For divorce lawyers, the breach in the firewalls of Ashley Madison is like the breach in the walls of Jericho, when the trumpets did sound for seven go-rounds and the walls came tumbling down. Soon we'll be making money hand over fist.
It's also a reminder of how silly we are when we suppose that adultery is a contract that promises mutual silence and non-entanglement, even at a time when marriage itself is less of a real contract than ever. There are so many ways for the truth to get out.
For the rest of the story, as told by Northern Virginia family lawyer, bar leader, and tech-security guru Sharon Nelson, see:
Virginia appellate court expert J. Steven Emmert put his finger on the main reason I founded this blog:
"News reporting of a trial is often not a good indicator of how the case is actually going. You may have seen skeptical views of the evidence from this news story or that opinion writer, but trust me: you cannot evaluate the evidence in a case unless you watch the evidence and listen to the testimony, just as the jurors do. News reports sometimes don’t convey the main thrust of the evidence or the nuances of the testimony."
Reading the fact summary in a court opinion can also be a lousy way to learn the real facts -- my father and law partner Richard Crouch used to say that when he read the opinion in one of his own cases, he could barely even recognize that it was the same case. One reason is, as Emmert writes about gov. Bob McDonnell's case:
"An appellate court has to set out the facts in the light most favorable to the lower-court winner. So if today’s factual recitation seems slanted in favor of the government, that’s both understandable and completely normal."
>As more single-led households emerge, the issue of free-range parenting becomes more evident. Issues abound, such as how old should a child be to walk to school alone, for how many blocks, or what age can children be left alone by themselves and for how long? We’ve even seen cases where parents have been threatened with jail if their child was overweight. Where is the line drawn between free-range parenting and neglect? Hear from our esteemed panel and special guest Lenore Skenazy, Founder, Free-Range Kids movement, as they discuss:
New York joined the rest of the U.S. and most of Europe a few years ago by allowing no-fault divorces that were unilateral -- not requiring a separation agreement on the economic and child-related details of the divorce -- and quick -- well, quick to start, anyway. Not so quick to finish. Now the divorce lawyers who pushed for the change are dumbfounded to discover that divorce in New York is starting to look exactly like divorce in the rest of the country, the New York Law Journal reports.
In the past, couples who lacked grounds for a divorce or didn't want to assert grounds had to work out an interim agreement and wait a year, said Lee Rosenberg, a partner at Saltzman Chetkof & Rosenberg in Garden City. Rosenberg, a fellow with the American Academy of Matrimonial Lawyers and former chairman of the Nassau County Bar Association Matrimonial Law Committee, said that while he is writing far fewer separation agreements now, he is seeing more divorces—and an inexplicable elevation in hostility. "There is a proliferation of litigation," Rosenberg said. "The amount of recalcitrance and expectations which are illegitimate, the amount of infighting amongst the litigants, and to some degree amongst counsel, is from my perspective at an all-time high."
The number divorces jumped from 49,816 in 2009 to 56,382 in 2010 and 58,556 in 2012* . "If there are more cases filed, there are more cases in the pipeline and less resources to deal with them. We have judges triple-booked for trials through the end of the summer," Rosenberg said.
"Data from the New York State Department of Health showed that in 2012, only one of every 32 divorces followed a separation agreement, compared with one in seven in the pre-no-fault era."
"Just a few years ago, separation agreements consistently preceded about 7 percent of divorces, providing a cost-effective way for unhappy couples to start dissolving their marriage and a steady source of income for matrimonial attorneys drawing up the agreements." Richard W. Cole of the Albany Law firm of Tully Rinckey said: "Previously, separation agreements were like a two-step divorce because you didn't want to fight over fault grounds. So, the parties would reach a separation agreement and wait out the year without having to prove cruel and inhuman treatment or any of those other unpleasant things that come up in divorce complaints."
Rosenberg said court system is being strained due to an influx of unrepresented litigants and budgetary constraints. The Judiciary, which has been functioning for years with flat budgets, is seeking about a 2.5 percent increase from the Legislature for the fiscal year that begins April 1.
"It is extremely burdensome on the judiciary and court staff to try and manage these cases," Rosenberg said. "If there are more cases filed, there are more cases in the pipeline and less resources to deal with them. We have judges triple-booked for trials through the end of the summer."
Richmond lawyer and professor Rodney Johnson, who died last Wednesday, was one of my most important teachers, although only through his formbooks and continuing-education course. He and William & Mary Prof. John E. Donaldson gave me an outstanding model for how the content and practice of law should intersect with real people’s lives, and how lawyers should interact with legislatures. They were my first instructors in drafting, a dark and mysterious art that I care about deeply. All of their teachings affect my techniques in family law and mediation just as much as in drafting wills, trusts, powers of attorney, etc.
