Sunday, November 23, 2014

Fun with Twitter -- Henry VII

As many of you know, I have a twitter account (eplawyer).   It's supposed to be about family law, but let's fact it, a vast majority of my tweets are about football.   It happens.   I also enjoy following fictional accounts.   I even interact with them, replying to tweets and having a conversation in 140 characters.   One of my best Twitter days was the day that the NIHBear, SUETrex, the MarsRat and HenryTudor all replied to me.   The MarsRat was a little late, but I put that down to the lag time in communications between Earth and Mars.   Is it silly?   Sure.   But I deal with the messiest parts of people's lives after major illness/injury, divorce and custody.   I need some silliness occasionaly.

HenryTudor, better known as Henry VIII is the most fun to interact with.   His ego is as big as his girth.   Plus he is either a divorce lawyer's dream or nightmare.   On the one hand, all that repeat business keeps a roof over one's head and food on one's table.   On the other hand, his choosing to behead a couple of wives rather than going to court is a bit off-putting (a bit???).   Of course, writing up all those pre-nups would be quite lucrative.   What pre-nups?   What do you think marriage contracts and betrothal agreements were?   But again, he found a rather unconventional way to get out of a couple of those.   Beheading again -- with a side of seizure for treason.   Yes, cheating on the King was a form of treason.

After one fun exchange about Richard III yesterday, I thought some more about his divorce situation(s).    Mainly about his divorce from Anne of Cleves.   His divorce from Catherine of Aragon was not pretty.   But Anne did all right out of it.   First, she got to keep her head.   I'm sure she considered that a win right there.   But according to Wikipedia (this is  a blog, not a legal brief, I can cite Wikipedia here), she got Richmond Palace and Hever Castle.   Hever Castle used to belong to the Boleyn family.  Guess how they lost it.   She got some other properties too and was welcome at court as the King's "Beloved Sister."    Pretty good deal and all she had to do was agree to an annulment.   Since there is evidence she wasn't that thrilled with the marriage either, this wasn't too hard to do.

If the marriage is over -- accept it, get the best deal you can and move on.   You might not be beheaded for not doing so, but hey, you might get Anne's deal out of it.

Thursday, October 30, 2014

Timing is Everything

Last post I wrote about how long the process can take.   Now I am going to talk about deadlines to do some of those things in the process.    Because if you miss a deadline, you can be out of luck.   SOL does not just stand for Statute of Limitations in the law.

Now, family law does not have any statute of limitations.   You pretty much can file for divorce any time after you separate.   Same with custody.   In Maryland, you have to ask for child support before the kids turn 18.   You also only get child support back to the date of filing, not the date of separation.   So if you wait 5 years after splitting up with the other parent to ask for child support, you are not getting 5 years of back child support.   But that is not a deadline, it's just a cut off for looking backwards.

Moving forwards, there are lots of deadlines in the process.

Once served you must file your Answer within 30 days.   If you don't file, the case can go forward without you.   You won't be heard by the judge, you won't be able to present evidence.   You won't get ask for anything for yourself.   Because you had the chance to get your issues on the record and the court presumes you chose not to do so by answering.

If you are asking the court to do something, you need to do that in a timely manner.   Usually the deadline to amend any pleadings where you ask for something is 30 days before trial.   However, there may be a different deadline in the scheduling order.   Also, if the trial gets continued out for a year or so and you wait until 30 days before the trial date, the court may not hear you on that issue.   You had plenty of time to file, why did you wait so long?    The other side is entitled to notice that something is at issue.   If you try to hide it so they can't counter, you only look bad to the court.  The court hates people who play games like that.

Maryland is a "you don't ask, you don't get" state.   If you want something ask for it as soon as possible.   Because you can't come back later and say "oh yeah, that swampland in Florida, I forgot that we needed to decide who gets it."   The court is going to say "sorry Charlie, too late, case over."  I actually had this come up recently.   Lady was divorced many years ago.   The pension was not addressed.   She wants her share now.   I hated telling her she couldn't do anything about it.   The case was long over and she had her chance.   Whatever the reason for the omission, it is much too late to fix now.

