Will I have to pay Alimony? It depends.

Alimony is something a lot of men going through divorce worry about.  While the percentage of households with women as primary breadwinner is increasing, men still have this role in the majority of households.  Therefore, alimony is something likely to be considered in a fathers’ rights divorce case.  How does alimony work?  In Oklahoma, alimony is based on need and ability to pay.  The “need” of the party seeking alimony must arise out of the marriage.  For example, in a divorce between a housewife and neurosurgeon, where the wife gave up her career-building years to take care of the children and household, the need for alimony would arise out of the marriage.  This is because wife’s contribution to the marital estate was staying at home with the children and taking care of the household.  The need arising out of the marriage typically increases based on the length of the marriage.  A 60 year old, life-long housewife would have a much more difficult time re-entering the work force than a 30 year old.  Also, dependence on the other spouse would presumably be greater.  Let’s say they got married when wife was 25 years old.  Overcoming 35 years of depending on husband’s income is harder than 5 years of dependence.  Additionally, there is more time to build a lifestyle and become accustomed to that lifestyle.  It is a lot easier to raise your lifestyle than to lower it, or least that’s my opinion.

Health is another aspect of “need arising out of the marriage”.  Suppose husband is a quadriplegic at the time of marriage (use your imagination).  Wife supports the family.  Upon divorce, is husband’s health a “need arising out of the marriage?”  If his health is much the same as when the couple married, the answer is probably no.  Suppose several years after marriage, wife contracts Lou Gehrig’s disease.  Because the condition surfaced during marriage, it affects her need for alimony arising out of the marriage.

The other factor, ability to pay, is more straight-forward.  Tiger Woods was married to Elin Nordegren, a model, for only 6 years.  As a model, she probably could have taken care of herself fairly easily.  She probably would not be homeless without alimony from Woods.  However, even though her need was small, Woods’ ability to pay was very high.  He was the first athlete to have earnings over 1 billion dollars.  The divorce reportedly netted Nordegren around 100 million dollars.  Woods’ ability to pay more than compensated for Nordegren’s lack of need.  This is an important concept in alimony determinations: the lack of one factor can be overcome by an abundance of the other factor.

Suppose you are a wealthy man, potentially looking at a steep alimony judgment.  What do you do?  The first thing is call a lawyer, of course!  Next, focus on your true ability to pay.  A lot of mistakes are made by using figures that don’t take all the facts into account.  How about taxes?  Yes they matter.  What if you were married to Wesley Snipes, and his tax debt was not considered?  Would his income figure be accurate?  Of course not.  Tax liability will reduce someone’s actual ability to pay.  There are other expenses to consider, like assuming marital debts, expensive private school tuition or caring for an aged parent.  Make sure the figure used for your ability to pay takes all pertinent expenses into account.

You may also want to address your wife’s actual need.  In discovery (evidence gathering during litigation) you will want to inquire about the expenses which make up your wife’s purported need.  Need should be founded in evidence, not conjecture.  If the stated expenses don’t match the requested amount, it will be tougher for her to make her case.

The tricky part about alimony is it doesn’t follow a set calculation formula.  The amount and length of time for alimony payments depend on the judge’s subjective view of need and ability to pay.  The key is to hire a lawyer who is familiar with the legal culture of your jurisdiction.  Tradition plays a big role in how alimony judgments are made.  Someone who knows the patterns in the community, or better yet, the patterns of your judge in particular, will be invaluable to you.

 

 

When are we going to settle?

When are we going to settle?  This is a question I get asked fairly often by clients.  Settlement is a voluntary resolution of a dispute, often during a lawsuit.  No one can make you settle.  The only way settlement works is if both parties agree on all issues of a case.  Even if a party’s position in a case is absurd, in most circumstances the Court would be obligated to hear each party’s side at trial if the parties can’t settle.

There are a lot of good reasons to try and settle your child custody or divorce case.  I will outline the reasons I think are most important below.