I still use Prof. Johnson’s forms for my wills, etc., though I have painstakingly translated them into plainer English and have made them even more modular, and even easier to customize efficiently while avoiding common revision mistakes and unintended consequences – i.e., building on his inspiration to make them even more “Johnsonian”. Documents should have the legal effect that people intend, across time, but should also be worded so that non-lawyers understand them: two goals that can be mutually exclusive, and require great effort and imagination to combine. They must be built to withstand every possible unexpected sequence of events, continuing to carry out the client's wishes even though most clients don't want to think about the possibilities. To minimize the need to go to court, or even to lawyers, to figure out what they mean. And to discourage and survive the tampering of clients who know a little bit about the law and terminology, most of it wrong, and think they know everything.
I came into law school already believing in the ideal of the Common Law as explained by Bruno Leoni in Freedom and the Law: that the law, at its best, reflects the rules of life, adapted to local conditions, which most people find fair and workable when they actually have to apply them to resolve real disputes. And that therefore, common law, forged and evolving in jury trials and judges' decisions, is better than legislation, which can be made up in a vacuum and based on ideologies and grand systems that look impressive on paper but are irrelevant to real life. What I learned from Johnson, Donaldson, and other teachers did not change that, but gave me a solid idea of how to achieve those objectives in the legal system as it actually is. Legislation about wills, trusts etc. should work so as to provide "default" rules, and rules of interpretation, to carry out what most people would want, intend and mean if they thought about it and had a chance to spell it out expressly. But also make it easy for people with different wishes to put those into effect. Legislation can be an efficient way to tweak the common-law rules, and older statutes, to make the laws and personal documents do what most people directly affected by them most often want them to do. This can and should make litigation and adjudication less necessary. It should also make it less necessary for people to hire lawyers and make or update their wills, contracts, trusts, powers of attorney, etc. Lawyers should work with legislators, as Professors Johnson and Donaldson did, by telling them what kinds of laws make things easier, fairer and more peaceful for clients and families, and what laws have had, or might have, unintended consequences; not lobbying for any particular faction based on gender, age, class, or some other special interest, but to increase everyone's welfare by lubricating the system and reducing conflict and court involvement in people's lives. That's the kinds of laws and lobbying that we heard about in law school, and it is what I and others try to to when informing legislators about the pros and cons of family-law legislation, as well.
In Collaborative Divorce and other kinds of Collaborative Law cases, the clients and lawyers share all the evidence. Even while disagreeing fundamentally about what it means. Even if they fear it will undermine their positions. That's one of the two most fundamental elements of Collaborative Law, and sometimes the most difficult (not hard to understand, but hard to bring yourself to do).
Collaboration borrows some concepts from science and medicine, in which teams of professionals in various fields pool their information and expertise and collaborate to solve problems. A great example of such collaboration in the midst of conflict, in which both sides seek the truth from very different points of view, was reported in the Calgary Sun last week:
"One of the most important fossil finds in decades, helping to solve an evolutionary puzzle dating back 60 million years" ... "comes at the end of a backhoe operated by a man known as the greatest promoter of creationism in Alberta. His name is Edgar Nernberg, and when he’s not sitting on the board of directors of Big Valley’s Creationist Museum or actively lobbying for the inclusion of creationism in Alberta’s school curriculum, Nernberg operates a backhoe in Calgary."
Nernberg found five complete fossilized "bony-tongue fish", about 60 million years old, while digging a basement. “'No, it hasn’t changed my mind. We all have the same evidence, and it’s just a matter of how you interpret it,' says Nernberg. ... 'There’s no dates stamped on these things,' he says, sharing a good-humoured chuckle about a discovery that has him working alongside the ideological enemy. ... Thursday, the University of Calgary will officially unveil the five priceless fish, which might have been chips had Nernberg not noticed them.vIt’s bound to be a very interesting meeting of minds, as Nernberg stands with officials from the university to show off the find."
In "The Financial Costs of Going to Court – If You Get There", divorce financial planner Joan Coullahan elaborates on one really expensive part of a divorce case which people ordinarily don't think about -- the intensive, all-consuming trial preparation that happens in cases which do not go to trial, but which settle only in the last few days before the trial. (There are many other expensive phases of the litigation process, too, such as the initial "pendente lite" hearing on temporary arrangements while the divorce is going on; the "discovery" process; enforcement of "pendent lite" orders, and many other expensive sideshows.)