Discovery (requests for information from the other side through questions and requests for documents) must be completed well before trial.   It's not like tv.   There are few surprises at trial.   You must send your discovery requests well in advance of the completion deadline so the other side has a chance to respond.   You must answer in a timely fashion.   If you don't tell the other side who your witnesses are, they can't testify.   If you don't produce documents that are requested, you can't use them yourself at trial.   I get this one all the time, after we do discovery and the pre-trial statement where I have repeatedly told my clients that if we don't tell them about a witness, we can't use them, the client calls me the day before trial "Hey my cousing wants to testify instead of my brother."    Then they get mad at me when I tell them it doesn't work that way.

If you miss deadlines, bad things happen.  

Monday, October 20, 2014

A Whole Lot of Process Going On

The most common question I get (after how much can I get in child support) is "How long does this take."   The answer does not make people happy.   Court processes are not quick things.   The court wants to make sure everyone involved has adequate notice, then plenty of time to prepare the case.   There is guarantee to a speedy trial in a family law case.   Better to take it slow and easy to better the chances of getting right than rushing to judgment.  

In general, it can take up to a year to have your case heard.   Obviously, no kids, no property, no fault grounds for the divorce it can go pretty fast.   I had one case where the opposing party showed up to file the Answer at the same time we filed the Complaint.   This saved serving the person.   We got a hearing in six weeks for the final divorce.   It was a very amicable divorce and went quite smoothly.   It can be done that quickly if everyone is in agreement.  

However, if you are employing an attorney for anything other than making sure all the paperwork is right, it doesn't go that fast.  

First you have to file the Complaint.   Then the United States Constitution requires due process be afforded the other side.   That means they must have notice of the proceedings.   You would not believe the number of people who come to me and say they want to file for custody/divorce but don't want the other person to know.   Yeah, courts don't work that way.   Notice is a must.   That means serving them.    It would be nice if it could just be mailed, but Maryland requires that if it is mailed, it must be certified mail, restricted delivery, only the Defendant can sign.   The Post Office ignores this and lets anyone sign.   Anyone but the Defendant signs and you have to serve them again.   Personal service, although more expensive than mail is best because you know they got the papers.   If they rip them up or throw them away after that, oh well, that's their problem.

If the person lives in Maryland, they have 30 days to file an Answer to the Complaint (longer times for outside Maryland and outside the US).   Then the court sets a scheduling hearing usually about 1 1/2 to 2 months after the date the person was served.  

At the scheduling hearing, you set trial dates.   Oh boy, does this blow clients' minds.   I just did a couple of scheduling hearings and I am setting trial dates in April in October.   My family teases me about giving me advance notice of stuff.   They just don't get that I set stuff months in advance for court so have to plan ahead for family get togethers so I can tell the court not to expect to see me around those days.  

In Montgomery County where I mostly practice, if custody is contested, they will split the divorce and custody cases, which makes the process longer.   First you set the dates related to custody, then the dates related to divorce.   Usually, the custody case is about 3 months after the scheduling hearing.   Unless you requested a pendente lite hearing (PL hearing) or a custody evaluation.    A PL hearing is fancy lawyer talk for "while the case is pending."  As it takes so long, the court sets an interim hearing to decide certain things like a visitation schedule, temporary alimony, temporary child support and even attorney's fees if the party can't continue the case without the attorney being paid and the party can't pay.   The PL hearing comes about 2 months after the scheduling and that puts the custody case about 2 months later, to give it time to see how things are going.   A custody evaluation is an evaluation by the court of the children and their interaction with the parents.   The evaluator makes recommendations about custody and visitation.   Because the evaluators need time and they are very busy, they need at least 90 days.   So the custody hearing can't be too soon.   Plus they have to present the report before the hearing and give the attorneys' time to prepare a response for trial.

