Divorce Law Journal

Collaborative Divorce Advanced Training AND an Open To The Public Meet And Greet

Last chance to register for tomorrow's collaborative advanced training! Info and press release below. Even if you cannot attend the seminar, the public is invited to meet Pauline Tessler and Peggy Thompson at Sullivan University, 5-7 pm. Here are the details: Download kcfn_networking_event_poster.pdf

New Jersey Same Sex Marriage

What concerned me when I read the news stories about the New Jersey same-sex marriage case was that it was a 4-3 decision. I was worried that the court was so split on the rights due gay partners, that any change in balance of the composition of government would easily upend the decision. I am pleased to report that my angst was misplaced. Here's the decision, Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris We have posted on many same-sex issues on this blog (check categories for all), but our most in-depth one is here.
The Family Law Blog reports, "New Jersey's highest court on Wednesday guaranteed gay couples the same rights as married heterosexuals, but left it up to state lawmakers to decide if such unions can be called marriage. "Times and attitudes have changed," the New Jersey Supreme Court said in a nuanced 90-page ruling certain to fuel America's culture wars ahead of November 7 elections, when eight states will vote on same-sex marriage laws. Advocates on both sides declared varying degrees of victory and disappointment on the latest twist in a battle that has divided the country over issues of gay culture and morality."

Blawg Review

I was tickled to read Online Guide To Mediation will be hosting Blawg Review on February 5, 2007. Our Blawg Review hosting has been postponed to March 26, 2007. I'll tell you the reason a little later; it's pretty funny. In any event it will be great fun and it's great to have a deadline to which to work to kick it up a notch!

Does Arbitration Serve Justice?

In response to an October 22, 2006 Los Angeles Times article, Is Justice Served, Victoria Pynchon is posting a series of arbitration articles. The first is Does Arbitration Disserve Justice? It is followed by Arbitration v. Litigation. For those who have picked up a whet for arbitration information on this blog, stay tuned to her blog by subscribing to its feed or checking often.

Father's Rights

The summer 2006 Family Law Quarterly, Vol. 40, No. 2, released last week, Symposium of Fathers and Family Law, is a must have volume for family law practitioners. $20 plus $3.95 postage will buy you a copy from ABA Service Center, 321 N. Clark St., Chicago, Il 60610.
Thwarted Fathers or Pop-Up-Pops?: How to Determine When Putative Fathers Can Block the Adoption of Their Newborn Children, by Laura Oren must be on your bookshelf, because these cases require urgent advice. Her scholarly article is up-to-date and full of history and authority. She cautions that her thesis presupposes that the United States Supreme Court is highly unlikely to change its position that marriage makes a constitutional difference to parentage.
Recidivism and Paternal Engagement by Solangel Maldonado argues that children benefit when incarcerated fathers are involved in their lives and suggests ways to foster such involvement including imposing parental responsibility upon incarcerated fathers who want visitation.
Sound Research of Wishful Thinking in Child Custody Cases? Lessons from Relocation Law by Carol S. Bruch dissects and critiques much of the research advanced by father's advocacy groups as not standing up to peer-reviewed scientific standards; a must have article for your next Daubert challenge.
Other articles include Framing Contests in Child Custody Disputes by Michele A. Adams, Fathers and Their Children: Legal and Psychological Issues of Joint Custody by Cynthia C. Siebel, Fathers, Gender Conflict, and Family Law: A Multidisciplinary Perspective by Doborah L. Forman, and Family Law and the Indissolubility of Parenthood by Patrick Parkinson.

Judicial Politics: Could Elsewhere be here? And the time for considering judicial appointments is now!

From Kentucky Law Blog, Judicial Politics: Could Elsewhere be here? And the time for considering judicial appointments is now!
"I have heard change seldom occurs without a crisis and seldom without discomfort, but do we need devastation of our judicial landscape before we take the newly added ingredients of political pandering for money and partisanship out of our judicial elections (thanks to the lawsuit by Kentucky Supreme Court candidate Marcus Carey)?
How long do we want a person whom we want to be fair and impartial in dispensing "equal justice for all" to be making personal phone calls to lawyers and potential litigants alike asking for campaign contributions? cultivating a partisan constituency by promoting political party affiliation? announcing positions on abortion, guns, gays, Ten Commandments, and other "hot button" topics that catch the voters' attention and give the impression of their judicial bias before taking the oath to uphold the constitution?
Worse yet, how much longer do we want those judicial candidates who are already sitting judges running for the same or another bench acting in a manner that would otherwise be prohibited if there had been no election?
We currently elect all judges. A constitutional amendment would be required to change elections to some form of an appointment procedure (all or just the appellate judges appointed) with or without a recall procedure and with or without term limits.
Once upon a time judges were senior lawyers with gray hair sharing years of practical experience from the bench. Now many of those gray hairs are being earned while on the bench rather than prior to the bench...
The future of judicial politics may not have reached critical mass, but the foundation of where we are going has been laid and we will be there soon enough. If the concerns do not reach critical in the next two weeks, then they might in the next judicial cycle in four years, or the cycle after that in eight years from now."
Now that partisan party politics can play a legit role in judicial elections, it will be ever more difficult to lobby for such a constitutional amendment. Neither Democrats not Republicans will want to cede their encroachment into the third branch of government, where independence and neutrality is a constitutional cornerstone. The judicial branch may have to fall into crisis and discomfort, as Mike Steven's post suggests, before reform will be forthcoming. It breaks my heart.

HOW TO FIND A DIVORCE ARBITRATOR?

HOW TO FIND A DIVORCE ARBITRATOR?
Easy. Click here for AAML certified arbitrators across the United States. Once you have a name, you can then check out a possible arbitrator's bio and website by going here.

