family law unraveled

Fear

2012-01-04T22:27:00.000-05:00

Sometimes I get a chance to walk in my client’s shoes, just for a moment. It can be very sobering. Like today, when my client’s ex-husband started screaming at me when I was attempting to get into the courthouse and then continued to verbally attack and mock me in the court waiting room after I met up with her. I could feel my normally talkative and vivacious client shut down. She got quiet and still. She looked shaken, yet resigned; I could tell she had experienced this, and probably much worse, many times before. She apologized for his behavior. “I just hope he doesn’t kill me,” she said with a half smile - but we both knew it wasn’t funny. She told me he hates women. She told me he didn’t used to be so bad but the kernel of this was always there. And I was shaken too - it’s scary to feel someone’s hatred directed at you like a laser, to feel that another person truly wishes you harm. Later, while we were in the hallway waiting to go downstairs, he taunted us about not wanting to get in the elevator car with him, until the court officer told him he had to leave or he would call the sheriff. “See you next month, girls!” he shouted as he finally stepped into an elevator car, alone.

We took the next elevator down together, my client and I. We scanned the lobby for him when we got out. I left the building first to make sure he wasn’t waiting there. If he couldn’t control his rage in a courthouse filled with armed sheriffs, what might he do out on the street?

I have been representing victims of domestic violence for decades. But the anger is not usually directed at me. Typically, men whom my clients describe as abusive are subdued in court, sometimes even polite and charming. It makes the violence more of an academic matter - I believe what my clients tell me but I don’t feel it. I don’t experience what I did today: the tightening in my stomach, the quickening of my breath, the feeling that I’m not in control and don’t know what’s going to happen next. Even the guy, fifteen years ago, who ultimately murdered a lovely young woman I represented, was calm, even friendly, when I encountered him in court. We were there getting a protection order. He agreed to the order being entered by the judge. He smiled at me and shook my hand before he left the court house. And two days later, while I was home with my kids, not giving him or my client a second thought, he ambushed her and her mother and stabbed them both to death. My grief and rage came the next day, when I heard the news. And I still have those feelings, all these years later. But those emotions, while way deeper, are different. I never tasted the fear myself. I was a close bystander, but I wasn’t caught in the storm.

What happened in court this morning was a powerful reminder. Many things are beyond our control, lawyer and client alike. And it’s a scary world out there.

Money Talks

2011-12-11T23:13:00.000-05:00

If you’re interested in knowing how much money people make and how they spend it, you’d love my job. I’m an expert on what people in different professions earn, and I have an easy familiarity with the borrowing and spending habits of my fellow Greater-Philadelphia-Metropolitan-Area dwellers of every socio-economic stripe. Within ten minutes of meeting with a new client I know how much he and his wife earn; by the end of the consultation I know how much they spend or save, whether they pool their money or keep it separate, how much debt they have, and whether these very subjects are related to the reason they are getting divorced.

Isn’t it interesting how taboo these subjects still are? I don’t know how much my closest friends earn, how much they have saved, or what balances, if any, they carry on their credit cards. And I would never ask. In contemporary American society, we continue to abide by a widely accepted social norm that this information is private. Surprising, given the almost complete disintegration of barriers which previously prevented people from talking about sex and intimate relationships. People think nothing of walking down a crowded sidewalk talking into their cell phones about the graphic details of a sexual encounter or a medical condition, but did you ever hear someone talking on a cell phone in a public place about the amount of the bonus she just got? I haven’t.

I actually think it’s a big relief to my clients to be able to discuss the particulars of their financial circumstances with me, and to express their fears. There are lots of people they can talk to about their disintegrating marriage, the reasons for it, and the pain they and their children are experiencing. But they don’t sit down with those family members and friends to review bank statements, mortgage balances, or tax returns; they don’t talk about the nuts and bolts of what a divorce really is, at its most basic: an economic transaction.

And the fears are rampant. It amazes me how consistently – with some exceptions, of course – people spend whatever is available to them, and perceive themselves to be in difficult financial positions regardless of income level. Meaning that the couple with a combined income of $500,000 might have nothing but an expensive house, mortgaged to the max, retirement funds they can’t touch, and a checking account. No savings at all, and no clear idea about how to make lifestyle changes to enable that considerable income stream to support the family when divided between two households. And sometimes there is a total disconnect between perception and reality. Like the client with tremendous inherited wealth who is terrified at the prospect that she might have to ever spend any principal, because in her family of origin, the standard was that one should be able to live entirely off the income from one’s stock portfolio, so as to preserve it for the next generation.

Maybe if we felt freer to talk about money, we’d be able to think about it with less anxiety and more realism. But I don’t see any signs we’re moving in that direction.

Hopeless Romantics Redux

2011-11-13T11:35:00.001-05:00

Back when I first started this blog, I posted an entry I called “Hopeless Romantics” about the excitement in our office when our paralegal got engaged; curious, I thought, in the context of us being in the divorce business. Last month, that paralegal got married and I revisited this issue, this time for my blog in the Huffington Post (http://www.huffingtonpost.com/margaret-klaw/). The entry is below. The post in Huffington generated a firestorm of comments, most of them very skeptical (and that’s putting it nicely) about my premise that divorce lawyers are actually great believers in marriage. I’m sticking to it, though.

You should’ve seen us. Beaming as she walked down the aisle, radiant on her father’s arm. Pulling Kleenex from our purses as she ascended the altar to meet the groom. Dancing at the reception, a wild circle of us, frenzied with laughter, champagne and excitement.