Once custody is decided, then you can get into the divorce.   There is not another PL hearing, but there will be another pre-trial hearing which is one last ditch attempt to settle before trial.   At the pre-trial hearing, you get the trial date for the final divorce.   If there is an agreement, you only need a 10 minute hearing.   If there are still contested issues, the more time you need the harder it will be to find a trial date.   A one day trial is a lot easier to set than a 5 day one.   Also, in Montgomery County, they will not set the final divorce trial date until the parties have been separating at least 12 months.   The court prefers the final grounds to be the no fault grounds.   It's easier to prove, takes less time and affects nothing on the property or financial time.   Saves court time for the real things to argue about -- alimony, pension, who get the house, that fun stuff.    The final decree doesn't say the grounds for divorce anyway.  

But what about emergencies?   Sure you can get in for an emergency hearing, but it better be an emergency if you don't want the court to think you are wasting their time.   What's an emergency?   The judges have made it pretty clear that it means "blood on the floor" someone better be in physical danger.   Or someone better be on the way to the airport to take the kids out of the country.   Anything less and the court might not act.    If it is not an emergency, the court would rather have a full hearing with time to hear from everyone.    Good decisions come from full facts and due deliberation, not rushes to judgment.

It sounds long.   But it works out for the best to take it slow and easy.    Lots of time to settle.   Lots of time to explore the case's weaknesses and strengths and gather evidence.

Thursday, September 18, 2014

Facing Reality

Lat post I talked about whether or not you need an attorney for your family law case.   I asked some really tough questions that only you can answer before deciding whether or not to hire an attorney.   Those questions involve you being realistic about your situation.

Facing reality is hard in a family law situation.   Really, really, really hard sometimes.   I often refer to it with my clients as the same as a death.   It is the death of a marriage or a partnership where you intended to raise your kids together.   This leads to a lot of emotions, just like when a loved one dies.   Except you still have to deal with the other person.   The emotions cover all the stages of grief from anger right up to acceptance.   Getting to acceptance can take a long time.   How long it takes is different for everyone.   But whether or not you are there, the court case is going to happen on its schedule, not yours.   So you have to be prepared.  

Just like the death of a loved one, a dead marriage is dead.   It is no more.   It is not "resting."  It is not "pining for the fjords."  It is a dead parrot  -- I mean marriage.   Now that doesn't mean marriage counseling can't save a marriage.   Or you can't reconcile.   Those aren't dead marriages those, those are merely critical marriages that need intervention to be saved.   A dead marriage is one where one person is not interested in saving the marriage anymore, he or she wants O.U.T.  

Knowing that one person wants out of the marriage can be shown in various ways.   Moving in with a significant other and saying "send me my stuff" is a fairly obvious one.   If they have already moved on with someone else, they ain't coming back.   They have moved on.   They will not stand up at the final hearing and say "You know what, you fought so long and so hard to get me back, I realized I still love you.  I'm moving back home."   Nope, the real thing that happens if you continue to try to force the person to continue the relationship is the person hates you even more than they already do.

Another way to know the relationship is over is when they flat out tell you it is over.   "When someone shows you who they really are, believe them," Maya Angelou.   If someone says its over and you suggest counseling and they say no, go by yourself.   Go to help you deal with the end of the relationship, not because you expect to find a way to get the person back.   They showed you they don't want you, accept it.  

There are less obvious signs, but if you look at your relationship realistically, you will recognize them for what they are.

What can you do once you realize the relationship is deader than a dead parrot?  Protect yourself.   Get an attorney to explain your rights to you.   Don't believe everything the other person says about the division of property, custody, child support, alimony, etc.   You might be married to them but they no longer have your best interest at heart.   They are looking out for themselves.   You need to look out for yourself and not rely on your partner to protect you anymore.   Remember the partner wants O.U.T., not necessarily to be fair and reasonable.  

Get counseling if you feel you need it to accept the situation.   Lots of people don't want to get counseling because they feel it will be used against them -- especially regarding custody.   It won't.  Counseling does not equal crazy.   Counseling is seeking assistance.   And we should all do that when we need a little help.   The courts get this.  

What will not happen is the court ordering the person to stay married to you.   Think about it, the person doesn't want you, is unhappy with you and wants to move on.   Totally the court is going to ignore what that person wants and make them stay because that is what you want.   In Maryland, once you are living separate and apart for one year, the divorce is pretty much happening.     See above for what happens when you fight it.   The sooner you accept the marriage is over, the easier it is on you mentally.   If you keep fighting it, you only hurt yourself.   The other person doesn't care anymore.   Does being married give you rights?   Sure -- to the stuff.   Not to the marriage itself.

