My comments on proposed limited-scope representation rules; your comments due March 1

The Virginia Supreme Court and the Judicial Council are considering a new rule to deal with limited-scope representation, especially assistance to people who are already in litigation. My comments on it are below. The proposal, and where you can send comments by March 1, 2018, are at:

Advisory Committee on Rules of Court, Judicial Council of Virginia, "LIMITED-SCOPE REPRESENTATION ISSUES".

Overall comments — 
 
This is a very important reform. Full-scale representation in family law litigation is often unaffordable even by people who would be considered upper middle class. And it takes both divorcing spouses to prevent any particular divorce from becoming unaffordable, long-running litigation.
 
The proposed rule has many extra cautionary requirements for the attorney, or the attorney’s name and contact information, to be present in court, and on documents, even for issues where the lawyer is not involved. Please bear in mind that each of these requirements comes at a cost, not only of the attorney’s time, attention, and availability for other cases, but also by sowing predictable confusion among clients and especially their opposing parties, who aren’t involved in the limited-scope agreement. When lawyers’ names are on papers or a lawyer is present, lay people are going to assume that the lawyer is a prime mover in whatever is going on. Lay people, and even the lawyers themselves, will often feel that the lawyer has some responsibility to intervene or advise about whatever comes to the lawyer’s attention. Lawyers' instinct to be helpful will inevitably cause “mission creep” in many cases. So all such requirements should be kept to the minimum necessary.
 
As lawyers comply with these additional requirements, clients and other members of the public may feel that the lawyer is hanging around like a vulture waiting to insert herself into the proceedings and expand her involvement so that it is no longer limited. Or interfering, intruding and violating the client’s desire to limit the scope of the lawyer’s work, by writing to the client with repeated notifications of well-known facts about hearing dates, etc., whenever the lawyer is cced on something the other side sends out. Many clients already respond this way to communications that court rules and ethics rules require us to send.
 
Line comments
 
9-10 
 
 I agree that a lawyer should not be present but generally uninvolved, only popping up now and then with objections. That would be chaotic and unfair.
 
But I can also see the value in having an attorney handle only a particular motion in limine or motion to suppress. It seems fairly clear that the intent is to allow that, but it would help to make that explicit.
 
11-13
 
" A notice of limited scope representation is not required for  … (ii) services performed by an attorney before any litigation is pending”
 
Does that dispensation also apply to the requirements to “indicate” or “identify" in (1) (F), Alternative versions 2 through 5?
 
I believe it should apply. Either way, that question should be answered explicitly.
 
26 et seq. — Alternative versions of (F)
 
In all versions, the term “papers for submission to a court” is intended to be clear, but what about marital separation agreements? They are not court filings. They are binding contracts when the parties sign them, regardless of whether they are submitted to a court. But whenever one gets signed by both spouses, perhaps 95% of the time there is going to be divorce, and the agreement i8s going to be submitted to the court as part of the divorce process.
 
I think limited-scope assistance is crucial, so I oppose Alternative # 5, which essentially bans limited-scope, and Alternative # 4, which creates a presumption against it; imposes a needless requirement to essentially file a notice of appearance, and then to file a notice of disappearance.
 
86
 
“Papers” sounds vague. I think you mean litigation documents such as pleadings or discovery requests, but we need a more precise, comprehensive, understandable, and distinctive term for that.
If it’s intended to mean everything, including settlement correspondence, that’s reasonable, too, but that too would need to be clearer. Because the word “papers”, to a lot of people, vaguely indicates papers that are somehow official, binding, and/or threatening.
 
88
 
The requirement should be to notify the “sender”, not “the adversaries”. They might not be the same people.
 
 
notify the adversaries in writing of that fact
should be changed to  
notify the adversaries, in writing, of that fact
or
notify the adversaries of that in writing
 
But really, “that” or “that fact” might not make clear to everyone which of the facts mentioned earlier in the sentence it refers to, so it would be better to say, 
 
“the attorney must notify the sender that the documents received deal wholly or partly with matters outside the scope of the limited representation,"
 
107-108
 
"(D) Contacts by adversaries or co-parties on matters within the limited scope of 108 representation shall be with counsel …"
 
What about family law cases, where many couples legitimately continue some kinds of negotiation between themselves, even when they both have counsel who are negotiating at the same time? 
 