Is He Cheating On You? -- 829 Telltale Signs

Now I read there is an infidelity expert. What will they think of next? Spying on Your Cheating Spouse Could Be Against the Law is the title of an article by Ruth Huston which advises people they can find out if a spouse is cheating by reading her book.
"Infidelity expert Ruth Houston is the author of Is He Cheating on You? -- 829 Telltale Signs and the founder of www.InfidelityAdvice.com She is frequently called on by the media to comment on high-profile infidelity cases and popular infidelity issues in the news, and she has been quoted in the New York Times, the Wall Street Journal, the Los Angeles Times, the New York Post, the Chicago Tribune, Cosmopolitan, the Toronto Sun, the Houston Chronicle, New York Newsday, the Christian Science Monitor, Crain's New York Business, MSN Lifestyle, iVillage, , Newhouse News Service, UPI, Reuters, Entertainment Online, Hollywood Heat, Univision Online and numerous other print and online media.
Houston has been a guest on The Today Show, Good Day New York, Telemundo, Ireland's Late Late Show, BBC, CBC, 1010WINS, Court TV Radio, the Mike Gallagher Show, TalkAmerica, Sirius Satellite, Radio, CN8 and more than 270 other radio and TV talk shows in the United States, Canada, Europe, South America, New Zealand, Australia and the Caribbean."
Huston appears to be a writer; no mental health qualifications appear on her bio.

A Weekend Laugh

It seems like a long time since we've had a long weekend or a weekend laugh. If you agree it's time for something on the light side, check out Sexual Consent Lawyers at Glubert.com. This is a video clip, so here's the link if that works better in your browser: http://glumbert.com/media/consent Thanks to Ed Hamada for posting this to the ABA Family Law Listserve.

DISTINCTION BETWEEN ROLES OF ARBITRATOR AND MEDIATOR

As to outcome, an arbitrator makes the decision and is responsible for the quality of the decision. By contrast, a mediator facilitates parties reaching their own decision and is neutral regarding the outcome. In mediation, parties are responsible for the quality of the decision.
The arbitrator is the enforcer of the process, limits exchange between principals, limits scope of information and communication and assesses facts. A mediator facilitates and encourages exchanges between principals, broadens the scope of information and communication, and helps parties assess facts for themselves.
Finally, an arbitrator is blind with respect to the parties and their backgrounds, has high expertise in rules and high power over the principals. A mediator has high expertise in social process, low power over the principals and may have moderate knowledge of the parties and background.
I cannot imagine arbitrating a case that has not first been mediated. Arbitrators do not replace mediators; they are a substitute for judicial decision-making when mediation has failed.

Courts May Not Enjoin Parents From Collecting on Child Support Arrearage Judgments

The Family Law Prof Blog digests Leopold v. Leopold, 2006 Ala. Civ. App. LEXIS 631 (October 20, 2006). "The Alabama Court of Appeals reversed a trial court's order in a child support modification case in which the trial court had set a repayment schedule for child support arrearages and had then ordered that mother could not pursue any other enforcement actions so long as father was making the court ordered payments. The court of appeals noted that such a restriction on the mother's private collection efforts was in error, especially given the paucity of the repayment schedule the court had ordered."

ARBITRATION IN KENTUCKY DIVORCE CASES?

A blue ribbon faculty led by Lynn P. Burleson of Raleigh, NC and Hanley M. Gurwin, Bloomfield Hills, MI, and assisted by Joan F. Kessler, Milwaukee, WI, Allen R. Koritzinsky, Madison, WI, Barbara K. Runge, Houston, TX and Stephen Schlissel, Mineola, NY, taught their annual arbitration course for the American Academy of Matrimonial Lawyers in Louisville, Kentucky in 2004.
In conjunction with the AAML Annual Meeting in Chicago, there will be an arbitrators’ reunion on Wednesday, November 8, 2006, at 4:00 p.m.
While it is not necessary to have a family law arbitration statute to arbitrate divorce cases, the AAML Board of Govenors approved in 2005 a Model Family Law Arbitration Act. Learning from North Carolina, as we do more divorce arbitration, such tailor-made legislation will be helpful. We are hoping that bi-partisan leaders will embrace the model Family Law Arbitration Act. In these times of budgetary crises, it requires no state funds and as divorce arbitration takes hold, it could lighten the load on our judiciary.
I’ll post more about divorce arbitration soon.
The following Kentucky AAML Fellows were certified as arbitrators:
Mitchell Charney
101 S. Fifth Street, Ste. 3000
Louisville, KY 40202
502-589-4440
502-581-1344 Fax
[email protected]
William L. Hoge III
200 South Seventh Street, Ste. 506
Louisville, KY 40202
502-583-2005
502-583-1233 Fax
[email protected]
Bonnie Brown
401 West Main Street, Ste. 1000
Louisville, KY 40202
502-589-3200
502-589-3219 Fax
[email protected]
Steven J. Kriegshaber
325 West Main Street
2000 Waterfront Plaza
Louisville, KY 40202
502-587-7711
502-587-7756 Fax
[email protected]
Diana L. Skaggs
Diana L. Skaggs + Associates
623 West Main Street
Louisville, KY 40202
502-562-0050
502-582-3523 Fax
[email protected]
Wynter Reneaux Collins
200 South Fifth Street, Ste. 600N
Louisville, KY 40202
502-585-5100
502-589-5257 Fax
[email protected]
Sandra Dawahare
Dawahare & Kershaw LLP
106 West Vine Street,Ste. 304
Lexington, KY 40507
859-381-1145
859-381-1165 Fax
[email protected]

Besides the AAML Fellows certified as arbitrators listed above, the following divorce lawyers and mediators also attended this training:

Shared Parenting: Ultimate Power Tool of a Controlling or Abusive Parent

"What influences women when they are making child custody decisions that will bring them into future contact with a violent or controlling ex-husband? Fear, pragmatism, and the belief--sometimes reinforced in mandated divorce education classes--that their children will suffer if both parents are not in their lives, according to a University of Illinois study in the August Journal of Social and Personal Relationships," reported in Medical News Today, Child Custody With Abusive Ex-spouse? Study Shows How Women Decide
"Women also feared courtroom dynamics and a lengthy custody battle. One participant said, 'Get me into a courtroom where they're going to grill me and ask me questions and it's frightening. I don't like that grilling; it's very reminiscent of what he did to me for many, many years. I didn't fight it. I did like I always do. I backed down,' she continued. 'I thought he was going to drag this out until I'm 100 years old."
Thanks to Janet Jangjahr's Shared Parenting: Ultimate Power Tool of a Controlling or Abusive Parent in her Florida Divorce Law Blog for finding this study.