It takes 2 people to make a marriage work.   If one doesn't want to work at it anymore, there is no marriage.   Accept this fact, even if you need some time to deal with it emotionally.   Protect yourself legally.   But save yourself stress and heartache by facing reality.

Monday, September 8, 2014

DV in the NFL - My .02 on Ray Rice

As the entire world knows, a new video surfaced today of  the Ray Rice domestic violence incident.   This video is what happened inside the elevator.   We all saw the aftermath when a very drunk Ray Rice is trying to get an unconscious Janay Palmer out of the elevator.   The aftermath video may be the only one the NFL saw when they imposed the 2 game suspension on Rice.   Janay herself also accompanied Rice to his meeting with Goodell and pleaded for a light suspension.   What was she going to do with her abuser right there?   Say "suspend his ass forever?"

I even defended Rice after the aftermath video.   The story at the time was that she hit him first.   Hey, someone hits you, you are entitled to self-defense.   Now could you make like Jay-Z and not hit back when struck by a woman?   Sure.   But it is not wrong to defend yourself.   And he was drunk, he might not have realized how hard he hit her since his reflexes were affected.

I stopped defending him after the joint press conference.   Everything he said set off abuse alarm bells in my head.   He was clearly all about control in his talk about "being the head of the family" and "leading."    Again, Janay now Mrs. Rice was right there taking the blame.    Because abused women believe that.   "If only I hadn't provoked him, he wouldn't have hit me.   I know how he gets."   Make no mistake, before the first punch lands, the abuser has mentally abused the victim into believing she deserves it.  

Then the interior video surfaced.   It showed that Rice lied about what happened.   Janay never laid a hand on her.   I don't care what someone says, you don't hit.   You. Do. Not. Hit.   I don't care if it is most vile disgusting thing you have ever been called.   You. Do. Not. Hit.

But face it, the Ravens and the NFL knew he hit her hard enough to knock her out.  That only got him a 2 game suspension.  He got cut and suspended indefinitely for lying about the circumstances that preceded the hit.    The take away here is "Hit your fiancee, just don't lie about it."

Okay she married him.   Why?   Who nows?   They have a kid together.   Maybe he told her he would get custody of the kid because he had more money.   I see this all the time in my practice.   I explain and explain how custody is decided.   In Maryland, the judge must consider any incidents of dometic violence when deciding custody.   The judges have been educated that if domestic violence happens it is not always just confined to the parent and that even witnessing it affects the kids.   I tell my clients that.   They still believe that the barely literate moron they married can somehow manipulate the system in their favor.   That deispite laws about custody, marital property and alimony, the abuser will get everything and the victim will be homeless with just the clothes on her back.   These folks don't even have close to the resources of Ray Rice.   With his millions (even cut he gets $25 million) she knows he has the resources to get a good lawyer who can make things difficult for her.    Who knows what resources she has?    If she even believes she can try.   Remember I said above about the mental abuse?    Yeah, that could be in play here.   She's been told no one will love her like he does, that she is no good, that is it is her fault, etc.   When you believe that, why not stay?   You certainly don't believe you can make it without your abuser.

The Ravens have cut him.   The NFL suspended Rice indefinitely.   Sounds great right?   I'll believe in the ban from the NFL if he never plays another down.   But the reality is, there are different rules in the NFL for good players versus marginal players.   Rice is a very good player.   He can apply for reinstatement next year.    If he promises never to lie again and has taken some anger management classes to show what a great guy he is, I will not be surprised if Goodell decides to "give him one more chance."

The other aspect of the cut and suspension is what will happen with Greg Hardy of the Panthers?   He has already been convicted of assaulting his pregnant girlfriend, but the case is appeal.   He played Sunday.    Ray McDonald of the 49ers has only been arrested.   In this country, innocent until proven guilty.   Let's see what happens if he is convicted.   If he is not convicted,  the NFL should think long and hard about punishing him.   Sure the NFL doesn't need a conviction to suspend someone.   Sure not being convicted means legally didn't do it.   But the NFL can protect the Shield and suspend anyway if they think there were manipulations (like paying off the victim to not testify or the victim was intimidated into not testify) to avoid the conviction.   Either way, the NFL better get all the evidence before deciding again.   And meet with the victim separately, thank you very much.

