Hopefully, or perhaps, despondently, all of us recall early 2009.  The stock market crash of 2008 hit bottom in early 2009, and, thankfully, we began to emerge from the greatest financial crisis of our lifetimes.  In 2009, the broad S&P 500 Index was working its way back to 1,000; a low it had not seen since 2003.  Today it closed at 3,000 which means that if you had $1 invested, then it today is worth $3, a triple in baseball parlance.  Lest you celebrate your triple too much, bear in mind that if you invested a dollar in late August 2000, that dollar had no gain in value for almost 13 years.

In 2009 Northwestern Mutual Life began to survey people about their financial affairs including their expectations.  This year marks a 10th anniversary of this data collection.  While some are reporting upon this news as negative, I am not so pessimistic.  The survey generally shows that people are devoting more time and energy to managing their financial affairs.  By in large, they are saving more for retirement although a significant portion of Americans still are reliant entirely on social security for their golden years.  They are more conscious of their debt and what it costs to carry.  This is good news.  In my career dividing families and their assets I have seen a few times when people saw the economic sky as limitless; in the late 1980s real estate was the flavor.  In the late 1990s it was tech stocks.  In 2000 Cisco Systems was $80 a share.  Today it is $15.  The 2008 economy was a more mixed bag although the financial service sector was the leading indicator at the time.

As noted, stocks have come back and in recent weeks have reached new highs as the Federal Reserve backs off from increased interest rates.  But the tariff wars are starting to take a toll on U.S. manufacturing and the financial sector is asking itself how much more “up” is in the cards.

The bigger concern in the Northwestern survey relates to optimism about the future.  As bad as 2009 was with an unemployment rate approaching 10% and negative growth in the economy, people were more optimistic about their ability to succeed and live the American dream than they are today.  So, today unemployment is less than half of 2009, the economy is growing at 2.5% and the markets are at record highs.  Yet, while people might be living the dream they don’t feel the love.  American optimism as measured by Northwestern is less when the S&P is at 3,000 than it was when the S&P was at 900.  We can’t easily figure out why, but one integer that triggers my interest is the US labor force participation rate.  It tells us how many Americans are either working or actively looking for work.  That number, currently 63%, is less than England, France, Russia, Netherlands, Italy and Canada.  Want the good news? We beat Japan, Brazil, Germany and Mexico, but not by much.  Another indicator of change is that the number of people comfortable taking financial risks has declined precipitously while the number who were inclined to take career risks fell by a lesser, but still significant amount.

The upshot is that we feel more financially secure, however, it also appears that we feel more vulnerable.  This makes a lot of sense.  Companies like General Electric, Intel and Hewlitt Packard once considered the bulwarks of the economy have floundered.  Eastman Kodak and Sears are very close to “lights out.”  In 1981 IBM introduced the personal desktop computer for business.  Fifteen years later it exited the computer manufacturing business entirely.  The computers they placed in every office in America now predict for us how many employees we need and when we need them.  Thus in a full employment economy, Ford announced 7,000 layoffs in May 2019.  That followed 10,000 layoffs at GM.  The survey reminds us that the only thing certain about future employment trends, is their uncertainty.

The study merits attention.  You can read Northwestern Mutual’s article The Financial States of America: 2019 vs 2009 here and perhaps become depressed.  Or you can read it with the Chinese proverb in mind, “Within each crisis there is opportunity.”

The photo of 25-year-old Albert Almora a few days ago tells the story best. The 25-year-old Chicago Cubs outfielder has his head in his hands as he copes with the fact that his line drive foul ball struck and fractured the skull of a two-year-old in Houston. It could scarcely be more personal for Almora, who is himself the father of a two-year-old child.

Today, another story of summer fun gone awry. A 14 year old from Raleigh North Carolina was put on a plane to Newark so that he could make a transfer and fly to Sweden. Instead, he boarded a flight to Germany. This follows another story of a 7 year old with high functioning autism who was placed on a flight from Las Vegas to Oregon. That story ended happily because the person sharing the aisle with the seven year old befriended him.