110-111
 
“copy served upon the attorney making a limited scope appearance” — 
 
Would serving the attorney require that attorney to respond and notify as required in (3)(C)? If that happens once, it makes sense or is at least harmless. But in litigation where filings go back and forth almost every week, it’s going to drag the limited-scope attorney into a lot of busy work, and confuse litigants — the client and/or the opposing party — about the attorney’s role.
 
115-116
 
(A) — attendance at all court proceedings, outside the scope,  should not be required if the rule is truly allowing limited representation. I would expect attorneys to charge for this time, and it would be a major burden on the clients and the attorneys.
 
John Crouch
VSB Council Member for 17th Circuit
Fellow, International Academy of Family Lawyers (Formerly IAML)
and International Academy of Collaborative Professionals
 

Alabama senate votes to abolish marriage licensing, celebration requirement, but NOT to separate marriage and state

Alabama's Senate has once again passed this bill, now numbered SB 13. It does not separate marriage from government, but couples will now simply register their marriages with the courts, instead of asking the courts to license them and having to have them formally celebrated and then recorded with the court. Having the marriage celebrated will be optional and the government will not be involved with that. But the state would still keep track of who is married, to the limited extent that it already does. Marriage would still have many legal consequences, including laws on bigamy, divorce and taxes.

UPDATE: It was approved Jan. 25 by a House Committee with an amendment that does not change what it does. Track its progress here.

Similar bills passed the Senate in 2016 and 2017, and one passed Oklahoma's House in 2015.

Currently, all U.S. states require marriage licenses. There is some disastrous misinformation out there saying that not all do, but that is based on some states recognizing common-law marriage, which is very different and can take years to establish; it is no sure substitute for licensing when you want to get married.

 


Federal "diversity jurisdiction" exists to prevent unfair home-court advantage, so why doesn't it apply to family law?

"Family Law Is Not 'Civil': The Faulty Foundation of

The Domestic Relations Exception To Federal Jurisdiction”

By Joseph A. Carrol, Dickinson School of Law

ABA First Place Schwab Essay Contest Winner, 2017

 


Father lost visitation for trying to stop psychotic torture of child in #Munchausen by proxy case. Which part of that story is the most shocking?

You may have read about Christopher, a Dallas-area 8-year-old who has been, without exaggeration, sadistically tortured his whole life, completely robbed of a normal life, in an extreme case of "Munchausen Syndrome By Proxy." A dashing and lighthearted name for a horrible, sadistic form of lifelong child abuse; they really should give it a name as serious and awful as it is. It has many vague and forgettable official names, none of which are remotely as ghastly as they ought to be.

Christopher’s mother treated him as if he was deathly ill from his birth until she was arrested last week: feeding tubes, oxygen tubes, heart tubes, hospice, do-not-resuscitate orders, wheelchairs, 13 surgeries, hundreds of hospital visits. She tried to subject him to a lung transplant. But actually, he was always completely healthy, except for life-threatening blood infections from the tubes. 

But what's really more shocking: that there are a few psychotic child-torturers out there, or that the family courts and the medical system protect and enable them, even when the children's fathers discover the truth and try to rescue them?

When Christoper was three, his father went to family court to make her stop, and instead, he lost all visitation. He says the judge refused to look at evidence and condemned him for his refusal to accept that Christopher was dying. Here's what the local paper says now about his court battles:

For years, Crawford said he tried to convince Dallas County family court judges that his son was not sick but they believed Bowen, who would eventually claim that their son was dying, initially from a rare genetic disorder and later from cancer.

Crawford said a Dallas County judge even blocked him in late 2012 from visiting his son, who was then 3.

“It was always the same story: Christopher is dying. The father doesn’t need to be around because he doesn’t know to take care of him,” a tearful Bowen would tell the judges, according to Crawford. “... Every time I went to court, they made me feel like I was the worst human ever.”

