Fourth Down

First, a little mea culpa.

In my last post, I bragged about how close I was to getting my own, self hosted website online. That site will become the new home of this blog. The plan has not changed, but let's be real here for a minute… My timeline was pure folly. It was a mirage. It was the quixotic impulse of an over-eager legal imagination to think I could juggle my caseload and summit those last few IT mountains so quickly. 

I will say that nirvana is tantalizingly close. I have to edit a few more pages and imbed some cool functions I have yet to master, but the website will be up soon. For now though, here are some thoughts on a recurring conundrum family lawyers face.

There is an inevitable intersection between family law and criminal law. Eventually, you will have clients who either commit criminal acts or get wrongfully accused of them. In those cases, some family law attorneys decline to enter criminal court, compelling their clients to retain a separate criminal attorney. The charge could be simple assault, assault on a female, communicating threats, or one of a dozen other charges endemic to toxic family conflicts.

As for myself, I have always tried to remain a general practitioner at heart, and that means rolling up my sleeves in criminal court on a regular basis. Either way, family lawyers of all stripes sometimes find themselves in the position of putting their clients on the stand in situations where they may have to either admit criminal wrongdoing or plead the Fifth Amendment and decline to answer questions.

Something important to understand if you are involved in a family law case is that yours is a civil matter. The Fifth Amendment privilege does not always apply, and the presiding judge has the authority to compel you to answer questions or hold you in contempt if you refuse, even if the answer implicates you in a criminal act.

One example that comes up often is adultery, which is still a crime on the books in North Carolina. In over 10 years of legal practice I have yet to see a prosecution for adultery by any district attorney. This is a good example of an instance where a judge my compel you to talk even if you want to assert your Fifth Amendment privilege.

There are also times when more serious crimes like assault or illegal firearm possession come into play. A witness may be allowed to take the Fifth, but of course the judge is entitled to make assumptions about what the testimony would have been.

The decision lawyers face is whether to tell the client to plead the Fifth, or go ahead and answer the question. I have no data to back this up, but I would expect the large majority of family lawyers would tell their client to keep quiet. While sometimes I agree, I prefer to evaluate each case on its merits. Practicing criminal law on a regular basis, I know the odds you will face arrest for admitting to a low level misdemeanor made while testifying in civil court are low. Often, the judge is not interested in having you charged with a crime, the judge is interested in resolving the domestic issues in front of him or her.

It occurred to me recently that the decision to plead the Fifth is very much like the decision NFL coaches face when deciding to go for it on fourth down. The statistics would tell you to be bold and go for it (i.e. answer the question) a lot more often then what you see happen in actual practice.  Maybe it's because this is one of those situations where you as the coach/lawyer make the call... the consequences could be disastrous or highly profitable, and in those moments a lot of people become risk-averse.

Your Long National Nightmare is Almost Over...

My Dear Devoted Readers,

Happy New Year!!

I'm sure many of you have been waiting with baited breath for a new post, and I apologize for the extended silence.  Rest assured the wait is almost over.   For the past several months I've been experimenting with building my own website using Wordpress.org, and I'm happy to announce that after much trial and error I'm confident it will be a success!

I'm still hedging my bet a little with this announcement.  I've managed to migrate all my old posts to the new site, but there is still a lot of formatting to do, photo/video content to add, and at some point I have to actually figure out how to publish new posts.  It's probably just a vestigial, 20th Century fear of technology, but I'm going to take just a bit more time until I'm sure the final product is ready for all of you to enjoy. 

To that end, I'm throwing down the gauntlet a bit and committing to have the new site up and running by February 1, 2016.  I'll make a final post on this platform with all the relevant details as soon as it's ready.  Until then, I want everyone out there to have a safe, healthy, and happy 2016!

It all makes for great drama.

Doctors and lawyers are linked in the public mind. All you have to do is scan the broadcast TV landscape to see connection. For 50 years, not a week went by without both a medical and a legal dramas playing out in prime time. Why?

My theory is that both doctors and lawyers have professional lives that lend themselves to TV storytelling. I don't mean there's any inherent glamour in what we do, it's just that doctors have an endless supply of patients and lawyers an endless supply of clients, so our lives have both episode-length story arcs (cases/patients) and long term narratives revolving around the doctors/lawyers' lives themselves.

Anyway, I got to thinking about this after representing a doctor recently. It sparked the idea to write a post comparing lawyers to surgeons, but the more I thought about it the less perfect the comparison was, especially for family law.

Sure, you could say some of the issues family lawyers handle are comparable to surgical procedures - we intervene in an ongoing life and try to correct some problem that we find there, often using creative techniques that may be aggressive or very measured depending on the needs of the patient/client. 

