Prenups (and postnups) often signal the end

The McCourt’s (owners of the Los Angeles Dodgers’ baseball team) divorce trial is revealing many of the truisms of family law (to read the Associated Press article, click here.)

In the article referenced above, Mr. McCourt mentions that each insistence by his wife on a post nuptial agreement reinforced his feelings that things were not right. So prenups and postnups may not be for everyone. But ultimately, if one party thinks such an agreement is so important that they would not be married without it, then the other has a choice.  Apparently, Mr. McCourt made his. 

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Closing a door, opening a window (Sandra Bullock for example)

The saying “When God closes a door, he opens a window” can sometimes be very appropriate in family law settings. Sandra Bullock’s situation is a prime example. While a door was closed for her (divorce with ugly allegations that her husband Jesse James cheated), perhaps a more important window was opened, the adoption of a baby boy (Washington Post story can be viewed by clicking here). Her love for her child is so apparent that it is clear that perhaps she was freed of a bad marriage to make time for a person who she could love even more and who could return the love equally and unequivocally.

In our experience as divorce lawyers, we are often fortunate enough to see clients after the divorce has passed. While some struggle for years, many, if not most, move on and find happiness that they may not otherwise have found. That is one of the most gratifying parts of our job. Since the future is never certain, and is almost always frightening for anyone going through a divorce, the ability to watch people go through it and survive and succeed is an awe inspiring experience. Almost everyone who goes through a divorce, never ever dreamed of the possibilty of a separation or divorce. Then, to accept the failure of their marriage, a project they worked on, planned and tried their very best to make work, is always difficult. And much more so when children are involved. Yet inevitably life moves forward. New relationships are formed, different connections are made, and life goes on.

The bottom line is that change is inevitable and when it is as significant as a divorce, everything changes. But as human beings we strive to improve our circumstances, no matter what is thrown at us. And guess what, many people succeed in that. No, not everyone moves on and is better off for divorce. Money is tighter, logistical difficulties preventing non-custodial parents from seeing their kids arise, but we learn to cope with these issues. Of course there are times when the path of divorce was too quickly chosen. But in the majority of cases we see, the die has been cast, as in Sandra Bullock’s case. When the couple has passed the proverbial “point of no return” (one party cheating with porn stars?), then the real question is how to move on respectfully and with dignity. And I suggest that Sandra Bullock, at least from what we can glean through the press, has done exactly that. It is refreshing to see and likely inspirational to many.

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Why is the McCourt’s divorce unique?

Why is the McCourt’s divorce unique? Because lately the high profile cases in the news have been resolved out of court (Think Tiger Woods, Sandra Bullock and A-Rod). In fact, most high profile matters our firm is involved in are settled without any press and with very little expense. Actually going to trial with so many dollars at stake (and so much public reputation to lose) is becoming rarer and rarer. But the McCourts are there (click here for link to UPI story). No doubt the lawyers tried their best to guide the parties to resolution. Lawyers of that caliber always do. But when one party (or both) think their position is blatantly reasonable, or is an obvious “winner” in court (there is no such thing), it can be hard to settle a case. Some cases are just easier to try.

Unfortunately for the McCourts, it appears the court will decide their divorce which is guaranteed to make one, if not both parties displeased with the outcome.

On ocassion we encounter a stubborn opponent (opposing party or opposing lawyer). Even then, steps are taken to try to reach resolution. Mediation, settlement conferences and even pre-trial conferences with the judge are usually attempted to promote settlement. We also sometimes utilize a process known as Late (or Early) Case Evaluation. This process entails hiring a family law attorney who is respected by both sides to give everyone a “reality check”. Sometimes that does the trick. But when someone is truly unreasonable, the only way to resolve a case is trial. But even then, the good lawyers can only ease their conscience if they have truly attempted settlement first. But once settlement efforts are exhausted, trial becomes inevitable. Perhaps the one benefit of the McCourts actually going to trial is that others will realize how risky and costly trial can be, and thus become more determined to resolve their own cases privately. Let’s hope the message is sent, and heard, loudly and clearly.