She then gives six major ways clients can reduce the costs -- it would be wrong to say "control" the costs because the costs are still often out of control, and depend on how much court action or other difficulty the other side, or the judge, initiates, as well as how much of it you initiate. But these are the major things that help significantly in all cases to not only reduce the costs, but to make your attorney be better prepared and organized and leave him or her more time and energy for preparation, strategy, and tactics, and for negotiating an educated, well-understood settlement which you won't regret later.
I would add, don't just give your lawyer all your financial information, but also organize it, unless of course that means that the lawyer gets it too late. The most important thing is to provide the information. But even better is to provide it and organize it. And the best thing of all is to provide it and organize it according to an organizing pattern requested by your lawyer, so that he or she will know exactly where to look for particular facts and won't have to learn your particular organizing system.
"This Divorce Arrangement Stresses Kids Out Most", by Mandy Oaklander in TIME Magazine, summarizes a new study: Based on national data on almost 150,000 12- and 15-year-olds' psychosomatic health problems, including sleep problems, difficulty concentrating, loss of appetite, headaches, stomachaches and feeling tense, sad or dizzy; "Kids in nuclear families reported the fewest psychosomatic problems, but the more interesting finding was that students who lived with both of their separated parents reported significantly fewer problems than kids who lived with only one parent."
Study author Malin Bergström, PhD, said: “We think that having everyday contact with both parents seems to be more important, in terms of stress, than living in two different homes.” “It may be difficult to keep up on engaged parenting if you only see your child every second weekend.” Having two parents also tends to double the number of resources a kid is exposed to, including social circles, family and material goods like money. “Only having access to half of that may make children more vulnerable or stressed than having it from both parents, even though they don’t live together.”
Based on my 20 years of work in divorce and child custody, another major reason also seems obvious to me. All the inconveniences of "shuttling" between two homes, as real and bothersome as they are for many kids, are trivial compared to the disadvantages, pain and insecurity that comes from losing one parent from a fully parental role in the child's life. And when one parent take a lesser role, "he that hath little shall lose what little he hath," as the separated parents' competing employment needs, relocations and new relationships increasingly conflict with, and take priority over, co-parenting.
That is why I support 50-50 joint custody when it's possible. I don't think it's necessarily the best, most enjoyable, day-to-day arrangement for most children: in our current social arrangements, in the U.S., most mothers "naturally" do more of the parenting and are more attuned to the children's needs. But in my own experience and in the statistics, so many divorces lead to a parent completely disappearing from the child's life, and many more see one parent marginalized, vilified, infantilized, and/or disempowered. And children perceive that loss of a parent who can actually act as a parent, and of course it causes major stress for them. I think the 50-50 form is probably the most stable because, in it, neither parent assumes they have the unilateral power to make the changes which in turn make it practically necessary to reduce the other parent's role -- such as moving to a different school district or a faraway state.
But I am repelled by anyone who gushes that 50-50 joint custody, or any other custody arrangement, is just wonderful for kids. Any custody arrangement is a poor substitute for an intact family.
"Badmouthing the ex will be internalized by the child because they are made up of both you and your ex."
The divorce was about you, but custody is about the kids ... not about getting exactly what you want, or even demanding equity at any cost. ... "what is best for the child is not always what feels good for you as a parent."
Be realistic about your own schedule and commitments.
Choose a custody arrangement that accommodates your children's ages, activities, and needs.
A bad spouse doesn't equal a bad parent. Almost always, "it is unquestionably best for children to have frequent and continuous contact with both parents."
Find a method of communication that works for you and your ex.
Pick your battles. "School choices, vacations, and parenting time are worth the fight. Things like food choices ... are not worth the fight." Save your energy and good will with your ex and the courts for those things that do matter.
Let your children feel heard. But also make the best decision for their well being.
From time to time, review the arrangement and adjust as needed.
Divorce financial planner Joan Coullahan's article on "How to Avoid Sabotaging Your Own Divorce Negotiations" doesn't get into all the different ways you can screw up your negotiations once they're already going on and you're working with a lawyer. But the seven common missteps that she lists are indeed very common, and natural, things for people to do right at the beginning of the separation process. And they instantly escalate the conflict, destroy any remaining trust between you, and make your spouse believe, reasonably, that he or she must immediately fight fire with fire.
Great advice, and lots of fun. Big caveat: I think the author an associate of Tony Robbins, although on the other hand she writes and speaks, very well, in major, mainstream publications and conferences.