It's more problematic when you start talking about outcomes and goals. For some legal issues, you can continue the surgical comparison. For example, if you and your spouse are both unhappy but both unwilling to leave the marital home, getting possession of the home is a finite goal I can try to achieve for you. There can be complications, delays, and sadly sometimes bad outcomes, but the goal is clearly defined.

The same comparison is harder to make with child custody disputes. Custody cases never really "end," at least not until the child turns 18, and even then there can be issues of unpaid child support that linger for months or years. Ideally, parents are able to come up with a custody agreement that is built to last and doesn't require constant battles over modification or contempt, but let's face reality - if all divorced parents could get along they wouldn't be divorced and I likely wouldn't be employed!

When choosing your domestic attorney, if you have kids I cannot urge you enough to think long-term and be ready to have a broad ranging discussion about where you see your life and your children's lives going through the rest of their childhood. 

For example, a few years ago I helped a man secure a 50-50 custody schedule with his child, even though he was sure the child's mother was bringing her new boyfriend around and probably creating an unhealthy environment. Mother did not have any "red flags" like drug addiction or mental illness, and she had arguably spent more time as the primary caregiver during the marriage. My client's concerns were real, and there was evidence that mother wasn't all that interested in being a full-time parent anymore, but those were speculations on our part. I urged my client to think about where this case would be in another year or so. Did he really think his wife would stay put? Did he really think she would put the child first? Did he trust that his child, who was already a preteen, wouldn't recognize who is really putting her first and start to gravitate toward him?

My client didn't like it, but he went with the deal on the table. Not long ago, I finished drafting a consent order modifying the original deal and giving my client primary custody because his ex-wife is relocating out-of-state.

That's a great story and I'm proud to shave helped my client but it kind of screws with my surgical analogy.

In thinking about these things, I decided that sometimes lawyers are less like surgeons and more like chiropractors. We fight against the inevitable forces of gravity and time. When things get so out of whack you can't function, we do our best to adjust you, get you feeling right again, but then send you back out into the fray.

This post turned out much more "meta-" than my usual offerings, but sometimes that's a good thing I guess. Clients often feel like the big picture gets lost in all the legal maneuvering, so sometimes a little "big picture think" is in order.  Long story short, be open minded. Sometimes you need me to be surgical. Direct, uncompromising, goal-oriented.  Sometimes you need me to be the chiropractor - there is no permanent fix but please do something to make the pain stop!

What Lawyers Can Learn From Watching $25,000 Pyramid

Every year I reserve one post to praise my students on the Mooresville HighSchool  mock trial team for all their hard work and the grit competing in what I find the most rewarding high school competition around.

While my team did not make state finals this year, they were one of the closest, hardest working teams I have ever had.

If there is one skill that all mock trial students, and a fair number of actual attorneys could use improvement on it is 

the art of direct examination. When you question your own witness, the witness is supposed to be the star. He or she tells a story and you just moderate. 

It might be just that simple if 90% of people didn't lose their ever loving mind the minute they take the stand! It's understandable I guess. Just imagine being thrust into an extemporaneous speaking contest where first prize is everything you want in life, and second prize is a condolence card and a $20,000 attorney bill. I'm exaggerating, of course, but I've come to believe that is the magnitude of stress people sometimes feel when taking the stand.

Hence, my simple role as moderator inevitably becomes the conversational equivalent of that old boardgame "Operation," where you try to reach your target by threading a tiny pair of tweezers through and even tinier, oddly shaped hole without touching the electrified perimeter. 

In this case, my perimeter is the rules of evidence, which force me to ask only open ended, non-leading questions that do not suggest their own answer in form or content.

That's where Pyramid comes in. For those of you old enough to remember, the game is played by two-member teams; one player can see the answer (usually some category of persons, places, or things) and has to come up with words or phrases that will prompt the other player to correctly guess the answer.

So, for example, if the answer is "Things Richard Nixon might say," a good clue might be "I'm not a crook!"

The trick is describing the secret answer in the clearest, most succinct  way without actually repeating any of its key terms. 

On $25,000 Pyramid, one player was always a celebrity guest, and some of them took the game quite seriously.

The greatest of these in my humble opinion was Dick Cavett. For those who may not remember, Dick Cavett hosted a late night talkshow in the 1970s and had bit parts in film and TV over the years. He has a dry, professorial affect to his speaking voice. Something about it makes it impossible not to absorb each syllable that he utters. 

If the category was, "things that are poisoned," he would immediately say, "Snow White's Apple." Whereas it took me 15 staring at my keyboard to think of that one on my own!