Same-Sex Marriage

UPDATE:
TRENTON, New Jersey (CNN) "The New Jersey Supreme Court ruled Wednesday that the state's constitution gives gay and lesbian couples all the rights of married heterosexual couples.
But the court left it to the state legislature to decide what to call the relationship.
It gave lawmakers 180 days to either include gay and lesbian couples in the state's existing marriage laws or grant those rights under the title civil unions."
Forbes:"New Jersey's highest court opened the door Wednesday to making the state the second in the nation to allow gay marriage, ruling that lawmakers must offer homosexuals either marriage or something like it, such as civil unions.
In a ruling that fell short of what either side wanted or feared, the state Supreme Court declared 4-3 that homosexual couples are entitled to the same rights as heterosexual ones. The justices gave lawmakers 180 days to rewrite the laws.
The ruling is similar to the 1999 high-court ruling in Vermont that led the state to create civil unions, which confer all of the rights and benefits available to married couples under state law."
The Family Law Prof Blog, posted last week on Same-Sex Marriage Ballot Questions from a New York Times Article by Kirk Johnson, "The debate over same-sex marriage was a black-or-white proposition two years ago when voters in 11 states barred gay couples from marrying. But this year shades of gray are everywhere, as eight more states consider similar ballot measures. Some of the proposed bans are struggling in the polls, and the issue of same-sex marriage itself has largely failed to rouse conservative voters. In some cases, other issues, like the war in Iraq and ethics in Washington, have seized voters’ attention. But the biggest change, people on both sides of the issue say, is that supporters of same-sex marriage this year are likely to be as mobilized as the opponents."
Today, there will be a New Jersey court ruling on the issue:
By THE ASSOCIATED PRESS
Published: October 25, 2006
MOUNT LAUREL, N.J. (AP) -- New Jersey could become the nation's gay wedding chapel should the state's highest court rule in favor of same-sex marriages, adversaries on the issue agree.
The New Jersey Supreme Court is poised to release its highly anticipated decision Wednesday in a case brought by seven gay couples who say the state constitution allows them to marry, said Winnie Comfort, a spokeswoman for the state judiciary.
New Jersey is one of only five states with neither a law nor a state constitutional amendment blocking same-sex marriage. As a result, the state is more likely than others to allow gays to wed, said advocacy groups on both sides.
Only Massachusetts -- by virtue of a 2003 ruling from that state's top court -- allows gay marriages.
Proponents and opponents from across the country are watching the case closely.
''New Jersey is a stepping stone,'' said Matt Daniels, president of the Virginia-based Alliance for Marriage, a group pushing for an amendment to the federal Constitution to outlaw same-sex marriage. ''It's not about New Jersey.''
From a practical standpoint, the Massachusetts court decision made little impact nationally because the state has a law barring out-of-state couples from wedding there if their marriages would not be recognized in their home states.
New Jersey has no such law.
People on both sides of the issue expect a victory for same-sex unions would make New Jersey a destination for gay couples from around the country who want to get married. Some of those couples could return home and sue to have their marriages recognized.

THE ADVANTAGES AND DISADVANTAGES OF DIVORCE ARBITRATION

Advantages of divorce law arbitration include:
Ability of participants to decide who will be their judge. Parties can select an arbitrator with particular expertise, such as business valuation, retirement plans, tax, nonmarital tracing issues, mental health, etc.
More privacy.
Quicker trial dates and pre-arbitration conferences, which also may result in less expense and tension.
Swiftness of decision making.
Less formal.
The arbitrator has all the time you need to put on your case.
Disadvantages voiced by some include:
Perception that there cannot be binding child custody decision. (Maybe but not necessarily true; usually are subject to trial de novo if the court concludes the award is contrary to a child’s best interest.)
Beliefs that parties are not protected by rules permitting discovery and required financial disclosure. Under the Uniform Arbitration Act mechanisms for disclosure are provided and in the arbitration agreements parties may have the arbitrator supervise the discovery, or the parties may complete discovery and then arbitrate.
Fears that the arbitrator will be able to ignore the law. While an arbitrator’s mistake of law does not generally provide a basis for refusing to confirm an award, the parties can agree that the arbitrator will be bound by the substantive law of the state.
Inability of the arbitrator to enforce an award. Awards are tendered to the court and after confirming the award, all remedies for enforcement are available in court as with any other judgment.
The parties must pay for the arbitrator’s time.

No Duty to Disclose Pending Sales Discussions of Property in Divorce Settlement

Oh, dear; this cannot be good public policy. Divorce courts should be requiring no-holds-barred open disclosure. This decision will create or perpetuate a culture of trickery in litigation.
It is beyond comprehension that the sale of business for $225 million could take place in one month. When the seller signed this divorce agreement he had to have known there was a buyer in the wings or a contract pending. Those of us doing divorce work for many years would probably be willing to bet our homes that the deal was really done long before, but pen not put to paper until the divorce was a done deal. How often is the non-owner supposed to do discovery? Must we negotiate a deal, then take a final round of depositions? Sorry to report two poor decisions in the same week.
Here's the entire digest of Kojovic v. Goldman, NY App. Div. October 19, 2006.from the Family Law Prof Blog:
"The New York Court of Appeals dismissed an action to set aside a divorce settlement in a high-dollar divorce between Actress Lora Kojovic and her husband Neal Goldman, who owned a minority share of an Internet information service Capital IQ. Wife signed a divorce settlement agreement in August 2004 that gave her nearly $1.5 million. However, about one month later, Standard & Poor's purchased her husband's company for $225 million, with his share being $18 million. Wife then brought an action to set aside the settlement agreement on the basis of fraud and unconscionability.
Wife argued that husband affirmatively misrepresented the liquidity of the company and the talks that were underway for purchase of the company. However, the court disagreed, finding that husband had disclosed the assets and that it was up to wife to inquire further. However, wife, who had been represented by counsel in negotiating the agreement, had acknowledged that she had the right to inquire

HOW DIVORCE ARBITRATION WORKS

HOW DIVORCE ARBITRATION WORKS is the first in a series of family law arbitration posts.
An agreement to arbitrate fixes the power of the arbitrator, the degree of trial court and appellate review, compensation of the arbitrator, and the discovery process. The arbitration hearing is generally more informal than a court trial, but the proceedings are recorded and result in a written order tendered by the arbitrator to the trial court judge along with findings of fact and conclusions of law. As with motions to alter, amend or vacate, parties to the arbitration may move for amendment within the time set out in the arbitration agreement.
Arbitration awards may be more difficult to appeal, except for child related matters, than trial court judgments, depending upon the agreement of the parties within the arbitration agreement.
Stay tuned for more.

