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.