Just as an exercise, try having a conversation sometime with an old friend where you try and get them to tell you a story you've heard many times before, only you can't tell them what story you want to hear - you have to prompt them using only questions that begin with, "who, when, what, why, and how." You'll probably find it a huge pain in the ass, which is why you should just hire me to do it for you!

Tis the (Bonus) Season

Well, the Holiday season is upon us, and I'm pleased to report everyone is recovering nicely from their tryptophan overdose at my house! After years of haggling, my wife and I have finally settled on a fairly comfortable routine for scheduling which days/times to spend with which branches of our family each year. That's one of the great, unheralded achievements family life - no one tells you about it when you're starting your family, but when you get it right it can make your day like indoor plumbing!

Okay, end of cold open. Today's topic was inspired by that most Griswoldian of holiday traditions-the Christmas bonus. Did you know that income earned from labor performed or services rendered before your date of separation is marital property, even if it's received months or years after you separate?

If you are facing separation, and either you or your spouse has a job that incorporates periodic bonuses, commissions, or other variable compensation plans with lengthy periods between payouts, it can greatly affect strategic planning for your property division case.

An extreme example would be the successful small business owner who sells his marital business and moves to another. The purchaser often agrees to pay large chunks of the purchase price over a period of years after the sale because the money has to be generated from ongoing operations. This leads to all sorts of interesting questions: do you treat the expected future payments the same as you treat cash or property presently held when dividing the  marital estate? If not, do you discount it so that a clean division can be achieved now, or do you divide those dollars separately if and when received it so that both parties share the risk that you will encounter collection problems in the future?

Bonuses and commissions usually don't present collectibility problems, but they do present other valuation issues. Let's take the humble Christmas bonus. If you separate from your spouse in March and later receive a Christmas bonus of $10,000 in mid December, how much of it is marital and subject to division as part of the marital estate? Is it like an annual bonus for work performed throughout the year? Is the amount of the bonus performance or seniority-based? Depending on your employers policy, the answers may change. The most likely result is that a judge would try to determine the period of employment from which the bonus is derived and prorated based on how much accrued prior to separation.

Either way, if you find yourself in the situation be sure to discuss it with me, or whatever fabulous attorney you retain, so you don't end up feeling Scrooged later. Happy holidays everyone!

The contract just won't die...

First, let me apologize for the extended delay in between posts, which come to think of it has become an all too frequent refrain on this blog. So many of you wonderful folks keep hiring me that it's getting harder to find time for new posts.

I'm not complaining mind you, but it got me thinking about movie franchises that I love and how sequels that come out many years after a beloved original can crumble under unrealistic expectations. Some sequels try to cram in every possible bit of ambition and spectacle, only to collapse under the weight of their own gilded adornment (I'm looking at you, Episode I: The Phantom Menace!).

So, after a summer long layoff I have decided to tack in the opposite direction and keep today's post confined to a narrow and decidedly wonkish topic - the survival of contract damage claims after the entry of a child support order overriding a separation agreement.

Here's your 30 second primer: since the taxpayers of North Carolina ultimately have to support a child whose parents don't provide enough support themselves, any private agreement for the Child Support is subject to review by a judge. If you elect to agree to Child Support in a private contract, and either party later decides to file a traditional Child Support claim with the court, your agreement is presumed reasonable but that presumption can be rebutted fairly easily if The agreed-upon support amount substantially differs from what the stay child support guidelines would otherwise dictate.

I have a whole spiel prepared to warn clients about this possibility every time this issue comes up. Still, lots of people would rather handle all of their issues, from alimony to property to Child Support in a private agreement and not open up a court file on the public record. I can respect that, and luckily if your ex husband or wife starts to feel that he/she was overly generous in your settlement and needs to reduce his/her Child Support, there is still a remedy available to you.

Your contract for Child Support remains enforceable even after a judge has decided the statutory child support amount should be lower. You can be awarded a money judgment for the difference, and if you've ever had an aggressive creditor get a judgment against you, you know that it's about as much fun as a root canal.

Though I am a board-certified specialist in family law, I keep a diversified practice that includes lots of civil litigation. Some of the most "fun" I get to have involves seizing and selling a judgment debtors property long after he thinks we're no longer looking.

If you find yourself on either end of the situation, feel free to give me a call and let's figure out what we can do to make sure all of your options are laid out on the table.

Tell Me This Isn't a Government Operation...

Each year, I spend the first weekend in May at a seminar hosted by the North Carolina Bar Association's Family Law Section. This year, the event was held in downtown Charleston, one of my very favorite places in the world and the best place EVER for a guided, history-themed pub crawl!