Typical scene at a co-worker’s wedding? Yes, except for one massive difference: all of us beaming, sniffling, dancing women are divorce lawyers and our staff, turned out en masse to celebrate our paralegal’s wedding. Really? Aren’t we supposed to be deeply cynical? Aren’t we so blinded by the dark side of marriage that we can no longer see beauty and hope in a wedding?

Not a chance. To the contrary, my firm and my colleagues at the family law bar are, in my wholly unscientific estimation, deep appreciators of marriage. We, more than most, understand the value of family. We know it’s what gives meaning to people’s lives because we see the depth of the pain when it doesn’t work out. Divorce makes most people miserable, it makes some greedy, and it makes a few (a pretty big few) violent and destructive to themselves and their kids. Grown men cry in my office because they miss their kids. Women shake with fear at the thought of having to sell their homes. But marriage remains a powerful draw. Despite the misery, so many of our clients navigate the choppy waters, land on the other shore, and what’s the first thing they do? Get married again! And our gay and lesbian clients have been fighting hard for years for the right to join the ranks of the married.

Perhaps the paradox of the hopelessly romantic divorce lawyer is also a product of self-selection. There are many lawyers out there who can’t get away from a divorce case fast enough. Could it be that those of us drawn to this practice find the issues so compelling precisely because we place such a high premium on marriage and family? Because rather than viewing a divorce as someone’s dirty laundry we’d rather not get involved in, we take pride and pleasure in shepherding our clients through a difficult period of transition to a place where they can be happy again? At my firm, we have been touched by invitations to attend the weddings of former clients, we routinely send wedding and baby gifts, and we love to receive holiday cards with pictures of our clients’ children. It makes us feel good to know our clients are enjoying their families, however those families are now reconfigured.

Whatever the reason, I know for sure that I’m a better spouse and parent because of my profession. I feel grateful for the marriage I have and - here’s what I think is probably the key - I’m tolerant of small problems and differences because I am so acutely aware of the big picture, of how unimportant those differences may be when compared to the potential cataclysm of divorce. And my husband is a better spouse because of my profession too – as he’s mentioned on more than one occasion, he’d be terrified to divorce me and anyway, if he decided to, he’d want me to represent him.

I once met someone who was a member of a religious group which completely rejects the notion of divorce. He asked me what I did for a living, I told him, and he asked how I could sleep at night. Of course, I can sleep at night because I strongly believe that people should not remain in marriages that are unhappy or abusive. However, I think he had a picture of me as someone who goes around with a wrecking ball aimed at marriage as an institution. I only wish he could have been at the church when our paralegal walked down the aisle.

Divorce Equality

2011-09-05T22:55:00.000-04:00

A woman called me the other day who wants to get divorced. Which initially sounded fine, since that’s what I do. But upon further discussion, turns out it’s not fine. Turns out I can’t get her divorced and neither can anyone else: she’s stuck in a marriage that she and her spouse both want to end, with no feasible way out.

Sound like the eighteenth century? Or Saudi Arabia perhaps? Not so. To the contrary, this woman suffers from a thoroughly modern problem. The problem is that her spouse is a wife, not a husband. This woman married her partner in Vermont – can’t you just picture the quaint inn, the rolling green hills dotted with charming black and white cows, the wedding package so appealing to same sex couples in that most progressive state of all – and after the wedding they packed up and came home to Philly. Therein lies the problem. Pennsylvania does not recognize their marriage as valid, thanks to our “Defense of Marriage Act.” Not only does this nasty law passed by our homophobic friends in Harrisburg back in 1996 prohibit same sex marriage in Pennsylvania, but it also provides that a same sex marriage entered into in another state is “void in this Commonwealth.” And if Pennsylvania doesn’t recognize you as being married in the first place, our courts have no authority to divorce you.

So why not tell my would-be client to go back to Vermont to get divorced? Because she can’t. Because although Vermont allows non-residents to get married, the opposite is true when it comes to divorce: you have to live there. And this is not unique to Vermont – it’s the case across the board. There is no state in the country which requires residency as a prerequisite for getting a marriage license. In other words, you can drive to Vegas from anywhere at all and get married in the Elvis Chapel. Which is why gay and lesbian couples have flooded into Vermont and Massachusetts and New Hampshire and the rest of the states where they can get married – for the weekend, that is. But like Vermont, all states require that at least one spouse be a resident in order to file for divorce. While “residency” is defined differently by different states, it still means someone’s got to live there for some definite period of time – in the case of Vermont, for six months before a divorce complaint can be filed.

What’s my would-be client to do? She’s stuck, unless she or her wife a) move to a state that will recognize their marriage; and b) live there for long enough to satisfy the residency requirement so they can file for divorce. If they don’t do this and one of them wants to marry someone else? She can’t. Because she’s still married. The irony is overwhelming. Gay people fought so hard for marriage equality and now, when some of those marriages don’t work out (see, they’re not so different from straight people!) they need to fight for the right to get divorced.

I’m confident that within my lifetime the U.S. Supreme Court will rule that it is unconstitutional to prohibit same sex marriage and this ridiculous state of affairs will finally go away. But until then, some gay friendly state – maybe Vermont? – should consider eliminating their residency requirement for divorce. There’s some serious pent up demand out there.

Buyer's Remorse, a/k/a "The Call"

2011-07-10T19:31:00.002-04:00

It’s like a dance. I know the rhythm and the moves. It goes like this: I suggest a settlement proposal to my client. Let’s call him Guy and let’s say I recommend we make the following proposal: Guy’s wife gets the house, Guy keeps his 401k, and Guy pays Mrs. Guy alimony of $2,000 per month for three years. I make this recommendation because it would be, in my very educated and very expensive opinion, an excellent deal for him but not so tilted in his favor that opposing counsel will reject it outright. I’m looking for her to come back with a counterproposal we can negotiate down from and still end up with a good deal for Guy.