Mediation Law Takes Turn For The Worse

The California case of Simmons v. Ghaderi is upsetting all we thought we knew about mediation. A few quotes from the case:
"In Dr. Ghaderi's trial brief she argued that the mediation confidentiality rules codified in Evidence Code section 1115 et seq., and in particular Evidence Code section 1119, made inadmissible all evidence of an oral contract. Dr. Ghaderi argued, 'the law of the State of California does not permit discussions at a mediation or documents generated thereat to be introduced at trial to prove that an agreement was created there.' Dr. Ghaderi filed a formal objection to plaintiffs' evidence in which she objected to 'any and all testimony and/or documentary evidence concerning the any [sic] mediation held in this action . . . pursuant to California Evidence Code, section 1119, et seq. and Ryan v. Garcia (1994) 27 Cal.App.4th 1006.' Dr. Ghaderi asserted that plaintiffs could not prove the existence of an oral contract to settle the medical malpractice case because any proof would violate the confidentiality of mediation." Nevertheless, an oral agreement was upheld, even though Dr. Ghaderi had revoked it prior to any agreement being signed.
Judge Aldridge's dissent sets forth the law as every lawyer and mediator I know believes it to be. It will be interesting to see if appellate courts in other states will entertain such challenges. What went really wrong here was the attempt (even though successful) to enforce a mediated agreement that was not memorialized. Mediation is not finished until there is a signed agreement.
You Say Estoppel, I Say Waiver; let's call the whole thing wrong -- another look at Simmons v. Ghaderi is Victoria Pynchon's post. I would have chalked this case up to mediation being new (in the slow moving area of law) but for Vickie's comment: "As a different panel in the same District ruled just three years ago in Eisendrath v. Superior Court (2003) 109 Cal.App.4th 351, 360, 'parties to mediation proceedings cannot impliedly waive the protections of the mediation confidentiality statutes contained in sections 1115

Reciprocal Enforcement Of Foreign Support

What to do when your client receives a Notice of Registration of Enforcement of Foreign Support Order? The registration can be contested on several grounds including that the court lacked jurisdiction or lack of notice. Defenses must be raised at the time of registration or are lost.
Click here for reciprocal agreements between U.S. Government and foreign governments establishing due process.
Agreements between individual states and other foreign governments (and other useful state-by-state child support info)are here:
For example, Kentucky has declared reciprocity with Australia, ten Canadian provinces, Czech Republic, France, Germany, Ireland, Jamaica, Japan, Mexico, Netherlands, Norway, Poland, Portugal, Slovak Republic, Sweden, Switzerland and United Kingdom (England, Wales, Scotland , Northern Ireland and Isle of Man).

Gary Lowen Calls Another "You Piss Me Off" Dinner

It's time for another "You Piss Me Off Dinner." It will be November 14, 2006 at Austin's, near Holiday Manor, Louisville, KY 5-8 pm. As usual, Gary Lowen has solicited a number of attorneys to pay for the dinner and there will be a cash bar. It is always a lot of fun.
Gary Lowen has done more than any other Louisville attorney I know to improve the collegiality of family lawyers. For 15 years he has welcomed all who will travel with him to Mississippi the first weekend of October, to listen to great blues (and experience the civil rights sites), with the larger aim of creating a community among the lawyers. Then, as he thinks we need them, he organizes these "You Piss Me Off" dinners. Originally they were a venue to lay it out to offenders why spending thousands of dollars of client money to prove $200 in additional monthly income which only translates to a 12cent increase in monthly child support is just stupid. Some just have to be told!
As we reported previously, these dinners have turned into lighter affairs and less confrontation actually takes place these days. Yet, I'm sure Gary is thinking about how to remedy that. They are great fun if we are taking others to task, and they are also fun if we are nurturing or establishing friendships.
The LBA has issued a call for nominations for its annual awards, and I urge you to join me in nominating Gary for the Benjamin Shobe Professionalism award for 2006. Nominations may be sent to Kimberly K. Farmer, LBA Executive Director at [email protected].
P.S. Gary Lowen not only lacks a website, but he has no email address and is proud of it. But, he does answer his phone calls!

The Relationship of Biology to Legal Fatherhood

The Relationship of Biology to Legal Fatherhood: Two New Cases Show Courts Struggling to Find a Coherent Approach, As Non-Biological Fathers Fight for Their Rights to Children
Decided the same week as the Kentucky Court Appeals case of Hinshaw v. Hinsaw was a Tennessee decision, In Re: T.K.Y., which held for the bio-dad rather than the husband. Joanna Grossman, professor of law at Hofstra University digests both cases and points out a big factual difference: the bio-dad in Tennessee wanted to be named the legal father, while in Hinshaw the alleged bio-dad never stepped up to the plate. The Hinshaw case is not final; a motion for discretionary review by the Kentucky Supreme Court is pending.

Impasse and the Threatened Walk Out

One of the reasons I like writing this blawg is that I learn so much. Just as teaching a CLE is the best way to learn a topic thoroughly, researching online resources and posting about them is a discipline that brings much more information across my desk than I would otherwise discover.
A printout of The Threatened Walk Out has been sitting in my inbox waiting to be blogged. As I went to Diana Mercer's website, PeaceTalks, I found another gem, Impasse In Negotiation. In fact, the entire "for professionals" section of the website is useful and the concept of a combo lawyer-therapist mediation service is interesting.

AAML Chicago Seminar

You need not be an Academy Fellow to attend the outstanding seminars the AAML holds each November in Chicago and each March in some warm paradise. Attached is the registration form and here are some of the topics:
Thursday, November 9, 2006 Professor Robert Mnookin from Harvard will present Negotiation Techniques by the Expert
Friday, November 10, 2006 includes a program on alienation, Children Held Hostage
Saturday, November 11, 2006 will be devoted to tracing of assets and an update on same sex marriage and same sex unions.