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Divorce and birth rates down?

A Georgia Public Broadcasting article suggests birth rates and divorce rates are down in this poor economy (Click here for a link to the article). But is this a good thing? We must remember that divorce, is a legal proceeding, not a determinative identification of which marriages are stable and which are not. Perhaps the economy is preventing some folks from filing legal papers or hiring lawyers, but does that really mean more people are staying together (and if so, happily?). I think not. From my perspective, many people who have struggled for years trying to maintain a marriage have had it. On top of years of marital or relationship troubles, the stress of a poor economy puts many couples over the top. The economy may be the proverbial “last straw”.

Couples who are in distress, especially those living in separate residences, often need the court’s assistance to decide how funds are shared between the parties and how time with the children is allotted. But in a poor economy, many cannot afford an attorney so they often ignore the legal process and engage in self help. This may work on an ad hoc basis, but troubles are inevitable. And if we do see a decrease in divorce, unfortunately, in my opinion, we will see a rise in other legal areas, such as child kidnapping, criminal claims of abandonment and even domestic violence as people take out their frustrations on each other (frustrations which a “good divorce” or “good divorce agreement” might have avoided).

So, the real issue is not whether divorce rates are down, but are marriages healthier? Are people now staying together and resolving their issues. Or are they simply not able to afford the safeties and resolution mechanisms divorce courts provide?

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Contributions to Judges?

Politics and judgeships shouldn’t mix, but they do. Across the country judges are elected or appointed as part of the political process. Where they are elected, as they are here in Georgia, should lawyers who appear before them be allowed to contribute to their campaigns? Or, maybe the opposite makes sense, lawyers should really consider contributing since lawyers are in the best position (usually) to know which judges are better than others?

The Georgia Supreme Court is now taking a serious look at the issue (click here for a link to the story). The good news is that it seems this is not a “rush to judgment”. There has been a study group and the apparently many different aspects and factors are being considered. The point I made in the first paragraph illustrates the dilemma. On one hand, is it right for lawyers who appear before a judge to contribute (or to refuse to contribute) to a judicial campaign? Does that indiciate a potential for unfair treatment (favorable for donating, unfavorable for not donating)? Perhaps? But if contributions are made to ethical candidates, then the risk is reduced. On the other hand, if lawyers are prohibited from contributing to judicial campaigns, then the contributions will come from less informed sources who may not have had nearly as much experience with the particular judge. Wouldn’t we prefer that those in the know help guide the rest of us?

This is a fascinating issue. There are lots of “workarounds”. Lawyers can (and should, in my opinion) participate actively in opinion polls about judges. Lawyers should educate their clients and friends about judicial races given the insight lawyers, at least trial lawyers, may have about certain judges. But all too often we sit on the sidelines. We know which judges are excellent and we should strive to keep them in place. This benefits society as a whole and lawyers are in a unique position to help and can, and should do their/our part.

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International custody

There are hundreds if not thousands of horror stories about international custody/kidnapping and support. This entry will not cover the Sean Goldman case or many of the other ones recently in the news, but I decided to write this post when I read an article about a man in Germany who has finally been relieved of paying child support for a child wrongfully taken from him, 10 years ago (click here to read the story).

While getting off the hook for child support may be a relief, the big issue of retrieving an unlawfully removed child still remains. This is an issue that not only causes much pain and suffering for children and their parents, but also haunts many family law attorneys who have been unable to effectuate the release or return of a client’s wrongfully taken child. During my year as Chair of the Family Law Section of the American Bar Association I intend to work on this issue and shine more light on this problem. There are International Laws, but not every country has agreed to them, and the rules are not applied uniformly and consistently. Educating our politicians is one good way to start and I hope the ABA can help in that regard and others.