The seminar is usually good for at least 6 hours of continuing legal education credit, and invariably I learn some new nugget of information that helps me with in a pending case.

This year, my favorite presentation was not from a family law attorney but a school board attorney representing one of the largest public school districts in North Carolina.

She was there to offer insights on how schools interpret the custody orders we domestic attorneys work so hard to craft. The takeaway for me was that family lawyers in general (myself included) don't give schools enough thought when structuring settlements, but we should.  Clients tend to assume that the court system, the justice system, the social service system, and the educational system are all part of the same monolithic bureaucracy in which the right tentacle knows what the four tentacles to it's left are up to.  Nothing could be further from the truth!

I encounter school issues in my custody cases all the time - private vs. public; your preferred school vs. mine; how often can dad drop by to have lunch with the child?  Does the child's teacher need to schedule one parent/teacher conference or two?  Unfortunately, those questions tend to get crowded out by arguments over custodial time and child support.

Another thing attorneys overlook is the fact that schools are independent, semi-autonomous legal entities that generally don't care how the domestic system works; they need custody orders to work with in their structure.

For example, it's routine for parties to a consent custody order to agree that their child will attend a particular school. However, did you know that by statute a District Court judge in family court has no authority to assign your child to any particular school? That authority belongs to the local school district in which the child is enrolled. Therefore, if you have a shared physical custody schedule and the parents live in different school assignment zones, you should check with the school system before you have a judge sign your consent order if school assignment is an important issue in your case.

Another surprise was how desperately school administrators want family lawyers to give them clear, informed guidance in the written custody order, so principals, guidance counselors, and teachers will know to address the conflicts between separated parents that inevitably arise.  I hope the next time I mediate a case involving custody of a school-age child I can resist the urge to pat myself on the back and consider the job done once the parent's basic schedule is in place, because in truth there may be important work left undone.

Dealer Add-ons

     My wife and I recently bought a new SUV to help tote around the kids and their various accessories (i.e. my "in-laws"!).  Overall, we had an excellent experience at the dealership, but I remember one exchange with the finance manager that felt perfunctory and awkward.  Sitting there in his office after we established the particulars of our new loan, he launched into a bloodless yet clearly practiced speech about the various "add-on" products they offered.
     If you've ever bought a car, you know what I'm talking about - extended warranties, glass protection plans, paint protection (just a fancy wax job), GAP coverage (total crap if you put more than 5% down), etc.  The finance guy outright told us he didn't expect or recommend us to purchase any of these products, in fact he gave us several reasons not to purchase some of them.  Yet, he dutifully recited their entire list of offerings before we closed the deal.  Why?
    I thought over this for while after we left the dealership.  Ultimately, I decided he must have been required to at least mention each add-on during every transaction, either a matter of policy laid down by his employer or by contract with the various outside vendors who supply the add-on products/services.  All we wanted was to sign on the dotted line and drive off into the sunset with our shiny new toy, but first he had to check off all the boxes on his list.  Then I imagined the faces of hundreds of customers he must have given that spiel to over the years, and I realized I had a corollary experience in my family law practice.
    The end game of a family law case can be frustrating, even if all issues are resolved with a reasonable settlement.  I charge the same hourly rate to haggle over specific language in a separation agreement or to email the judge's clerk for the status of an order that I charge for appearing at trial.  Clients tend to see a successful mediation or trial as the "finale" to their case, like the big fight scene in a "Rocky" film.  But that finale merely produces a governing document that must be implemented in your life.  Otherwise, what's the point?  Thus, I morph from the cunning litigator who helped you survive your heinous soon-to-be ex and her bulldog attorney into the finance guy at the car lot who won't let you get down to enjoying your new ride.
    The most under-utilized post-settlement service we offer is estate planning.  Most of my clients who have pre-existing wills haven't stopped to think about the impact of divorce on the distribution of their estate.  When you get divorced, by operating of law your spouses name "drops out" of your existing will.  Anything you left to your former spouse will now be distributed according to the "residual clause" of your will.  That's a the little blurb at the end that says, "Anything I have not specifically devised herein goes to X."
     If your residual beneficiary is your spouse, then in practical effect all of your estate will be distributed according to statute as though you never had a will.  Even if your residual beneficiaries are your kids, you are foregoing your right to make a purposeful decision about who receives what when you die.
     Another added service I often recommend is filing a Memorandum of Agreement with the register of deeds.  This applies especially if you settle your case early in your separation period and you may consider purchasing a new home or any real property prior to getting your absolute divorce after a year of separation.  Separation Agreements are long, complicated documents that often detail private matters you don't want added to the public record.  A Memorandum of Agreement is a short, two-page summary with just enough content to help you transact in real property without the prospective seller or lender giving you a hard time about getting your spouse to sign off on everything.
     Moving forward, I'll continue to encourage clients to keep a little money (and patience) in reserve to handle these clean-up issues.  I want to make sure the resolutions of their cases are made the last.  Trust me, it's a lot more fun coming back to my office for a social event like Business After Hours or Blues & Burritos than it is because an unresolved issue from your divorce has arisen like a zombie from the dead!

