Current Events

Divorce and the Collaborative Process

December 12, 2016Filed Under: Current Events, Dissolution, Divorce, Uncategorized

I’ve been watching the show “Divorce” on HBO (Sarah Jessica Parker) fairly religiously because I like HBO and SJP and I also practice family law.

[Spoiler Alert!!] In the first couple of episodes after divorce became a likely option for the characters, they started down what is often a common way of handling the conflict. First, they went to mediation and tried to work things out without lawyers. This show subscribes to a traditional stereotype of a lawyer – that they make everything worse and more expensive. So the characters opted not to go that route “to keep things amicable”. All things I’ve heard before. Things were going well with mediation. But then the husband talked to a friend who said he should “lawyer up” to make sure his interests are protected. So he did that without telling his wife. When the wife got wind of the husband getting a lawyer, she went for the best, most expensive lawyer in town to one up the husband and make sure her interests were protected. This caused the husband to panic and decide he needed a “better” lawyer, so he went and hired the dirtiest meanest women-hating lawyer in town to protect his rights. Then, the wife determined her lawyer was not getting the job done so she fired him and hired the dirtiest, meanest man-hating lawyer in town to protect her rights. Meanwhile, the parties were able to co-parent, deal with each other and parties of common friends and go to visit wife’s family for the holidays without the help of their lawyers. The last scene was the husband being served divorce papers in the middle of coaching his daughter’s basketball game to wife’s surprise. A recipe for disaster.

We are talking about a TV show so of course there is the usual bit of Hollywood dramatization and exaggeration. However, I would say its a fairly accurate portrayal of how things can go when starting the divorce process. If these parties had been introduced to the Collaborative Process in the beginning, they may never have completely cut off their chance at an amicable resolution of their issues. Instead, they are spending their hard earned money “one-upping” each other with their lawyers and entering into the process using fear as a tactic. Wife also managed to humiliate her husband and children in public as icing on the cake.

This is definitely one way to handle your divorce and there are lawyers out there willing to take your money to do it that way. But usually the end result is not good for either party, especially if children are involved.

By contrast, the Collaborative Process insists that each party has the chance to hire a lawyer of their choice who is trained in the Collaborative Process before any sort of negotiation begins. The parties hire their lawyers at the outset and can set the tone of their process. Then, depending on the distinct issues in the case, the attorneys may recommend hiring a family relations specialist and a financial expert to help move the process along. The process is meant to be a team approach and the lawyers advise on what the party’s interests are so that the party has a frame of reference as to whether they are agreeing to something for or against his/her interest. Your lawyer is still fully on your side in an advisory position. If you are interested in this approach to ending your marriage vs. the one described at the beginning of this blog, contact me to set up a consultation to discuss your options.

What are the Courts Doing with Gay Marriage? An Update

February 18, 2014Filed Under: Court Cases, Current Events

Fresh out of Kentucky this week is another federal district court ruling striking down state law which the courts say discriminates against homosexual Americans. What is astounding to some is that this most recent ruling is not even getting front billing on most national news providers. That is likely because it is nothing terribly new. Similar cases from all over the country have been handed down even in some of the US’s most conservative states, like Utah and Oklahoma (see Kitchen v. Herbert and Bishop v. Oklahoma respectively). This kind of stuff gets lawyers excited, not because of their political or moral views one way or the other, but when federal judges start striking down state laws and even portions of state constitutions, we know SCOTUS is going to get involved, and the Supreme Court is not going to be able to resist ruling on this issue for much longer.

What Brought us Here?

The storm of federal suits against alleged same-sex discrimination stems out of two SCOTUS decisions, Windsor and Perry (for an in-depth description of these cases, see https://www.oksmithlaw.com/what-did-the-supreme-court-do-when-they-struck-down-doma/). Last year the Supreme Court struck down key portions of the Defense of Marriage Act (Windsor) and simultaneously upheld a California Supreme Court decision that overturned an amendment to the California Constitution prohibiting same-sex marriage (Perry). In Windsor, the Court ruled that DOMA discriminates against same-sex couples, and that the 5^th Amendment Due Process Clause (which applies only to the Federal Government) prohibits such discrimination. In Perry, the Supreme Court upheld the California Supreme Court’s ruling that the 14^th Amendment (which applies to the states) prohibits same-sex discrimination, but did so on standing grounds (i.e. the plaintiffs did not have standing to appeal the case in the first place, so SCOTUS could not rule on the merits of the case). To put it in colloquial terms, SCOTUS punted the issue.

So Why are the Courts Blowing up with New Cases?