1.  Settlement gives you ownership over the outcome.

I hear judges say all the time that if he/she has to decide the case, then neither side will be happy.  That is true most of the time.  People put value on different parts of a case.  For some people, getting more visitation is more important than paying less child support and vice versa.  The judge will probably enter judgment, at least in part, against what you would prefer.  The judge doesn’t know you or the other party, so it is unrealistic to expect him/her to enter judgment exactly the way you want it.  You will often win on some issues but lose on others.  Judges often try to give and take from both parties.  Any kind of litigation involves a lot of uncertainty.  Sometimes you can be quite sure what the correct outcome is and still get a different result.  Settlement gives you control over the outcome.  A good attorney can negotiate a settlement that closely approximates the probable outcome at trial.

2.  Most of the time settlement is much cheaper than trial.

While most clients will say that money and cost are not the most important parts of case strategy, you still need to meet basic needs before and after a trial.  For every hour spent in trial, there are two or more hours of preparation.  For a trial that lasts one day (around 7 hours court time) that would be 14 to 21 billable hours on top of the 7 hours in court.  For an attorney charging $230 per hour (like me) that would be $4,830 to $6,440 for the trial, not including all the time it took to get a trial to begin with.  A good lawyer will be able to help you understand the potential pros and cons of a proposed settlement.  That way you can decide if it is worth it for you to spend the time and money involved with a trial.

3.  Settlement is faster than a trial.

For the average child custody or divorce case in Oklahoma County, you are looking at a minimum of one year from filing until trial.  This is because there are lots of other people with family law cases which take up room on the judge’s calendar.  Settlement would allow you to finalize your case as soon as 90 days after filing for divorce cases.  Closure is something most people want very desperately in child custody/divorce cases, and finalizing your case could help you on that path.

While the reasons outlined above are compelling motivation to settle, you should not settle for something that is significantly less beneficial than what you would get in court.  You’ll need a skilled and experienced lawyer to help you understand what your likely outcome would be from a trial so you can allocate resources accordingly.

How much will my case cost?

I confess that lawyer shows are my guilty pleasure.  They are so unlike the real thing that the escape into fantasy is thrilling.  I wish I could be like Jack McCoy giving sanctimonious lectures to defendants while they’re on the witness stand.  I wish I could yell at someone during a 30-second deposition like Harvey Spector, then receive a phone call from the other party later the same day, begging to settle while I spin a basketball signed by Michael Jordan on my fingertip.  Alas, real life is not that way.  In this blog article I will discuss how billing typically works for a law office and some factors to predict a range of total cost for a custody case.

TIMEKEEPING

If you watch popular lawyer shows on TV, you have probably heard references to “billable hours” and “six minute increments.”  There is a difference between time spent in the office and time which is billable to a client (although I’m sure some lawyers may disagree).  Billable time, at least my view, is time spent actually working on a case.  Just because a file is open on my desk while I daydream about challenging an opposing attorney to a boxing match, like Harvey does in Suits, doesn’t mean that’s billable time.  If I’m writing a letter to a witness, client or another lawyer, that would be billable time.  If I’m talking to a witness, client or another lawyer, that would be billable time.  If I’m researching cases or statutes which govern a case, that is billable time, and so on.

The level of detail on billing statements will vary from office to office.  I probably fall into the more detailed end of the spectrum.  Some lawyers will just say “phone call” then the time spent.  I typically will state who was on the other end of the phone call and what the conversation was about e.g. “phone call with Louis Litt RE mud bathing.”  I realize that lawyers are expensive, and I take being accountable for all time billed very seriously.  This involves detailed billing statements sent to clients at regular intervals which account for each task billed.

Most lawyers, including me, will bill in six minute increments with upward rounding.  For example, if I talked to a witness for 18 minutes, that entry would have a .3 on the client’s bill because there are three sets of six minutes in 18 minutes.  Also, 18 minutes is .3 of an hour.  If I talked to a witness for 22 minutes, I would probably .4 because the time amount is closest to 24 minutes.  Some lawyers will have an automatic charge which applies to phone calls, letters etc.  Even a phone call lasted 30 seconds they might still bill .25.  I don’t do that, but I might charge .1 for a 3 minute phone call because that’s the lowest billing entry.

RANGE OF TOTAL COST

When meeting with clients for the first time, they often ask “how much will this cost?”  For some things, this is an easy question.  If I’m drafting a non-complicated will, then I would quote a set price, and the client could choose whether to hire me knowing what the exact cost will be.  For litigation the question is much more uncertain.  There are many factors outside of my control, so forecasting is an educated guess at best.