For those of you who are lawyers practicing in Georgia, we will try to address this issue at our annual Family Law Institute which I urge you to attend next Spring. On a national level, we will try to also address it at future Continuing Legal Education Seminars throughout the country. These cases are so important and time passes so fast that unless we as family law attorneys understand the rules and laws, children may go unreturned for too long, and in many cases they may never be returned. We must all be diligent, as citizens, and those of us in the legal business, must remain educated and up to date on this issue and the rules and laws in this area.

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Michael Douglas’ ex seeks money based on post-divorce efforts

Marital property is a topic that is defined slightly differently from state to state. But in almost every state (perhaps all), money that is acquired after the date of the final divorce is not marital and is not subject to division (unless otherwise agreed). Nonetheless, actor Michael Douglas’ ex wife is seeking monies Mr. Douglas receives based on a film which may not have even been conceived, but certainly on which Mr. Douglas had not worked during the marriage (click this sentence for a link to the Associated Press story). This sounds like an attempt to obtain property earned after a divorce. Yet Ms. Douglas has made an interesting claim. Since her divorce papers entitled her to proceeds from work Mr. Douglas did during the marriage even if the monies came after the divorce (such as residuals), she now claims that a sequel to the movie “Wall Street” qualifies as related to work he did before the divorce. I don’t buy that argument. A simple analogy would be a professional athlete. If, after a divorce, an athlete receives a new contract to receive money for playing his or her sport, isn’t that related to work during the marriage? But my point is that the easiest, and most logical interpretation of the Douglas’ divorce document would seem to be something like “money that flows in, without requiring work by either party, but rather merely as a pure result of effort during the marriage, should be subject to division”.

Family law is never boring and I look forward to the result of this claim, especially if a court’s interpretation is required. My best guess is that this will be resolved out of court by the parties, but at a minimum, it does seem like Ms. Douglas has an argument, albeit in my opinion, a losing one.

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Tiger’s divorce is done (quietly….)

Kessler on Zakk & Jack Show discussing Tiger Woods divorce – Fox Sports Radio – MP3

As I discussed in a recent blog entry, private resolution of potentially public disputes is a real challenge, but almost always worth the effort. Even though the Tiger vs. Elin divorce (click for Washington Post story) garnered about as much press as any in recent history, apparently they were able to reach resolution privately. At least at this point, the terms of the settlement have been kept secret and that is a compliment to the parties, their lawyers, the lawyers’ office staffs and the family and friends of the parties who may have been privy to details. My congratulations to the parties and the lawyers for keeping the terms private, at least so far.

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Massachusetts Gay Marriage “Stay” in place

In July, a U.S. District judge in Massachusetts, in Gill v. Office of Personnel, found part of a federal law allowing states (or perhaps the federal government) to refuse to recognize a gay marriage from another state to be unconstitutional. But he has just put a “stay” on his ruling to see if the government will appeal (click for a link to the story). The case is not so much about whether gay people may marry, but whether the federal government must respect a state’s determination of whether someone is married or not. The actual decision (not the “stay”) may be read by clicking on this sentence.

This seems to be one more case weakening “DOMA”, the Defense of Marriage Act. These are interesting times.

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Fulton County Family Division finally here to stay

One day in late 1996 or early 1997 while I was Chair of the Family Law Section of the Atlanta Bar Association I received a telephone call from Fulton County Superior Court Judge T. Jackson Bedford. Judge Bedford had previously been Chair of the entire Atlanta Bar Association and was and is a proponent of lawyers and judges working together to better our court system. It was not, and still is not common for a trial lawyer to receive a call directly from a jduge. But this was important he said. Fulton County was about to announce a project which would attempt to create the first Family Court in Georgia. He told me where the announcement would be made and that lawyers, especially family lawyers were invited and should attend. I went.

