The immediate prompt for this brief article is the report on February 23, 2013 that Tiger Woods and his ex -wife Elin Nordegren were spotted at an event where they spoke together not for 30 seconds but 30 minutes.  In one sense this is not newsworthy at all but during the week, I had a spate of cases where I know the parents or friends and family of recently separated couples and where the parents/friends/family always knew that this marriage could not last and/or the couple never belonged together or he/she changed and is now unworthy of the friend or family member. This happens every day but when it happens to friends and family we want to rush to support the person we are closest to with words of support.

Express those views with caution or at your peril. Yes, you never did like his wife or her husband.  Yes, you saw all of the failings and frailties that your friend or loved one could not see; blinded by good looks or charm or in too many case: “none of the above”.  But when your friend finally screws up the courage to end the relationship or move in that direction, be aware that today, the rules are different.

Separation and divorce are never easy.  As folks who see this everyday, we recognize that a failed relationship is a difficult thing to face.  But in many cases, “history” or “children” or whatever mean that there is a wide gulf between separation and divorce. Friends and family who step into that breach with their views do so at their peril as couples often second guess themselves today and decide to reconcile.  If that occurs, your candor in expressing your views about the spouse is the only things that is left and sometimes that means loss of a friendship or relationship that you treasure.

If your friend or family member comes to confide in you that he or she needs to end their relationship with a spouse, be supportive.  But do so knowing that many marriages irretrievably broken on Monday are back together in some bizarre way by Thursday and that too much vocal support at your end could end up costing you an important friendship.

The stereotype of a family law attorney is that they deal in divorces or are limited to issues between spouses. The reality is that the practice can be far reaching in scope and encompass estate planning issues, business interests, and matters that extend beyond ex-spouses, but that deal with many aspects of a client’s life.  A recent example of how the term “family law” can truly encompass the entire family made news recently in the form of the legal action NFL rookie offensive lineman Tyron Smith had to take against members of his family. Mr. Smith found himself at odds with family members who allegedly had become so aggressive in their demands for money that he had to call the police to intervene. Mr. Smith’s representatives report that about $1 million is missing from him.

Mr. Smith plays tackle for the Dallas Cowboys. While in southeastern Pennsylvania that job description may not get him much sympathy, I think everyone can at least understand and appreciate why a young man who is (allegedly) missing $1,000,000.00 would need to establish some secure boundaries between his family and his money. An NFL player’s career is short; don’t confuse the small number of higher profile long-term players for the general rank-and-file of the NFL. The fortunate ones may play an average of three years; some never make it past their rookie contract or, for that matter, rookie training camp. Mr. Smith, under the NFL’s new collective bargaining agreement, is extremely well-paid, albeit not as well-compensated as his predecessors, many of whom has gone on to financial ruin due to family situations not unlike his.

 

As reported by Kareem Copeland of www.NFL.com, subsequent reports have come out about the facts behind Mr. Smith’s call to the police and his family disputes there was a disagreement about money (while acknowledging that he has given them a sizable portion of his four-year, $12.5 million contract). Nevertheless, Mr. Smith clearly reached a point where he could not trust those closest to him and had to act out of self-interest to protect himself and his financial stability.

 

Andrew Brandt, who has the distinction of having served on both sides of the NFL bargaining table as an agent and executive with the Green Bay Packers, wrote an interesting account of his experience with young players in similar situations as Mr. Smith. He has experienced the difficulty of counseling a client to act in a way that may hurt – emotionally or financially – someone they love, but sometimes that is a consequence of protecting the client.

 

Tyron Smith’s experience is not exclusive to wealthy athletes; many people find themselves in situations of having to seek judicial intervention in the form of Protection from Abuse Petitions, evictions, or needing counsel to resolve a financial issue in Orphan’s Court. Mr. Smith clearly found himself in a situation in which he had to consider what legal protections were available to him in order to secure his future. While Tyron Smith’s athletic career may be long, his post-NFL life will be much longer and – whether his actions prove to have been justified or a misunderstanding – he should commended for not waiting until his playing days and money ran out before doing something to protect both.

When I started to write for this blog a few years ago I promised myself that this was not going to become some kind of personal journal.  I had seen others do it and I did not like what I read; unprofessional.

