There is a great deal of unneeded power that we have ascribed to words in the practice of family law. Even the simple process of getting to the point of titling this little essay was the choice of the referring to this article as relating to the word “divorce” or “domestic relations” law unnecessarily sets the reader on the mistaken belief that by calling the issues custodial rather than referring the same issues as “child related” changes the effect. Not so . . . For example, in recent child custody related dispute one parent had the “control of the children” and called the other two hours before a visitation to say, that the child was running a fever and would not go to the visit. Faced with the dilemma of not knowing if the illness is real or just an excuse to push the other side, the other parent called for advice to her “sage” attorney. The attorney suggested an email to the parent saying that she hoped the child felt better and would be pleased to move the visit to the next evening if the child was feeling better. This “kindness” in the face of an obvious provocation turned what could have been an ugly situation into one where the parent with the sick child, simply said thank you for the consideration and in fact the visit occurred without incident the next evening. How often, does the choice of angry or sarcastic remarks cause the incident to escalate into something those benefits no one?
Somehow the word “family law” is more tolerant than either of the “d” words. When we look at the way that the parents of children can relate to each other and to the children we have loaded words: SOLE, JOINT CUSTODY, CHILD SUPPORT, SUPERVISED, VISITATION, RESTRICTED VISITATION . . . . . .
Let’s go for the toughest of the words “sole legal custody”. . why do we really need to use words that assume on parent is “sole & legal” and the other is “neither a custodian” or worst “not legal”; Illinois law does not even use the descriptive term “sole” which is a puzzle since most people want “sole custody” The correct Illinois statutory terms are Custody or Joint Custody and even there both terms are in my opinion too harsh and probably unnecessary to accomplish the purposes that such a designation is intended to mean. The “pain” which is inflicted on the parties by the use of those terms would be better served by calling the issue and the resulting agreement a “Parenting Agreement” and talk about the rights, obligations and duties of the parents and how the process of decisions for the day to day management and the extraordinary management of the children
The word “visitation” is another powerful word, one “visits” a zoo or a museum, isn’t it more appropriate and much less volatile to refer to the time with our children as “parenting time” and take the “win or lose” out the description of the time we spend with our children.
It is probably inevitable that the children spend more time with one of the parents and less with the other, but does that make on parent “less” a parent? If you really want to make the process less combative, labeling him or her as sole custodian sounds like the winner . . . is the other person less a parent. Suppose you say one parent is the primary residential parent still leaves the other as “non residential parent”. Thus both are parents, but the children spend the work week (school week) in one place and alternate Perhaps the insulting term of “obligator” as the one almost equally the weekend, extended weekends and vacation time; both parents have the children when they are able to spend more time with them and each parent has a weekend off so to move forward on their personal lives . . . which is presumably the reason the divorce occurred in the first place. If the parents did not want personal time away from the other, they would still be together.
Another area of pain caused by the “words” is the area of child support. Both parents are equally obligated to support the children and their activities. Generally child support is given from one to the other as recognition that the parent who has the children might need financial help with the children’s expenses. Just because you are no longer living together, should not diminish the child’s life style. If you take this approach then the labels “obligor” and “obligee” which are contained in most of the court’s child support and withholding forms are unnecessary.
One parent provides financial support to the other for the benefit of the children. Using the kinder descriptive phrase of “making a contribution to the other parent for the use of the child” eliminates the inference that the “obligee” has a debt to the “obligor” or payee/payor . . . even though one parent writes a check, both parents pay the expenses of the child.
Here is another set of words that inflame rather than help. . Alimony or maintenance . . . we don’t even need to say what is wrong with alimony, the word itself says it all. …”maintenance” why would I want to continue to maintain someone who I don’t want to live with??? Wouldn’t be better to call it ”spousal support” or even better “family support” or just “support” because he or she was a part of my family and although we no longer live together, I recognize that she or he needs assistance to survive after the breakup of our family.
If we want to take a more humanistic approach to the breakdown of a marriage (or any other relationship) then we need to recognize that it cannot be a “win or lose” contest, but really a breakdown of a “business relationship” which requires that the obligations created by the “business” (the children) need to be able to thrive as they would if the parents remained together; and the parents need to be able to survive the “business” break down and get on with their lives.
I approach each case with an open mind . . . . can we accomplish a termination of the relationship without creating the “war of the roses” or is someone so unreasonable that they (he or she) or his or her attorney needs to be persuaded . . . the Chinese scholar Sun Tzu in his “Art of War” makes it clear that the best way to win the war is to avoid it by convincing your opponent that your position is so overwhelming strong that a battle would be futile.
Arms are tools of ill omens – to employ them for an extended period of time will bring about calamity. As it is said, “Those who like to fight and so exhaust their military inevitably perish”
A strong stance, without the use of inflammatory language, is my approach to these problems. The use of certain words not only inflames the situation, but makes the inevitable solution much harder and more painful to reach.