I have to convince Guy that this is a reasonable proposal. He wants to offer no alimony. I have to push him to understand that this case is one where alimony is clearly involved, so not offering it at all makes our proposal worthless because it will seem like we are not serious about settlement. I also have to make sure he understands that our proposal will just about certainly be rejected, that it’s a starting point he needs to be prepared to move off of.

Finally, after a long meeting, I get Guy on board. We make the proposal. We get a counterproposal – house and 401k fine, but Mrs. Guy wants 7 years of alimony at $3,000 per month. Guy flips. I calm and explain. I tell him that a court actually could order that much alimony – it’s in the ballpark. I call opposing counsel and tell her she’s way off base, that a court would never order that much alimony, and that we may come up a little bit from our initial offer but I certainly am not going to recommend to my client that we split the difference between our two alimony proposals. I call Guy and tell him we should try one more round by increasing our offer a little but ultimately be prepared to split the difference, as that would still be a very reasonable deal for him. .

More rounds of negotiation ensue. I argue with opposing counsel. Guy argues with me after every round. We finally settle on alimony somewhere in the middle. Guy is relieved to have it over with and pleased that we can avoid court. The settlement agreement is written up and signed. Guy thanks me profusely.

Two days later I get The Call. Guy is talking fast and loud. He’s very upset. He’s getting screwed. He showed the agreement to his brother-in-law, a personal injury lawyer in Virginia, and brother-in-law can’t believe Guy has to pay that much alimony. He talked to his buddy at work who told him that there is no alimony in Pennsylvania. None of his friends who have been divorced pay alimony. What’s going on?

I listen. I sigh inside. I soothe. I remind Guy of the facts in his case which form the legal basis for an award of alimony in Pennsylvania (his income being way higher than hers, long marriage, no liquid assets being divided). I talk to him about weighing the cost of his legal fees to litigate this issue vs. the dollars at stake. I remind him of the roll of the dice he’s taking if we go to court – could come out better than this settlement but also could be a lot worse. I also tell him that discussing his divorce settlement with friends and relatives may be a bad idea. Every state’s law is different. Every case has different facts and circumstances. It’s just not helpful to compare your divorce with your cousin’s or your barber’s.

Guy listens. He calms down. He sighs. He remembers that we did talk about all this before. He’s okay. Not happy, but okay.

Dance over.

Bigamy

2011-05-20T15:35:00.000-04:00

As an unofficial expert in the field of matrimony, I have come to believe that I, unlike many of my clients, am good at being married. I should know - I have two spouses. One is my husband, whom I met on my first day of college and have been married to for 28 years. I spend evenings, weekends, and vacations with him. We’ve raised two children together, with all of the love and commitment that entails. The other is my law partner, Joni, with whom I’ve been practicing for 20 years. I spend my days with her. We have built a law firm together, which also entails an awful lot of love and commitment. Throughout the years we’ve added many “children” - associates, support staff, a new partner, and scores of law students and baby lawyers whom we train and mentor and generally fuss over and then proudly send out into the world to fight the good fight.

A business partnership is so much like a marriage. Joni and I have been through times of prosperity and times of great financial stress, we’ve mourned a beloved paralegal lost to AIDS, and we’ve rocked our employees’ babies in our arms. We’ve moved to different (and bigger) offices over the years, creating a space and a culture we want to live and work in. My husband had the opposite experience of having a business partnership go sour and it was just like a divorce. The hurt, the anger, the recriminations, the endless negotiations – it was all so familiar to me, and he so needed to get out.

So what is it that makes some people good at a partnership, personal or professional? I think being easy going is a really huge piece of it, being comfortable letting the other person make decisions even if they’re not exactly what you would have decided yourself. And then there’s money. So many of my divorce clients tell me that their marriages broke up over disputes about money (far more than disputes about sex, by the way.) About how to spend it, how to manage it, and when to borrow it. Since I can count on one hand the total number of arguments I’ve had with both my spouses about money in my collective 48 years of marriage to them, that’s probably the key.

In the last few years, I’ve added spouse number three, Megan, Joni and my third partner. So far so good with her as well. Think I’ll skip that model on the home front, though.

Getting it Right

2011-03-06T20:37:00.000-05:00

I love looking back over the years (decades!) I’ve been practicing family law and thinking about all the clients whose lives I’ve touched and vice versa. Some lightly, some intensely. There’s a very rich texture to my professional life, filled with knowing so many different kinds of people at such an intimate level. People I would never meet otherwise, people with backgrounds and circumstances so different from mine, people who cut hair and fix cars, people who transplant hearts and run big companies, men who cry in my office because they ache from missing their kids so much, women who peel back shirt collars to show me bruises.

One of the ways in which my clients differ is in how they want to work with me, and as far as I can tell, it is not related to any common characteristic such as socioeconomic level or gender. What I mean is the level of involvement they want me to have in their representation. Some clients are complete delegators. They hire me to do a job - let’s say a divorce - and then they totally rely on me to move things forward, giving me only as much information as I seek from them to move their case along. Other clients want me to be involved in every decision they make and want to review with me in detail every action I take: every document received, every phone call to opposing counsel, every letter before it’s sent. And most clients fall somewhere in between. One of the arts of being a good lawyer is figuring out as early as possible in the course of the representation where your client falls on this spectrum and adjusting your approach to fit.

