To answer a question with a question: “Isn’t the sensible answer ‘No’?” After all, people contemplating divorce are not children. This is an entirely adult decision made by an adult who decided to marry in the first place. The prospective client is the person living the marriage with all of its advantages and disadvantages. No matter how close the friend or family member, that person is not living the marriage.

In the past, my feelings on this subject were mixed and colored by the breadth of friends and family brought to these meetings.  In many instances, the guest is more adamant that there needs to be a divorce than the spouse doing the interview.  This can be especially true of parents who will often confess during an interview that he or she never liked the marriage or the other spouse in the first place.

Rule #1 is consider carefully who to bring and what motivates you to invite that person.  Recently, I had an initial interview with a prospect and a parent where it was clear within the first 20 minutes that while the prospective client had an enormous array of objective reasons to pursue divorce, however, her expressions and language made equally clear that she was not prepared to begin this journey.  Truth is clients who do not really believe they are entitled or could be better off by ending a marriage are very poor clients to represent.  They don’t believe in the mission even though they can articulate why they are in pursuit of it.  If you want to bring a guest, bring one who can help you process your real needs rather than endorse your uncertain mission.

Rule #2 relates to attorney client privilege.  What you tell a lawyer alone or in the office with a member of the lawyer’s staff is entirely confidential.  It is not to be revealed to anyone else.  But, if you bring an outsider to the meeting, the attorney client privilege is lost as it relates to confidences related with an outsider present.  Therefore, what you tell me in the presence of a guest is not confidential.  It does not mean that the attorney is at liberty to discuss what was said.  It does mean that if someone subpoenaed your friend or family member, what you told the lawyer in a meeting with an outsider can be revealed through examination of the guest.

Is this a justification for excluding others from an initial meeting?  No.  It just means that not all subjects should be on the table.  If you know of illegal, fraudulent or even embarrassing conduct on your part or that of your spouse, the meeting with an outsider is not the time to reveal it.  I typically tell clients about this by stating that, if there are such facts that need to be discussed, that should be the subject of a subsequent conversation with the lawyer alone.  Rarely does this conduct drive the transaction being considered in an initial interview. But it often colors how the case is handled.

If the discussion stopped here, it would appear an attorney interview should be conducted alone.  However, experience has taught me that some of the most productive initial interviews I have hosted have been conducted with an objective friend or family member.  These folks often see inconsistency or lack of candor in ways that the attorney does not.  They know their subject based upon observation of their friend and his or her marriage.  Just as important is the fact that there are now a second set of ears to hear and absorb what the lawyer is saying. Just as has been reported in relation to a patient’s ability to absorb what a physician is saying in a medical setting, people are usually nervous and somewhat distracted during an initial interview concerning separation and divorce.  Just as with a poor medical diagnosis, it is difficult to remain focused when discussing termination of a relationship built upon expectations it would last a lifetime.

In the end, it can be very helpful to bring someone with you when you are judging whether to terminate a marriage and whether the person doing the interview is “right” for you.  But as we have noted, think carefully beforehand, about who you bring and what you say.

We have written a fair amount about prenuptial agreements including a lengthy piece last October concerning difficult issues that young couples can face but rarely ever discuss.  Some recent litigation we have been managing prompts mention of a subject, which probably should be in a premarital agreement in almost every marriage.  In fact, we should probably all have these agreements.

The subject?  Debt.  Americans love it.  The average household owes $184,000 on the mortgage and $28,000 on the cars in the driveway.  The new and growing issue is student loans.  They exceeded $1.25 trillion in 2018.  The average household with these loans owes almost $48,000.  Then there is the “dirty” debt of credit cards.  It’s a relatively small $420 billion but about $7,000 per household.  What makes it dirty are the interest rates and fees associated with this debt.  The average rate on this debt appears to be just over 16%.