NITA Family Law Advocacy Course

Modern Divorce Advocacy course marks NITA’s first foray into family law. I'd be very interested in hearing about the program from attendees. The excellent ABA Family Law Trial Advocacy Institute about which we've posted has such a limited enrollment that other such national programs are needed. Here's the NITA press release:
Louisville, Colo. (PRWEB) October 16, 2006 -- The National Institute for Trial Advocacy (NITA), recognized for more than 35 years as the nation’s leading provider of litigation skills training, today announced it is launching a new client advocacy initiative that employs NITA’s established learning-by-doing teaching techniques to train lawyers and other professionals to effectively represent clients throughout a divorce process. This innovative program marks NITA’s inaugural leap into mediation representation specifically for family law disputes.
“Divorce is such a multifaceted issue. There are complex ethical, financial and psychological components that attorneys, mediators, psychologists and financial experts must first understand in order to successfully advocate for affected clients,” program director and instructor Andrew Schepard said. “Whether in the courtroom or the mediation room, NITA’s experiential training methodology will prepare practitioners serving divorce clients for elements such as the presence of children, continuing relationships between spouses after divorce and the intense emotions that are unique to the marital dissolution process.”

ABA Family Law Section Seminar

Here's the registration form and the following is the line up for the ABA Family Law Section Seminar October 25-28, 2006 in Santa Fe:
Plenary Sessions:
Efficient Divorce Practice in the 21st Century:
Using Financial Advisors With Any Budget
A panel including financial advisors will explore strategies to use advisors in domestic relations matters and approaches to business valuation and lifestyle.
Phoenix Rising: Rebirth of a Family Law Practice
Learn to use new technologies to prepare for office and community level disasters and rebound quickly when disaster strikes.
The Art of Persuasion
This panel will teach you how to effectively present your client's position, both in oral and written form.
Committee CLE Programs:
Parent Coordinators: Who Are They and Can They Help?
Law Practice Marketing For Those Who Don't Like Marketing
The Second Season: Spending the Gold in the Golden Years
The Indian Child Welfare Act: What You Need to Know
The Role of the Lawyer in Relation to the Client: Boss, Humble Servant or Dr. Phil
Evidence Cranium
Bankruptcy: One Year Later
Defending the Accused: What to Do When Your Client is Accused of Domestic Violence
Avoiding Malpractice Pitfalls and Other Serious Legal Difficulties

Women's Negotiating Styles And Reluctances

From Victoria Pynchon: "I just noticed this post & agree with what you say. I, too, feel the tension between negotiation and mediation. As my friend and mentor Ken Cloke says, there are 5 responses to conflict -- conflict avoidance, conflict suppression, conflict resolution, conflict transformation, and conflict transcendence. As women, we are trained by the culture to avoid and suppress conflict. This is one of the reasons why we chronically fail to negotiate on our own behalf -- bigger salaries, more time off, better working conditions, etc. In the case of marital dissolution, I wouldn't be surprised to find that protecting the children AND the estranged partner often trumps being willing to engage in tough negotiation tactics that will ensure a better (not worse!) future for the children. I'd be interested in hearing anything you or your readers know about this. For more on women's negotiating styles and reluctances, see http://womenlawnet.blogspot.com."
I went to that site and found this great article from Women Don't Ask: Negotiation and the Gender Divide.
Any takers on letting me and Victoria know what you know about this?

Expected Inheritance: Divorce Relevancy

An Alaska case last month is causing quite a stir.
Krize v. Krize, Alaska Supreme Court, September 29, 2006
"Where the beneficiary remains on generally good terms with the donor, and particularly where the donor is a parent or other close family member, it is a rare case where the expected gift or inheritance will completely fail to yield any benefits at all. The better position, therefore is that the court may consider an expected gift or inheritance as one relevant factor in dividing the marital estate. Of course, the weight of a future gift or inheritance as a division factor should depend heavily upon the degree of likelihood that benefits will actually be received...
We therefore conclude that it is not inherently improper for a court to consider the possibility of inheritance in some cases. Because property divisions cannot be reopened, however, courts must be cautious in using this factor. On remand, the court should permit further discovery on this issue and on the extent to which Robert's interests have vested. Interests that have already vested may be considered as an asset of the beneficiary when the superior court divides the property."

Family Court Forum

On Friday, October 20, 12-1, the Jury Assembly Room, Judicial Center, Louisville, KY is the place to be for the Jefferson Circuit Court, Family Division Forum. These periodic forums are invaluable exchanges between the family court bench and bar. There's always some news and a genuine feeling that feedback is appreciated.

Comments: Fees For Guardians Ad Litem

Comments to our post, Fees For Guardian Ad Litem:
"I wanted to inform your readers that I personally do not deserve all of the credit for "leading" this litigation. Joe Elder filed the origninal motion to hold the Cabinet in contempt of court. Other lawyers who have joined the cause are Chris Harrell, Dana Kolter, Cathy Wallace, and Elizabeth Bricking. Additionally, Richard Porter has litigated this issue in another division which resulted in the Cabinet being already held in contempt of Court for this identical issue.
It just seems less than fair for me to get the attention when it has been a true team effort.
John Helmers."
And From Carolyn Elfant:
" I think that when many of these court appointed programs were set up, the legislature contemplated that attorneys would be handling a case or two pro bono, rather than trying to earn a living off representation. Of course, this isn't a very realistic model for ensuring competent representation. I think what also happens in many cases where courts implement flat fees is that they discover that a few attorneys have abused the system, and they react by punishing everyone - not just attorneys, but the clients they represent."