I think I’ve gotten pretty good about making these calibrations – it’s almost unconscious now – but I still make mistakes sometimes. With some people, it feels like I can never do enough, and for others, they basically just want to go to sleep and have me wake them when it’s over, and that’s not really possible (especially where court is involved!). If I knew the right sports metaphor I think it would be appropriate here, but I don’t and I wouldn’t use it anyway because I hate sports metaphors. So let’s just say I’ll just keep trying to get it right, and hopefully I’ll get closer and closer to batting whatever it is.

"I (Skype) do"

2011-01-30T15:00:00.001-05:00

Nuptials via Skype. Can it be done? Maybe, but who would want to? One group which might is gay couples who live in states which don’t allow same sex marriage. A couple of months ago, two gay men had a wedding ceremony in their home town of Dallas in the decidedly not-gay-friendly state of Texas, with a minister officiating via Skype from Washington, D.C., where same-sex marriage is legal. So clever! Ultimately, the marriage was invalidated by D.C. on a technicality (despite the fact that D.C. had issued a marriage license), and the grooms were told they would have to re-do the ceremony in D.C. in order to validate the marriage. Nonetheless, it’s clear that this is just the beginning of something big.

Marriage laws are all state specific. But where are you when you’re on the internet? You’re nowhere and everywhere. If a state will issue a marriage license so long as the officiant performs the marriage within its borders, isn’t the officiant complying when she boots up her computer from her church in Massachusetts and addresses the happy couple via Skype as they stand before family and friends in, let’s say, Alabama? The Evangelical Right will surely rush right out and try to amend state marriage statutes so as to prevent this, but, as with everything motivated by a desire to curtail the scope and power of the internet, ultimately it’s likely to be a losing battle.

And if that won’t work, consider what another gay couple recently did – they got married on a flight from San Francisco to New York while the plane was briefly in Canadian airspace. Sounds like a jolly time, as passengers happily tweeted news of the on-board ceremony. In their never-ending quest for more extras to charge for, perhaps a gay-friendly airline which flies over countries where same-sex marriage is legal will start offering in-flight wedding packages? Could be the new thing for 2011.

The Twelve Days of Christmas

2010-12-18T17:12:00.002-05:00

Shoppers hurry by, red cheeked and purposeful. Salvation Army Santas jingle their bells in front of Macy’s. Cookies arrive in offices from clients and vendors and are promptly eaten, accompanied by the obligatory groans about too many sweets. And for us family lawyers, the holiday season calls to mind a unique stress otherwise known as The Christmas Holiday Schedule.

No matter what the regular custody schedule is, whether parenting time is equally shared or the kids only see dad every other Sunday, parents care about celebrating holidays with their children. They care a lot. And the vast majority of them – including many Jews, Muslims and atheists I’ve represented – really really care about Christmas. There are lots of ways to split it, but the ugly fact remains that all parents who celebrate the holiday want their children to wake up in their home on Christmas morning. The magic of the stockings, the tree, the shiny presents tied up in ribbons – that capsule of fantasy and wonder that we so carefully construct for our children on Christmas – it’s priceless. And chances are, if you care about it, so does the person you used to be married to.

So we slice and dice. Here’s a common variation: in odd numbered years, Mom has Christmas Eve at noon through noon on Christmas Day, Dad has Christmas day at noon through noon on December 26. In even numbered years, it flips. Imperfect, but fair. But entire custody agreements, easily negotiated down to the last detail of the other 364 days of the year, have been known to fall apart over Christmas. Judges have been enlisted to decide whether a Christmas day transfer should take place at 12 or 2 p.m. Mom says she should always have the kids on Christmas Eve (and therefore Christmas morning) because she takes them to Mass and Dad won’t. Dad says Mom must have just gotten religion – she never went to Mass when they were married. The variations on this theme are endless, and the intensity of emotion unwaveringly high.

Other holidays just don’t cause the same conflict. Jewish holidays have a nice way of dividing up. Passover has first and second Seders. Rosh Hashanah has two days and two nights. Hanukah has more than enough days to go around, and no one cares enough about it to insist on having all eight days anyway. (Want to know when that second Seder will be in 2013? Check out the handy holiday website for Jews, www.hebcal.com, friend to family lawyers everywhere).

I understand why Christmas is so poignant for divorced parents. The loving family gathering in their pajamas around the tree on Christmas morning is no more. It seems like the ultimate loss – a loss of innocence for kids, and a loss of that intimate joint venture, that joy shared by parents in the manufacture of memories which will last their children a lifetime. But kids are resilient and will, for the most part, be fine regardless of the specifics of the arrangements. In this instance, I think it’s actually the adults who suffer more.

Public/Private

2010-11-27T18:35:00.001-05:00

What’s up with these people who are so crazed about airport body scanners? Brian Sodergren, the guy who’s leading the pack, says he cannot stand the thought of the TSA taking images of his eight and ten year old daughters. Don’t let the government intrude in precious family life! (Even, apparently, if the price of non-intrusion is a greater likelihood that his daughters could be blown up by terrorists.)

It’s all part of the Tea Party anti-government, populist/libertarian rant: don’t tell me what to do, I’m a mama grizzly who can take care of my family, don’t tax me, and certainly don’t tell me I have to get health insurance. What’s so strange about the emergence of this growing chorus of “get-the-government-out-of-private-life” streaming live from the right, is that it coincides so perfectly with the era of nothing at all being private. Boundaries between public and private have melted away. It’s all out there on Facebook for the world to see. And hear, in public cell phone conversations. (My personal favorite: woman standing literally two feet behind me in line for the ATM one morning, on the phone to her doctor’s office: “Hi, this is so-and-so. I’m calling because I had unprotected sex last night. Can you write me a prescription for the morning after pill?” No kidding.)