The top five airports in the US handle an average of 80,000,000 passengers a year. That is over 200,000 passengers a day. And it’s not where you might think. Atlanta processes almost twice the number of passengers as JFK.

Why is this in a family law blog? Because one of my part time jobs is travel agent for kids on vacation. Kids whose parents want them to fly unaccompanied. After all, the airlines think it’s safe, right. Well try asking the mother who was notified that her child would land 700 miles from his destination without anyone to greet him or anywhere to stay. I have personally made this mistake and it was a harrowing experience even though I was over 30 at the time.

We want children to have life experiences. Yet in our haste to enlist kids in these opportunities we sometimes forget that bad things can and do happen. As a lawyer, I see also that parents are prone to conflate their fun with fun for a child. Truth is tiny children cannot experience the wonders of Disney any better than Dorney Park or Shadyside. They cannot understand that their 9-year-old brother does not hit as well as Albert Almora.

Is this the ranting of an aging fraidy cat? I submit not. I recently did the research and argued in court that statistically a trip to Israel for a bat mitzvah presented less risk than one to Chicago. The child was permitted to go in the company of the other parent. Despite my inattention to which commuter flight I boarded in a rainstorm, I have traveled the Amazon and been plenty of places where young men are keeping me safe on the beach with the help of automatic weapons. Nevertheless, I assumed that risk, and I had no child to look out for.

There is another force at work as well here. When parents separate, there are often “issues” over how children should be managed. One parent thinks that baseball parks and unaccompanied flights are “fine” because management allows these things. Another parent is against all of it. What the indulgent parent tends to forget is that the stress endured by the conservative “fraidy cat” parent is absorbed by the hapless child. Thus, you take your son or daughter to a first baseball game only to have the child say things like “Are we safe sitting here?” “What if a ball comes at us?” “Shouldn’t we be behind one of the nets?” That child is not having a good time and after the third inquiry, I suspect that the parent who laid out $160 for the tix and $30 for the parking is not doing so well either.

So, there are two forces at work here. One is real risk. We tend to underestimate it or not give consideration to the fact that children don’t need the same quality of travel or entertainment that adults do (little league vs. big league; McDonalds beats Morton’s). The second is whether the anxiety of the other parent will crush the fun. That sucks, but so does throwing $250 on an evening out only to have the nine year old cowered behind the seat you paid for him to sit in. And, lest we forget where this story started, why not spare the 25-year-old outfielder or the 45-year-old flight attendant the anguish of trying to cope with your hope that things would not go wrong for your child.

On April 30, 2019, the Superior Court published a panel decision related to a retirement benefit divided in divorce.  This wasn’t just any pension, but one established for a Pennsylvania municipality.  As this author learned in organizing a recent seminar for the Doris Jonas Freed American Inn of Court, municipal pensions are a very special and unwieldy animal.  The decision in Conway v. Conway v. City of Erie Police Relief & Pension Association demonstrates why.

The facts are easy.  The Conway’s married in 1991 and separated in 2007.  Husband was a cop in Erie, Pennsylvania.  On August 19, 2016 they executed a Property Settlement Agreement by which husband would transfer to wife $30,000 from his Erie Deferred Compensation Plan and “a share of his pension,” via a Qualified Domestic Relations Order (QDRO).  The educated reader is stopping here to ask, “what share?”  A great question, but not one addressed in this case.

Municipal pensions are not the creatures of state or federal law.  State law authorizes them, but the plans are governed by municipal ordinance.  Erie’s 2011 pension ordinance expressly allowed for QDRO’s, and that such Orders could grant a former or surviving spouse a share of the employee’s pension.

The parties must have known that something was brewing in Erie’s City Council because they were divorced three days after the Settlement Agreement was signed.  But before they could race a QDRO through the courts, Erie passed an amendment to its Pension Ordinance expressly forbidding former spouses from acquiring any interest in a municipal pension.