The 34-year-old woman is in Dallas County Jail in lieu of $150,000 bond. Her court-appointed attorney did not return a message seeking comment Friday but Bowen denied the allegations last month to CPS investigators.

Crawford said he is grateful that Bowen stands accused of wrongdoing, but remains frustrated that it took so long.

“It’s horrible for my son, or any kid because obviously my son is not the only one that has had to go through this type of torture,” Crawford said. “The system has to be exposed — all the weaknesses that are in the system — because the kids don’t deserve that.”

The allegations against Bowen fit the model for what is known as Munchausen syndrome by proxy, a disorder in which a person exaggerates or creates medical symptoms to gain attention.

Convincing family court judges that a mother may be medically abusing her child is often a challenge, experts say.

Even in 2017, such medical child abuse is still relatively unknown when compared to other types of maltreatment and “so many court judges are inexperienced in this realm,” said Dr. Marc Feldman, an Alabama psychiatrist who is a national expert and author on Munchausen syndrome by proxy.

“I encounter tone-deaf family court judges a lot,” Feldman said. “They, like most members of the public, can’t let themselves believe that an apparently-loving mother could engage in medical child abuse.

“They are used to seeing gross evidence of physical or sexual abuse — bleeding, bruising, broken bones — and don’t seem to respond to the more subtle indications of medical child abuse.”

Feldman said such judges also tend to treat doctors as “gods who are incapable of error, not realizing that these abusive mothers doctor-shop until they find someone who will acquiesce to their demands.”

Crawford said he recognizes he made mistakes during his fight in the family courts.

Several times, he represented himself — something he now regrets. He said while Bowen seemed to draw on the judge’s sympathy with her claims and tears, he only angered them with his insistence that Bowen was lying.

“I’m not a criminal. I’ve never been before a judge for anything. Of course, I’d seen “Judge Judy” but I thought Judge Judy was fake,” Crawford said. “To see real life Judge Judys, that was something new to me. I’m like, they’re allowed to talk to me like this?”

Though he had court-ordered visitation initially, Crawford said Bowen would frequently cancel at the last minute, claiming Christopher was too sick. She’d tell judges that Crawford didn’t know how to properly care for their seriously ill son, further delaying his visits until he could take court-ordered classes in things like CPR and G-tube care.

Until recently, Crawford’s last visit with his son had been Dec. 7, 2012, when he took the boy’s great-grandmother to Kaylene’s Dallas apartment to see Christopher.

“We went to court two weeks later and Kaylene told the judge that Christopher went into cardiac arrest due to my visit,” Crawford said.

He says at a subsequent hearing, [the judge] said she was taking away Crawford’s visitations with his son since he refused to believe the boy was dying.

“She asked Kaylene, ‘Would you mind if his father sees him one more time before he passes away?’ but Kaylene said no,” Crawford said. ...

In January 2014, he hired a new attorney and filed for custody of Christopher.

When they went before [the judge], Bowen cried and claimed Christopher, then 4, was in a coma.

“ [The judge] immediately stated she’d heard this case and she can’t believe we would drag Kaylene back to court when the child is dying,” Crawford recalled. “She wouldn’t hear the new evidence that included doctor reports that Christopher was not ill.”

... More than three years later and even after Bowen’s arrest, Crawford is still fighting — this time trying to get Christopher out of foster care and home with him.

He said CPS has expressed reservations about moving the boy out of foster care because Christopher doesn’t know his father very well. Never mind, Crawford points out, that Christopher doesn’t know his foster family well either.

“That’s taxpayer money. Why spend all that extra money when he has a father that has been there from day one, that’s been fighting for this?” Crawford said.