A month ago I wrote the piece appended to this submission based on a fine article in Newsweek about the Kennedy family and their latest chapter of personal crisis.  I wrote it and then set it aside: too personal, therefore, unprofessional.

 

Life changes us and in the past 90 days I have learned that this can be good.  When I set aside my piece about the Kennedys I did so because most of us live lives quite apart from anything that family has experienced.  It is easy to dismiss them, for after all, they are not mere mortals but Kennedys.  What life’s experience has taught me in the past 80 days is that we are all mere mortals no matter what our pedigree.

 

I met Madeline Lamb in 1986 as opposing counsel in a divorce transaction.  She was smart, beautiful and knew how to play her cards at this game even though we were both bagmen for the star attorneys our clients had hired to represent them.  Shortly thereafter we both left work with the stars and went about setting up our own practices.

 

For the next 25 years we ran up against each other a fair amount.  We also were co-counsel in one of these mega-dollar cases that lawyers love to brag about.  Through that case we both became close with our client and through that client we became social friends.  Perhaps three to four times a year we would all get together and Madeline would arrange for all of us to go to nice restaurants which she was famous for patronizing.  Each time, we would be greeted like pashas because of Madeline but before the night was over Madeline surely had to throw twenty dollar bills at the owner and his staff because we behaved very so badly.

 

That was three times a year on Saturday night.  On Monday, it would be back in the trenches sort of like the Christmas armistices that took place in the civil war and the first world war.  The layperson reading this might take the cynical view and say we did this for our benefit.  Madeline and I disagreed a lot; in fact, a hell of a lot.  But never, never, never was there an instance where she was not sincerely advocating on behalf of her clients.  And when it came time to draw swords because we couldn’t settle a matter it was strictly lady and gentleman; the way lawyers are taught it should be.

 

We were not close friends as I would define it.  But even after Madeline gave me an earful about how stupid my client was and how ridiculous I was arguing my client’s position, we would pause to talk about grandkids, Cape May and the injustice of the system.  Lawyers love to talk about the injustice of the system almost as much as they like to brag about their endless victories in important cases.

 

Our posse of evil dinner guests last convened in February at my home because no reputable restaurant would accept us.  We exchanged gifts that would not be described to polite company.  We talked into the night.  Madeline had just come back from a cruise where some dread outbreak caused everyone to be confined to their staterooms.  She complained of neuropathy in her feet but dismissed it as “being 71”.

 

On April 19 Madeline went to the family law section meeting and presented her case law update as she had for 25 years.  The following day she was in Court and professing to feel badly, decided to hit the emergency room at Paoli Hospital on her way home.

 

Life’s rope slipped far too quickly after that.  The diagnosis was a highly virile form of brain cancer.  Her daughter lived in Raleigh near the Duke University Medical Center. Her former husband stepped forward and made certain there was a quick means to get her there.  Thus began the battle to defeat what seemed to be overwhelming odds.  That battle was fully joined for just over two months with daily dispatches from the front reported by a daughter whose bravery was exceeded only by her compassion and her ability to articulate objectively everything that she witnessed to hundred of friends who logged onto the caringbridge website.

 

By the end of June, it became clear that the war could not be won. Even simple palliatives like platelets were not reviving our friend’s condition.  On June 28 Madeline, her daughter Amanda and the physicians met and decided that the war had to end if life was to end peacefully and at home, surrounded by family.

 

Madeline Lamb departed this good earth at 1:35am on Sunday, July 8, not even three months after diagnosis. She died peacefully at home as it should be.  She was an outstanding attorney, a leader in her profession and her community.  She was always a “lady” in the finest sense which is to say that she allowed herself a good time but never at the expense of others.

 

Ironically, I did not learn of her passing until Monday morning. After sending a quick note to her daughter, I found myself back in the cockpit fighting over money and children.  For folks in our trade, it is the daily fare.  But today, late in the afternoon I had a particularly acrimonious conversation with another attorney whom I also consider a friend.  Our fight had to do with parents who had separated a few days before Madeline was forced to accept that her life was at its conclusion. 