"John kicked a bottle in the gutter!!" my kindergarten teacher exploded as soon as my mom picked up the phone. "And?" my mom asked. She realized right then that she needed to get me out of that school and away from people like that teacher.
I'm lucky I'm not a kid these days. Northern Virginia legislator and state senate candidate Scott A. Surovell (D-Mount Vernon), who occupies George Washington's old House seat, writes:
"Virginia is #1 in child referrals to law enforcement. Virginia's rate for African American students is 10x higher than Maryland, 16x higher than DC, 2x higher than NC. Why? 'In southeastern Virginia, for instance, a 12-year-old girl was charged earlier this year with four misdemeanors — including obstruction of justice for “clenching her fist” at a school cop who intervened in a school fight.' We need to fix this."
A case always goes better for both clients if the lawyers are friends. Just as in sports, being friends off-the-field doesn't keep you from playing hard and playing to win. In fact it spurs it on. Many clients are suspicious of everything in the legal system, and wonder if I can advocate effectively with a lawyer who I'm friends with. Heck, yes. I don't know how you are with your friends, but being friends with someone makes me more likely, not less, to "call BS" on them when needed or even warn them if they seem to be doing something unethical.
Lawyers in a Collaborative Law group are especially likely to be friends. When I first started recruiting members to form our local collaborative group back in 2002, I went to friends of mine who weren't pushovers, who were civil, fair, creative but vigorous advocates for their clients as well as for the entire family. That is the kind of service I wanted the collaborative law group to give to clients. I knew that if the collaborative group was touchy-feely and airy-fairy instead of working out practical solutions for both clients' needs, it would reflect badly on me and would not reflect the kind of service I want to provide.
It also helps to understand that family law is different from the fields like personal injury and criminal law which give most people their impression of lawyers. Lawyers in those fields only represent one side: plaintiffs or defendants, the accused or the state. Each side has its own separate bar groups, and a significant number of such lawyers feel they have more to gain than to lose by looking like scorched-earth warriors who have no collegiality or comaraderie with the other side. In family law, nearly all lawyers represent both "sides" in different cases, however you define the "sides": men vs. women, leaver vs. left, richer vs. poorer, worker vs. drone, foreign vs. native, or as prominent Virginia lawyer Ilona Grenadier once summed up a case for a judge, "This time he's got the whiner and I've got the bastard". We deal with the same legal issues, client behaviors, and problems from all different "sides."
"Today, surgeons deliver 'minimally-invasive' procedures that have folks in and out faster than a TSA security pat-down. So why do we still languish in the dark ages when it comes to the law? Why do so many people still rely on stone knives and bear skins when getting a divorce?" Collaborative Law is the equivalent of modern, "minimally-invasive" surgery for divorce, Plano, Texas lawyer Curtis Harrison writes in "The Minimally-Invasive Divorce?" on LinkedIn.com. It lets couples privately "work through and resolve every detail of a divorce or family dispute quickly, cost-effectively and in a dignified manner." It's "a safe environment that is characterized by confidentiality, mutual respect, and control over the outcome. Through a series of scheduled meetings with pre-planned agendas, the participants work their way through the gauntlet of substantive issues." Negotiations focus not on positions, accusations, and legal doctrines, but on people's real goals, interests and resources. Which the court system is not interested in, as it is designed for finding and punishing wrongdoing.
Curtis's article is a great overview of collaborative divorce, what it can do for you, and what it demands, with a fresh perspective. One bone to pick: I don't agree with the pejorative terms "renege" and "damages clause" for the situation in which the parties fail to reach a complete agreement and have to get new lawyers for litigation. That situation is rare, but it has to be a legitimate possibility in order for agreements to be freely chosen and sustainable. Collaboration is not a promise to reach agreement. No one is bullied into agreeing just for the sake of agreement; doing that would actually punish the more compromising person and vice-versa. (Agreements that clients feel "forced" and hurried to enter are actually common in Litigation, not in Collaboration.) Failure to reach agreement is not wrongdoing, and can still be done with mutual respect. And in my one experience with a collaborative case that "failed", it was. In that case, trying collaboration first was very good for both parties and for their litigation.
So if the Collaborative Commitment -- the lawyers' irrevocable disqualification from contested litigation between these two clients -- is not a "punishment", then what is it? It is more like a speed bump or a guardrail to keep a divorce from escalating into litigation. Now, in or out of collaboration, there's always substantial value to reaching a deal and great cost to going into litigation. The Collaborative Commitment adds slightly to that value and that cost, but honestly not much: people in heavy family-law litigation often change lawyers once or twice anyway. Lawyers are replaceable. What it really does is to give couples a way to signal to each other, in a shared vocabulary, that they are serious about negotiating a "good divorce". And they do that not with empty words about trust and good-faith, but with actions that give tangible reasons to trust each other's intentions and to behave collaboratively: contracting away the possibility of litigating with these particular lawyers; and contracting to share all relevant evidence. When negotiating with their collaborative team, they don't have to worry that the other spouse is really just maneuvering and preparing for litigation.