Christopher had 323 doctor visits and 13 major surgeries. Here’s why his mom was arrested


Where Congress's attack on alimony tax exclusion came from: Both sides' explanations insufficient, not reality-based. Here's what we know:

The House-passed GOP tax bill shifts the tax burden on alimony from alimony payors to recipients. I.e., about 97% of the time, from divorced women to divorced men, who we all assume are in higher tax brackets than their exes. Currently, alimony is considered part of the recipient's taxable income, and not the payor's. The change would affect alimomy from post-2017 court orders or agreements, including modifications of earlier orders.(There's one feature of the bill that's completely good, and apparently not controversial: Including alimony payments pursuant to a written marital agreement, with no court order, in the definition of alimony.)

 It's important to sometimes pause from a search for subtle "incentives" and subliminal effects, and remind ourselves what the most basic and obvious effect of a policy change is: In this case, taxing men instead of women on tens of thousands, sometimes over $100,000, of annual income. Alimony is all or most of many divorced women's incomes, and can already take a very large fraction of some men's incomes. Virginia's guidelines call for at least 28% of a breadwinner's gross income as alimony to a non-working spouse, and that's before child support, and before any deductions from his paycheck for taxes, social security, etc. 

Lawyers, journalists and even the National Organization for Women have attacked the proposal, not for being anti-male, but for changing the law's current incentive for men to agree to pay alimony, and thus reducing the amount of alimony women would get. The change probably would have that effect, but that whole argument probably only occurred to them because this is a Republican proposal and it fits the narrative of a GOP "War on Women". Ordinarily, women's groups would be all for something that shifts divorce women's tax burdens wholesale onto their exes.

Blogger Stuart Levine, and many columnists quoting him, including Kevin Drum at the usually more thorough Mother Jones, have really only speculated about why anyone would want to do such a thing. Liberal writers and the supposably* conservative proponents of the change seem to share the mutually convenient illusion that this is an attack on divorce, on behalf of Christian morality. But that simply has nothing to do with how divorce, alimony or taxes actually work. The GOP Ways & Means Committee Summary says only this on behalf of the change:

  • The provision would eliminate what is effectively a “divorce subsidy” under current law, in that a divorced couple can often achieve a better tax result for payments between them than a married couple can.
  • ... spousal support as a consequence of a divorce or separation should have the same tax treatment as the provision of spousal support within the context of a married couple, as well as the provision of child support.
  • ... the provision would increase revenues by $8.3 billion over 2018-27.

Frankly, living as close to Republican Washington as I do, it sounds like a young staffer who doesn't know anyone who pays alimony, who hasn't been invovled in a divorce, and just recently got off the parental  tax returns and started filing form 1040-EZ, was thrown mysterious, possibly garbled instructions for changing something about alimony taxation, and was given 15 minutes to come up with some Republican-sounding arguments for it. But actually, the proposal was part of an early-2014 "Tax Reform Act" introduced by former Ways & Means chair Rep. Dave Camp, now retired,  and the arguments above are repeated verbatim from the Committee Summary of that bill. 

The "subsidy" argument, to the extent that it's either launched or received as an attempt to discourage divorce, partakes of the long-standing and totally wrongheaded assumption that "a couple" decides to get divorced, and may be incentivized, rewarded or punished for doing so. This dates back to the early days of no-fault divorce reform, when reformers picked the most compelling poster-children, decent people who both wanted to divorce but who were caged in "Holy Deadlock" by laws that denied them a divorce even when they both wanted one. Some conservatives and moralists, being apparently unfamiliar with divorce, and gullible about letting their opponents pick the battlefield and define its terms, compliantly responded that these couples were hastily giving up on their marriage and should be incentivized, restricted, counseled, and/or made to wait to see if it's what "they" really wanted. And whenever any change to loosen or tighten divorce laws is proposed, the same old arguments are dusted off, even though divorce decisions have long been unilateral and the proposed changes hardly ever would affect the "poster children" whom the arguments describe. 

Individuals decide to divorce, pay taxes after divorce, and might or might not respond to incentives. Couples don't and can't.

The Committee's equality-based argument is even more surreal. Spousal support after separation or divorce is very different from what the Committee refers to as "spousal support within the context of a married couple", which it says should receive the same tax treatment. Uh, a married couple that isn't separated lives together as a family and an economic unit, and doesn't pay support checks to each other. And they can't get "the same tax treatment", because a married couple files taxes jointly or as the very disadvantageous "married filing separately", while divorced people file as single, or jointly with their new spouses. Again, this sounds like college debaters grasping for arguments about parts of adult life that they know nor care nothing about. 