I like to think of total cost predictions as three different ball parks.  The first range is from $1,500 to $2,500.  This would be a typical uncontested case, including the filing fee.  This would be where all terms are agreed, and the parties just need to jump through the required hoops before they can get a final decree.  Sounds like a lot still?  Are you wondering whether you should call one of those people who advertise on poster board outside Wal-Mart? (they aren’t lawyers BTW)  Remember you get what you pay for.  Despite what some people think, we didn’t just learn how to change names in forms during law school.  There’s a lot of things to consider which could complicate even the simplest of divorce or custody case.

The second ball park has a range of $2,500 to $5,000.  This would be a situation where both parties came in with lots of bad blood, typically displayed in a contested temporary order hearing, discovery, or a deposition.  They will fight like Harvey Spector and Louis Litt for awhile, then they will decide that fighting is too expensive and decide to settle.  The fee increases dramatically as court appearances increase.  Time in court means preparation (at least two hours for every hour spent in court).  It also means waiting for the judge to call your case, waiting for a court reporter to transcribe what is said, travel to the courthouse etc.  This ball park will often involve discovery, which is the process of obtaining evidence from the other party and third parties.  If there’s a big stack of bank records to be reviewed, you can bet on a big bill.

The third ball park involves a contested trial with witness testimony and documentary exhibits.  The time for a trial can vary, but for a non-complicated case, a trial will typically last one whole day.  The range for this ball park would be $5,000 and up.  I’ve had cases with total billing well in excess of $30,000.  Some cases can last several days.  A trial day usually involves around 6 hours in the courtroom.  As stated above, good preparation will usually be at least two hours for every hour in court.  For trial this is especially true.  Trial preparation will be 2.5 to 3 hours for every hour in court.  If you have 6 hours in court, with 15 hours of prep at $200 per hour, a trial will cost over $4,000 just for the trial.

HOW CAN ANYONE OTHER THAN RICH PEOPLE AFFORD A LAWYER?

Reading my last section you may be in despair about finding a lawyer for a case that is sure to go to trial.  Sometimes a trial really is unavoidable given the people and issues involved.  Some lawyers, including me, will take a deposit instead of a large retainer, then let the client do a payment plan.  Payment plans for my office must be at least $250 per month, and the deposit is typically $1,500.  The average retainer fee for a good family law attorney is around $3,000-$5000, so $1,500 is much less than the norm.  A lot of people can afford a modest deposit with a monthly payment plan while their situation may never allow for paying $5,000 all at once.  The terms of payment arrangements vary from case to case.  If it looks like a very time-consuming case, with lots of contested hearings, a lawyer may want a larger retainer.  On the other hand, two young people with no kids who want a divorce may be a much lesser fee up front.

CONSULTATION

To get a better prediction on what your case will involve, both cost and procedure, you should come in for an in-person consultation.  I will do consultations for free if you come to the office.  Otherwise phone consultations are $100 flat fee unless you live out of state.

 

What to do about lies and false accusations in a custody case.

There seems to be a lot of buzz nowadays about allegations made in court documents and police reports etc.  We live in a time where everyone wants to know about everyone else’s business…and everybody seems to have the means to find out about everyone else’s business.  Most documents filed in a lawsuit are available to virtually anyone online.  Think about all the buzz in the media about harassment and abuse allegations made against celebrities.  Some of these allegations are just now surfacing even though they stem from events many years ago.  Does the fact that that an allegation is made in a legal document automatically give credence to that allegation?  Of course not.

The fact that an allegation is made just means that someone once said it.  It does not mean that there is evidence to support that allegation let alone an official adjudication substantiating the allegation.  For example, it is not uncommon for people going through tumultuous custody cases to seek restraining orders against each other. In my experience, the factual bases for these requests often fall far short of the applicable standard. Notwithstanding, I find that people frequently are misled into believing that because a VPO (victims’ protective order) was once sought against someone, that fact, in and of itself, is good evidence against that person.  This sort of thinking involves gross oversimplification.

The important consideration is whether the allegation resulted in a judgment.  I have had cases where clients were accused of child abuse by the other party as a way to gain advantage in the case.  Ultimately the allegations were proven to be outright false, or at least lacking in evidentiary support.  While simple-minded people may forever focus on the fact that the abuse allegations were once made, the important take-away is that these allegations were not substantiated.