Mr. Sodergren is a young guy; he’s part of the reality TV, tell it all to Maury Povich generation. And it’s this same generation who doesn’t hesitate for a moment to run to the government - embodied in the person of a family court judge - to decide not only where their kids should live, but to manage the nitty gritty details of their personal lives after divorce, e.g., who gets to spend Thanksgiving with the kids on odd numbered years, whether custodial exchanges should take place on Sundays at 6 or 6:30 p.m., and if it’s okay to sign the seven-year-old up for karate.

I am always amazed at how many people (not my clients of course, but their unreasonable exes!) are perfectly willing to involve the government in the micro-management of their children in this way. How does that compare on the intrusiveness scale to an anonymous body scan performed for the purpose of thwarting murder? I just don’t get it.

Stuff

2010-10-24T21:39:00.001-04:00

When people get divorced, they have to divide up property they accumulated during their life together. Houses, cars, bank accounts, investments and retirement benefits are all on the table to be shuffled, distributed, or sometimes divided. To be sure, I often spend a lot of time negotiating exactly how this should happen, but ultimately it does all come down to money, e.g., how much is the house worth vs. the 401(k)?

Not so with stuff. Furniture, artwork (of the still-life-your-sister-painted-in-art-school variety, not the signed-Picasso-print variety), photographs, kitchen wares - the dreaded category of “personal property” can be the bane of the divorce lawyer’s existence. Dividing up stuff is not about money; it’s totally about emotion. People who have millions of dollars in investments can end up fighting over a piece of pottery someone picked up at a roadside market in Guatemala. I try to avoid these negotiations like the plague. I generally tell clients “I don’t do furniture” - meaning, work it out yourselves, because it’s a total waste of time and money to pay lawyers to argue about why one spouse should get the print of the lilies rather than the water color of the Cape Cod sunset; how are we supposed to know?

But I do understand that stories and history and family culture are embodied in the stuff we acquire as the years pass, and sometimes lawyers can’t avoid getting involved. If that happens, and if I start to feel irritated about it, I have developed a sure fire way to put a damper on my irritation and summon forth the empathy necessary to get the job done. I go straight to an example of stuff acquired during my own marriage that I would lie down in front of a truck for: my Christmas decorations! I love them. I love acquiring a couple of beautiful new ornaments each year. I love the play dough, macaroni and glue Santas my kids made in pre-school. I love the popsicle stick reindeer with the googly eyes they made in first grade (same art teacher, exact same holiday project three years later.) I love the holiday candles and garlands I put on the mantle. Woe be to the man who wanted to take those treasures from me! So I get it. But I still hope fervently that my clients and their spouses can work out this part of their divorce for themselves. I’m much more comfortable thinking through what to do with their stock options than their Kitchen Aid mixers.

Sometimes people can use stuff as a weapon. I had a divorce case a while back where the settlement agreement provided for the parties to share their only child’s Bar Mitzvah photographs as follows: the husband was to get the album made by the photographer and the wife (my client), was to get all the prints. Sounds reasonable, right? Unfortunately, when the 200+ prints were finally (and reluctantly) delivered to my client, she discovered that all the pictures which included her family members were missing. The husband professed ignorance as to how this could have happened and no one had the negatives. Ouch. This was the same guy, by the way, who had a bonfire with my client’s wedding dress in the back yard. Some people are lucky just to get away and leave the stuff behind.

Promises Promises

2010-09-21T22:38:00.003-04:00

I just finished a big trial. Big because it lasted for three days and big because the issues involved are new. New for me, new for opposing counsel, new for the court. What’s involved is the break-up of a same sex relationship of 22 years, and a claim for financial compensation. If we were dealing with a married couple, this would be a no brainer. Our divorce laws are based on a social consensus that couples who commit to one another and live together and acquire assets and income during that period of commitment should share those assets and income when the marriage ends. This is the framework of the modern divorce code. So what if you can’t get married? What if you live together for 22 years and think of yourselves as an economic partnership and then the partner with the money/job/real estate/investments/pension ends the relationship? Does the partner without all that have any legal recourse?

The answer is a resounding maybe, as it’s fairly uncharted territory in Pennsylvania. In addition to same sex couples not having the protection of the divorce code, we have no civil union or domestic partnership laws either. So what we’re left with is the common law – those basic legal principles we brought with us from England. The common law cause of action which fits these circumstances is breach of contract. Not a written contract, but what’s called an “implied-in-fact” contract – a contract which can be determined from the parties’ words and conduct. Our job in representing the plaintiff in this case was to prove that a contract existed – that a promise was made, that the promise was broken, and that our client suffered damages as a result.

Because we were proceeding under a breach of contract theory, the case was not tried in family court. We were in regular civil court, where all non-family civil cases are heard, like car accidents and commercial disputes. But this was no car accident case. The emotion ran high in the courtroom as family and friends stepped up to the witness stand; there was testimony about sex, household chores, love and betrayal; there were tears and recrimination and anger. In other words, it was just like family court.

There was also discussion during the trial of a wide ranging body of law from states all over the country, including the famous 1976 California Supreme Court case of Marvin v. Marvin – remember “palimony?” Not surprisingly, California was in the vanguard in fashioning a common law breach of contract remedy for the very unmarried Michelle Marvin. Quite surprisingly, the Pennsylvania courts have been receptive to the reasoning of the Marvin case in the past. But in our case? Who knows.

No decision yet from the judge. We’re on pins and needles. Will report back.

