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.