I volunteered our family law section to work with the judges in any manner they desired. We then invested thousands of hours of lawyer and judge time. We met monthly (judges and lawyers). The lawyers became the scriveners of a whole new set of rules that would apply in this new family court. We debated the name of the court (Family Division, well, we tried?) and we decided the cases would no longer say him vs her, but it would now be him and her. We invited experts who had established family courts around the country to come teach us what to do. I became Chair of the American Bar Association, Family Law Section’s Family Courts Committee and the ABA, with the help of then ABA President, Bill Ide, donated many resources and much time. It was well received throughout Atlanta (1998 WSB News Story-family-court ).

But one big issue was how to create a “new” court. Well really, it was the same court with the same judges, but it was to be a new division of that court. The Supreme Court authorized it as a “Pilot Project” and I am happy to report, that after twelve successful years, the court is no longer a “temporary” pilot project (see AJC story by clicking here).

There are many stories about the development of the court, from establishing the procedures (status conferences, etc.) to the selection of judicial officers, but the overall experience, although extraordinarliy time consuming, was once in a lifetime. I was lucky enough to be a part of a new endeavor that directly affected my clients. I am a firm believer that instead of complaining about rules and processes, lawyers should be a part of the planning. If you can help create the blueprint, then you are more likely to be satisfied with the outcome. The Fulton County Family Division is by no means perfect. There will always be problems when trying to devise a formula to care for and resolve some of our most basic human issues, those of parenting, support (for food, education, etc.), health insurance and shelter. But a court strictly devoted to family law matters inherently has an advantage over courts that manage family disputes one week, murder trials another week and car wreck cases the next week. And while the court is no longer a “pilot project”, it will always be a “project” as is our entire judicial system. I was lucky enough to be a part of it when it started and fortunate enough to still practice in it as an advocate. I encourage anyone who has an opportunity to improve our system to volunteer to do so. Even the Fulton County Family Division still has a need for good lawyers. The Family Law Information Center (F.L.I.C.) which was another part of the project can always use lawyers to donate time to counsel parties who cannot afford counsel.

I am excited that the court now seems more “permanent”, but we should always encourage improvement in our system and cooperation between bench and bar. The Fulton County Family Division is one good example of what such joint efforts can achieve.

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When should 3rd parties step in to protect children?

Apparently a Southwest Airlines Flight Attendant stepped in to take a young child away from a mother who may have slapped the child (click for link to the story).

Given all of the news about parents harming their children, such as the South Carolina mother who appraently suffocated, then drowned her children, perhaps we should revisit our rules and laws allowing third parties to protect children.

Many of us like to say “how can our government let that happen?” Or “why didn’t the appropriate government agency step in?” But why don’t more individuals step in? Perhaps for fear of “getting involved”. But getting involved is important. Not just when an obvious issue arises (like child abuse in public), but also in custody and visitation disputes. Most custody cases end up being “he said-she said” with each parent pointing the finger at the other but no other witnesses (except maybe a close family member). True, being a witness is inconvenient and time consuming. But in custody or visitation cases, the true benefiiciary of the witness’ time and effort is the child. So why not get involved? All it costs is a little time, and it may help ensure a child grows up with the best possible chance to succeed in life.

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Smile because it happened (Hilary Swank has a unique view on divorce)

Don't cry because it's over, smile because it happened.

Hilary Swank apparently views her divorce after 14 years of marriage as a sign of 14 years of success in marriage, rather than a failure. At least this is what USA Today reports (click for a link to the story).

When Diane Sawyer signed off after ten years as an anchor of one of America’s most loved news programs (Good Morning America), she quoted Dr. Suess (the story of her leaving GMA can be viewed by clicking here). The quote was “Don’t cry because it’s over, smile because it happened.” What a way to view such a big change.

If people going through a divorce could try to use this perspective, what a difference it might make. While it can be debated forever whether divorce in general is a good thing, the truth is, once it happens, about all one can do is to try to manage it in the best way possible. Dr. Suess’ philosphy, reiterated by Diane Sawyer is one magical way to take a difficult situation and view it in a whole new light. For a guy who had such an influence on kids, adults could learn a thing or two from him as well.