Office Field Trip

2010-07-30T17:13:00.002-04:00

Some law firms go on summer outings to the Phillies. Some have barbecues or picnics. We closed the office early yesterday and took a field trip to the movies. We went to see The Kids Are All Right - a fabulous and funny drama about married lesbian moms, their two teenage kids, and the introduction of the man who was their sperm donor into their lives. Fun you might say? This was work! We should have gotten Continuing Legal Education credits for the afternoon! And when Julianne Moore stood in front of her family at the end and made a speech about what hard work marriage is - which made most if not all of us tear up - we should be posting that on our website!

Our lawyers and non-lawyer staff alike love this stuff. That’s why we practice family law. We have lots of LGBT clients. We believe in the power of families - all kinds. What this film illustrates is how all families are fundamentally the same, even ones formed in non-traditional ways. In the film, the teenage children contact their biological father - their sperm donor - who ends up quickly forming relationships with the kids and the moms, in ways both positive and negative. This is a big issue for kids conceived by donor insemination, very similar to kids who are adopted: who is the person who genetically created them? Do they want to meet that person? Will it hurt the feelings of the parents who raised them if they do? Will they be disappointed? Will the donor view them as sons and daughters or as something less than that? Most fundamentally: who are their parents?

I recently drafted a sperm donor contract for a lesbian couple who are planning to have a child with a donor they know - a relative of the woman who is not going to be the biological mother of the child. That way, the child will have a genetic relationship to both moms. This has both great advantages and great risks. The point of the contract was to spell out everyone’s expectations clearly: that the non-biological mom would adopt the child so the two women would be the legal parents, that the donor was not going have any custody rights or any support obligations. What about disclosure to the kid? Should they tell him his mom’s relative is his bio dad? Who should get to make that decision? Who should get to veto it? There were many issues to think through and discuss. The law in Pennsylvania is uncertain so there is no guaranteed protection for the donor from being hit up for child support or for the moms from being made to share custody. But this may change - as a policy matter, there are many reasons some lesbian couples prefer a known donor. They want to know medical history, they want to actually know the person who is contributing half their child’s DNA, and, in some cases, they want that man to be more than a sperm donor, they want him to play a role in the child’s life, which they see as a positive addition to the family they are creating, not a threat to it.

Families are changing fast and our job as family lawyers is to stay ahead of the curve. It's great to have Hollywood helping us.

Dog Days

2010-07-09T10:30:00.004-04:00

Summer is in full humid sticky lazy force. Traffic is light on the way to work. The evenings are long and social. Court dates are continued due to vacation schedules. Opposing counsel will get back to you a week from Tuesday instead of tomorrow. In the world of civil litigation, the pace of work slows down. Not necessarily so for the family lawyer. Summertime brings a set of predictable crises which occur year after year.

One is vacation. One parent has a trip planned and the other does or doesn’t do something which interferes with the ability to take the trip. Dad doesn’t sign the consent form to get the passports. Mom is now hedging on the informal agreement to switch the schedule in the court order so that Dad can take the kids to his family reunion. Or one parent actually opposes the trip itself: the country is too dangerous to travel to. I have had two hearings in the past few years where the other parent tried to prevent my client from taking their kids to Israel - one time the judge let the kids go, another time not. Tensions run high as people worry that long planned vacations will be derailed.

Another is school choice. September looms and summer is showdown time for parents who don’t agree where their children should attend school in the fall. If they can’t come to some resolution, a court may have to decide, so negotiations amp up, and petitions get filed. School registrars get pulled into the fray.

What should be times of happiness and relaxation for families become anything but. This can take its toll on lawyers, too, who want to kick back and enjoy their own families. Since my kids left home I find that I work more (which is probably a good thing, given the cost of two college tuitions) and my clients’ lives and problems become more front and center, as I don’t have the welcome distraction of my own kids to attend to when I go home. I don’t think that’s such a good thing; I know that I’m better at my job when I have more of a balance in my life.

So this summer, to counteract that trend and center me back to home and hearth, I decided we should get a puppy. My college student daughter who is living at home this summer thought this was a great idea too; my husband, not so much, but he came around in a big way. The puppy - named Zakumi, after the South African mascot for the World Cup - is now three months old, adorable, and providing exactly the sort of balance I was looking for. I work hard, worry about my clients when I’m at work, then come home and we hang out in the back yard eating, drinking and playing tug of war with Kumi. Friends and neighbors stop by to meet the newest addition to the family. Kumi flops down in the heat and I do too, thinking lazily about how he’s trashed my flower beds but finding that I really don’t care.

History Rewritten

2010-06-01T22:40:00.005-04:00

I was talking to a cousin of mine at a family gathering over Memorial Day weekend, and the conversation turned to her adoption, as a girl, by her step-father. My cousin’s father had died when she was very young and her mother remarried a man who adopted her. Sounds good, right? The problem is that the marriage ultimately failed and he effectively ditched my cousin along with the divorce – she’s now in her forties and hasn’t seen him since she was 15.

My cousin said the thing she didn’t know, that she wished had been explained to her at the time, was that as a result of the adoption she would get a new birth certificate with her adoptive father’s name on it. The reality of her biological father was effectively wiped out – she had lost him to a tragic illness before she could ever know him and then his very existence as her father on the day she was born was erased and replaced by a guy who apparently considered her part of the package of a marriage that didn’t last, rather than a lifetime commitment.

People at the dinner table were astonished to learn that birth certificates are changed as part of adoptions. I share their astonishment. I was shocked by this practice the first time I handled an adoption. It seems so odd and so completely not legalistic: the intentional creation, by judicial decree, of a false document. It is not called an “adoption certificate;” it is called a “birth certificate” and it is a back dated, official “birth” record, which contains the name of two parents, at least one of whom was not in fact the parent at the time of the child’s birth.

