How to Pick a Divorce Attorney

Posted by Daniel Clement on October 31, 2007
Victor J. Medina in the New Jersey Divorce and Family Law blog offers some good guidance in how to select a divorce attorney. I agree with Medina when he states a client should look for a divorce attorney who is flexible in style.

I think all divorce attorneys hear some client question during at the initial consultation:

“Are you a fighter? I need a bulldog on this…” or “I really need someone who is collaborative…can you work with my ex’s attorney?”

My response, like Medina’s, is I can be whatever the situation requires. An effective attorney needs to be practical, pragmatic, creative, and re-active. Seemingly contradictory, it is possible to be both firm and conciliatory or aggressive and fair. Like a good boxer, a matrimonial attorney has to know how to bob and weave to avoid the punishing blows, to jab to wear down opposition, and be willing and able of throwing a knock out punch.

A matrimonial case is not one dimensional- the issues are financial, legal, emotional and psychological. The fight, sometime, may appear to be about money, but it may really be about rejection or control instead. Other times, the dispute may really be just about money. The good attorney will discern which the case is and his adjust strategy accordingly to achieve a result in an expeditious and cost effective manner.

Changes in Child Custody Alters Child Support

Posted by Daniel Clement on October 30, 2007
Question- I had custody of my daughters from birth until they were 12 and 13. I voluntarily let them live with their father. Father didn't pay any child support until 2002 when I applied for it, and he was only ordered to pay $25 a month. Now the father is seeking support from me. Will the court take into consideration the years he didn't meaningfully contribute to their financial needs when they lived with me?

Answer-Changes in child custody often cause problems in child support.

In New York, child support is awarded retroactive to the date of the application. If you did not apply for support until some time in 2002, the father had no “legal” obligation to pay child support. The father became legally obligated to pay child support when ordered by the court. Notwithstanding the fact that the father now has custody of the children, the father’s obligation to pay support continues until the children become emancipated or a court order terminates the support payments.

Your obligation to pay support will begin when it is ordered by the court. But, be careful- the support obligation could be retro-active to the date the father first sought support. So you could be in arrears even though there is no court order requiring you to pay support.


Ten Tips to Help Children Cope with Divorce

Posted by Daniel Clement on October 29, 2007
Darn Divorce provides some insightful tips on how to help children cope with divorce.

1. Tell children the truth in simple terms with simple explanations. Tell them where their other parent has gone.
2. Reassure them that they will continue to be taken care of and that they will be safe and secure.
3. Your children will see that parents can stop loving each other. Reassure them that a parent’s love for a child is a special kind that never stops.
4. Spend time with each child individually. Whether you have custody or visitation, the most important thing to the child is your individual relationship with him or her. Build the best relationship you can. The future is built of many tiny moments.
5. Children feel responsible for causing the divorce. Reassure them that they are not to blame. They may also feel that it is their responsibility to bring their parents back together. Let them know your decision is final and will have to be accepted.
6. Divorcing parents often feel guilty and become overindulgent. Give your child love, but also give limits.
7. Your child is still a child and can’t become the man of the house or a little mother. Continue to be the parent to your child. Seek other adults to fill your own need for companionship.
8. Avoid situations that place a child in the impossible position of choosing between parents:
* Don’t use your child as a way to get back at your spouse. Children can be terribly wounded this way.
* Don’t say bad things about the other parent in hearing of a child.
* Don’t say or do anything that might discourage the child from spending time with the other parent.
* Don’t encourage a child to take sides.
9. You and your former spouse will continue to be the parents of your children for life. Pledge to cooperate responsibly toward the growth and development of your children as an expression of your mutual love for them.
10. Be patient and understanding with your children. Be patient and understanding with yourself.
Even though it may be the last thing you feel like doing, cooperating with your spouse during your divorce is one of the best things you can do for your children. They learn that conflicts can be resolved eventually, which is a valuable lesson.