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Same sex marriage put on hold in California

The 9th Circuit U.S. Court of Appeals today stayed the Order which overturned Prop 8, thereby precluding, for the time being, same sex marriages in California. This seems to be an attempt to avoid the potential conflict and uncertainty which would arise in the event same sex couples marry under the current state of the law, and then that law is overturned.

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NY last state to go to “no-fault” divorce.

Today, August 15, 2010, the Governor of New York announced that he signed a bill permitting “no-fault” divorce in New York. So what exactly is “no-fault”? Well it varies across the country, but generally it means that one need not prove the other spouse was at “fault” in the break up of the marriage. That is, if one person believes the marriage is over, that is all that needs to be proved. And that will make “uncontested divorces” easier.

But does that make fault irrelevant? In many states the answer is no. Georgia and many other states permit introduction into evidence, proof of “conduct” such as adultery, drug use, spousal abuse and gambling. These types of conduct can affect the decision of the court on issues such as alimony, custody and division of property in some states.

But what no-fault divorce allows, is a less confrontational divorce for many who have peacefully and amicably come to the decision that their marriage should end. The removal of the need to prove “fault” removes the need to accuse anyone of being the cause of the divorce. While such conduct issues may be relevant in some states for some issues, many people simply desire to move on and resolve their differences in a non-confrontational manner. This new New York law makes it a bit easier in New York to do what people elsewhere in America have done for years, to divorce without pointing fingers or laying blame. It is about time.

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ABA Annual Meeting Finale coming up

What an annual meeting! The CLE programs have been wonderful, and for those of you still here in San Francisco at the 2010 ABA Annual Meting, there is one more “MUST-SEE”. At 10:30 am today (Sunday), there is a presentation on “Trying High Profile Cases in a 24/7 New Media World”. What is amazing is who is on the panel of presenters. Among the five panelists will be David Boies, who just successfully argued and tried the Proposition 8 case. Is it possible to have another presenter as timely as him? Yes, The Honorable Vaughn Walker, the judge who decided that case will be on the panel as well. Many ABA groups are co sponsoring the program and I am sure it will be packed, so I just hope there is room for everyone who wants to attend, including me which means we should all get there early.

There has already been a tremendous amount of educational information sharing, but to be in San Francisco and to get to go watch and listen to the lawyer and judge who just tried one of the most intriguing and possibly society-changing cases in our lifetime makes it worth rising early and standing in line to listen, watch and soak in as much as possible before this 2010 Annual Meeting ends. I am looking forward to the program and I look forward to learning from it and sharing.

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ABA in San Francisco

What a time for the annual ABA meeting to be in San Francisco. I land in 20 minutes and it already feels like there is a buzz in the air. The plane is filled with Georgia lawyers all headed to various ABA meetings for different areas of the law.

But it is in San Francisco and same sex marriage has just been judicially approved with the striking down of Prop 8. I look forward to the feel of legal interest and discussion throughout the city. And I imagine that our group, the Family Law Section will be discussing it ad nauseum. I look forward to seeing what my peers have to say, especially those from California.

I hope I always feel this same sense of excitement about the law and our legal system. By no means is it perfect. But unless good men and women continue to debate, discuss and challenge our laws, the system would stagnate and eventually fail.

I am proud to be a lawyer and a member of the ABA. I look forward to learning and sharing over these next few days.

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Proposition 8 overturned. Same sex marriage gains ground.

Today was an historic day in family law. A federal, not simply a state court judge, ruled that same sex marriage should be allowed. While the ruling is much more than simply an opinion by a judge that such marriages should be allowed, the real significance is that the burden now shifts to opponents of same sex marriage to overturn the decision on appeal. As any lawyer will tell you, it is always better to be the Appellee than the Appellant (the one filing the appeal).

Far be it from me to attempt a full fledged legal analysis of the decision in this format, but the simple and straightforwad result of this decision is that the concept of same sex marriage has taken a huge leap forward and seems well on it’s way into acceptance, at least in our legal system. While most studies seem to indicate that the legalization of gay marriage was an eventual certainty, this case seemed to move the process along much more rapidly than many expected.