So what does this have to do with premarital agreements?  If you marry and buy a house, chances are good you know it.  Same with the family cars.  If your spouse is taking on consumer debt, the danger is more difficult to see.  Perhaps it is for a hobby, season tickets for hockey, or clothing.  You may see that stuff coming into the house, but you don’t necessarily know how it is paid for.  It is not common, but there are couples out there that owe $50,000 or more in revolving (i.e. credit card) debt.  In many cases, half the couple has no idea.

As an equitable distribution state, when divorce occurs, we divide the assets and the liabilities.  What about the liabilities your spouse incurred during the marriage but didn’t disclose to you while they were accruing.  Divorce is painful enough without learning at the end that your loved one racked up $30,000 in debt, which you never heard about until the divorce was filed.  And, then you are being asked to “share the pain?”  You thought that the trip last year to London to watch the Eagles take on the Jags was paid by his parents.  Wrong.

Don’t let the shame be on you.  You should have an agreement that says, “We are each individually responsible for debt incurred during the marriage without contribution from the other spouse unless: (a) the debt was joint; or, (b) there is a signed document saying we are treating it as joint.”  We all have bad habits, but because they are our bad habits, we should take responsibility for them and do so without asking for a contribution to underwrite our bad habits.

Bear in mind as well that if you establish a home equity line of credit, most lenders do not insist that the borrow be “joint” or for a lofty purpose.  Meanwhile the note and associated mortgage say whatever is drawn is a joint obligation without regard to how the borrowed money was employed.

Collectively, and without help from our much indebted federal, state and local governments, Americans personally owe $13.5 trillion.  That’s $135,700* per household.  Marital debt is any debt incurred during the marriage.  If you are going to be allocated some or all of that debt, shouldn’t you have a right to know about it before it is incurred?  Get that in writing.

*The reader may note this value is less than the mortgage debt referenced above.  That’s because some Americans actually don’t own houses or have actually paid them off.

The Center for Investigative Reporting at National Public Radio (NPR) published a report on March 9, 2019 about the longstanding controversy over parental alienation.  The broadcast includes recordings of actual testimony from a New Jersey child custody proceeding where a father suggested that the mother’s relationship with the children was “toxic.”  Parental alienation is a concept not formally embraced by the mental health community, which suggests that one parent can poison a child’s relationship with the other parent.  If you are enmeshed in a grave child custody dispute where you think the other parent is actively interfering, you know the pain it causes.

The actions of the New Jersey trial judge seem radical, even dangerous.  However, the psychologist who first identified parental alienation as a disorder, Richard Gardner, suggested that the only effective means to undo the damage of alienation was to place the child in the custody of the parent from whom the child was alienated.

As you listen to the actual conversations, the Judge’s conduct seems capricious.  But, you need to listen further, including a later conversation with a judge from Florida who describes just how frustrating it is to manage cases where a child says he or she wants no relationship with a parent.  These are not parents who have abused a child or otherwise engaged in criminal conduct.  One also senses that the parents in the reported case were not emotionally “out there.”  To this day, a decade after the custody case was concluded, the children report they are still scarred by the experience of losing contact with the parent they were most connected with.  The case also recalls the conversation between Alec Baldwin and his daughter Ireland where Baldwin asserts that Ireland’s mother, Kim Bassinger is destroying his relationship with his child.

The NPR report notes correctly that alienation is not accepted as a condition in the Diagnostic and Statistical Manual of Mental Disorders (DSM), the Bible of Mental Illness.  The report also notes that Richard Gardner had some very peculiar views about not just parental alienation, but other issues related to child abuse.  It is also suggested that parental alienation is a device used by fathers falsely to remove children from mothers and that the psychological community is complicit in these claims because there is a lot of money to be made in effecting “reunification” with a parent from whom the child is alienated.

One also hears from children, now adults, who claim that efforts to remedy “alienation” effectively destroyed their childhood by forcing them to live with a parent whom they disliked and depriving them of time they wanted to spend with a parent who they craved.  The children are articulate in describing their anguish.