Fees For Guardians Ad Litem

It seems there are a few misconceptions out there about the Louisville, KY contempt motion heard this week against the Kentucky Finance and Administration Cabinet. The Courier-Journal headline reads Lawyers Seeking Higher State Fees
'There are 30 lawyers who represent children in abuse and neglect cases in Jefferson County's 10 Family Court divisions, and 40 more who represent indigent parents.
In the 12 months ending June 30, 3,592 new petitions were filed in abuse, neglect and dependency cases, the most in the 15-year history of Jefferson Family Court, said Jim Birmingham, the court's administrator.
Children in such cases by law must be appointed lawyers; judges may also appoint them for poor parents. The attorneys appear in court one day each week."
If I were a reader outside the system I would calculate, 3592 new cases in a year, 30 lawyers who are in court only one day per week, times $500 per case for the children = $65,866.67 per year per attorney, not bad for a day's work per week per year with little to no overhead!
This is not the case.
First, let's clear up that it is not the appointed attorneys for children who are seeking higher fees. While the statutory cap is $500 per case, for many years when a case is reopened for any number of changed circumstances, the appointed attorneys were paid for their time as if it were a new case. What changed is that the state stopped paying the fees for reopened cases, as I understand it.
While the attorneys are scheduled for one day per week in court, that is not indicative of the time spent on these cases. Further, in many cases the lawyers are paid less than $500.
Many of these attorneys are experienced, talented lawyers, precisely what we would insist upon for the representation of children otherwise without a voice.
As to the time incurred, I cannot say that I have ever done any volume of work in dependency court. What I have seen, however, is the most dedicated of professionals working all ours of the night and weekends. For example, during a custody dispute, dad accused mom's new husband of sexual abuse of one of the children. A Guardian Ad Litem was appointed (we won't discuss here the authority of the court to appoint a GAL in a custody dispute) to represent the children, who was luckily one of the GALs for that division's dependency docket. During a supervised visit, mom discovered bruising and whelps caused by dad's beating one of the children with a belt. She and the supervisor called the GAL, on an evening weekend, as I recall. The GAL raced downtown, took the children to Home Of The Innocents (since mom was still under investigation), calmed them down, eased their fears, talked about how fun Camp HOI was, and worked with the family in the resulting dependency action for many, many months through temporary out-of-county grandparent temporary placement to eventual parent stabilization and reunification.
How many attorneys would do this for $500? I'm still smarting over the $10,000+ in fees the parent I represented couldn't pay. Then, when problems recur and the case is reopened, who would you want appointed to represent those kids? The lawyer they already know, of course. But, if it is a reopening and the lawyer has already been paid $500, the state will say today, "sorry, you have already received your fee."
We need competent attorneys to do this grueling work. It is too bad we have already lost Teresa Kinberger, former head ot the Guardians Ad Litem Association who says the state is basically asking the GALs to work for free. Kudos to John Helmers and the other lawyers who are bringing this to a head. And, Chief Judge Stephen George was wise to make this hearing public even though abuse and dependency cases are confidential. While we don't agree that the Courier-Journal article fully lays out the competing concerns, it is a matter before the court of which the public has a right to be aware.
The Kentucky Law Blog also posted about this story.

Fifty Ways NOT To Leave Your Lover, And If That Doesn't Work, Good Mental Health Tips

J. Benjamin Stevens at South Carolina Family Law Blog posts today the last of a weekly five-part series, 50 Ways Not To Leave Your Lover, written by Dr. Trey Kuhne a pastoral counselor and licensed marriage and family therapist with Pathways Pastoral Counseling in Spartanburg, SC. In the final post, he links to the first four.
Ben often writes about mental health issues in marriage and divorce. Some of his other recent posts are Talking to Kids About Domestic Violence, An Emotional Survival Guide For Teens, Part One and Part Two, Effect of Divorce on Mental Health of Children, Children Need Their Grandparents After Divorce, and At What Age Can a Child Hear Details of Your Divorce.
Although South Carolina based, most of his posts are worthwhile reading for professionals everywhere who deal with families and children.

Surge In Prenuptial Agreements

Survey of Nation's Top Divorce Lawyers Reveals Surge In Prenuptial Agreements
Prenups Most Popular With Baby Boomers

CHICAGO, Oct. 10 /PRNewswire/ -- An overwhelming 80% of divorce attorneys cited an increase in prenuptial agreements during the past five years in a recent poll of American Academy of Matrimonial Lawyer (AAML) members. In addition, 65% of those surveyed answered that prenuptial agreements are most often sought by men and women in the age range of 40-60 years old, revealing that people in the Baby Boomer generation are currently the most likely to request the contracts.

"It can be a sensitive subject, but in the same way you would discuss your future goals and dreams with a partner, prenuptial agreements can often represent the best way to ensure the needs of both parties are considered in the event of divorce," said Cheryl Lynn Hepfer, president of the AAML. "A married couple hopes never to have to enforce the terms of a prenup, but they also realize divorce proceedings could be much more unpleasant without such an agreement in place."

In a survey question that asked about the strangest items included in prenuptial agreements, 31% of the attorneys noted provisions being made for a family pet, while some of the lawyers shared even more offbeat areas that have been addressed. These unique agreements have included adultery penalties, terms for frequency of intimacy, limitations on weight gain, and schedules for housekeeping.

About AAML:
Founded in 1962, The American Academy of Matrimonial Lawyers (AAML) is committed to encouraging the study, improving the practice, elevating the standards, and advancing the cause of matrimonial law, in order to better protect the welfare of American families.
Comprised of the top 1,600 matrimonial attorneys throughout the nation, members are recognized experts in the specialized areas of matrimonial law, including divorce, prenuptial agreements, legal separation, annulment, custody, property valuation and division, support, and the rights of unmarried couples.

Is Subchapter S Pass-through Income Counted For Child Support Purposes?

Many a corporation owner argues that pass-through income from a subchapter S corporation should not be included for child support purposes because it is not distributed and therefore it is not an available source from which to pay child support. The Sub-S company usually distributes an amount equal to the estimated personal income taxes that have to be paid on the corporate earnings, but makes greater distributions only periodically when the company is able.
Walker v. Grow was decided by the Maryland Court of Special Appeals last month, holding that the burden is on the shareholder seeking to exclude pass-though income to prove that the income is necessary to be retained to fund necessary business related investments. SupportGuidelines.com has a nice article posted that surveys earlier law across the county on this issue.

More Discussion About Grandparent Visitation

The Family Law Prof Blog reports: "Many thought the U.S. Supreme Court had essentially settled this issue in 2000 when it ruled that Tommie Granville, a mother in Washington state, could limit to once a month her two girls' contact with their paternal grandparents after the girls' father had committed suicide. But the issue is flaring anew. The highest courts of Pennsylvania, Utah and Colorado recently ordered grandparent visits in disputes strikingly similar to the 2000 case." They link to a USA Today.com Yahoo news report of October 5, 2006, Court Fights Hurt Children.
We posted about these cases here. Marcia Oddi at IndianaLawBlog posted about them here.

Should Mental Health Professionals Make Child Placement and Parenting Recommendations?