ADG
]]>A guide to preparing for the divorce
I never started out to be a divorce attorney. It just happened. After years as a tax, corporate and business attorney who actually tried cases, my practice drifted into “family law”. It is the most difficult and complex area of law because you are not only practicing “divorce and family law” but you have to understand everything from Real Estate, Corporate, Business, Commercial and Tax and trial law. After 42 years of this practice, I am not sure how to spell “divorce attorney”, but I know that I am one. This paper is one of several that I am writing and the first in the series of “what does this all mean”
Most of you have learned basic lessons in life before you grew up and perhaps the most important was “stop, look, and listen” which seems to be the operative three words of advice that I can give you before you take the journey down the long road that begins with a marriage and ends with a divorce. When it has become painfully obvious that the marriage is over, the first bit of advice that I can give you is “STOP”.
FROM THE POINT OF VIEW OF THE SPOUSE WITH LESSER FINANCIAL EARNING ABILITY (AND THAT IS TYPICALLY THE HOUSEWIFE).
v STOP TALKING about your complaints is much like the boxer who discusses his strategy (i.e.: two left jabs and then a right punch to the jaw). You need a plan, you don’t need a “broadcast” Stop discussing the problem and prepare.
v LOOK: If you don’t read every incoming piece of mail your spouse has, at least look at the envelope and keep track of who is sending statements or accountings each month. I can’t tell you the number of times we have discovered assets in places other than the bank statement that you receive by simply looking at the other mail coming in. The statements may be going to the office (or in very clever cases, to a post office box) but the advertising comes to the home. It’s not hard to figure out that something is going on at the First National Bank, when it sends a statement every month and your Spouse is writing the household checks from 3rd 5th Bank. Brokerage statements come monthly (although sometimes strictly on the net) but those account executives still cannot resist some mail advertising. LOOK and make notes.
v If you are the income earning spouse and there are children, you need to understand the economics of child support. You will have your spouse (his/her attorney) looking at your pay check to determine net income. Net Income is what you get after deducting taxes, but adds back in your 401(k or credit union payment. Sounds reasonable. Two kids, 28% of your net. For example: you gross 2,000 per week with taxes (federal, state, Medicare, & FICA) of $700, and a $400 contribution to the 401K. Result, child support of 28% of $1,300.00 a total of $368.00. You have paid your share and the rest is yours. What about that $400 you’ve put in your 401k, its marital property and you will be giving your spouse at least 200.00 of it (50%) Now you have paid 364 in child support and lost 200 of your 401 k. That’s 564 from your 1300 take home pay (which leaves you $736) and we have not yet begun to cover spousal support (alimony) and that pesky attorney fee that your spouse never paid. STOP making a contribution to your 401k, pension, credit union saving or anything else. It just “feeding the enemy”
v And now for my favorite subject “legal fees” As you all may have heard, this is how I earn my living! Lincoln said, “All I have is my time to sell” Lawyers take post graduate courses on how to collect fees. The good news is that in the not so distant past, your courts and the legislature have stopped the feeding frenzy and fees are “supposed to be” some relation to the time spent and difficulty of the case that determines “legal fees”. Retainers are “deposits” not signing bonuses and lawyers must account. That said, remember the lawyers time is not only spent in his office with you in conference, or in court, but also in drafting documents, research (yes every case has something unusual that requires some reading that you must pay for), but also reading your emails, letters, faxes, and the correspondence from the other side. Reviewing the documents and preparing for hearings, meetings, etc. You may think that every time you get an idea or question in your head, you must call and he or she must answer the phone. Consider this, your call causes him to interrupt what he is doing (don’t believe that you are the most important case in the office); he must stop, remember your facts, that nasty spouse who is hiding money, the children’s special needs, and how he must communicate with you. Then you ask and he answers (or thinks about how to best answer your inquiry) finishes the conversation and then spends a minute or more to make a note in the file (that he needs to spend another couple of minutes finding). That call gets you a charge of a quarter of an hour and that is reasonable. Wouldn’t it be better if you made same notes, listed out your questions and made a call or better, sent an email with more than asking the question, “what’s new in my case”?; If you are simply wondering when the next court date is or where the court is located, what time etc. or do I need to be there, ask his receptionist to get the info and call you back (generally there is no charge, and that is what he/she is paid for)
v Speaking of retainers . . . . We have “leveling the playing field” or the Illinois version of the “Attorney Relief Act”. The theory is that the working spouse can afford to hire the most expensive attorney leaving the lesser working spouse to go to Legal Aid. It’s not fair and thus we “level the playing field” your attorney is entitled to a retainer as great as your spouses (or your spouses attorney can simply give one half of his retainer to your lawyer). The second option is known as the “dirty little secret” because I can’t remember any opposing attorney calling me to offer me one half of his fees. Balance this with the feeling that your attorney should not have to “beg” your spouse (and his attorney) for fees. A very famous man, 2000 years ago said “I can only serve one master” and I am sure that if he was an attorney, he was very reluctant to call his opposing attorney to ask for fees. Buckle your belt, pay a reasonable retainer to your attorney. . . he or she will work harder with your money in his account; and he will catch up on fees later since the fees seem to always come out of the “marital estate”, but that’s the subject of another speech.