Raise the Bar

Dear Devoted Trench-mates,

     This post will be less my typical rambling and more of an open letter with my take on an important new development in my practice. I assume many of you find your way here by doing online research into divorce attorneys in this area and want to know a little more about me, especially if you're thinking about putting some of your hard earned money in our firm's pocket for a consultation. If so, you may have seen some recent press notices in my Google results announcing that I was recently board certified as a specialist in family law.

     Until now, I haven't done a great deal of marketing on this achievement, even though I am proud to be recognized for the work I put into my practice, not to mention knowing after 8+ years I can still pass a standardized test! Truthfully, I meant to write a post about my certification much sooner. Sure I've been busy, but I also think I procrastinated because I don't want family law to utterly define me as a lawyer. I also practice extensively in general civil litigation, particularly construction disputes, and I do a fair amount of criminal work.

     So what finally prompted me to finally write this post? The answer lies in a series of conversations I had with some of my colleagues who were congratulating me on getting certified.

     I was flattered and humbled to have receive congratulations from at least a dozen of my colleagues who reached out in person or on social media after they heard I passed the certification exam. At least four of those conversations involved statements to this effect: "you know, now that you're certified you are held to a higher standard, right?"  What they are referring to is the standard for legal malpractice. Essentially, the standard of care by which my performance and conduct is judged is higher now that I hold myself out as a specialist.

     Imagine an Olympic high jumper who can jump over the bar at a certain height and generally clear it by 6 to 8 inches every time with maximum effort.  Practically speaking, he wouldn't have to give 100% every time to complete the jump.  Imagine now that we raise the bar by five inches, thus requiring the athlete to put forth maximum effort on every attempt in order to have a successful jump.

     I like to think I have given maximum effort on every case since the day I started my practice. In reality, I'm sure there were days I failed to meet that standard. My friends were only joking when they suggested I should be worried about being held to a higher standard, but they raise an excellent point - by becoming a certified family law specialist, I have "raised the bar" on myself, so to speak.  I want to promise you all that I will continue to give my home to clear that bar on every case and for every client.

Sincerely,

Ronnie (a/k/a the "GDC")

Ode to Spouse!

Every so often a client will ask me if it bothers me being married and doing what I do for a living. I usually come up with some clever retort, like, "it usually comes in handy right up until my wife gets tired of arguing and just beats the crap out of me!" The truth is I don't want to upset them with the real answer- it doesn't bother me a bit.

Maybe I could be more honest with them if I could articulate how I manage to work 50 to 60 hours per week amongst the wreckage of a failed or failing marriages without losing confidence in my own. Unfortunately, I can't articulate it - all I have to do is look at my beautiful wife Stephanie who married me seven years ago today and I know I can do it.

I suppose I could have Stephanie drive from her office to mine every time I meet with the new client so they can see what I'm talking about, but I think after a while my joke about her beating me might become a self-fulfilling prophecy. Maybe someday I'll find the right words to explain how having your perfect mate wake up with you every morning and be there for you every night gives you the power and the freedom to face anything that comes your way. Until then, I guess I'll just have to keep being clever. Happy anniversary, honey, I love you so much!

Hit the Ground Stumbling

Not every client walks into my office in the immediate throws of a separation.  A significant number of my new clients come armed with pre-existing consent orders, separation agreements, and sometimes active litigation.

That last category is worthy of it's own blog post on some future occasion because there are special considerations when a client is looking to replace his or her current attorney, or when they have been litigating has their own attorney for a while. The other two scenarios involve parties who have previously settled their differences or had them settled by a judge, that ehay present their own special challenges. 

Domestic cases can be like zombies - they're never really dead, especially when you have kids. Custody is always subject to modification, as is child support and traditional court-based alimony. Property distributions, both private settlements and court orders routinely require future action, often the payment of money, and can take years to perform, even after the basic terms are decided.

Here, in no particular order is a smattering of the questions that run through my mind the first time I meet a client who has an existing custody order, alimony order, separation agreement, etc:

- If they had an attorney before, why aren't they sitting in his or her office asking these questions right now?

- How much information did they retain about the law as it applies to their case from their earlier experience?