 These parents have four young children and, we can hope, a lifetime of parenting ahead of them.  Yet, their personal conflict has resulted in the children not seeing one of them for almost three weeks.  As I put the phone back in the cradle it occurred to me how easy it is to ignore the fragility of life.  When we are healthy it is easy to “go to extremes with impossible schemes.”  If only we could give recognition to how precious life is, perhaps less of it would be squandered on trifling matters.  Family lawyers would make a little less money but this world would be a better place and the children we all profess to love so much, could be spared much of life’s anxiety.

 

Unlike the Kennedy saga described in Newsweek, Madeline Lamb’s life was not grand.  It was well lived.  And may that be a lesson to us all.

 

THE MARY KENNEDY TRAGEDY

 

We write occasionally about celebrity divorces.  We do so because readers find them interesting; a release from the mundane.

 

This week’s Newsweek features a celebrity divorce but with a very real side.  Mary Kennedy was the beautiful and highly intelligent second wife of Robert Kennedy, Jr.  Kennedy has always been a sort of professional conservationist.  The couple married in 1994 and had four children.  Only 13 when his Father was shot to death, his life has also been marred by some tragic flaws.

 

In May, 2010 Robert Kennedy filed for divorce.  Within days Mary was arrested not once but twice for driving while intoxicated.  The Newsweek story as reported by Lawrence Leamer describes two years of non-stop domestic warfare with attorneys fees reported to exceed more than $1 million. During this period it would seem that Mary’s life and her talents came apart at the seams. 

 By the Spring of this year Mary saw her children only in a supervised setting.  She continued to live in the “big house” she had helped to design in suburban New York but even friends who profess to have adored her told Leamer that she was disintegrating before their eyes.  Her hatred for her husband, whether justified or not, became a consuming rage.  On May 16 she took a rope, tied it carefully into a noose and threw the rope over a beam in her barn.  It is there that she was found by her husband and a housekeeper.  She was 52 years old.

 

The Kennedy’s four children, age 10-17 had not suffered enough pain.  The Richardson and Kennedy families decided that there needed to be a fight over where the body would be buried.  The publication of the Newsweek article has revived the fight as the Richardson Family attempts to defend their daughter’s honor against allegations by her husband that she was both violent and alcoholic.

 

Chances are the death of Mary Kennedy will deprive us of the chance to uncover the whole truth. But there are some remarkable lessons to be taken from his article.  They transcend any importance to deciding whether Mary Kennedy was the victim or the perpetrator of a marriage gone bad.  Among them:

 

1. As attorneys we are seeing more and more people enmeshed in domestic disputes becoming obsessed and irrational in response to what statistics tells us is a fairly common life event.  When this occurs they engage in behaviors highly destructive to themselves and even more destructive to their young children.  Many times they insinuate their children into their divorce battles under the absurd pretense that children need to know the “truth”. Small children cannot really grasp the truth of adult relationships.  The reality is that many adults don’t seem to be able to grasp the truth.

 

2. Despite our electronic connectivity, we are more and more isolated from friends and family that could help us.  A keyboard allows me to communicate “to” a huge world.  But it can just as often give me little to no assurance that others are listening, let alone trying to understand my pain.  Everyone today is “busy” in one way or another.  Yet there is no electronic substitute for the look of empathy, the hug or the squeeze of the human hand when a friend or family member is suffering.

 

3.   An adversarial system that allows humans to spend more than a million dollars and two or more years of precious life in a form of mortal combat is broken.  Children growing up in this kind of conflict cannot help but be damaged by such a process; yet again and again we permit children to spend years in this limbo.

 

4.   Education, money, magnificent homes and gorgeous offspring have something to do with pride and personal convenience but almost nothing to do with human happiness. This family once had all of these things.  Today, a once vital human is no more and people who professed to love that person have celebrated her life and mourned her death by wrestling over where her corpse is buried.

 The Wall Street Journal’s Smart Money on line edition featured an article about how to manage the divorce process.  It is both short and well written as it captures many of the issues that concern both lawyers and clients but often seem overlooked in terms of actual discussion.

1.             It’s costs more than you think.

 

This discussion addresses the part of the legal profession that offers fixed fee representation.  If you have been married just a couple years, have no money and no kids, these quickie services may produce a satisfactory result.  But if you have assets of any kind or any kind of dispute about your kids, go meet with someone who claims to specialize in divorce work just to make certain that nothing is left on the table.  For example, clients typically assume that they have no right to their spouse’s retirement. That’s not the case.