Some people may say “why would someone make such a serious accusation if it were not true?”  Think about this question. Have you ever encountered someone who told a lie, knowing it was untrue, to gain an advantage of some sort?  I have seen this many many times, even outside my law practice.  I don’t think my experience is unique.  I’m probably not qualified to render an opinion from a psychological standpoint as to why people lie so often and so destructively.  I just know that they do.

So what can be done when someone makes unfounded lies in a custody case?  I think the first thing to do is take a deep breath…and wait.  Oftentimes I find that the response to accusations is worse than the accusations themselves. Suppose you are accused by your spouse of hitting your children.  You respond by a litany of text messages, laden with expletives, threatening all sorts of reprisal against your spouse.  What would the results of this response be?  First of all, your spouse will probably treat your reaction as giving validity to the accusations.  “Why would someone be so worried if the accusations are not true?” Additionally, the fact that you responded so aggressively could be used as evidence that you are an impulsive, and potentially violent person.  You do not want either of these scenarios in your case.

Once you have had an opportunity to compose yourself, you can think of a constructive email/text message to send. A response something along the lines of “I don’t understand why you would say that I hit our children. Not only is that accusation hurtful to to me personally, but it is patently false. Can you help me understand why you are saying those things?”  I think something like this will be less antagonizing and therefore more understandable to the judge.  It is entirely normal for someone to question false allegations.  People get in trouble when they overreact by expletive-laden threats as a response to accusations.  Of course, both responses are understandable under the circumstances. However, the levelheaded response is typically, if not always, the better option.

Suppose you cannot even bring yourself to make a response without blowing up. If that is the case, and it is not hard to see why it would be, then the best thing to do is nothing at all.  The fact that you do not confront your spouse about the accusations is not evidence that the accusations are true.  I have seen people try and make that argument, but I have never seen it done successfully.  Imagine what the response would be if someone asked you why you did not confront your spouse about the accusations. You could respond “I was shocked and afraid that somebody might believe those baseless allegations.  Given the seriousness of the allegations, I chose to let that the evidence produced in court show that the allegations are false rather than give more room to mischaracterize what I say.”  Does that sound reasonable to you?  It does to me.

Sometimes the lies in court documents are so thorough and pervasive that addressing each and every lie is impossible given time constraints at a trial.  Clients occasionally find this difficult, because any lie unaddressed seems intolerable.  In these situations it is best to prioritize.  You wouldn’t want to risk not being able to rebut abuse allegations just so you can prove that you never called your spouse fat.  Obviously, the abuse allegations are far more important in the case.  You can take comfort in knowing that even though unrebutted lies were made, you took care of your most important interest: maximizing your time and influence with the kids.

The rule of thumb, if you haven’t already caught on, is to let the evidence do the talking.  In a lawsuit, the evidence is all that matters.  There is an illusion in the mainstream media that any accusation has an implied truth component.  Such is not the case with a lawsuit.  Do not take the bait provoking an overreaction.  As Theodore Roosevelt once said, “speak softly and carry a big stick.”

 

Men’s Mental Health Issues in Divorce and Custody Cases

Men don’t like to talk about health issues.  This is especially true for mental health issues – men really really don’t like to talk about mental health issues.  Most of us know that mental illness is stigmatized in our society.  I would say this stigma is especially damaging for men.  As men we want to be the unfailing bastions of strength and resilience.  We definitely don’t want to be weepy, weak, cry-babies with hurt feelings.  Regardless of how we may try and delude ourselves, we do get depressed and anxious.  Untreated depression/anxiety makes it tough to fulfill your duties as a dad.  Symptoms are compounded during stressful events like an ongoing custody case.  Why are men so reluctant to seek treatment during a time when symptoms are so pronounced?

First of all, men are generally hesitant to admit weakness of any kind.  That’s why we all lie about how much we can bench press, or in case of a middle-aged man like me, how much we used to bench press.  Maybe it comes from the American frontier ethos of pulling yourself up by own your own bootstraps and taming the wilderness with your own two hands – when there was no time to sit and mope and wonder where the good times went.  I suppose it’s understandable why you wouldn’t see a counselor when missing a day’s work could be the difference between survival and starvation.  With that concept of manliness as the background, it’s hard for us to reconcile mental health treatment with norms of manhood.  Getting a diagnosis of a mental health condition only solidifies that perception of weakness.  Consequently, many men don’t seek treatment because they don’t want the diagnosis preceding treatment.

