sharply, think more clearly, and invariably walk away from the process in better shape. My theory is that thinking of divorce like cancer makes you more pragmatic about the options before you.

In the interests of pragmatism, here are some other tips for the initial consultation:

1. Bring your paystubs, bank statements, credit card bills, recent tax returns, and any other important financial records you can easily gather. You may not use them during the first meeting, but you'll be saving me significant time and you significant money later on.

2. Write down as many questions as you can think of ahead of time, but let me ask the questions at first. If I do my job right, 80% of your questions will be answered before you ask a single one.

3. Don't make your decision to hire a lawyer based on the hourly rate. I am neither the cheapest, nor the priciest divorce lawyer in Mooresville, and I promise you all of us are capable of racking up huge fees in hotly contested cases. Make your choice based on who makes you feel comfortable, who you feel you can trust. If you trust your lawyer, you are more likely to finish your case on time and under budget.

I hope some of you out there can use this post and this blog to make the challenges of divorce a little less intimidating. I pledge to only post things that are both entertaining and informative, and that in my experience help people cope with the difficult problems of divorce.