Thursday, September 4, 2014

DIY Divorce - Should You?

The short answer is:  probably not.    Unless you have no kids, no marital property and have lived apart for a year (MD requirement) before filing AND have lived in a Maryland for a year before filing, maybe you can do yourself.   Everything else, you need an attorney.   And not just because I believe in full employment for family law attorneys.

But wait, do you even know what marital property is?   Do you think it is just property that is jointly titled and everything with only one person's name on it is separate property?    Not true.   Marital property is anything acquired during marriage regardless of how titled, unless inherited, a gift to only party or by agreement not marital property.   What about pensions?   After all those are earned through one person's job so not marital right?   Wrong.    Because that money could have been spent on the family now it is considered marital property.

The law is full of nuances.   That is why attorneys go to law school, to learn how to work with those nuances.   We practice every day to get familiar with those nuances.   The judges hear cases about those nuances every day.   Do you think you can hit up a few internet sites and be sure you got it right?

Sure those sites exist.   Legal Zoom is a favorite.   They love to say their forms are accepted for filing in all 50 states.   Great wonderful.   But clerks will pretty much accept anything for filing as long as it is formatted right.   It's the form you care about, it's the substance.   Are you sure the generic agreement actually addresses the issues the way a state specific court will?

Take for instance the separation period for a no fault divorce.    Every state is different.   Maryland requires one year separate and apart.   Okay what does that mean?    If you don't know exactly what separate and apart means you might not get your divorce.

Custody.   Are you really going to entrust the future of your kids to some generic form you found on the internet?   These are your kids.   Sure you can agree that you and your spouse will share custody.   Okay, when are the kids with each parent.   Oh you mean mostly with one parent.   That is not shared custody.   But still when do they see the other parent?   By mutual agreement.   Wonderful.   What happens when the primarily custodial parent never agrees?   What happens when you disagree on a non-emergency medical procedure?   One parent wants to send the kids to private school, but wants the other parent to pay for it?   New significant others?    No problem or you want restrictions on when the kids meet?  

Do you know how long child support lasts in your state?   Do you know how you end it?   I had to help a guy in the family law clerk's office once because he was arguing with the clerk that the child support was ended because the kid was iwth him.   But he didn't have an order saying that.    He could not understand that it was not automatic thing.   He also had trouble with the concept of service.   He thought just telling the mom about how he wanted child support to end was enough.  

Do you know how to properly serve someone so the case goes forward?   In Maryland, a party cannot serve the papers.  

Then there is the whole emotional thing.   Your relationship with the other person is ending, whether through divorce or just two parents who never married going separate ways.   I often tell my clients it is just like a death.   It's the death of a relationship and you go through all the stages of grief from anger right through acceptance.   Sometimes it takes longer to get to acceptance than you think.   You might believe you are at acceptance but your actions are still allllllllll the way back at anger.   Can you put your emotions aside and do what is in the best interest of your kids?   Should your kids really be kept from the other parent or are you just so done with the other parent you want nothing to do with them?   You might be done, but the kids are not.   Even if kids are not involved, can you divide up the stuff fairly?   Do you think you should get everything because the other person cheated on you?   Yeah, it doesn't work that way.   Adultery may affect the division of property but in reality it rarely does.   Basically, can you put your emotions aside to do what needs to be done with the case or are you running the case based on your emotions toward the other person?   If you are too emotionally involved, you will not conduct a good case.   An attorney cares about the case but is not emotional about it.  

To sum up:   The person who represents himself has a fool for a client.   Get an attorney.   Getting it right the first time is worth the cost and waaaaay cheaper than trying to fix it later.