Empirical Forensic Model: Conjectures and Refutations by Timothy M. Tippins and Jeffrey P. Wittmann appeared in the New York Law Journal Online yesterday. The issue is not new, with the same authors writing about it last year. What we are not seeing are many Daubert challenges locally nor specific motions to delineate what the task at hand is ordered to be for the psychologist appointed by the court. Practitioners need to be aware in the child custody litigation arena that there is little scientific data to support evaluators making ultimate recommendations. Experienced practitioners, after working up the custody case, can usually pretty well predict how their client will fare in such an evaluation and what the recommendation is likely to be, especially when the evaluators' work has been seen in many other cases, so there may be times you want a recommendation. (I have long said lawyers should receive a prescription pad with their license!) If you are opposing such a party, or you know your client will fare poorly, or you just don't know, there is plenty of ground to exclude an opinion on the ultimate question. The better practice is, however, to move that no such recommendation be made. Once the cat's out of the bag, well, ...
Here are some quotes from the New York Law Journal article by New York attorney Timothy M. Tippins and Dr. Jeffrey P. Wittmann:
"Simply, there is no evidence whatever which shows that evaluators can competently and accurately make the prediction implicit in a best interest recommendation. No existing responsible scholar or commentator suggests that there is. Not even defenders of the status quo claim that such research exists. If it existed, they would cite it. They don't. They do not-and cannot even cite to research that proves a mental health professional's opinion on the decisive best interest question is any more accurate than the opinion of a layperson. Instead, they argue assumptions and indulge pretenses of superiority….

Stretch, Just A Little

Watch with me as the Pacific Rim mediation conference unfolds in New Zealand NEXT September. I am no talent scout, but I have to say I am very impressed with Geoff Sharp's mediation thinking and passion. I am tempted to lightly pencil it in the book, far flung as it may seem. Here's the trailer from Mediator Blah Blah:
"Where The Bloody Hell Are You?
Advance Notice - fill in that whitespace for September '07 (get outta here! no one believes you're booked up already)
The Pacific Rim's most important gathering of mediators will take place in beautiful Wellington, New Zealand September 19th - 21st 2007.
It's LEADR's 10th Mediation Conference and it's the main event for us Australasian (= New Zealand & Australia) mediators.
We'll have a MediationTech/into the future stream, a Government/Public Sector track and plenty more.
We'll meet with you at our iconic National Museum, Te Papa, overlooking the Wellington harbour.
More information when LEADR's got a conference site up.
Come see us, talk with us - we've poured you a beer."
How can you not love this guy? Mediation is a process used world wide. As our cultures mesh and as technology makes all the world's people so near, seems to me a regional meeting anywhere in the world where good thinking is going on is a viable continuing education possibility.

Church Therapists: Privileged Communication?

The New York Times published an article by Ralph Blumenthal last week about a lawsuit against a church therapist who disclosed the wife's infidelities. The Texas Supreme Court is poised to consider the issue. I breezed by the column a few days ago, but then decided to revisit posting here as I considered that many mega-churches have in-house psychologists who do marriage counseling as well as personal counseling.
"Peggy Lee Penley’s marriage was going sour when she turned to her pastor. They had been friends for years and had started a Bible church together in Fort Worth. He was more than Ms. Penley’s spiritual shepherd, also serving as a licensed professional counselor, and had helped her before.
But Ms. Penley says that after she confided her sexual relationship with another man and her plans for divorce, the pastor, C. L. Westbrook Jr., disclosed her “biblically inappropriate relationship” to church elders. Mr. Westbrook eventually informed the full congregation of the church, CrossLand Community Bible, she says, shaming her publicly and urging members to discipline her by shunning her.
In 2001, Ms. Penley sued her pastor for defamation and negligence, saying he had violated his responsibilities as a professional counselor. Her lawsuit has attracted considerable attention from church groups trying to prevent court intervention in religious matters. The case went before the Texas Supreme Court on Tuesday, and the outcome will once again help define the evolving line between church and state."
Word to the wise: Until the law in this area is sorted out, advise your clients to be careful in whom they confide!

Stopping Vexatious Litigation After Divorce

An attorney spouse brought multiple lawsuits against his ex-wife, her family, as well as several lawyers and judges. Finally, in Davey v. Dolan, 2006 U.S. Dist. LEXIS 68960 (September 26, 2006), digested by the Family Law Prof Blog, " the US District Court for the Southern District of New York not only dismissed all the claims for failure to state a claim or on the basis of res judicata, but also sanctioned the attorney. Under the court's inherent authority and the authority of 28 U.S.C. § 1927, the Court ordered husband to pay the reasonable costs, expenses, and attorneys' fees incurred by the defendants in responding to the action and permanently enjoined him from "(1) pursuing further federal litigation that in any way relates to any matter arising out of his matrimonial dispute without first obtaining the authorization of the District Court, and (2) pursuing further state litigation that in any way relates to any matter arising out of his matrimonial dispute without appending this Court's opinion and order of injunction to his first filings."
That federal statute provides: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.
Civil Rule 11 would have supported the same fee shifting result, and in most states is not limited to attorneys. I would love to see the legal analysis of the injunctive relief. If anyone has access to the opinion or briefs, please pass them on and I will do an update.

New Category: Negotiation; Inaugural Post About Anchoring

You will notice a new category to this blawg, negotiation. Prior mediation posts have contained negotiation tips, but they are really two separate animals and each deserves attention. Victoria Pynchon's post, Anchoring Redux, jokingly referring to "Kumbya University" brought this in focus for me.
"Although we are often told that only "reasonable" first offers influence negotiation outcomes, I am unaware of the existence of any research to support this dictum. Unfortunately, I suspect that the "reasonable first offer" theory is from the Graduate School of Feeling Good About Ourselves at Kumbya University."
Victoria summarizes Adam Galinsky's studies. He is a Kellogg Graduate School of Management Professor. His conclusion is that people aren't aggressive enough in their opening offers.
"MAKING THE FIRST OFFER
The author found that when a seller makes the first offer, the final settlement price tends to be higher than when the buyer makes the first offer. The amount of the first offer affects the outcome, with more aggressive or extreme first offers leading to a better outcome for the person who made the offer. Initial offers better predict final settlement prices than subsequent concessionary behaviors do.
HOW EXTREME CAN IT BE?
The author's research suggests that first offers should be quite aggressive but not absurdly so. The fear that an aggressive first offer will scare or annoy the other side and perhaps even cause him to walk away in disgust is typically exaggerated. Most negotiators make first offers that are not aggressive enough.
A nonaggressive first offer requires small concessions or a decision to stand by the original demand. Because one of the best predictors of negotiator satisfaction is the number and size of the concessions extracted from an opponent, aggressive first offers give your opponent the satisfaction of extracting significant concessions from you. In that case, you'll not only get a better outcome, but you'll also increase the other side's satisfaction.
For the full text of this article, see "When to Make the First Offer in Negotiations" from Negotiation, July 2004, by Adam D. Galinsky , an assistant professor at Northwestern University's Kellogg Graduate School of Management, in Evanston, Illinois."