 

2.             Lots of divorce lawyers get sued.

 

Perhaps true.  There are bad apples in the bunch; both corrupt and merely negligent.  But if you sense that you are not getting the representation you deserve, go get a second opinion. There is a high dissatisfaction rate in this business but a lot of that has to do with unrealistic expectations on the part of the client.  Today we had a client tell us he would rather give all his money to us than any to his spouse.  That client is a ticket to a big fee and equally grand unhappiness when he finds out the system does not work that way.

 

3.             The less you know about your own finances, the more the divorce will cost.

 

Amen.  It is not uncommon to have clients who cannot explain their paystub let alone their 401(k) loan.  The level of financial knowledge that exists even among well educated people is pretty frightening.  You are paying lawyers to educate themselves about your finances. How does that make sense?  Clients also seem to love the idea of hiring “forensic accountants” to ferret out “hidden assets”.  This can be a useful enterprise but unless the client knows where to point the accountant, you are telling the dog to hunt without any scent of where to go.  That’s an expensive way to look for something.

 

4.             Promises, promises.

 

The article discuss lawyers who promise more than they can deliver.  Our view is even stronger.  Anyone who promises you anything in the world of litigation is probably leading you on.  Lawyers, at their best provide judgment and experience.  Life has no guarantees. The article references someone who paid their lawyer $70,000 and “got nothing to show for it.” That’s a loaded comment. Beauty is in the eye of the beholder. A certain prominent South Carolina trial attorney and former vice-presidential candidate just completed a trial where he probably spent $500,000 to $1,000,000 on his defense. He could say that he got nothing for his money because he was innocent anyway. Well, my friends, he could always have kept his budget thin and defended himself.

 

5.             Get someone with experience.

 

This is just No. 1 repeated. Buy as much lawyer as you need. If you have a house and a pension you don’t need Clarence Darrow.  But if you manage a hedge fund or your home is located over top of a natural gas deposit, don’t believe that any lawyer will do. Ask questions about how these assets get valued and divided in divorce.  If you get an unclear answer, it’s time to move on to a better lawyer.

 

6.             Prepare for plummeting income.

 

In our spend now, save later society, we have seen a sea change in the past five years. Professionals and other well educated folks are finding themselves without work for months or years at a time.  Others are taking jobs that pay 30-40% less than before.  This is sad but this is also capitalism.  You can no longer assume you can make it up later. We were all raised in a world where cost of living and a raise came to be the expected minimum.  This is a Brave, New World. Be prepared.

 

7.             Cry elsewhere.

 

                This is sage advice to a point.  Lawyers have no psychological training and charge 2-3x what a mental health professional does. But, lawyers also deal with folks going through this process every day and typically will have a feel for where you are in that process emotionally.  Psychologists often permit themselves to become pseudo-friends for their patients, a state that is unhealthy at best and destructive at worst.  At their low point, they will tell a patient to call their lawyer and tell the lawyer the patient needs more alimony or some other benefit.  That’s when the lawyer wants to call the shrink and tell them; look I need a new car and a date with Bridget Bardot.  Can you help me?  Be wary of lawyers who want to be your psychologist and just as wary of psychologists who think they can give legal advice.

 

8.             Lawyers may be unnecessary.

 

                True.  So are car mechanics, accountants and window washers.  In the end, we can do almost anything by ourselves.  The question is: is that smart? Divorce is a transaction that has deep and permanent effects on your family and your money.  If family and money don’t matter to you, perhaps you should save money and do it yourself.  But we met with a prospective client this week who put it best: “I’m here because I watched my business partner lowball her legal expenses in her own divorce. We’re breaking up our business but she will continue to pay her ex for years because never got any representation.” Too much lawyer may be a waste.  Too little lawyer is a disaster.

 

9.             The inattentive lawyer.

 

                There is one lawyer for every 265 Americans, the highest lawyer to population ratio in the world.  If your lawyer has no time for you go meet with that person; express your unhappiness and, if it happens a second time, move on.  Just be aware of a couple things when you do.  The transition is going to cost you a fair amount of money while the next lawyer learns what the first lawyer was busy forgetting.  Second, don’t expect instant lawyer. Any lawyer with a busy practice is fielding 100 or more emails a day in addition to court time, prep time, phone time and, yes, actual meeting with the client time.  An unreturned email or call is an oversight, not an insult.  But when a pattern emerges or your lawyer starts bullying you, get that second opinion.  Don’t ever fire a lawyer until you have a substitute lined up.