The courts and the psychological community take the rap.  Even to this writer, the judicial interventions sound Orwellian, reminiscent of the “Kids for Cash” scandal that emerged in 2007 in Luzerne County, Pennsylvania.  Having been involved in child custody cases for almost four decades, I have seen the parental alienation problem from both sides.  Kids often tend to bond more to one parent than another and that bond can and often does change over time.  Minor children of all ages also tend to engage in “good/bad rationalization.”  It is only when we form adult relationships that we begin to see good and evil as relative.  Thus, kids tend to buy into suggestions that a parent with whom they are not closely aligned is bad or unworthy of affection.  But, now you are the judge; a 14 year old tells you that she doesn’t care if she ever sees her mother again.  The facts do not support the concept that mother is a virago.  In fact, the record often demonstrates with teenagers that the favored parent is one who tolerates whatever the child wants including absence from school, open sexual relationships with peers or patent refusal to obey rules of any kind.  These kinds of behavior often drive judges to employ extreme measures in an effort to reign in the child to conform with societal norms.  Other children will be “perfect” when in the custody of the favored parent but engage in intensely antisocial behavior when visiting the parent with whom they are at odds.

One thing is clear.  Whether parental alienation merits it owns category in the DSM is not a real concern if you are a parent dealing with an alienated child.  It also seems that Gardener’s idea of removing the child from any contact with the favored parent seems extreme if not dangerous.  Yet, granting the wish of complete removal from contact with a disfavored parent seems to signal that children rule the world.  That’s not a comforting thought either.  As an observer, it seems clear to me that parental alienation has been debated too much and studied too little.  I have watched a 10 year old tell a judge that he can see no redeeming qualities in a father.  Yet, as the judge began to probe precisely what caused this irreconcilable rift it became quite clear that the child either could not explain the sources for his animosity or employed adult conclusions such as “My dad is verbally abusive” or “He doesn’t consider my needs.”  In the end, alienation exists and rather than debate whether it belongs in a manual, we need to understand better what makes it form and fester.  It is either that or accept that alienated children will grow up in a single parent world.

The discussion merits a listen. Click here to go directly to the site.

Take a friendly lawyer to your local watering hole and ask him for a quick summary of annoying things that have occurred in the practice in the past 20 years.  Chances are two strong subjects will come up.  The first is the decision about two decades ago by the Superior Court and Commonwealth Court to issue non-precedential opinions.  In common parlance the opinions are called “non-published”, but truth is that they are published and you can read them but the court adopted a rule that they had no precedential value and could not be cited as authority, even though they were dispositive in the case decided.

Last year the Superior Court disposed of roughly 8,000 cases, but less than 400 had a precedential opinion.  Many of the other 7,600 decided some important legal matters, matters where precedent would be helpful, but the volume of decisions made the court nervous that it was issuing “precedent” where the three judges involved did not have the time or resources to consider the implications of a precedential opinion.

For the past several years the bar has been lobbying that the rule was too restrictive. Non-precedential cases should be worthy of citation and if the law was wrong or the precedent should be regarded as unique because of the facts, let the next team of lawyers fight over that when briefs and oral argument take place in their case.  In other words, the case is not binding as a matter of law but it should be influential unless the subsequent appellate litigants showed it should not be.

The fight ended with a victory of sorts for the common law.  The Supreme Court ordered that unpublished decisions decided as of May 1, 2019 may be cited in briefs and arguments but do not have the weight of stare decisis.  Decisions before May remain verboten but at least the door of precedent has been unlocked for the future.

Oh, and that second complaint that is driving the common lawyer to drink.  Client anonymity. Try standing in front of a mirror, let alone an appellate panel of judges and saying, “Your honors, K.M. versus J.M. is an unwarranted expansion of the ruling in K.K. versus K.L. and is in direct contravention of this Court’s en banc ruling in J.C. v. K.C.  If K.M. is allowed to become law, J.C. is effectively overruled.” All of this because of an ersatz fear that the children of these folks will be scarred should their names appear in published law reports.  Last year Facebook reported 2.3 billion users.  There are only 7.7 billion people on the planet.  May I suggest that judicial efforts to preserve anonymity in legal cases is but a speck in an ocean cluttered with people who can’t wait to share what they are up to and just how badly their ex-spouse or boyfriend treats the kids.