Gender stereotypes can also affect men’s unwillingness to seek help.  Women are 70% more likely to have depression than men, which may in part explain why depression in men is under-reported.  Let’s face it, women talk about their feelings more openly than men.  That could explain why the the reporting numbers for depression are so much different for men and women.  Because women are often more candid in reporting depression, the act of reporting depressed/anxious feelings gets labeled as a girly activity (cue impression of Arnold Schwarzenegger calling someone a “girly man”).

If you are having trouble with depression, or if you think you might be having suffering from clinical depression, you need to get help.  Let me be clear, it is not weakness to seek treatment for a medical condition.  Being a father requires putting your kids above everything else, including fear and pride.  In any event, failure to seek treatment is a big risk.  Depression can cause family and financial problems, and in some cases, suicide.  Four times as many men die by suicide than women in the United States.  Men are more likely to follow through with an expressed intention to commit suicide than women.  Between 75% and 80% of all suicides in the United States are men.

Depression can also bleed into other maladies.  Substance abuse can arise as a means of self-medicating.  There may be escapist behavior, like spending too much time at work or on hobbies.  Depression has also been linked to controlling, violent or abusive behavior.  Depression can also influence impulsivity, and risky behavior like reckless driving.  None of this is worth rolling the dice on getting treatment.

Aversion to diagnosis/treatment plays a role in child custody cases.  There is a misperception among men that being diagnosed with a mental illness automatically means that you won’t be able to share custody of children.  I find this is seldom the case.  The fact that someone is struggling with anxiety or depression typically will not preclude sharing custody so long as appropriate measures are taken to treat these conditions.  Mental illness left untreated does much more harm to a custody case than disclosure and treatment.  As outlined above, depression left untreated can lead to violent outbursts and risky behavior.  These byproducts of depression are far more detrimental to a custody case than disclosing and getting treatment.  Your children deserve a father who is present.  You cannot afford to ignore or conceal depression, anxiety or other mental health issues.

Moreover, depression is highly treatable.  In fact, 80-90% of patients respond well to treatment.  Treatment involves medication and psychotherapy.  Psychotherapy is a form of counseling that helps patience redirect distorted thought patterns.  Some studies show that psychotherapy is as effective at treating depression/anxiety as medication.

Men often fear getting treated because medical records could be produced as part of the discovery process during a child custody case.  This would mean treatment notes from therapy sessions would be reviewable by the other party.  While it is true that medical records could be produced through discovery and used as evidence at trial, the judge could enter a protective order prohibiting disclosure of sensitive information to unnecessary persons.  You might think, “my wife will never obey a protective order, she’ll tell anyone who’ll listen.”  Assuming this is true, I expect that she is already saying many negative things about you.  Would disclosure of mental health treatment really make things worse?  I doubt it.

Another practical reason to seek treatment on your own is the threat of forced evaluation.  The discovery statutes allow a judge to order a psychological evaluation when mental condition is part of a party’s case.  Basically, for family law, if there’s a good reason to think mental illness is affecting one or both parties, then an evaluation will probably be ordered.  Judges want to take every precaution to protect children.  Failure to have an evaluation despite being ordered can result in a suspension of your visitation rights.  If you get out ahead of an order for evaluation, you can choose your own doctor, and show the appropriate concern for the issue.

Judges are far more likely to give you a favorable custody award if you are under treatment and supervision of a medical professional.  If you are having trouble with depression or anxiety, or think you might be having trouble with these issues, consult a physician as soon as possible.

In honor of all our fallen comrades who did not get the help they needed, let’s make a resolution here and now to get well regardless of our fears or the perception of others.  Being a dad means making sacrifices.  Getting treatment will also show your kids that it’s ok to admit you have a problem and seek help.  Also, it probably won’t hurt your case as much as not getting treatment.

Resources:

https://www.psychiatry.org/patients-families/depression/what-is-depression

https://www.everydayhealth.com/news/why-depression-underreported-men/

https://www.webmd.com/depression/depression-men

 

How to give convincing trial testimony.