- Did their prior attorney even care enough to pass along some useful knowledge?

- If they did, did they screw it up, thus making my job twice as hard?

- Are we going to talk about modifying something that is designed to be modified periodically like custody? 

- Or, is the client just unhappy about his prior outcome and hoping for a do over?

I handle cases that fall within all those categories. I typically err on the side of explaining all the basic concepts relevant to the client's problem, regardless of whether it seems they have heard it all before.

With custody for example, I explain that modifying an old order requires showing a substantial change of circumstances is only part of what the client needs to understand. We need to look forward in time at the new custody order, assuming we prevail. What are the practical terms that will serve the children's best interest? Did the client think about legal custody versus physical custody and the ramifications of the new proposed arrangement for his or her ability to co-parent with the other party?

In cases involving modification of child support or alimony, is the client recently unemployed?  Should we be waiting to see if a new job opportunity presents itself quickly? After all, these modifications can take months to be resolved? I don't like charging people thousands of dollars only to find that their circumstances are no longer "substantially changed" by the time we see the judge!


Anyway, I've had a number of these situations lately and walked away feeling like I need to practice how I conduct these consultations. This is one of those posts that is more helpful for me to write than possibly for you to read. Still, I hope it gives you a sense of how unique everyone's situation is comes through my door.

Divorce? In THIS market?!?

First, an apology to my loyal readers for not posting in over two months!  My wife and I are expecting our second child in just a few weeks.  For reasons that make better bar stool conversation than blogging, we decided to mark the occasion of her pregnancy by buying a brand new house.  If you've never built a new house before, I highly recommend that you pour yourself a cocktail to congratulate yourself on your preternatural wisdom!

Now that I've had a few days to reflect on the experience, I feel a new appreciation for the "marital residence" and the role it plays in my domestic cases.  Today seems like an opportune moment to share some thoughts on the subject with you.

After the house bubble crashed, I noticed that I was having the same conversation over and over again in my new client consultations.  The basic narrative went like this: "I really want to get out of this situation, but our house has lost sooo much value.  I just can't think of how we'll get out from under it.  Oh well, thanks for your advise, Ronnie.  I'm going to ride it out a while longer until the market comes back, so that we can sell the house and make our property split easier."

They lasted about six month on average, then like seasonal locusts they all came swarming back at about that same time with a new narrative:  "No. No. No... I was wrong.  I admit it.  No human being can tolerate this! Get me the hell out of here!!!"

In the good old days, your average, middle class divorcing couple had a house with some equity and some accumulated retirement, usually in a 401k - two ready sources of equity that could be liquidated to generate a fair property split and smooth the rough edges of a well-negotiated deal.  Even today as the market recovers, a significantly higher percentage of my clients have little or no equity in the marital home.  What's worse, some of them come to me having tapped their retirement to save the house, only to split and often be forced to sell the house without recouping those funds.

The net result of this is that domestic litigants are being forced to cooperate for longer periods and in greater depth than ever before, usually to maintain and sell their house as a part of an overall settlement.  Why is this problematic?  Well, because either (1) both parties keep living in the house (read: "911, what is your emergency?"); or (2) one party ends up living elsewhere and is totally reliant on the spouse with possession to maintain the house and everything in it.  Even for people who like and trust each other this is tough.  Feuding spouses typically share neither great affection or trust.

So, constant readers, today's take-away lesson is simple - if you are considering divorce PLEASE come see me before you move out.  There are responsible ways to get free of a demoralizing situation, and if you are armed with complete information you are infinitely more likely to make the right call.  Now, if you'll excuse me I'm off to Lowe's.  My darling wife has closet needs...

Mobile Society

     My father-in-law and his sister were for all intents and purposes kidnapped by their father when they were in grade school.  In those days, there was an express maternal preference in the law of custody.  From what I'm told, the judge simply asked his mother, who had severe emotional problems, what schedule she wanted for the children and was granted full custody.

     Instead, my wife's late grandfather took advantage of the fact that the Uniform Child Custody Jurisdiction & Enforcement Act was at least a decade away and fled with this children across state lines.    

     These days, the maternal preference has been dropped from the law, but relocating children remains a hot button issue.

     If you are the primary physical caretaker for your children and you are considering a move to another state or region, there are a several factors you should keep in mind:

-    You will need to go to court first.  If you want to move far enough away that it will affect the other parent's time with the children, the proper procedure is to file a motion with the court and request a hearing.  Leaving without an explicit ruling from the court will subject you to contempt and liability for attorney fees, to say nothing of 86'ing your chance of being granted permission to relocate permanently.