Regardless of your view on this topic, there is no doubt that this is truly an issue that will be discussed over and over, in courthouses and coffee houses.

Past generations have confronted many changes to widely held opinions and positions (Loving v. VA-interracial marriage; Roe v. Wade-abortion; Brown v. Board of Education-segretation in schools). Yes each issue is different, but the fact that in America we can examine, debate, vote, litigate, appeal, then vote again, is a wonderful thing. The checks and balances and open processes we use are extraordinary. There is no way to please everyone, but what an interesting issue and what interesting times we live in.

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Argentina okays gay marriage-first country in South America to do so.

Argentina celebrates first same-sex marriage since new law enacted

Posted in Adoption, Divorce, Family, Family Law, Gay Adoption, Lawyer, Legal, Uncategorized, gay marriage, same sex marriage | Tagged , , , , |

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The Use of Financial Experts in Divorce Cases

tax expert hard at work

Many divorce cases involve complex financial issues which may often be simplified by the engagement of a financial professional. The employment of an experienced financial expert (combined with an attorney who frequently handles complex financial cases) can be particularly helpful in such situations especially when one spouse is a financial professional such as a C.P.A. While many attorneys are certainly able to make cogent legal arguments about the alleged income of an opposing party or equitable division of various assets or debts, and the judge to rule on such issues, a financial expert can be instrumental in forensically researching and clearly explaining what exactly there is to divide and how their numbers where calculated.

For example, suppose the Wife in a divorce is a partner in a business formed prior to her marriage to her Husband. This situation invites a host of possible disagreements between the parties including the income of the Wife, the overall worth of the business, the Wife’s portion of the business’ worth, and the marital value of Wife’s portion. A trained forensic accountant would be able shed light on each such quandary, as well figure out the most cost-effective way to divide the marital portion of the business and any relevant tax ramifications for such division.

Oftentimes, both parties will hire financial experts in such a situation. While this sometimes invites divergent expert opinions on the same set of facts, it is very common for the experts to agree about the basic numbers at stake, regardless of how things will be divided. This brings a great amount of clarity to what began as a murky financial picture. Indeed, if the experts can agree about what there is to divide, it is much easier to begin settlement discussions. It also becomes easier to make arguments in court if both parties stipulate to the value of the marital estate.

At Kessler, Schwarz & Solomiany we value our relationships with forensic accountants and other financial experts. Not only do they make our jobs easier, they help our clients tremendously.

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ABA Annual Meeting 2010

In just over a week, the American Bar Association holds it’s annual meeting. This year it will be held in San Francisco. It is a time for leaders in all legal areas to come together, share ideas and learn from each other.

At the meeting, I will have the good fortune of being sworn in as the Chair Elect of the Family Law Section of the American Bar Association. It will truly be a privilege to serve. I have been fortunate to have had some wonderful mentors during my career, and each, without fail, have encouraged bar participation. In 1997 I served as Chair of the Family Law Section of the Atlanta Bar Association and I also will soon serve as Chair of the Family Law Section of the Georgia Bar Association.

While some may think this takes away from my practice of law, the opposite is true. My practice, including every member of our firm benefits from the leadership roles and active participation in which I, my partners and our associates engage.

Attending scores of legal education seminars each year and maintaining relationships with the finest lawyers and judges in the country keeps us all on the cutting edge. If there is a new idea, trend or significant case, we are giving ourselves every opportunity to learn about it first.

While in San Francisco, I fully intend to take advantage of everything the ABA has to offer. From Hot Tips in Family Law, to programs on presentation techniques for the courtroom, I plan to soak in as much as I can. The nice thing is, most of the other lawyers there too are similarly motivated and that is exciting. I look forward to learning from my peers and returning to Atlanta with at least a few pearls of wisdom, learned, borrowed or stolen from some of the best legal minds our country has to offer.

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