The QDRO was drafted and submitted to the pension administrator six days after the new Ordinance was passed, seven days after the Decree incorporating the Agreement was entered. The Plan administrator rejected the QDRO because it did not conform to the current Ordinance. Wife appears to have sued to join the Pension Plan as an additional defendant and secure an order compelling it to honor the Agreement formed before the Pension Ordinance was changed. The Erie County Court decided in favor of the Plan noting that the amendment preceded the pension administrator’s receipt of the QDRO.

Wife appealed not to Commonwealth Court but to the Superior Court.  In a lengthy footnote, the Superior Court concludes that it is not the Pension Plan’s rights that are involved, but those of the employee.  This argument seems attenuated as the assets of the pension plan would seem to be the property of the Plan subject to the claims of its creditors, viz., the employees who are Plan participants.  A quick and incomplete search of pension cases decided in recent years seemed to show they were all brought to the Commonwealth Court as municipalities and their plans are creatures of statute.

As if matters were not complicated enough, husband had the misfortune to die a few months after the trial court decision.  This foreclosed any power a court might have asserted to modify the equitable distribution based upon impossibility.

Wife argued and the Superior Court ruled that her rights to the pension vested at execution of the Property Settlement Agreement and a subsequent amendment of the plan could not alter those vested rights.  The Appellate Court relies upon the law of contract to state that the courts are bound to apply the intent of the parties.  It then recites familiar principles of equity and even notes that wife could be without a remedy as husband has died.

Were the pension plan a mere custodian of funds as one might conclude with the deferred compensation plan, (which appears to be a define contribution plan) this argument might glide by easily.  However, a defined benefit plan of this kind is a contract between a municipality and a labor force employed by the municipality by which the latter agrees to pay money to the Plan, which agrees to pay annuities in accordance with prevailing municipal law.  Therefore, we have a couple of contracts here and we have a municipality, which would seem to have the right to alter or even discontinue a pension benefit.  Principles of equity and administrative law do not often work in harmony.

Having said that, husband worked and part of his compensation consisted of deferred retirement benefits paid on his behalf by the municipality to the pension plan.  He accrued those rights and he assigned a portion of those rights to his former spouse at a time when the Plan document expressly allowed assignment via QDRO.  Arguably, had he accrued marital benefits after the Plan was amended to exclude assignment, those benefits would not be assignable.  Nevertheless, this is an issue where some reference should have been made to the collective bargaining agreement with the Erie police.

In the end, the former spouse got her pension and that is the right result.  However, this case demonstrates just how unregulated the world of municipal pensions can be.  Since passage of the Retirement Equity Act in 1984, private pensions regulated by the U.S. Department of Labor are assignable under 26 U.S.C. 414.  But, state and local units of government are not subject to federal regulation in this area.  The Commonwealth has adopted statutes that closely mirror federal law in the area of assignability for state employees.  Here, however, a municipality of nearly 100,000 residents decided to pass regulations rolling back spousal assignment provisions.  A person who marries an Erie cop in September 2016 could stay married to that person for a generation or more and have no entitlement to their spouse’s pension because of the 2016 Amendment.

The author professes to have almost no knowledge of municipal law.  However, municipalities are the creature of state government, and as such, it would seem that the state could enact minimum standards for municipal pensions including provisions permitting assignments of pensions consistent with prevailing state law affecting state employees.  As we know, retirement benefits form a substantial portion of public employee compensation. They merit more careful protection than the whim of a city ordinance.  Because most municipalities in the Commonwealth have very few full-time pension eligible employees, local solicitors are often encouraged to give short shrift to the preparation and review of local pension documents.  Courts should not have to apply equitable principles to decide matters of such value and importance.

Beth Anne and Mark Weber were married and produced two children, one in 1984 and another in 1994.  In their 1999 divorce, they formed a Property Settlement Agreement containing provisions that they would share equally the costs of “an appropriate undergraduate college or other post-secondary education for the children.”

In 2007, Beth Anne filed to enforce the Agreement stating that Mark had not paid his share of their son’s tuition at Florida State University.  The son also intervened claiming status as a beneficiary of the contract.  For whatever reason, Beth Anne entered a nonsuit to her “special relief petition.”  Although granted standing the son did not prosecute his claim.  Then, anyway.