Giving testimony in court is much different than a normal speaking conversation.  You might think “all I have to do is tell the truth right?”  If only it were that simple.  Yes of course you will need to tell the truth, but keep in mind that the truth as you see it might not be universal.  Also, there is a difference between simply telling the truth and giving convincing testimony.  Here are some tips I’ve gathered from my experience that will help you give convincing trial testimony.  Some of these may be obvious, but in a tense situation common sense often eludes us.  Keep these tips in mind to give a convincing presentation.

1.  Tell the Truth

There’s an old adage that “the cover-up is always worse than the crime.”  I find that is often the case.  Aside from the fact that perjury is a crime, once you are caught lying, you might never fully recover.  Everything you say from then on is from the mouth of a known liar.  Even if you think the truth will be catastrophic, people can often appreciate the fact that you told it anyway.  Conversely, it’s difficult to empathize with a liar.  If you have a situation where you think you might be asked questions with damning responses, you should talk about it with your lawyer in advance.  Sometimes a particular spin on the truth can make all the difference.  For example, suppose you’re asked about gambling debts.  Response #1:  I had to gamble because my lousy wife made me feel so horrible.  Response #2:  Yes, I have a gambling problem.  I know I hurt my family.  I’m now getting help and trying to make amends as best I’m able.  Do you see a difference?  If you lie about gambling, there might be bank statements, or people who saw you, or even casino security camera footage.  This would obviously be destructive to your case if you were caught.  Furthermore, I think there’s a kind of catharsis in telling undiluted truth.  It produces a sincerity that is nearly impossible to replicate.

2.  Be Direct

It is understandable that people feel helpless on the witness stand.  Often, people will respond to questions by attacking what they think the question implies rather than simply answering the question.  This is problematic in more than a few ways.  First, it comes off as argumentative and evasive.  Suppose you were asked if you spent late hours at the office with your secretary.  You respond saying “My secretary is one of the best people I know.  How dare you insult her that way!”  The question may well imply extracurricular philandering, but the question does not ask if you had an affair.  Another incorrect response would be to answer with a question like “Are you implying that I had an affair with my secretary?”  Witnesses don’t get to ask the lawyers questions.  Only the judge can do that.  Asking the judge or lawyers questions from the witness stand is a quick way to exhaust the judge’s patience.  If the answer is yes, JUST SAY YES!  Your lawyer will have the opportunity to cross examine or redirect you in a way that will clear things up.  For example, if the implication is not true, your lawyer could ask on cross “have you ever had any amorous or romantic interaction with your secretary?”  Then you can give your emphatic no.  Asking questions or being argumentative from the witness stand only makes it look like you have something to hide.  Just answer the question, implication notwithstanding, and let your lawyer show how ridiculous the unspoken suggestion might be.

3.  Typically, you should only answer the question asked with nothing more.

Witnesses often feel like they should add something more or explain something not asked.  Most often, this takes place in the form of anecdotal editorializing.  Suppose the opposing lawyer asks you “did you speak to your wife’s sister after the party?”  You answer “yes, and she was so drunk as usual.  She is always drunk, and she ignores her children.”  Here again, you weren’t asked about your sister-in-law’s sobriety of attention to her children.  The next question might be “how do you know that she is always drunk?”  Of course, you don’t know because you’re not with her every second of every day.  You come off as an unhinged windbag in the eyes of the judge – someone who can’t answer a simple question without putting someone else down.  Do you find people like that generally trustworthy?  I don’t, and most judges don’t.  Moreover, you might give additional ammunition to the opposing lawyer.  In the hypothetical above, you might be asked if you’ve ever left your children with their grandparents for weekend while you spent time with friends.  “Isn’t this also ignoring your children?” the opposing lawyer asks.  So now you’re a windbag and a hypocrite, neither of which help your witness credibility.  Most of the time, if you can answer a question with “yes” or “no” then that is the best answer.  A simple, direct answer is not as vulnerable to innuendo.