 

10.          Foot dragging.

 

                The Smart Money article focuses on lawyers dragging out litigation to earn more fees.  It does happen and that’s wrong.  But just as common, if not more so, is the new phenomenon we shall call client dragging.  We have divorces going on for years in situations where the clients are telling us there is no hurry.  We have other clients who come into meeting professing to want things resolved but then devoting no energy to collection and exchanging the data required to make the process work.  We will see folks who came into investigate their rights when their kids are in elementary school only to return with the kids now in high school.  The reasons are as varied as the client.  But a common theme is that people own and owe to lots of different things.  When they are asked to compile and digest all of that data, they can become depressed and weary of doing anything.  Realize that old data is typically useless data and the longer the case languishes the more expensive it becomes.

Like most litigants, the end result and the cost of legal representation are among the most important concerns of anyone involved in a family law dispute. With these concerns in mind, clients frequently ask me if there is anything they can or should be doing to reduce the time I need to spend on their case or to help move things forward. The answer is a resounding “Yes!”  Here are 14 tips on how to be a good family law client and, at the same time, help your attorney achieve the best possible result without incurring excessive cost:

  1. In advance of the first meeting with your attorney, assemble as much relevant documentation as possible. For instance, in a typical divorce case, this would include (at a minimum) complete copies of recent tax returns, pay stubs for both you and your spouse, a detailed list of all assets and liabilities, and any legal paperwork already filed and/or served upon you.
  2. Speaking of documentation, organize every piece of paper that you give to your attorney.  Documents should be stapled, labeled and assembled in an orderly fashion.  Keep in mind that your attorney and his/her staff will do whatever is necessary to organize the documentation that you provide to him/her if you don’t do so. It will, however, take time and cost money.
  3. Keep a detailed diary of all significant events pertaining to your case and make sure to share copies with your attorney. A "Week-at-a-Glance" calendar often serves this purpose well.  This may be especially important in a custody case.  Your memory may fade with time, but a well-kept diary can be used to refresh your recollection prior to and/or during a hearing.  Additionally, your attorney can use your diary to assist in preparing your testimony in advance of a hearing.
  4. A picture is worth a thousand words.  Besides documenting things in your diary, document what you can with photographs and/or videos.  For instance, if you decide to move out of the marital residence, take photographs of the condition of the residence and all property that you left behind.
  5. Ask questions.  There is no such thing as a stupid question.  More often than not, questions from clients are highly relevant and serve as a basis for helping to frame out the issues and develop strategies.
  6. If you need to discuss non-legal issues with someone, you may not want to call your attorney.   His/her hourly rate is probably much higher than a therapist’s, and the therapist probably is better equipped to handle the issue.  While your attorney may be a very good listener, it will be to your economic and emotional advantage to discuss non-legal issues with your therapist, family members, friends, priest, rabbi, pastor, etc. 
  7. Do your best to pay your attorney’s bills on a timely basis.  If you cannot pay a bill within a reasonable amount of time, call your attorney and ask to work out some payment arrangements.  If you are making a genuine effort, most attorneys will be understanding and work with you.
  8. Promptly respond to calls and inquiries from your attorney. If it was not important, your  attorney would not be contacting you. Furthermore, if you are not being responsive to your attorney, he/she will have no choice but to spend his/her time and your money trying to get a response. 
  9. When you leave a message for your attorney (either on voicemail or through a secretary) leave your phone number and the time when you will be available to speak. While your attorney likely has your number, it will take less time for your attorney to call you back if he/she does not have to find your number. This is especially true if your attorney is not in his/her office. 
  10. If you have left messages for your attorney and have not received a response in a reasonable period of time, realize that there is probably a good reason why he/she has not returned your call (i.e., tied up in court or meetings, or handling an emergency situation). If the reason for your call is of an urgent nature, do not hesitate to explain the situation to your attorney’s secretary and/or ask if you can speak with another attorney in the firm. If your call is not urgent, ask your attorney’s secretary when she expects the attorney to be available so that you can call again or ask if an appointment can be placed in the attorney’s calendar for a phone conference. 
  11. Do not believe everything that you hear from your spouse, family and friends as it pertains to your case and the law. Even though your spouse may act like he/she is trying to be accommodating, the reality is that he/she is likely out to get the best possible result for himself/herself. Similarly, realize that every case is different. Just because your friend’s cousin got a particular result does not mean that you will get a similar result. 
  12. Do not sign or agree to anything without first speaking with your attorney. Attorneys are usually in favor of parties speaking and trying to reach amicable resolutions between themselves. An attorney, however, can and will help you determine if the terms discussed are in your best interest. There is nothing wrong with telling the opposing party that you need some time to think about it and will get back to them after speaking with your attorney. If the opposing party is pushing you to sign something on the spot, be suspect. 
  13. Be discreet and resist the urge to deliberately annoy or antagonize your spouse. If you do or say something that you know will annoy your spouse, be prepared for appropriate retaliation. Also be prepared to pay your attorney who will, no doubt, get a call from the opposing counsel when your spouse calls to complain about your behavior. 
  14. Last, but not least, be candid and truthful with your attorney. Attorneys do not like surprises. If your Attorney is well-informed, he/she can be fully prepared to deal with potentially damaging information if and when it is raised by the other side.