v EMAILS AND FAXING. If you have an attorney who does not have email, you’re as dumb as he or she! If you are receiving notes that are dictated to a secretary, or worse, written by the attorney, you are going to be paying dearly. With the advent of the fax machine and later email, clients assume that you are waiting at the machine, with nothing to do but to read their “missiles” That is a problem that every attorney faces. We try to educate our clients; this is a way to get to us with information or to ask questions, but not to abuse us. STOP using the same password or account that your spouse and you got when the computer was something to amuse you and write your friends. You need a complete computer and fax as a confidential method of sending and receiving (yes I said “receiving” correspondence), copies of opposing attorneys letters and pleadings, and copies of things that are being sent to the other side.” Another word, you need your lawyer to keep you informed, and copies of emails, correspondence, etc. are the best way to learn what is “going on”. Recognize that some emails or correspondence are simply “cc to client” “FYI” and don’t require a long phone call, urgent message etc. This is the fastest way to break down that smooth line of communication and you and your attorney should employ.
v STOP using your employer’s, friends, child’s email or computer. Grow up, get into this century and get a computer of your own. Don’t depend on your spouse to set it up or you will lose all tactically advantage.
v STOP showing up at every status call. Judges are reaching a point where they want cases to move along and set up status calls on a regular call. A status call is generally a one minute opportunity for the attorneys to appear before the judge and report what’s going on. Even more important, it gives your attorney a chance to “stay on” with his or her counterpart. It’s the excuse to talk settlement (or at least agree on what they disagree about). Divorce cases are complex and no mater how simple you think they are, multiple issues arise (this is probably the subject of another paper). It always helpful for the attorneys to know what issues are agreed, disagreed and impossible to settle. Sometimes, in looking for agreed items, the disagreed become so identified that they can be isolated, compromised and the economic impact of “over lawyering” can be diminished.
v LISTEN: It’s hard to get clients to really listen without interrupting when the adverse spouse or his/her attorney is explaining their position. You may have “all the answers”.
v LOOK: When was the last time that you really looked at a tax return? It’s not the first page that is interesting, it’s the items that make up income and more important the deductions. You will probably see your tax return for the last time on the day before you announce (or the summons announces for you) that the marriage is over. If you have already copied the tax returns, house papers, bank statements, brokerage accounts etc. before your spouse makes them disappear, think of how much money you will save in the discovery process.
v LOOK: If you signed a prenuptial, where is it and just what does it say? Does it exclude temporary alimony and legal fees or simply advance them against the settlement and make them your responsibility. Many agreements have “sun down provisions”. These provide that the limitations on divisions of property or alimony will expire in “so many years”. . . . When? This document will be read by your spouse’s attorney, why not has a copy for your attorney.
v LOOK: One more word . . . . If you don’t want to waste time with subpoenas for documents, legal fees that eventually diminish the “marital estate” which means wastes “your money”, get copies of all documents BEFORE you announce the divorce. Any lawyer with a word processor or secretary will tell you that he or she can get that document with a subpoena . . . . Ask about the time charges for preparation and enforcement of a subpoena to get a tax return that you could have copied before the spouse new what was happening. Another word of advice “lawyers lose documents” you can always give the lawyer a copy of a document and keep the original until the time “he really needs it”. I don’t want the responsibility of original documents in the files . There are too many times the files are used, left untended or worse, lost. .
v Finally, you need to have a wish list of what you want. This is not rocket science and you know that if there are kids you want to establish custody and visitation (my feelings about “joint visitation” are the subject of another paper).
v If there are kids, they:
HERE IS THE SUMMARY: These are relative simple ideas and now you see that you should have some idea what you want at the very beginning. Your attorney will tell you your rights and obligations, but don’t fall for the “cop out” that you don’t have any idea of what you want. Give yourself a break and think about what you want (and convey this information to the attorney at the first meeting) then ask him/her if you are being reasonable (note I am not using the word “fair” because nothing is ever fair). You need to be prepared before you decide to hire the attorney. Gather the documents, look for the information, understand what has been going on, and get a good idea of how you want the litigation to end (what are your goals). Then you can hire the attorney who can best serve you because you have done your homework and understand your own case. So, STOP, LOOK, LISTEN, pretend you’re a kid, your parent’s advice was not so wrong after all!
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