It is important to remember, that the children are the “victims of divorce.” In most cases, they should be allowed, and, in fact, encouraged to maintain a relationship with both parents

Bank Offers a Divorce Loan

Posted by Daniel Clement on October 25, 2007
In Japan, it is now possible to finance a divorce. According to the Financial Post, the Ogaki Kyoritsu Bank will become the first Japanese bank to provide unsecured loans to cover the costs of divorce.

The loans are available to customers between the ages of 20 and 65 with an income of $2 million yen per year or more, and range between $100,000 and $5 million yen to cover support payments, property division and (arguably most importantly for our readers) legal fees.

This type of loan may make some sense for the Wall Street executives, who receive most of their annual income as bonuses or entrepreneurs, whose capital is tied up in some venture. For most, this could be a risky and expensive way of unwinding their marriage.

How To Tell Your Children About Divorce

Posted by Daniel Clement on October 23, 2007
The Modern Woman’s Divorce Guide has been running a series of  Weekly Divorce Tips. This week’s tip offers some simple advice for a complex problem- How to tell your children that you are getting divorced.

Telling your children about divorce is challenging, but essential. According to Gary Neuman, a psychotherapist and divorce expert who appeared on the Oprah Winfrey Show a few weeks ago, “the way children are told about their family breaking up is a seminal moment that no child forgets.”

So, how do your tell your children about divorce without scaring them for life? Gary Neuman recommends you do it by following these basic rules:

•“Both parents should be present to tell the children together - with the main message being, you, the children, are still our priority.
•It should not take more than 45 seconds.
•Practice what you’re going to say, before blurting out things that can hurt forever.
•Never disparage the other parent, because it makes your child feel guilty about loving them.”

I offer a few more thoughts:

  • Your children are not divorcing your spouse, only you are. If your spouse is bad, imperfect, or completely flawed, let the children discover that themselves. You do not have to flag your spouse’s faults for them.
  • Do not make the children choose sides. To the contrary, children should be encouraged to have a relationship with both parents.
  • Tell the children, particularly if they are young and may not understand, that nothing they did caused the divorce.
  • Re-assure them that both parents love them.

Do you have any tips?  Please share your thoughts and comments.

Rich and Poor Equally Unhappy in Marriage?

Posted by Daniel Clement on October 19, 2007
Janet Langjahr in her Florida based divorce and family law blog, reports that money does not equate with happiness in marriage. Citing an article, The Rich and Unfaithful, in Forbes, she says that the wealthy are no happier in their marriages than the not as well off.

About half of wealthy people describe themselves as unhappy in their marriages, and just as many admit to cheating on their spouses in the last three years. (Interestingly, more women than men owned up to affairs.)

Somewhat ironically, the excuse cited for unfaithfulness was desire for variety.

Although half of the affluent were unhappy in their marriages, just thirty percent were considering divorce…
It is not terribly surprising that the wealthy may be more divorce adverse. Quite simply, the exit costs may simply be too great. Assets acquired during the marriage have to be equitably distributed. Maintenance to keep a non working spouse in the marital lifestyle may be required to be paid.

A couple, living comfortably, with a million dollars in assets and a nice home with a mortgage could find themselves each with half as much in cash and looking for a new place to live.

There is an economy of scale in remaining in a marriage, even an unhappy one. The same income will not go as far if it must be split between two households. Rather than paying household expenses for a single home, a divorced couple must pay rent or mortgages on two homes, as well as all the other related housing expenses. In the end, there would be less discretionary or play money.

It may be purely economics that keep the wealthy in their unhappy marriages.

Grandparents Denied Visitation with Children of 9-11 Victim

Posted by Daniel Clement on October 17, 2007
The New York Law Journal (subscription required) reported that the parents of a victim of 9/11 were denied visitation with their grandchildren. I posted a couple of times in the recent past on the issue of grandparent visitation.

According to the article in the Law Journal, after the death of the father, relations between the grandparents and the mother became strained and the mother limited the children’s visits with their grandparents.