In 2016, the son filed his own special relief petition seeking payment of half of the $166,000.00 cost of his undergraduate education, which had concluded in 2011.  Father filed an answer asserting a four-year statute of limitations under 42 Pa.C.S. 5528(a)(8).  Although not in his petition itself, he also asserted that he was also entitled to recover half of the cost of his graduate education to secure a pharmacy degree.  The half cost of this endeavor was $98,000.00.  At argument on Mark’s defense, the court allowed son to amend his petition to include the graduate degree costs.

Following argument, the trial court in Crawford County denied the third party claim stating that the son’s claim was derivative of Beth Anne’s rights and he lacked standing in the wake of his mother’s election to withdraw her claims.  Son appealed and the trial court ruling was reversed in a published Opinion in 2017.

On remand, Father moved for summary judgment based upon the statute of limitations.  Although not clear from the Opinion, it appears that Beth Anne joined in her son’s claims at least on brief.  Nonetheless, the Trial Court held the statute of limitations applied to the undergraduate degree claims and that the Agreement language did not support the notion that “post-secondary education” included studies undertaken after college.  Son again appealed.

The Superior Court relied upon a 1992 case, delCastillo v. delCastillo, 617 A.2d 26 (Pa.Super. 1992) to hold that an agreement to pay for education “beyond the high school level,” did not encompass graduate studies.  The Opinion in this case by Judge Mary Murray noted that under contract law, the trial court interprets the contract where there is ambiguity.  What made the facts of this case more complex was an inconsistency in son’s factual statements.  In his early pleadings, he said he “finished” undergraduate studies and then began a graduate pharmacy program.  The facts at trial established that he was never awarded an undergraduate degree, but he was admitted to a pharmacy program in Florida nonetheless.  The degree of doctor of pharmacy can be awarded to an undergraduate.  The Trial Court found and the Superior Court affirmed the concept that a graduate degree was not within the contemplation of the Agreement formed.

On the statute of limitations issue related to the Florida State undergraduate studies, the Superior Court quotes language from a 2006 case, Crispo v. Crispo, 909 A.2d 308 (Pa. Super. 2006), which implies that contracts to pay debt in property agreements are “continuing” obligations for which the statute of limitations is inapplicable . Id. at 315.  It then contrasted Crispo  with a more recent case, K.A.R. v. T.G.L. 107 A.3d 770,775 (Pa. Super. 2014) where the court held that failure to enforce a onetime payment due under an agreement was subject to the limitations statute.  Crispo appears to have been distinguished because the time for the payment of the debt was not fixed.  In the instant case, the Superior Court approved of the Trial Court’s holding that once son ceased his undergraduate studies in 2011, the otherwise continuing obligation was fixed such that the statute of limitations would apply.

We wrote about K.A.R. in a blog published on January 26, 2015.  In that discussion we noted that, reconciling fixed from continuing obligations could be a tricky thing, but suggested that litigants should not be permitted to keep claims in the closet indefinitely.  The facts in Weber are indeed tricky.  We know that son stopped attending undergraduate school at Florida State in 2011.  We also know that when he filed for what he first called his graduate degree in 2016 he said he had been in graduate school since 2011.  This Opinion draws a line between the undergraduate and graduate educations, although it appears to also acknowledge that a person can complete an undergraduate degree and be awarded a doctor of pharmacy for those endeavors.  See Opinion at p. 11.  Query whether son could claim a continuing obligation had he taken eight years and $362,000.00 to finish a pharmacy degree of whatever Latin appellation, whether bachelor or doctor of pharmacy?

For the practitioner, this is an area where careful drafting counts.  The National Student Clearinghouse Center reported that only 58% of the students who started four-year College in 2012 had earned a degree six years later.  Agreements need to regulate if not capitate these investments of after tax income.