At the risk of appearing obsessed, I write a second time about the separation of Jeff and Makenzie Bezos. This time my subject is again borrowed from the Wall Street Journal, but it’s not about the money. Rather, the Journal produced a prominent and adulatory article about the divorce announcement by the couple (actually Jeff) on Twitter. I thought it interesting because anyone who separates from a spouse or long time relationship is left asking; how do I let people know?

In olden days, this was done either by phone or in person. It creates an awkward moment because if you are the person getting the news, you are not certain just how to react. After the “I’m sorry to hear that….” the question becomes how far does the inquiry go? It seems cold to stop with the vague “I hope it works out.” Yet, is the person making the announcement asking for absolution? Therapy?  There is no happy answer.

So, I think there is merit to a public announcement and despite my general abhorrence of Twitter, I see benefit in getting the word out. I don’t know whether it requires a “joint” announcement as the Bezos posting suggested. For most of us, separation does not suggest that we need to “calm the market” in Amazon stock. However, the many lawyers and therapists who commented upon the Bezos announcement liked the idea of controlling the message and communicating that the problems either have been or will be handled with civility.

If you read what was posted by Mr. Bezos, it was a bit treacly.  In part, it says:

“After a period of loving exploration and trial separation, we have decided to divorce and continue our shared lives as friends.”

Perhaps this was all so amicable, but the news was immediately accompanied by reports that Herr Bezos already has a girlfriend.  It also throws shade on the ambiguous phrase “loving exploration.”  But, back to the main point… People want to know if you are separating.  If they truly care about you, they would like to know things will be civil even if that is merely an aspiration. It is also a good way to signal to your spouse how you want him or her to respond. The beauty of the electronic approach is that it gets the word out and allows friends to control a responsive dialogue on their own terms.

I don’t do Twitter because I have witnessed a thousand prominent people see their public persona crash and burn. They did not think before they wrote. Twitter is best known as a place where people say stupid things.  But perhaps Twitter might actually become an instrument of civility rather than a semantic battleground.

What to say? Well it may be ideal to issue a joint announcement. It is rare for couples to be finished with each other at the same time.  Usually, one spouse is the catalyst. If that is your situation, keep it simple and avoid what will be perceived as over the top sentimentality.

“I wanted to let friends and family know that (Jeff ) and I are separating.  I am hopeful that this process will preserve our dignity and not draw you into a conflict where you will feel the need or desire to take a side.  I hope our friends will remain just that although we may no longer be a couple.”

Message sent.  Now, when you run into the neighbor in the frozen food aisle, they “know” and can ask either how it’s going or confine the conversation to whether chicken Florentine is good with arugula.  The recipients also know that you want to be an adult during the process.

So am I on the road to conversion as a Twitter acolyte? Perhaps. But then there is the recurring fear that if I joined the social media band no one would “follow.”

While writing about high profile divorces is a means of attracting readers, it really leaves most of us feeling “empty” when it comes to how it relates to our ordinary lives. But the announcement this week of the divorce agreement between Jeff and MacKenzie Bezos made the front page of the Wall Street Journal. There is a reason for this. Unlike the split of say P. Diddy and Cassandra Ventura announced in October, the Bezos divorce actually could affect our lives if we own anything besides a token piece of Amazon. Can that be? NBC announced the story Wednesday morning just as markets opened. Stock price then $1,656. It closed the day at $1659. But when markets opened this morning (1/10), they did so at $1,640. We don’t know what causes these variations but the Bezos divorce was front page of today’s major news outlets.