 

 

The following is my "Top 7" list of "family law misconceptions" that I frequently hear from new or prospective clients.  The list is by no means exhaustive and assumes that there is no pre or post-nuptial agreement in place which might already address the issue.  Likewise, as other states have different laws and procedures, this list is limited to Pennsylvania.

  1. “There is no alimony in Pennsylvania”.  I am constantly amazed at how many new clients believe that alimony does not exist in Pennsylvania.  Let me set the record straight: alimony is alive and kicking in Pennsylvania.  Section 3701(a) of the Pennsylvania Divorce Code provides that “[w]here a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary.”
  2. “If my spouse committed adultery, I will not be obligated to pay him/her alimony”.  Of the clients who are aware of the existence of alimony in Pennsylvania, many believe that adultery is a bar to a claim for alimony.  Marital misconduct occurring during marriage is only one of 17 factors under §3701(b) of the Divorce Code to be considered in determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony.  It is not a bar, just a factor.
  3. “It only takes 90 days to get a divorce”.  Under even the best possible circumstances, it will take more than 90 days from the date of filing a divorce complaint until the entry of the decree.  I usually tell people that the best case scenario is 4½ to 5 months, assuming that both parties fully cooperate, there is a signed agreement disposing of all economic issues, the court is not backed up,  and, most importantly, the stars are in perfect alignment.  The worst case scenario could be several years or more depending upon the circumstances.
  4. “My spouse is not entitled to any of my pension”.  Many clients believe that his/her spouse is not entitled to any portion of their pension since they worked for it.  To the contrary, if the pension was acquired or increased in value during the marriage, then it is marital property (in full or in part) and the other spouse has a claim to it.
  5. “My spouse is not entitled to any asset that is titled solely in my name”.  How an asset is titled has very little to do with whether or not it is subject to division and/or distribution in a divorce.  The general rule is that if an asset is acquired or increases in value during marriage, then it is marital property (in full or in part) and the other spouse has a claim to it.
  6. “The marital property gets split 50/50”.  While marital property is often divided between the parties on a 50/50 (equal) basis, the circumstances may warrant a disproportionate division.  Pennsylvania law requires that the marital property be divided in an equitable fashion based upon a consideration of 11 factors set forth in §3502 of the Divorce Code.  "Equitable” means fair, not equal.  Therefore, if the equities weigh in favor of one spouse, he or she will likely receive more than 50% of the marital property.
  7. “If I quit my job, I will not have to pay support”.  This is one of the more popular misconceptions.  Support obligations (i.e. support for a child or spouse) are determined based upon actual income or earning capacity.  If someone quits his or her job without an extremely good reason, their support obligation will be determined or will continue based on their established earning capacity.  A frequent response that I hear when I tell people this is, “then they can just put me in jail.”  That, however, it not a misconception for someone who deliberately takes action to avoid their support obligations.  It may take some time, but under the right conditions, jail may be a reality.