Weber v. Weber v. Weber, 2019 Pa. Super. 133 (4/26/2019)

As part of National Public Radio’s morning edition report for April 29, 2019, business correspondent Yuki Noguchi reported on a phenomenon we have witnessed, financial infidelity.  Ours is an age where credit is available everywhere 24/7.  Want to buy a power washer at 3 a.m.? Your friends at Amazon are not only prepared to take the order, they are also happy to discount the product if you will take a Chase Amazon Prime card as part of the transaction. If you watch CNN, an advertisement runs where a sales team realizes that it doesn’t have the financial resources to fill a new customer’s massive order for their product.  Instantly, an online banker appears and suggests the needed cash can be available in hours.

According to I Corinthians, we are tempted in the same way that everyone else is tempted.  But, God can be trusted not to let us be tempted too much, and he will show us how to escape from temptation.  According to the New York Federal Reserve, the temptation appears to be winning as consumer debt grew from 3.25 trillion in 2012 to almost 4.25 trillion in 2017.

What Noguchi was reporting upon was the fact that if you are married, your debt may be increasing without your knowing it.  A recent study indicates that within families 25-40% of adults are not being candid with their spouse about the debt they carry.  What made the story all the more poignant was that it told the story of a family where this occurred.  The husband had incurred some debt to make a career change to become a financial counselor.  When he opened his new practice, it did not instantly generate the revenue he expected and consumer credit became a convenient crutch.  As one might expect, a person who counsels people about money management would be embarrassed to reveal to his spouse that he was struggling with his own credit issues.  Ultimately, he confessed and it appears the couple worked things out, although the wife acknowledged that she was angry about the entire situation.

So suppose you were the “victim” in this situation.  Your spouse the “motor head” tells you that a classic car is going to auction.  He is certain that if he can buy it for $20,000, he can restore it and sell it for twice that amount.  While looking at the three other cars in the driveway you tell him he is crazy and that this investment and related debt service is nowhere in the family budget.  But, despite your protests, he independently borrows the money or taps your home equity line of credit to buy the car.  He gets his best friend to provide the garage space so you don’t even see the car.

Time goes on and for whatever reason the marriage starts to unravel.  Someone files for divorce and when husband provides his disclosures, you see $20,000 of consumer debt you did not know about is now $28,000 because he never made more than the minimum payment and there is $6,000 due to Chase/Amazon on his separate card for the crap he bought trying to fix the car.  His friendly neighbor is also saying that he wants $700 for the 10 months the car was “hidden/stored” in his garage while your husband was “restoring” it.  The restoration never was completed, so you have a half pulled apart car you did not know about and $35,000 worth of related debt.

The law is going to protect you here, right?  Well, maybe but maybe not.  Marital debt is any debt incurred by either spouse during the marriage to the date of separation.  It doesn’t say “known debt or disclosed debt”.  A judge or hearing officer may be sympathetic, especially if it is money spent on a boyfriend or girlfriend.  Courts have the discretion to award assets and liabilities in different percentages including “The car debt is all his; the PANDORA Jewelry debt is all hers.”  But the law is not firm on this subject.  Even less persuasive is the situation Noguchi reported where unknown debt was used to maintain the family lifestyle.  In that instance, wife will argue that she would not have taken the Disney vacation or had the house re-carpeted had she known that debt and not husband’s business was not the source of the money underwriting these projects.  Many courts take a laissez faire approach. “You both went to Disney and you both walked on the rugs so you both will share the experience of paying for that debt.”

The moral is “Know thy spouse.”  If you have doubts, perhaps you should demand an agreement that says neither of you will ask the other to contribute to debt that is not known and acknowledged in writing. You don’t want to be staring at $35,000 in car debt in a divorce proceeding only to listen to your spouse say, “She knew I wanted to get that car and fix it.” The truth is that you did know what he wanted; you just did not know that he did it.  A good beginning is to agree every year during tax season to secure your free credit report and share it with your spouse. Reluctance to make that exchange is a sure sign that financial trouble is either underway or about to occur. A failed marriage is a sad but recoverable event. A failed marriage coupled with undisclosed and unmanaged debt burden is not.

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.”