Monday, August 11, 2014

Everything You Needed to Know about Family Law You Learned in Kindergarten

Well, okay, not really.   But that famous essay has one very important line in about sharing.   It says something about learn to share your toys.    Guess what happens ina  divorce/custody situation.   You have to share.   You must share.   If you don't you will be unpleasantly surprised at the outcome.

Yes we all learned about sharing at a young age.   But something about a break up turns people into 3 year olds.   All I hear is "mine, mine, mine."   You never hear "ours, let's figure out how to split it up."  

But the law says you must share.   In a way that is fair.   That is what equity means.  It's doesn't mean one person gets to keep all the goodies because they paid for them.   It doesn't mean one person gets to control the other parent's access to the kids just because of gender, time spent with the kids or some other things.

You know what judges hate to hear the most in custody cases?   "My child, my child, my child."   As one judge put it in one of my first cases "I wasn't there but I am pretty sure it took both of you to make this child."   I was dying of laughter at how bluntly the judge put it, but he had a point.   The child has two parents, who both have rights.   By saying "my child" you are denying the existence of the other parent.   Really not a good way to get custody.  One of the factors a judge uses in deciding custody is which parent is going to foster a relationship with the other parent.   If you are a "mine" parent, a judge is not going to think you will share with the other parent.  

The same with property.   This includes pensions.    Have I heard this a million times "But it's my money."   No it's not.   It's money you both planned on living on during retirement.   It's money that was saved rather than spent on family purposes like new furniture or a family vacation.   It's marital funds and must be shared.

The other one is "but I bought it with my money."   The court doesn't care who paid for something.   Your money, your spouse's money, its all marital funds.   That is funds earned during the marriage through the parties' efforts.   Who brought home the actual dollars is not relevant.   You bought it as a family, it gets shared when the family splits up.  

Now there is a rationale for all of this marital property/ both parents in the kids lives stuff.   For the kids, its pretty simple.   You are both the parents.   You are both responsible for how this little angel turns out.   In general, it is better if the kids have both parents in their lives.   So be prepared to not have the child all the time.   After all, you aren't living together, the kids can't be with both of you all the time.

For property, it is still pretty simple, if historical.   Many years ago, when women stayed home and took care of the kids and the men went out and earned the money, the husbands would then kick the wife to the curb.   She got the kids, of course, because that was her job.   But all she got was child support.   After all, insisted the husband, it was HIS money that paid for everything.   He bought the house, the car, paid the bills etc.  It was HIS.   Except he forgot who cleaned that house, made the meals, kept the kids out of his hair so he didn't have to take time off from work to take the kids to the doctors or run them around to their activities.   This became known as "non-monetary contributions to the marriage."   Just because she didn't earn a paycheck didn't mean the wife didn't work to make the family and marriage successful.   The court then took the concept and added in the utterly common sense idea of "sharing."   You shared the kids, you shared the property.  

This is not a tough concept when you look at the reasoning behind it.   The sooner you remember that you need to share, the easier your court case will go.   The hardest cases are where someone is resisting sharing, and the other party is also fighting for more than their fair share.   Listen to your attorney on what a fair settlement is and you will save a lot of time, aggravation and money in attorney's fees.   Because fighting to keep "mine, mine, mine" just because it is "yours, yours, yours" gets really expensive.

Friday, July 25, 2014

Orders Are Not Magic Wands

This issue has been popping up a lot lately with my clients, clinic clients and in talks with other attorneys.   So I thought I would write about it in so I can just print it off and save my vocal cords.   

If you are involved in family law litigation there is a reason for the litigation.   A relationship is breaking up.   Sometimes it is just two people deciding they are not comptatible.   But those cases mostly don't involve litigation.   They work out an agreement and a hearing is only necessary to formalize the agreement in an order or, in Maryland, the divorce requires a final hearing with testimony even if uncontested.   I'm talking about the ones where there is a not so amicable break up of the relationship.   

What I've been hearing lately is "I've got the Order requiring the other person to do something and they aren't doing it."    Sure you can file for contempt if you want, but if the person doesn't really want to do it, you are going to be in court A LOT until the Court finally gets irked enough at the behavior to throw the person in jail for contempt.   Basically, an Order tells someone what to do, but it doesn't change who  that person is fundamentally.    