Who are we kidding? What interests do we serve by issuing these phony documents? You can get prosecuted for using a fake ID at a bar when you’re 19, but somehow courts can wipe out one identity and replace it with a new one with total impunity. Same goes for a name change – the end result is a new birth certificate. And if you are transgendered and change your name to match your new gender, you get a new birth certificate which creates the fiction that you were born with both the name and the gender you became later in life.

I guess it’s all based on the intense privacy and secrecy surrounding adoption (and, certainly, changes of gender), the idea that these are dark secrets that must be protected from disclosure. But how did we end up getting the state in the business of literally rewriting history? Of obliterating identity? Why can’t we accept change – you were born with one set of parents, now you have another; you used to be a man, now you’re a woman. Life histories, in all their variety, deserve accurate recording. We can handle it.

Prince Charming

2010-05-16T16:29:00.001-04:00

I am obsessed with the topic of women’s economic self-sufficiency. When I was in my early twenties, I thought it was important, as an abstract principle, for women to be able to support themselves. But I didn’t know the half of it. Being a divorce lawyer for 25 years has made me see up close and personal the devastating effect that total dependence on a husband can have.

I am not surprised by women older than me who embraced a traditional homemaker role at a time when other options weren’t really on the table. But I continue to be surprised by the large number of women my age and younger - women who were raised with the expectation that they would have careers, women with college or graduate school degrees - who never really entered the workforce and find themselves at age 40 or 50 with no ability to earn a living.

I completely understand how it happens. A couple meet in college or grad school, get married, work for a year or two, wife gets pregnant, stops working for a brief period, husband’s career builds, wife doesn’t return to work because husband is capable of supporting them both, wife becomes absorbed with the very considerable pleasures of full time motherhood, wife has a second and maybe a third child. Fast forward 15 years, children are all in school, wife’s job is managing the family and household, husband’s job is to earn all the money, and the marriage falls apart.

Unless they are really wealthy, it’s a disaster. You just can’t divide up one income stream and have it support two households without a significant drop in everyone’s living standard. And how do you navigate the difficulties of an unhappy marriage when any thinking you try to do about what would really be best for you and your children is completely intertwined with a sickening fear of not being able to pay the bills, of going to work at Starbucks (if they’ll even have you), because your 20 year old B.A. in English is not going to qualify you to do anything that pays more than $12 an hour? Women living this nightmare are desperate and terrified.

By contrast, women who can support themselves are able to think about divorce entirely differently. Are they still in love? Would it be better for the children, on balance, if they stay or go? They may be unhappy, but they feel they have choices. There is just no question that money is power and the power dynamic in marriages where one person is financially dependent on the other is dramatically different from marriages where either spouse could pay their own rent if they had to.

Fairy tales die hard. Our culture may still whisper into the ears of young women that Prince Charming will come, sweep you off your feet, and take care of you - which is fine if it happens, enjoy the ride - but make sure you have a Plan B, because you absolutely cannot count on happily ever after.

Her Honor

2010-04-18T11:40:00.001-04:00

When I was a baby lawyer, judges were the embodiment of authority: unapproachable white men at least two generations older than me who probably didn’t even have first names. Today, I often walk into court and someone who looks just like the girlfriend I had drinks with the night before is sitting on the bench wearing a black robe. What happened? I did get older, sure, but judges as a group – at least in the courts where I practice - have gotten younger, more female, and less white.

I remember distinctly the first time I realized a judge could be just like me. I was at a potluck dinner with parents from my younger daughter’s middle school. The mother of a good friend of my daughter’s had just been elected judge. She was fielding congratulations from the group. I asked her about her court schedule, and she described it, including how often she had chambers weeks, which are weeks when judges get a break from hearing cases so that they have time to do research and write opinions. Another mother asked what a chambers week was. The new judge - an African American single mom - said, without missing a beat, “that’s when you do your laundry.”

Having judges as peers has made me understand the extent to which the courtroom is a theater and each person in it, including the judge, is playing a part. When the guy on the bench seemed to be from a different, more powerful world than me, I didn’t think that hard about why I had to call him “Your Honor” and stand up every time I addressed him and be politely deferential even when he was ruling against my client, because it seemed the natural order of things - he was older, more powerful, often intimidating, and I was really still a young girl masquerading as a lawyer.

Now I know that the masquerade goes both ways. The elaborate rules of courtroom conduct and decorum do not reflect a natural order; they help maintain a socially constructed one. We’re all playing roles including those old guys I appeared before 25 years ago and who did, in fact, have first names.

Hopeless Romantics

2010-03-10T12:02:00.001-05:00

Right after Valentine’s Day, there was a lot of excitement in my office because our paralegal, Anna Marie, got engaged. We were excited not only because we were happy for her but also because we were enchanted by the proposal process, an incredibly creative and elaborate treasure hunt in Center City involving family and friends, letters, recorded music and a live performance, all leading to her fiancé on bended knee in Rittenhouse Square.

Divorce lawyers? Thrilled with the romance of a marriage proposal? Hungry for details of the wedding plans? Yes. You might think that divorce lawyers are a cynical lot when it comes to marriage, but you would be wrong. We are clear eyed about the economics of divorce, but the divorce lawyers I know as partners, associates, colleagues, and friends tend to place a tremendous premium on marriage and family and, in my totally unscientific survey, have a very low divorce rate.