Why would anyone care? Mr. Diddy is estimated to be worth almost a billion dollars. What composes that billion is unknown to us. But Jeff Bezos is worth $150 billion and the far biggest piece of that is 16% of all Amazon stock, about 79,000,000 shares. If $150 billion is an accurate estimate and $130 billion of it is in AMZN stock, a lot of that stock is in play in the divorce process.

This was a long-term marriage (25 years) in an equitable distribution state. The latter phrase means that Mackenzie does not automatically get 50% as she would in a community property state. But, this transaction was most likely not: “you take the house(s) and the cars, I’ll keep my stock.” Lots of ink has been spilled in the Jack Welch and Frank McCourt divorces about what a non-entrepreneur spouse should get. But even if Ms. Bezos took only 30-40% of the marital estate and kept the house and 401(K), she is still going to walk away with a piece of Amazon that would rival those held by Vanguard and Blackrock. Vanguard and Blackrock represent hundreds of thousands of investors. Mackenzie Bezos is a party of one. As one of the tiny pieces of Vanguard, I bought knowing that Bezos was the lead dog and that lead dogs understand the responsibilities of owning 16% of the entire kennel. But all I know about Ms. Bezos is that she is a novelist who married her husband when Amazon was still a book distributor and that today she may have the power to put stock to the market in some ways that could create dangerous volatility for those of us with smaller stakes. If there is a consolation for the small investor, it is that the Bezos’ appear to live in Medina Washington where community property presumptions of 50/50 don’t apply. Then again, the Bezos do have homes in a couple of community property states so their real residence state may be not what we think. A community property state could signal a $75 billion dollar settlement and a larger piece of Amazon.

So what has this to do with mere mortals? The answer is liquidity. We commonly see business entrepreneurs or their spouses in a world where 70-90% of their wealth is enmeshed in a closely held business. They are divorced as commonly as anyone else is but they typically ignore the liquidity crisis which divorce can trigger. Folks like Bezos have some relief from this particular headache. Their stock is public and can be sold. But ask any senior executive in a publicly traded company how much freedom public securities offer them and they will respond: damn little. There are blackout periods when they cannot trade and every time they do, the investor community is combing the SEC records to see who sold and wonder why stock was sold unless the sky was ready to fall.

You don’t have to be a Bezos to have this problem. Every day we insure houses and their contents based upon an unlikely casualty contingency. In so doing we anticipate and hedge against a remote possibility. We do the same with both life and disability insurance policies. But few of us ever look at our own portfolio of assets and ask; what if my spouse announced “Game over.”  It is not a pleasant thing to think about. But chances of a house fire are pegged at about 1:3000. The number of divorces in the United States exceed the number of house fires by 2:1.

Most people reading this will dismiss it. “I’m not getting divorced.” Those deniers seem to think that they are the only spouse who could be unhappy in their marriage. So why diversity and attempt to arrange the balance sheet so that illiquid assets are a smaller piece of the portfolio. There is actually a second reason. It is reflected in the Greek tragedy called “Theranos” where a $10 billion dollar valuation in 2015 turned into criminal indictments of management three years later. Enron was $92 a share in 2000 and half that price a year later. GE lost half its market capitalization between June 2017 and the same time this year. It has declined another third since then. So there are many reasons to accept the bromide that there can be too much of a good thing. Even if you are a Bezos and even if you have 200 shares in your retirement plan.

Holidays are supposed to be a time of merriment and conviviality.  Experience has taught us that they are also a time of immense stress.  This is especially true where families are no longer intact.  Families bring with them a sense of “expectation” and holidays are full of rituals, whether it be the Thanksgiving family football game in the backyard or the Feast of the Seven Fishes at Christmas.  Your families expect you to be there and to be there in the company of your kids.

Sometimes scheduling doesn’t work so well, either by accident or design.  The annual Feast of the Seven Fishes is Christmas Eve and most divorced families alternate that evening so the children may miss it every other year.  So, there is your family on Christmas Eve asking you about the whereabouts of your kids for the important family event while your ex is at their house with the kids doing nothing except eating pizza and watching Toy Story for the hundredth time.