The Domestic Relations Law has provision for grandparents to seek visitation with grandchildren following the death of a parent. Visitation will be granted if it is found to be in the best interest of the child.

In this case (Smith v. Smith), Family Court Judge Carnell Foskey found that it would not be in the children’s best interests to have visitation with the grandparents.

There was an incident when [the grandmother] put dog collars around the children’s neck and pretended to walk them down the hall like dogs. In July 2003, the grandmother hit [one of the grandchildren] for not cleaning up her crayons.

The grandparents clearly exhibited behaviors which made it questionable whether they should be allowed to have visitation with the children. Given the reported strained relations with the in-law and questionable conduct, a limitation or complete termination of visitation may have been appropriate.

The Failure to Read and Understand An Agreement Does Not Invalidate It

Posted by Daniel Clement on October 11, 2007
Yesterday, I noted that there seemed to be a rash of cases challenging the validity of prenuptial agreements. Today, I continue my review with a case the sends the message that you had better read and fully understand the agreement before you sign it, particularly if you are “well educated.” Blindly entering into an agreement will not invalidate it.

In Stawski v Stawski, the Appellate Division upheld the validity of a prenuptial agreement, written in German and signed by an American citizen, in Germany. At the time of its execution, the wife-to-be did not speak German and was not represented by an attorney. Instead, the “notar,” before whom the agreement was signed, simply read and explained the agreement to the parties.

The Court found it significant that the well educated wife voluntarily signed the agreement and did not ask any questions about it prior to its execution.

The agreement provided that each party would retain ownership of their separate property held at the time of the marriage or acquired thereafter. During the length of the marriage, the Court found that:

[D]espite her asserted lack of understanding, she acted in accordance with the terms of the agreement throughout the marriage, maintaining separate bank accounts in her own name in which she deposited income from properties she inherited from her family, which properties were themselves also retained by plaintiff solely in her name.

The Appellate Division restated the public policy that:
[T]his State favors " individuals ordering and deciding their own interests through contractual arrangements'" (Van Kipnis v Van Kipnis, __ AD3d __, 2007 NY Slip Op 06074, *5 [July 12, 2007], quoting Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001]), and thus, duly executed prenuptial agreements, including agreements executed in a foreign country, are accorded the same presumption of legality as any other contract.
Notwithstanding the fact that wife did not read the agreement written in German and had no legal representation at the time it was signed, the Court declined to set aside the prenuptial agreement, stating

”I]f defendant "did not read or understand the agreement, or have any explanation of the same, his conduct evidenced a degree of carelessness or negligence not to be expected of a sophisticated and mentally brilliant person" (id.). One need not be an attorney or a Fulbright scholar to know the folly of signing a legal document without an understanding of its import.

In short, a Court is not going to excuse you from an agreement you voluntarily sign if you fail to read it. The fact that agreement is written in a language you do not understand is of no import. I wonder if the result have been different if the wife was not well educated?


Husband's Transfer of Separate Property to Wife Declared Wife's Separate Property

Posted by Daniel Clement on October 09, 2007
Thank you to the Prenuptial Agreement Blog for including me in the list of Top Family Law Blogs.

Speaking of prenuptial agreements, a couple of cases addressing prenuptial agreements have been decided by the Appellate Division in recent weeks. Thus, I begin a series of postings addressing these cases.

In the recent case of Selinger v. Selinger, the parties entered into a prenuptial agreement, in which they agreed “to waive any rights in and to the other's separate property, including gifts of land to the other as long as the gift was either evidenced in writing or "such records or the title of the donated property must have been changed into the name of the donee party."

During the course of the marriage, the parties sold a home that husband solely owned prior to the marriage, and purchased a house in Long Island with legal title to that house being placed solely in wife's name. When the home was sold, the sale proceeds, $3.4 million dollars were deposited in the wife’s separate bank account.