I have often wondered why this is. I know for myself, I see so much family misery on a daily basis that I feel grateful for the marriage I have and - here’s what I think is probably the key - I’m tolerant of small problems and differences because I am so acutely aware of the big picture, of how unimportant those differences may be when compared to the potential cataclysm of divorce.

I once met someone who was a member of a religious group which completely rejects the notion of divorce. He asked me what I did for a living, I told him, and he asked how I could sleep at night. Of course, I can sleep at night because I strongly believe that people should not remain in marriages that are unhappy or abusive. However, I think he had a picture of me as someone who goes around with a wrecking ball aimed at marriage as an institution. I only wish he could have been in my office when Anna Marie was telling the proposal story.

Hearsay Blues

2010-02-26T16:21:00.001-05:00

Suppose your four year old tells you something very bad about their other parent. Suppose you completely believe what your child has told you. Suppose your child will not repeat what he told you to anyone else. Can you tell a judge what your child said? In general, no. Hearsay – meaning a statement made out of court by a person not a party to the litigation – generally cannot be admitted as evidence. So if I ask my client “what did your daughter tell you?” opposing counsel will respond, properly, “objection – calls for hearsay” and the judge will very likely sustain the objection. Meaning that my client will not be able to answer my question and the judge will never hear about the terrible things her child confided in her.

The policy behind the hearsay rule makes sense. Think about it from the other perspective. Suppose you’re a dad whose child supposedly (allegedly, in lawyer language) told his mother that you did something very bad to him. You know that you never did any such thing and your ex is just out to get you. If the mother is allowed to testify in court what your son said to her – but to no one else, including the judge – how could the judge possibly rely on that to rule that you abused your child? That would be so unfair.

But wait - go back to the first scenario. Your child is very young and he couldn’t possibly have made up what he told you, but he won’t tell anyone else because he’s shy and doesn’t talk to strangers, including the judge. And there’s no other evidence that the abuse occurred – no one else saw it, there is no medical evidence. Under these circumstances, the judge will likely be compelled to conclude that nothing happened and your child will go right back into a situation you are convinced is dangerous for him, i.e, back to an abusive parent.

I’ve been involved in these types of cases a lot recently. When I was a law student studying the rules of evidence a zillion years ago, I had no clue about the real life repercussions of the hearsay rule. They’re huge.

Client vs. Friend

2010-02-18T23:11:00.001-05:00

Recently, a client I like a lot invited me to a party celebrating the one year anniversary of her divorce. That was a first for me, but I went and had a great time. It made me think about the issue of friendship with clients. When I represent a client in a divorce, I get to know the person really well in a certain way. I accompany them through an incredibly stressful time, and in the process I learn essential things about their character and personality: Is she strong or is she fragile? Is he honest? How does she prioritize money vs. conflict? I also, of course, learn a tremendous amount about the details of the person’s life, including things I don’t know about some of my closest friends. I know how much money is earned and how much debt incurred; I know about affairs, addictions, sexual problems, mental health issues.

Over the course of my years in practice, there have been a number of people I have come to respect and enjoy so much as clients that I find myself hoping we can be friends when their case is over, and I have successfully made that delicate transition a number of times. It’s kind of odd. Inevitably, we start out the friendship with what seems like a very uneven playing field because I know so much about them and they know so little about me. (Which I make a point of – I am super conscious of not making more than passing references to my husband and children when talking to my clients, first of all because it’s inappropriate for me to speak about anything other than their case when I’m billing them by the tenth of the hour for my time, and second of all because I figure the last thing someone getting divorced wants to hear about is someone else’s happy family life.) So there’s lots of catching up to do in that regard.

But in another sense, there’s not. We have been through an intimate and life changing time together where I have served as counselor and advocate, in and out of court, and they have seen me do what, hopefully, I do best; they have an understanding of and appreciation for the professional side of my life that my other friends and family do not. So we each have a connection to the other that we don’t have with other friends.

One of my best friends, Laurie, was a client. As we began to get close after her divorce was over, she called me up and asked if it was okay if she and her new husband bought the house across the street from me or if I would feel like she was stalking me. She was joking, of course (because I think she really knew I’d be thrilled), but she was acknowledging that even though the boundaries which exist between lawyer and client had changed, she wanted to take my temperature as to how much. That was quite a while back, and now we’re old friends. We have watched each other’s houses, kids and dogs, we trade advice, food, tools and we even have joint custody of a roasting pan. Just like any other close friend and neighbor, except I think the bond is a little deeper between us because of what we experienced during that difficult time in her life those many years ago.

The New Year’s Resolution

2010-02-11T14:41:00.001-05:00

Okay, so it’s a little late, but here I am, inaugurating a blog about family law as I live and breathe it. My resolution for 2010 is to share stories from the trenches and ideas from the tower about the practice of family law in Philadelphia at this particular time on earth. It’s so endlessly interesting - the complexities of relationships between parents and children; the strategic approaches lawyers need to take with different judges; the ever expanding definition of what constitutes a family; even the lousy day in court – what happened? Why? And then there’s Joe Hoeffel running on a pro-gay marriage platform for governor of Pennsylvania – mind boggling. There’s so much to talk about.

And why did it take me so long to act on my New Year’s resolution? Because of all of your New Year’s resolutions! Every year, starting at 9 a.m. on January 2nd, multitudes of people call our office – new clients or clients who met with us long ago but put everything on hold until the holidays are over. Or those who made the decision during those long holidays that Never Again would they be spent with this particular spouse. Getting divorced must surely be the second most common New Year’s resolution after going to the gym. So I have been very very busy helping these clients move their New Year’s resolutions forward and I am just getting the breathing space to pay attention to mine.

Happy New Year and welcome to familylawunraveled!