Putting it simply, district federal courts are taking the arguments in Windsor and taking them to (what they feel is) the next logical conclusion. If the Supreme Court says that discriminating against homosexuals is a violation of 5^th Amendment Due Process, then isn’t it also violating the 14^th Amendment also? The two amendments have language that mirrors one another, and the elephant in the room is that if a form of discrimination is a violation of the 14^th Amendment, that discrimination is prohibited in every state. Justice Scalia, in his dissent in Perry, even very correctly predicted this eruption of litigation, pointing out the holes in the majority’s reasoning when they refused to make a 14^th Amendment ruling.

What’s Next?

A Supreme Court case is next, that is assuming one of these cases survives appeal in the Circuits. Rarely is there an issue that is so almost certain to reach and be accepted by the high court. The lower court rulings are overturning major legislation, are creating confusion about federal law application from state to state, and are all based on a hole in the law the Court itself left. This is why lawyers are so excited. One way or another, SCOTUS is going to at least partially settle the LGBT discrimination question in the near future. Will the high court only rule on marriage? Labor restrictions? Or will LGBT status be made a protected class in the eyes of the law, something akin to race, gender, or religious affiliation? This blog’s authors will be watching with anticipation.

And You Thought YOU had it Bad: A Look at China’s One-Child Policy and Recent Relaxations

November 18, 2013Filed Under: Current Events

In family law we deal with clients that are going through probably the worst period of their lives, and do our very best to minimize the damage and help them rebuild healthy productive lives. I joke with my friends in transactional law about how placid their work is compared to mine. “You mean the contract may fall through and X company may not be able to tout their new project by the next annual shareholders meeting? My clients only have the custody of their children at stake, but your client REALLY has it bad” said no one ever. Still, it is important to keep things in perspective. Some of our clients may have the custody of their children at stake, but no matter what happens, they will not be declared criminals and fined should they have more than one child. This article will look at the Chinese policy that has made the news recently because of the Chinese government’s relaxation of what is commonly known as the “One-child policy,” discuss the policy’s controversies and supposed benefits, and outline the changes purportedly being made.

The Policy

Within the People’s Republic of China (not to be confused with the Republic of China, more commonly known as Taiwan), families in a large minority of the population are subject to strict implementation of a law restricting them to only having one child. Families who have twins are not penalized. Families may also apply to have a second child, but are usually only permitted if their first child was a girl or was physically or mentally handicapped. Semi-autonomous regions (such as Hong Kong, Macau, and Tibet), as well has foreigners living in China are also immune from the policy, leaving a little over a third of the population subject to strict-implementation. Violators of the policy are subject to a large annual fine, known as the shèhuì fǔyǎngfèi, or social fostering fee, that usually represents a large portion of their income, and the extra child is usually not eligible for any state benefits, including education.

Criticism

Western nations and scholars have generally harshly criticized the policy for a number of reasons. More libertarian countries like the United States across the board find the policy an abhorrent interference with a fundamental right of human beings to procreate. Other criticisms point to the markedly negative effects of the policy, including the considerable sex-based birth rate disparity in the PRC. For every 100 girls born in China, 115-120 boys are born. This is most likely due to selective abortion practices, and allegedly to a lesser extent abandonment, adoptions, and infanticide. Restriction to only one child also arguably exacerbates what some consider to be sexist aspects of conservative interpretations of Confucianism.

Effect

The policy was of course implemented as a result of China’s population boom crisis of the 1960s,70s, and 80s which left the population greatly vulnerable in years of famine, so vulnerable in fact it was the basis for a wonderfully stereotypical (and probably somewhat racist) gimmick American parents used to use to guilt children into eating their food, which has since fallen out of style (see e.g. the film “A Christmas Story”). Estimates vary greatly as to the effectiveness of the policy, but approximately 100 (according to critics) to 400 (according to the Chinese government) million persons were not born as a result of the policy. The purported benefits of the policy on top of lessoning the possibility of famine include reductions in other problems associated with overpopulation such as the spread of disease, slums, and crime rates. Social services are also not overwhelmed, and families limited to only one child can use the funds that would otherwise be used for the children on things like improving their standard of living, and investment.

Relaxation of the Policy

Chinese officials officially announced this week that Chinese families with at least one parent that is an only child may have a second child themselves. This in effect allows the two youngest adult generations to have two children if their parents in turn honored the policy. Communist party leaders have also indicated their willingness to relax the shèhuì fǔyǎngfèi, but no concrete commitment has been made.