The Court ruled that the proceeds were the wife’s separate property.  “By deeding the house to defendant, plaintiff memorialized in writing a gift to his wife pursuant to the clear terms of the prenuptial agreement. . .”

The opinion hints that there was another, but unenforceable agreement executed between the parties, which I bet, obligated the wife to transfer the property or its proceeds back to the husband in the event of divorce.

There certainly was something improper going on that was not directly addressed in the opinion. I am guessing that the transfer to the wife was an attempt to protect the property from the creditors of the husband.

In any event, this case serves as a lesson that a prenuptial agreement will be upheld, even if it results in a wind-fall for one of the parties.

Orders of Protection for Dogs?

Posted by Daniel Clement on October 08, 2007
I previously wrote about custody of dogs in divorce actions.

Now, there is a trend to issue orders of protection in favor of pets. The New York Times reported that in one case in Connecticut, a golden retriever was granted an order of protection against one half of a divorcing couple.

As the police tell it, Cassandra Reynolds pulled up in the driveway of her ex-husband’s home in South Windsor to pick up a few belongings.

A dispute ensued. Her ex-husband’s golden retriever approached her, so she kicked it, the police said. The dog yelped. Ms. Reynolds was arrested.

That was on Sept. 23. The next day, a Superior Court judge ordered Ms. Reynolds, 39, to stay away from her ex-husband and his new wife. The judge also ordered her to stay at least 100 yards away from Riley, the golden retriever — or face up to five years in prison and a fine of up to $5,000.

Not surprisingly, pets, like people, are victims of domestic violence. According to the Times, there is legislation pending in other states, including New York, to allow courts to issue orders of protection in favor of animals. While this may be a noble and even necessary measure, I wonder if there is better way to accomplish the same goal.

As one police officer pointed out, “In a dispute, people tend to fixate on things they know will harm the other person.” Let me preface, my next statement, by saying I am a dog lover and owner. That said, is the case of directing anger against the dog in the incident described in the Times article, much different from smashing the windshield of the spouses car? Aren’t both acts really just displaced anger designed to hurt or terrorize the spouse?

Wouldn’t a better solution be to read and write orders of protection issued in cases of domestic violence broadly to protect both the person and the property of the person? Isn’t the symbolic act of violence directed to the property or pets of a person a threat which should be included in any protective order?

Flat Fee v. The Billable Hour: The Debate Continues

Posted by Daniel Clement on October 03, 2007
My dialogue with Ben Stevens on the merits of billable hour versus the flat fee in a matrimonial action continues.

Let me say at the outset, that I am certainly no fan of the billable hour. For many reasons, I  prefer the flat fee model. The number one reason, it is predictable. With certainty, I can answer the question every client asks, “How much will this matter cost?” When billing on an hourly basis, I can only estimate, giving a meaningless range.

As pointed out in The Billable Hour: Are its Days Numbered, a flat fee may work on more routine stuff, high-volume work or repeat work, but not on “bet the farm work.”  Certainly, a flat fee arrangement lends itself to an uncontested divorce or the negotiation or review of simple marital agreement.

But does the flat fee really lend itself to an emotionally charged and litigated divorce or custody action? Mr. Stevens states that because he charges his client’s a flat fee he is selective in his case selection, agreeing to represent clients, who, for instance are reasonable in their expectations. That, however, is only half the equation. It takes two parties to reach an agreement. What happens if the other party or legal counsel is not acting reasonably?

Mr. Stevens also contends that the billable hour rewards inefficiency and waste. That statement would be true if one were looking to make a “killing” on a single client. I prefer to treat my clients fairly and build my practice by referrals. A client, who feels that he was treated fairly, is the absolute best source of new business. For this reason, it would be shortsighted to invoice a client for needless work or excessive time charges. .

Regardless, I will accept Mr. Stevens challenge and will accept, at least, one new litigated case on a flat fee basis. I will report my thoughts here. Stay tuned.