 Here's what might have led to this: Veteran Congressman Lloyd Doggett D-TX last year was pushing a plan to require 1099s for alimony payments, citing a Treasury study showing about $2.3 billion a year in alimony excluded from payors' income but never reported by recipients. He wanted to use the revenue it gleaned to help states improve their foster care systems."He has been discussing the issue with Ways and Means Chairman Kevin Brady," Congressional Quarterly Roll Call reported. Perhaps the drafters set out to do what Doggett proposed, then realized that it would be simpler, cheaper, and revenue-positive to eliminate the tax code's recognition of alimony entirely, and seized on the 2014 proposal and arguments. It's probably the pet project of one Ways & Means member or staffer who's been there since Camp was Chair.

But where are the deeper, more extensive arguments that ordinarily would lead to something like this? To find out I traced backwards from the only article I found in favor of the change, "A Human Capital Theory of Alimony and Tax", by feminist law professor  Tessa Davis in the  George Mason Law Review. The only part of it I've thoroughly read is its abstract, every word of which is totally wrong, except for the stuff about "Family Law Theory", the entire posited existence of which is not only wrong, but should not be conceiveable in a rational world where people care about the real-life effects of anything. Even to utter its name, silently to oneself,  throws down a gauntlet and crosses a Rubicon into a world where mere Families and Laws will henceforth be trivial playthings in the tiny hands of academic Theories and their adepts and familiars.

And yet I cannot help but admire Davis for having the monumental audacity to claim to speak for "a scholarly consensus" in favor of some kind of fundamental change. She cites only two previous proposals for tax law to disregard alimony: Rep. Camp's 2014 bill, and Donald H. Berman, "The Alimony Deduction: Time to Slaughter the Sacred Cow," 4 Am. J. of Tax Pol’y 49 (1985). Berman called the exclusion "inequitable, complex and arbitrary", and above all, unnecessary now that marginal tax rates had declined from a healthy, vigorous 91% to a negligible 50%. More of the history of dissent from the current regime can be learned from another, very solid, article Davis cites, Deborah Geier, "Simplifying and Rationalizing the Federal Income Tax Law Applicable to Transfers in Divorce," 55 TAX LAWYER 363 (2001).  It recounts that in the mid-1980s, Senate Finance Committee staffers proposed totally eliminating the alimony exclusion. They tried to rally women's groups to their side. The ultimate results they got, and possibly what they were aiming for all along, were incremental restrictions that may have helped increase revenue and predictability.  (Id., pp. 404-406.)  The article advocates letting couples choose who'll pay the taxes on any forms of support or property transfers, with a default rule that the recipient has to pay them. It cites a very similar proposal, Laurie L. Malman, "Unfinished Reform: The Tax Consequences of Divorce," 61 N.Y.U. L. REV. 363, 367 (1986).

 Davis's own argument is that alimony in a divorce is mostly viewed as compensation for "human capital," or return on investment or compensation for loss, none of which are taxed, and that any distinction between it and property transfers is artificial. (See pp. 50-55 of her article, downloadable from the abstract web page.) (Malman made similar arguments for her free-choice proposal.)

But the problem is, normal alimony, the kind that qualifies for the tax exclusion, almost always comes directly from someone's income -- where, unlike property, it get taxed if the Code doesn't exclude it -- and goes to provide income for someone else. The IRS has established clear, easily-followed boundaries between regular alimony and non-qualifying lump-sums that are more like property division. And in real alimony negotiations and trials, alimony is almost totally based on income -- needs and ability to pay. Yes, decisions are sometimes influenced by arguments about spouses' contributions to the marriage, but when statutes,  judges and litigants look at women having sacrificed their own careers for the sake of a husband's career or to raise children, their point is that the women have a legitimate reason for needing supplemental income, and that it may take time for them to wholly or partly "rehabilitate" their earning potential.