And that "Collaborative Commitment" is just the beginning. The lawyers and other professionals who choose this kind of practice mostly tend to be better negotiators; they often were recruited by other collaborators because they get along well with other lawyers, but not at the expense of advocating for their clients' interests; they have the several days' collaborative training and mediation training that's required for membership in their collaborative practice groups, and they continually seek additional training to do the job better. But perhaps even more important, I've discovered over my 12 years in collaboration that collaborative practitioners continually seek feedback on what works and what still doesn't work for clients, and they keep improving, innovating and simplifying to improve clients' experience of divorce.
Longtime Brooklyn / Manhattan family law attorney Chaim Steinberger was complaining about people calling him asking for quickie second opinions. People replied that he sounded arrogant and controlling: why should people be bound in medieval faith and fealty to their lawyers, and why do we scoff at them for doing things we ourselves would do? He gave a wonderful reply, summing up, in a way non-lawyers can appreciate, so much that clients get wrong about how to work with lawyers and courts. First, here’s one of the best of the initial responses to him:
Clients may trust their lawyer, but it doesn't hurt to get a second opinion. After all, none of us is infallible. And for the lay client it’s hard to tell the difference sometimes between a smooth talking lawyer and someone who is not so smooth but has the wisdom of experience.
Yes, someone can come in with all of the pleadings, motions and other litigation papers, review all of the aspects of the litigation and get a second opinion. Akin to coming into a second doctor with your x-rays and MRI results and asking for a second opinion.
I would, however, doubt that a competent doctor would render a second opinion over the phone without an opportunity to review the patient's medical history and current medical charts. Or when the patient says, "I take three medicines every day, two white pills and one blue one. But that's not important because I'm not asking you about that; I just want to know what to do about the pain in . . . ."
What I'm railing about is a person who has a lawyer, who says he's satisfied with his lawyer and not looking to change counsel, who naively thinks you can get a simple answer to a complicated situation; that in one 15 minute phone call, I can give him a secret formula how to win a certain aspect of his case.
As I imagine it is with medicine, everything affects everything else. So you cannot litigate one aspect of a case without knowing, considering, and planning for, each other aspect. Moreover, the practice of law is not mathematical--I can make the same argument four other lawyers have made and I'll win even though the other four were thrown out on their arses.
So I agree with you. A litigant who calls seeking a second opinion, who comes in with all of the documents and does the hard work of going through it all to get a second "informed" opinion, is fine. A person who calls and says, "I have a lawyer, and all I want to know is how do I win [this one aspect of the case in which you have expertise]" is unrealistic and unreasonable.
I'm so proud and lucky to be training to work as a divorce lawyer and mediator with couples in discernment counseling. It fills a generations-old need so fundamental that people have turned to all kinds of crummy substitutes over the years with demoralizing results -- marriage counseling that turns into divorce counseling and leaves one spouse feeling that that's what it was all along; "trial separations" that do the same and escalate the divorce conflict, mediations where the spouses and mediator have five different ideas of what they're meeting for. "DC" gives a safe space where people can weigh both options without getting into actions, threats and misunderstanding that drive people apart and quickly make divorce inevitable and nasty.
March 18th Webinar - Discernment Counseling for Couples on the Brink with Dr. Bill Doherty!
Learn about an innovation in working with couples on the brink of divorce where one spouse is leaning out of the marriage and the other wants to save it. This is a common presentation to marriage therapists, clergy and divorce lawyers, but there have been few protocols for helping these couples. Discernment counseling is a structured way to help "mixed agenda" couples decide whether to work on preserving their marriage or move toward divorce, based on a deeper understanding of what has happened to their relationship and each person's contributions. Bill Doherty has developed discernment counseling protocols for couples therapists (five sessions) and for clergy (one session and referral), plus an "ambivalence" protocol for family-friendly divorce lawyers and mediators.
Identify the special challenges that mixed agenda couples face when they see helping professionals.
Describe how couples therapist use discernment counseling to help these couples decide on the next step for their relationship.
Describe how clergy use their own version of discernment counseling.
Outline an ambivalence protocol for divorce lawyers and mediators who see mixed agenda couples.