4.  If you don’t understand the scope of a question, ask the questioning lawyer to clarify.

Asking a lawyer for clarification, or to rephrase the question, is probably the one exception to the “no questions from the witness stand” rule.  Lawyers will often purposely word questions in a way the opposing witness will not understand.  It’s a way to disarm the witness and make them squirm.  Don’t ever be afraid to say “I don’t know what [unusual word] means.”  If you respond when you don’t really understand the question, how are you going to give helpful testimony?  It’s important to ask for clarification in a generic, con-combative way.  Suppose you were asked “isn’t it true that your tax returns omitted critical information?”  You respond “I don’t know what you mean by critical.”  The lawyer clarifies “omitted important information?”  The lawyer clarified the question, and unless you don’t speak English, you should not what important means.  You can ask for clarification on all kinds of issues e.g. time and scope of questions.  Suppose you were asked, have you ever lied to your wife?  You might want to clarify whether the lawyer means ever or about something specific.  You might want to as if the lawyer means all lies ever or only about important things.  While this seems tedious, it is actually a normal part of the process.

5.  Use qualifiers frequently.

Oftentimes it is prudent to leave a back door on expansive testimony.  Suppose you were asked “Did you ever take your children to the doctor without calling their mother first?”  This question could potentially cover a lot of time and a lot of doctor visits.  You might want to ask for clarification as urged above.  In any event, this would probably be a good place to have a qualifying phrase before your answer.  “As best I can recall” and “To the best of my recollection” are some of my favorites.  It can be tough to remember each and every doctor visit for a year let alone a greater period of time.  If you qualify your testimony, you leave an escape route if something comes up that you did not mention.  Then you can say you didn’t remember that particular visit, and it won’t look like you were lying.  Another helpful qualifer is “I believe…”  If you respond without prefacing, then it will appear as if you are certifying that your answer is definitely correct.  If you preface with “I believe” or “I’m not certain” then you can safely correct yourself later if need be.

These tips are not everything you will need to know.  I you have concerns, meet with your lawyer to discuss them well in advance.  There is no substitute for preparation.  However, if you keep these tips in mind, you will have a good head start.

Why you should set up an LLC for your family business.

Being a business owner certainly has its perks.  You can set your own hours, make more money based on more work, and take all the credit for growth and success.  However, as most business owners know, there is a price for autonomy.  That price includes not only self-employment taxes (which I loathe) but the potential for exposure to liability.  The downside for getting all the credit is you have all the responsibility when things go wrong.  Even honest mistakes can create substantial liability.  If you are a sole proprietor, then there is no distinction between you and your business.  Any personal assets could be at risk for business liability.

For example, suppose you do landscaping as your business.  Someone on your crew mows a yard and the lawnmower spits out a rock which strikes a vehicle parked along the curb.  Suppose the rock was visible and avoidable, but the crew person was listening to Metallica on headphones and didn’t notice.  The rock is big enough that it shatters the car’s windshield and glass flies everywhere.  Someone is in the car and the glass cuts his/her skin causing serious injuries.  Oh, and for good measure, the car is an Aston Martin.  It may seem like something only from fiction, but this stuff really happens.  You would probably be liable because the crew person was working for you and the injury occurred from normal business activities.  You could face hundreds of thousands of dollars in liability.

If you don’t have an LLC or a corporation, your personal assets could be sold to satisfy your liability.  This is because there is no legal distinction between you individually and your business.  Your house, car, bank accounts and many other assets could be seized by the sheriff and sold at auction.  Creating an LLC or corporation will provide what we often refer to as a “corporate shield.”  It doesn’t block everything, but it’s a whole lot better than running around with no protection.

These business entities are treated like another person in the eyes of the law.  Most types of liability will extend to the business only.  If you are the landscaper, you would have contracts designating your LLC/corporation as the contracting party in your place.  Then when something like the example above happens, only the business assets will be available to pay a judgment.  Obviously that would still be bad, but not as bad as losing your house.

Now some of you might be thinking, “wouldn’t insurance give enough protection?”  From what I’ve seen, most liability insurance for contractors or similar vocations won’t cover damages from negligence unless it’s property damage.  So in the scenario above, only the car would be covered.  The car might not be the most expensive part of the damage, or even if the injuries are only $100,000 while the car is $300,000, that’s still enough to ruin most people.  Most liability insurance won’t cover breach of contract damages at all.