Some examples:

If the other parent skips for job to job, has long periods of unemployment, was irresponsible about paying bills that sort of thing, a Child Support Order is not going to make the person go "Oh wait, I am required to financially support my child, I better get and keep a job."   If the parent was a deadbeat before the Order, they are going to be a deadbeat after the Order.   That parent will not suddenly become financially responsible.   What I get with this is "Why doesn't he/she pay the child support.   It's an Order."   The answer usually is "If they were going to pay it, even if unemployed they would be paying what they could."  

The above goes for alimony too.   If the person wanted to pay alimony, there wouldn't have been a fight over it.   And some people are just hopeless with money.    An Order will not suddenly make them manage their money better.   If they didn't pay their bills on time before and always faced late fees, guess what is going to happen when it comes to paying you?   Sure you can judgments for nonpayment of alimony and child support.   But if the person has no money and no job, what good is a judgment?   Or as I say "judgments make lovely wallpaper."

If the other parent never went to school functions, doctor's appointment, kid's sports games, or even wanted to spend time with the child, a Custody Order will not transform him/her into parent of the year.   Really, it won't.   If the parent always wanted to go out partying with friends on weekends rather than do stuff with the kids, that is not going to change just because that parent has the kids every other weekend.   A bad parent will just be a bad parent with a Custody Order.   Here you can't even get Contempt.   The court is not, I repeat, not going to order the other parent to take the kids if the parent really doesn't want to take the little angels.   It is not in the kids' best interest for that parent to be forced to take the kids, only to have them ignored.

If the other parent always puts the kids in the middle during the ltigation and played mind games with the kids, same thing will happen with the Custody Order.   You can have an Order that says don't mentally abuse the kids, don't talk about the other parent in front of the kids, etc.   Guess what?   They don't care.   They really don't.   They do not care how much that hurts the kids.   If they cared, they wouldn't do it in the first place.   Here, if the problem persists long enough, you might be able to get custody changed so the kids spend less time around that parent.   But the kids are still going to spend some amount of time with that parent.  The parent will just have fewer opportunities to expose the kids to the behavior.   Also, how do you prove it to the court?   "Oh the kids will tell me what is going."    Can you say "hearsay?"   I thought you could.   Yep, anything the kids tell you is not admissible.   And you are not going to the parent who forces the kids to come to court to talk about the situation.    Not unless it is an extreme case.   Because if you do, guess who is putting the kids in the middle now?   So all you got is hearsay.   The court might admonish the other parent but that is about it.   The behavior is unlikely to change until the other parent wants it to change.

In summary, you can get the Order, but don't expect miracles.   I am not saying don't try to enforce Orders but be realistic about what the court can do.   The court cannot magically transform someones personality (from the conversations I have had with masters and judges, they wish they could sometimes).   You have to accept these limitations and decide if trying to force the other parent to change is worth your time, effort and money to pay an attorney to be constantly going after the other parent.  

Monday, June 9, 2014

The Power of Two

One night at clinic, I was chatting with a client and I realized how much in family law revolves around the number 2.   Which makes sense.   In family law, you are taking 1 family and splitting it into 2.   Fortunately, that is about all the math I have to do.    But let's talk about some of the way 2 pops up in a typical case.

First of all is Custody.   Oh boy, custody loves the number 2.   There are two types of custody  -- residential (often called physical) and legal.   Residential is where the child puts his/her head at night.   Legal is the big decisions like non-emergency medical, or religion to raise the child.  Both of these types of custody also have a 2 -- joint (sometimes called shared) and sole.   Those are pretty self-evidence.   Joint, does not mean 50/50 though.   It just means substantial time with both parents.  You can get very creative with joint residential custody.   One thing the courts tend to hate in Maryland is the week on and week off.   Parents seem to think that is the most natural way to do it, Courts do not.  