Once again, this time on the left, the theorists are looking at the subtler reasons for alimony and missing what it obviously IS and what it's almost always FOR in real life.

 

----- 

* "Supposably" is a real word. It's from Seinfeld.


Is family breakdown the main cause of the worst excesses of "identity politics"?

Legions of critics endlessly cite the logical flaws and dangers of "Identity Politics" on the left and even on the right, but as Mary Eberstadt points out, they overlook that emotionally, it's deeply authentic and heartfelt. Indeed, it has become the key to its believers' personal identities.

Now, in some ways, politics has always been about identity, but it's been based on identities that people could take for granted and don't have to prove and constantly have affirmed: first, family; then place, religion, and ethnicity. And Americans have always formed like-minded, politically-active voluntary groups, including ones based on minority race and ethnicity.

But looking for the causes of the surging rage and occasional mass hysteria that now swirls around I.P., Eberstadt notes that the normal sources of "identity" throughout history, especially family, have lost most of their power and permanence. We have far fewer people whom we consider "family" in the sense of loyalty, commonality, permanence, and identity. And you don't have to share Eberstadt's traditional Catholic views of sexual and family issues to be concerned about the breakdown of families and what rough beasts are emerging to replace them. 


On First Looking Into Posner's Opinions, and Finding One Where He Didn't Exactly Hit a Homer

From Passing the Bar: Poems to Learn the Law By, by John Crouch

Negligence — The Offhand Formula

McCarty v. Pheasant Run, Inc.

826 F.2d 1554 (U.S. 7th Circuit 1987)

Held, by the Foremost Jurist of his Time, and an Admirer of Rustic Scenery, that if a Lodging-House have a Secret Door, affording Convenient Ingress to Sundry Villains, then So Be It; inasmuch as Caveat Emptor, Mercatum Non Potest Peccare, etc.

FACTS:

One evening a conventioneer checked into her hotel room,

not wanting any view, she said, just a quiet place-to-dwell room. 

She didn’t open her curtain, though it was six o’clock,

and she assumed it cloaked a window — not a door, which was unlocked! 

Through which an intruder entered, beat her and threatened rape.

She fought him off successfully, but he made good his escape.

He took her purse, and left her bruised and emotionally distressed,

for which she sued the inn, which had afforded her no rest.

POSNER, C.J.:

When you check into a resort hotel, you go inspect the view.

At least I know that’s the first thing that all reasonable people do.

I’m  not too busy to do that, so I’d like to know who is.

I guess my meager résumé would sure be dwarfed by his.

If this Philistine had moved the curtain, she would have seen the door,

affording access to a walkway, for that’s what it was for.

And reasonably, when she went to bed, she’d make sure and lock it.

So why should the cost of her negligence be paid from Defendant’s pocket?

Must the maids or clerks make sure it’s locked each time someone checks out,

just to safeguard the virginity of one thoughtless layabout?

Must they pay  someone to do this, when each reasonable guest

will repeat their labor, anyhow, when laying down to rest?

It would not be economical. Thus the costs it would prevent

must be shouldered by the victim of this improbable event.

_______ 

Note: 

[1]This case shows the dangers involved when a judge merely uses his own experience and tastes as the measure of “reasonableness,” in contrast to the Carroll Towing case, which is based on a review of numerous cases imposing various requirements in similar situations, and also looking at custom and usage in the industry. But in Judge Posner’s defence it may be pointed out that it was originally the jury, not a judge, who decided that it would not be reasonable to require hotels to make sure that such doors are locked.


Family legislation done for the year; 33 related bills enacted, relig freedom & weps stay vetoed

Here's how family law bills passed by both houses of Virginia's General Assembly stand on March 27. The governor's vetoes and changes will be dealt with when the Assembly reconvenes on April 5.

Governor Vetoed or Requests Changes:

 Died in or after Conference Committee:

Signed by Governor, Becoming Law Effective July 1:

Divorce

Support

Children

 Elder Law/Probate

 Procedure

Women's Liberation