-    Have a flexible timetable.  From the time you file your motion until the judge makes a ruling could take anywhere from four (4) to nine (9) months in most cases.  Variables affecting this timeline include discovery procedures, mediation requirements, and congestion on the court docket.  I've had cases on both ends of the spectrum.  Often there are job opportunities at stake, and if your potential employer can't wait for your case to be resolved you may have choose between conceding primary custody and walking away from the job altogether.

-    Have a kid-centered plan, or forget it.  It is almost impossible to relocate children from stable, shared custody arrangement without showing manifest need.  Often, though, the relocating parent's definition of need is tinged with self-interest.  There are new spouses or significant others.  There are extended families.  There are more lucrative jobs.  All these things can be great... for you.  But how do you define the argument in such a way to convince the judge the kids's come first?  If the children aren't the direct reason for the move, the odds are stacked against you.

     Judges by and large disfavor relocation in all but the clearest cases, and I spend a significant amount of time in consults discouraging clients from moving unless they have no other choice.  That being said, if you can convince me your proposed move it worth pursuing, you probably have a decent case.

Divorce Lawyer's Thanksgiving Top 10

Here are 10 things I'm thankful for in my domestic practice:

10. Every client who, in my early days, swept me summarily into his or her emotional state. I over-litigated those cases because I didn't want to disappoint my clients, but it was better to care too much and find the right degree of professional detachment than never to have cared at all.

9. The judges I can predict.

8. The judges I can't predict (for those times I know the predictable judges will rule against me!).

7. Mediators who don't waste their opening comments. Marshall Karro and Mark Riopel of Charlotte are my favorite examples. Though they have different styles, each has a knack of challenging the parties from the very beginning to raise the level of civility and objectivity in order to reach an agreement. It's really something to see.

6. My Mooresville High School Mock Trial team. I still impress judges with how well I know the rules of evidence. Every season I teach the basics to my students, and I end up re-teaching myself.

5. Parents who understand that children of divorce do just fine, IF Mom and Dad let them.

4. My iPad, for making it possible to draft orders anywhere, thus sparing the world my unintelligible scribblings on handwritten Memoradum of Judgment forms.

3. My paralegal Leona. She does all the dirty work from discovery, to drafting ED Affidavits, to talking  clients down from countless ledges when I'm not available.

2. My firm, Homesley & Wingo Law Group, for keeping the lights on and my Lexis subscription current. Having a solid infrastructure behind you makes a huge difference if you want to handle high-end cases.

1. Clients who are committed fighting for their future, not fighting over their past.

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House Money

Family law is a mixture of rules and loose principals. Some issues are largely governed by rules applied mechanically in the vast majority of cases (see e.g. child support). Others are left within the broad discretion of your presiding judge. Alimony is the classic example; I can usually tell my clients whether they are entitled to alimony but the amount and duration is impossible to predict accurately. Any attorney who tells you different is selling something.

Sometimes, not often, clients ask me why I don't take more aggressive bargaining positions on alimony at mediation. They take the simplistic view that starting higher gives us more room to negotiate, even if it requires making demands with no real legal or financial basis. A couple of reasons I don't do this:

1. It's a waste of time. Sometimes I'll throw an inflated offer at an inexperienced opposing attorney, but in most situations those ploys are easily sniffed out and swatted down. In fact, when I receive such an offer I take it as a sign the other side doesn't really want to settle, so my counteroffers get stingier in equal measure.
2. There are other issues. Lots of times, I get an unreasonable offer on one issue, but the other side tries to compensate by offering more value somewhere else (like the proposed property split). If my client gets incensed by the unreasonable part, I have to work hard to make sure he/she sees the while chess board.
3. It's your ass, not mine. This is a part of my personal settlement philosophy. A lawyer is like a gambler who always gets to play with house money. I have no problem being aggressive, and I love trying cases but its your life I'm playing with. I always feel better starting conservative then letting you, my client, decide how much risk you're comfortable with. I'll always support you and try to handicap the odds as best I can, but I will also insist that final decision be yours and yours alone.

 

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Baggage

     Relocation cases are always heart-wrenching.  In the 21st century moving across country, be it for love, work, or family is a routine occurrence.  When you share custody of your children, though, even routine tasks often become a Herculean struggle.

     I almost never handicap a custody case for my client.  As an attorney my stock-in-trade is reliably telling my client what's going to happen before it actually does.  What defines a child's "best interests" is an amorphous concept defined differently from judge to judge, so predicting the results of a child custody hearing in anything by the broadest terms puts me on the fast-track to losing credibility with my client.