Alimony.   In Maryland we have 2 types of alimony -- rehabilitative and permanent.   Rehabilitative is what is needed to get the recipient back on their feet and on with their post marital life.  Permanent is one where the marriage was of such a length (usually over 20 years) or the receipient because of training, education or disability, or age will never be self-supporting.   The court prefers rehabilitative.   Neither one is meant to mean equal lifestyles.   Just because you were living at the lifestyle of a millionaire before the divorce does not mean you get to live like one afterwards.   And rehabilitative alimony means you are expected to get a job at some point.   No more having a job that consists of collecting your alimony check each month.

Even the grounds for divorce have a 2 component.   In Maryland most of the grounds for divorce require a 12 month separation.   And they mean SEPARATE.   Not just living in different rooms of the same house, they mean separate roofs.   There is a case where the husband was living in the garage apartment but because it was an attached garage that didn't count as separate and apart for the 12 month period.   But, there are 2 grounds that do not require at least 12 months separation -- domestic violence and adultery.   Which makes complete sense.   Both are of such a nature that they destroy any legitmate marriage.   Domestic violence is wrong and you should not have to wait a year to divorce someone who dares to treat their spouse in such a manner.   Adultery is a little different.   It's the 21st Century people have sex.   But not everyone approves of sex outside the marriage bounds.   If both spouses want to have fun, or approve of an open marriage - no adultery.   But if one believes in no extramarital relations, then the legitimate ends of marriage are destroyed by someone cheating.  

That pretty much covers it.   Today's post was brought to you by the Number 2.

Sunday, February 23, 2014

From Whom Are You Taking Legal Advice?

Probably the most common thing I hear as a family law attorney is "My brother's cousin's best friend's nephew told me I can get [x] in my case."   X, of course, being whatever the person talking to me really wants to happen in the case.   Usually, this involves being told if you get joint custody, you don't have to pay child support.

In my crankier moods I want to respond with "And where did this person go to law school?"   In nicer moods, I patiently explain why that might not be possible in this particular case.   Especially the joint custody gets you out of child support one.   That one is highly unlikely.  

People always want to argue based on what they heard, saw on tv, read in the paper, whatever.   The problem is that 1) the people they are talking to are not lawyers and/or 2) every family law case is very fact dependent.   Within the law what is possible in one case might not be possible in another.

What really baffles me is that people are paying me to give them legal advice, then challenge me when I give it to them.   I and every other attorney went to law school.   We passed a bar exam.  We are qualified by the authority that granted our law licenses to give legal advice.   Why would listen to someone with no legal training over someone who has all that?   I know, people want to hear good news.   They want to hear that what they want is possible.   I get that.  But, once you are told by qualified people that what you want is not possible and they have explained to you why it is not possible, you should listen.

Family law cases are stressful enough.   They are not fast either.   A case can take months to get to trial (but usually not years).   Involving family members and friends by listening to their legal advice over that of your attorney, only makes the matter harder and longer.  

Obviously, ask questions of your lawyer.   Make your lawyer explain until you understand.   After all, you are the one who has to live with the consequences.   But don't make a difficult matter worse by taking the legal advice of non-lawyers over that of your lawyer.

Friday, February 14, 2014

Relaunch - Refocus

When I started this blog, the idea was to use sports to explain family law.   I quickly found out that the most common problem athletes run into is not paying child support (hey they are just regular folks after all).   There were only so many times I can say "Dude, pay your child support."   So the blog kinda faltered.   Okay died like the Broncos offense when faced with the Seahawks D in the Super Bowl.   Definitely not pretty.

I also found myself tweeting a lot about stuff I saw in family law that day at the courthouse or heard about  or just thought of.   A lot of that stuff does not really explain well in 140 characters.

Combining these two things made me realize its time to relaunch this blog.   Same name, new focus.   I am just going to talk about family law issues in good plain English so someone who is dealing with the court system for the first time can understand it.   Understand it enough to work with their attorney to achieve a realistic result.   What I post here is not legal advice, might not apply to a particular situation faced by a reader and quite, frankly, should not be relied on solely in court.   Family law is emotional.   You need an attorney to help you deal with the legal stuff, so you don't have to deal with it and the emotional stuff too.

Obviously sports will still creep in.   It can't be helped.   That's who I am.  Even my non-sports liking clients get sports metaphors.

Hope you enjoy the new focus.   Feel free to comment often.