In olden days, which is to say before cell phones and electronic mail, you might have given thought to calling the ex and telling them just how selfish and stupid it was that the children were missing a special family event with grandparents and cousins.  But, chances are you didn’t make that call because that was going to be unpleasant at best.  Today, however, you have a new stealth missile in your communications arsenal. You can send a blazing email or text expressing every dark thought your mind can conjure, hit send and instantly turn the device off knowing that the missile will hit its target.

Don’t.  It is a temporary feel good moment for you but one which creates a permanent record of your anger and leaves collateral damage that affects the kids watching Toy Story and the co-parent from whom you will need a favor sooner or later.  Indeed, you are probably right that Fishes with Family should trump Toy Story, but all you are really doing is making your kids feel bad at a time of the year when the real goal is to spend time feeling good.

Montgomery County is making major revisions to its custody procedure, including an overhaul of the “Our Children First” parenting seminar. This seminar is a requirement under Local Rule of Civil Procedure 1915.3* and mandatory for parties in custody cases. Effective today, the Court has temporarily suspended that Local Rule and the Court Administrator’s Office will refund registrations fees to anyone who is currently registered for the program and will not be accept registrations pending further Order of Court reinstating the rule.

Montgomery County’s new procedure becomes effective January 1, 2019, so I anticipate this month being used to enact the changes to the Seminar envisioned by the Court, including the installation of Krystiane (Krys) Cooper (MSW, LCSW, RPT-S) as the new director of the program, and that the Local Rule will be reinstated at some point in January.

Though the point of this blog is to talk about recent developments in the area of family law, we would be bereft if we didn’t take a moment to recognize the life of U.S. District Judge Joseph L. Tauro of the District of Massachusetts. He passed away on Friday at 87 years old.

Judge Tauro presided over two cases attacking the federal Defense of Marriage Act. After finding that DOMA compelled Massachusetts to discriminate against its citizens in order to receive federal funding, and that it was the state’s right to recognize same-sex marriages and afford such couples any rights and benefits derived from that marital status. Judge Tauro’s decision was affirmed by the First Circuit Court of Appeals. The Supreme Court declined to take the case after the decision of U.S. v. Windsor struck down Section 3 of the Defense of Marriage Act defining marriage as between a man and a woman. Judge Tauro’s decision in 2010 could be seen as the first of what became a wave of successful legal challenges to DOMA and, ultimately, legalized same-sex marriage.

The attack on DOMA was not his only major case over his 41 year career beginning with his appointment by President Richard Nixon. Other notable cases include his handling of a class action law suit leading to major reforms in Massachusetts institutional case for developmentally disabled people, as well as his facilitating a settlement involving systemic discrimination in Boston’s public housing system. He had a significant influence on the law through his decisions and the impact those who worked for him and with him.

 

After a five-year hiatus due to a ruling that effectively undercut the viability of custody coordination, the Pennsylvania Supreme Court has reintroduced custody coordination by Rule effective March 1, 2019. In the intervening five years, the Supreme Court (who promulgates the rules) in conjunction with the Domestic Relations Procedural Rules Committee (of which Judge Daniel Clifford from Montgomery County is a member) have painstakingly reconstituted the custody coordination rules to rectify the fatal due process flaws found in the system by the Superior Court in A.H. v. C.M., (Pa. Super. 2012).

Since the announcement in August, counties across the Commonwealth should have their local rules underway and beginning to certify – or at least identify their certification processes – attorneys and, under the new rule, mental health professionals, as custody coordinators.

Last September, I laid out the new rules in detail for The Legal Intelligencer and identified how this new system stands to benefit families in Pennsylvania by rerouting some issues out of the court system and into the coordination system. When coordination was abolished, it is fair to generalize that it was not because attorneys or parties did not see value in it. Under the new rule, the utility of custody coordination returns, but with a procedural support system that should allow it to be sustainable as an alternative dispute resolution tool.

You can also find my analysis here.