     However, in situations where one parent wants to move to a new city, thereby disrupting an established custody routine, I can provide two general rules likely to hold true with any judge:

1.     Don't move unless you have to.  Judges disfavor relocation in all but the clearest cases.  Typically, the clearest cases involve financial circumstances that make relocating critical for the custodial parent.  Another non-economic example would be moving to be closer to a parent or close relative who is ill and in need of consistent care no one else can provide.  The common thread in these "clear-cut" cases? They are almost always driven by circumstances not of the relocating parent's creation.  If you fit in this category, you've got a reasonable chance to secure the judge's permission to move.

2.     You will probably have to "go negative."  Even if you have compelling reasons to move, that's only one of three critical pieces to your case.  The other two are: (1) showing how the move will benefit the children; and (2) showing how living primarily with the non-moving parent with not.  If the other parent already gets substantial time with the children, the judge will strongly consider leaving the children here in that parent's primary custody.  If the opposing party has problems with drug or alcohol abuse, or a recent history of criminal behavior, this isn't a big threat.  Then again, if those problems exist   what are the chances that parent is getting substantial time with the children under the current order?  Absent those built in arguments, you have to look at other factors making it unlikely the children will thrive in the other parent's custody.  Hectic work schedules and obligations with step children are frequent arguments used in such cases.

     Overall, relocation should be avoided at all reasonable costs.  Make sure and involve your attorney at an early stage, before you make any personal, professional, or financial commitments to the move.  If you find yourself in a situation where you have to move, your attorney should support you 100%.  Be wary, though, because you will be playing one of the highest stakes games you can play in the domestic legal arena.

Free Throws and the Science of Self-Deception

   Recently I had a client meeting that left me very frustrated.  The situation was not atypical.  My client was a well-educated, warm-natured lady - someone my wife would be friends with.  But the wages of a lengthy divorce had taken their toll and she was in the stage of coping that is marked by the need to assign blame.

   The ideas we met to discuss kept getting pushed aside in favor of my client bemoaning how her husband was always coming out of top; always one step ahead; always seemed to win.  If any of this were true, I would feel really embarrassed as a litigator.  It tried to persuade my client her perception was skewed by the emotional trauma of her breakup.  First I listed our accomplishments together, especially on custody which had resolved heavily in our favor.  Then I tried listing all the things she had going for her as a newly minted single woman.  

   Sometimes positive reinforcement works, but on that day my client was bound and determined to convince herself she would never win.  If the answer didn't involve her getting screwed, she changed the question.  

   That afternoon, I took my son to the park and was able to steal a few minutes shooting on the basketball court.  I stood at the free throw line and took 10 shots.  I only made 5.  Ouch.  But then I remembered that I shot 7 for 10 the last time Carter and I visited the park.  Put them together and POW! I'm a 60% shooter and don't have to feel like such a failure.  

   No sooner had I hit the "equals" button on my imaginary calculator than I realized I had found the perfect analogy for my client.  I have no idea how many free throw shots I have taken in my life and no clue what percentage have gone in, but I know that with a little manipulation of sample size I can make myself look much more accurate than I really am.

   That basically what my client is doing when she plays the blame game with her husband.  She restricts the sampling of events she chooses to dissect so she can conclude her husband is winning and thus justify her anger.  I'm sure it's just a coping mechanism, and it can probably be a healthy exercise sometimes.  But it's also a crutch and belies the good work she and I have done together.  We have another meeting coming up soon.  Maybe I'll have a chance to field test my "free throw" theorem and see if it strikes a chord.

Win Win

   I often tell clients when preparing for mediation that it's their best, only chance for a win-win outcome.  A lot of clients don't like mediation because they get pushed to make voluntary concessions to a person they (at least currently) can't stand.
   I like mediation because, by definition, if we reach settlement it's something my client can live with.  There is no "losing" at mediation; if you can't find common ground you just walk away.  In fact, walking away can be a show of strength, proving to your opponent you're willing to meet them in trial.  Often, you can settle a week after mediation for the same deal your opponent rejected before realizing the measure of your resolve.
   Court is a different animal.  You can have a winner and a loser, or you'll have two losers because the judge has his own idea of fairness that bears no relation to what either party expected.  Do the math: Husband wins/Wife loses; Husband loses/Wife wins; Husband and Wife both lose - you know going in that two of the three possible outcomes are bad.
   Selfishly, I like trying a case to it's natural conclusion.  I'm not playing with my life, I'm playing with yours, so for me the chance to showcase my skills is more thrilling than any trepidation I might feel over the outcome.  That's why I work extra hard to examine all the angles before I take a case to trial.  I want to feel absolutely confident when I put you on the stand that I'm doing it in your best interest.

Perspective

     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

    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!