Jorts for Justice

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...

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...

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!!!

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..."

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."

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

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.