Conclusion

This article has hopefully been more educative than admonishing. I, like probably most Americans find the People’s Republic of China’s family planning laws to be unacceptable restrictions to fundamental human liberties, but then again I grew up in a country with a five times higher per-capita income rate with one quarter of the people within a land mass approximately equal in size. My perspective is somewhat different. However you the reader feel about the realities outlined in this article, always remember that all these problems we have in the First World, are just that, First World problems.

Custody à la Pauly D. with a side of Las Vegas and the Jersey Shore

November 6, 2013Filed Under: Child Custody, Current Events

MTV is famous for taking lots of volatile individuals, putting them in ridiculous situations, and then taping the chaos that ensues. If you have ever suspected that the drama was just completely contrived by MTV’s producers and a creative use of individually picked scenes, current events would point to the fact that at least some of the individuals that make up the casts of these shows are perfectly capable of creating catastrophe all by themselves. I am of course referring to the news this week that former Jersey Shore cast-member Paul DelVecchio (more affectionately known by his DJ stage name ‘Pauly D.’) is involved in an ongoing custody battle. Here are the facts…

Capitalizing on his Jersey Shore fame, Pauly D. was able to secure many high-profile DJ gigs in Las Vegas. On one such stint, he met an Amanda Markert. The two hit it off, and as a result of what has been described as a “one night stand,” the two conceived a daughter, Amanda Sophia (Take note, as this is a very rare occurrence, a high-profile child with two normal names). I usually do not take interest in TMZ style shenanigans, but when areas of my work make the gossip columns, I make an exception. Making this an even more scandalously enthralling tale are the alleged communications made prior to the birth of the child. According to Mom, Mr. D. heavily encouraged her to get an abortion (she has even put the alleged text messages on the market to the highest bidder). TMZ also reports that he sent Markert a substantial sum of money for the procedure, one that she obviously did not follow through with.

The events leading up to the birth of Amanda Sophia are ones I admit I have never run into, the more recent events are all too familiar. Pauly D. is currently involved in an on-going custody battle with Markert. DelVeccio has yet to see his five month old daughter in the flesh, and Mom continues to refuse him any manner of visitation. What is unfortunately also all-too familiar is the situation with Mom’s former boyfriend, Don Barbitta, who Markert had told was the real father. Barbitta has sense left Markert over the incident. I know what you are wondering and I will not disappoint. So what would this look like in Ohio?

In Ohio, an unmarried mother is assumed to be the sole primary custodian of the child at the child’s birth (ORC §3109.042). If the children’s parents do not agree on a custody arrangement, the father must first establish paternity, usually thought a paternity affidavit and/or DNA test filed with the appropriate court. The Court will then usually issue a temporary custody order while the action is pending (ORC §3109.043). Unlike in a custody arrangement alteration arising out of a prior divorce or previous custody determination which require a showing of a substantial change in circumstances [ORC §3109.04(I)(2)], the court will make a custody ruling based on what is in the best interests of the child as determined by ORC §3109.04(F).

Personally, I have absolutely no idea what is in the best interests of this child. Both of her parents have some pretty obvious misgivings. Really, the girl is probably lucky the matter is being adjudicated while she is an infant. That being said, an adjudication is no guarantee the parents will follow the mandates of the adjudication. If that were the case, I would be out of a job.

Take-Aways

I am not in the business of judging people’s actions, so I will let the reader make their own conclusions when it comes to the wisdom and/or morality of the players here, but there are a couple lessons we can learn from Ms. Markert and Mr. D. First, always always get an order from the appropriate court establishing paternity and a parenting plan. When you have a child with someone that is not your spouse, both parents do not automatically receive parenting privileges. Getting an order can be awkward sometimes when the parents are still together or the unofficial agreement is working well. Unfortunately, the courts are full of cases where such arrangements go bad. A court order reflecting the current arrangement can save lots of time, trouble, and money down the road. Second, talk to an attorney before communicating with the other side in a domestic relations dispute. I can guarantee had Pauly done this, those text messages would not have gone out. Lastly, be proactive if something changes or goes wrong. All too often what is agreed on in the order changes informally half a dozen times before there is a dispute, and by the time that dispute goes to court, the original order is almost meaningless. The order should always reflect your arrangement, and if both parents agree on the arrangement, it is relatively cheap to file an agreed entry reflecting changes and giving the parties a necessary amount of flexibility so they won’t be in court every year.

I hope this post was both educational and entertaining for you. I know I had fun writing it.

Divorce and the Collaborative Process

What are the Courts Doing with Gay Marriage? An Update

And You Thought YOU had it Bad: A Look at China’s One-Child Policy and Recent Relaxations

Custody à la Pauly D. with a side of Las Vegas and the Jersey Shore

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