Transition now to divorce negotiation. As an advocate you want a better outcome for your client, and increasing the other side's satisfaction has to be a huge plus, especially where the parties have the ongoing responsibility to raise children. Solid negotiation skills benefit the process, but you won't learn those at Kumbya U. Some attorneys, particularly some less experienced. are eager to avoid the blood and guts of not only litigation, but of difficult negotiation. No can do. In the family law arena we see little negotiation CLE. We must step out of our element to learn how to negotiate and keep up with advances in negotiation theory and techniques.

Divorce Tax Tips

Tax errors in divorce agreements are costly: Here's how to avoid them is the title of an article by Eva Rosenberg, in Dow Jones MarketWatch.
Lynne Gold-Bikin from Norristown, Penn, and an AAML Fellow, points out some frequent tax problems in divorce.
"Alimony recapture can be a common problem, cautions Gold-Bikin.
IRS Publication 504 explains what the recapture is: "You are subject to the recapture rule in the third year if the alimony you pay in the third year decreases by more than $15,000 from the second year or the alimony you pay in the second and third years decreases significantly from the alimony you pay in the first year."
Why is this recapture needed if the divorce agreement is properly drafted? Gold-Bikin said this often happens when the alimony payments aren't made on schedule. If several payments are missed in one year, then made up in another year, it's easy to see that $15,000 swing take place. Or if payments are stopped altogether and there haven't been three years of regular alimony payments, that would also trigger the recapture.
Why does this matter? Because the person paying the alimony will lose the deduction. And the person who received the money may go back and file amended returns for all the alimony years - and get refunds. Read that last sentence again if you're dealing with a deadbeat former spouse. You may have a refund coming!
How can you avoid this problem? Gold-Bikin recommends you adhere to the alimony payment schedule.
When the divorce decree awards family support without spelling out which part is for child support and which is for spousal support, it's all taxable to the recipient as alimony, and deductible to the payer, says Gold-Bikin. This the result of a 2005 Tax Court decision in Berry v. Commissioner.
What about a spouse who is asked to sign a joint return while the divorce action is pending?
"Gold-Bikin says it's as easy as 1-2-3.
• Get an indemnification letter as part of the divorce, making your ex responsible for his/her share of all taxes. And be sure that indemnification letter includes specific instructions for how any refunds are to be allocated. While IRS may not honor the agreement between the two of you, it does give you a basis to sue your ex, if you're ever stuck paying his or her share of the tax.
• Don't ever sign a balance-due tax return without getting a certified check to pay your ex's share in full. Don't rely on promises from your ex or his/her attorney. They're rarely fulfilled.
• If there is a refund coming, use IRS's new Form 8888 that allows you to have the refunds split up in any pre-determined allocation, and deposited directly to two different bank accounts."
Another frequent problem is that "assets appear to be evenly split based on fair market value. Everything looks all nice and equitable, but one person just got stuck with all the taxable assets, while the other walked off tax-free."

Void As To Public Policy: Child Support Not Dependant On Child's Placement and Waiver Of Arrearages

A Wisconsin decision in Motte v. Motte, 2006 Wisc. App. LEXIS 880 (September 27, 2006) held agreements waiving child support arrearages or estopping parents from asking for modification if children change residence are void as against public policy. The Family Law Prof Blog digests the opinion.

Contributing To Judicial Campaigns

In the wake of The New York Times Sunday October 1, 2006 front page story Campaign Cash Mirrors a High Court's Rulings, reprinted in The Courier-Journal Judicial Campaign Ethics Questioned, it's time to talk about Citizens For Better Judges. Non-members may subscribe to its principles, make contributions to it, and refuse to contribute directly to any judicial campaign. CBJ makes endorsements in Jefferson County, Kentucky judicial races and publicizes its endorsements.
What is Citizens For Better Judges?
"Citizens For Better Judges was organized in January, 1983, in an effort to maintain and improve the quality of the judiciary by promoting the election of only the most highly qualified judicial candidates. It consists of a 27-member Steering Committee made up of lawyers who are all involved in litigation practice but concentrate in different fields of law, and a Citizens Review Board consisting of a cross-section of community-minded citizens with diverse occupations and backgrounds. Additionally, the organization has an Advisory Board made up of the past chairs of Citizens For Better Judges.
Each candidate for judicial office is personally interviewed by the Steering Committee. After the interviews have been completed, the Steering Committee members consider the information obtained during the interviews and share their personal knowledge of the candidates. Lay members of the Citizens Review Board are present to monitor the interviews and the integrity of the endorsement process. The Citizens Review Board must approve the endorsements recommended by the Steering Committee."
The CBJ website contains its history, a list of its current members and officers, and its endorsements in the current local judicial races.
Whether an individual agrees that CBJ endorsed the best candidate is a given race is far less important than maintaining respect for the judiciary. So long as states insist on electing judges, studies showing that attorneys and litigants who contribute to candidates are trying to "buy a vote" in a case, and worse that a high percentage of judicial rulings favor those contributors, make change required. Moreover, how can funding campaigns where the dollars go to advertising inform the electorate? Those contributions are better spent publicizing informed endorsements to a population who has little knowledge of a candidate's qualifications.
CBJ members serve three years then rotate off. I have served for many years, but this is my "off year." Nevertheless CBJ will be the only recipient of my campaign contribution. You can join me by sending your check to CBJ c/o Susan Phillips, treasurer, 716 W. Main Street, Louisville, KY 40202.