I usually recommend an LLC for most business owners, especially small businesses.  A lot of small business owners are good at what they do, but not so good at business details.  They might bake delicious cakes, but do a terrible job of keeping records, making reports, filing papers etc.  While there is some hassle involved in managing any business, managing an LLC is typically less complicated than a corporation for small businesses.

Contact me today for a consultation on creating an LLC.

If you want Equal Rights, Take on an Equal Burden.

 

Contrary to popular belief, Father’s Rights is about equality, not misogyny.  The mission of the Father’s Rights movement is to achieve equal access and participation for men in the parenting process.  While that all sounds good, or perhaps it would make a good poster on a teacher’s wall, equality can be hard work.  There are a lot of men who feel the pain of exclusion, but they fail to capitalize on opportunities to engage in parenting.  If you want equal rights, you need to take on an equal burden.  This is the meaning for my law practice mantra “Being a Dad is not an every other weekend job.”

Oklahoma law contemplates equal rights for both men and women in custody cases.  However, a more accurate statement would be both men and women have the possibility of equal rights.  In other words, you are entitled to equal rights when the circumstances show it would be in the best interests of the children.  If you demonstrate that you are willing and able to exercise equal rights, the law cannot deprive you of that right just because you are a man.  So what can you do to demonstrate willingness and ability?

Seeking to bear a greater portion of the parenting burden is a good place to start on your journey toward equal rights.  As you begin this journey, it’s important to shed all preconceived notions of gender-specific parenting roles.  As a child, I had one of the best advantages that a future father could have: a good example.  When my Dad would come home from work, we would fight each other for a chance to pull off his boots for him.  After boots and socks were properly removed, my Dad would ask my Mom what needed to be done.  Did someone need help with homework?  Did everyone finish their bath and teeth brushing?  My Dad was a powerful example of a maxim he often uses: “Everyone works until all the work is done.”  I think this sort of tireless vigilance in parenting embodies what being a Dad is all about.  My Dad was a parent in everything from Pop Warner football to poopy diapers – the good, the bad and the ugly.

As a Father’s Rights attorney, I deal with many men who are stuck in antiquated viewpoints about what a man should or should not have to do.  I say “antiquated” because that’s the way most people understand these norms.  In reality, I think good Dads throughout history would not refuse to do something just because others would perceive it as unmanly.  In any event, I think all men can relate to discomfort and frustration with certain activities.  For example, I attended a church meeting recently with my wife and son.  My wife was handling musical numbers in the program, so I had to take care of my son by myself out in the congregation.  Now I’m sure my experience of what amounted to a two-hour wrestling match with me as the clear loser is not unique.  At the end of the program, as people were shuffling out the door, an older gentleman stopped by me and said “They left you all alone didn’t they?  Makes you feel like a woman doesn’t it?”  I wasn’t really in the mood to deal with him, so I managed a forced chuckle, then I looked the other way.  If I could live this experience all over again, I would change my response.  I would respond that taking care of my son and supporting my wife does not make me feel like a woman, it makes me feel like a Dad.  Maybe that sounds too self-important, but I think we often fail to recognize the importance of our roles as fathers.

Ask yourself how many times have you turned down or avoided opportunities to participate in parenting?  What about taking a sick child to the doctor?  When the mother offered to take them, did you just sigh with relief and return to the ball game?  When a recital or band concert encroached on some other activity you preferred, what was your choice?  I confess that I’ve been on the wrong side of these decisions more times than I’d care to admit.  However, as men and fathers we should always strive to do better with the time we have.

But what if your attempts to engage more often in parenting triggers conflict?  For example, suppose in the sick child scenario above, you inform the mother that your child is ill and you are going to take him/her to the doctor.  You inform her in advance about when this will take place so she can attend also if she chooses.  She then demands that you stay where you are until she comes to pick the child up to take him/her to the doctor.  She contends that she has always handled doctor visits, so your presence would only make things awkward.  What do you do?  Any sort of resistance is bound to provoke conflict.

For these situations I like the analogy of a bull fighter.  You might be tempted to match a charging bull with a charging bull of your own.  You respond to the mother stating that it’s your time, so you inviting her to be there was only a courtesy.  You add for good measure that you don’t care what she thinks, and you won’t tolerate any violation of you rights.  The result would be proverbial grid-lock; neither party makes any advances other than increasing the level of conflict.  I have seen cases where the police were called over things like this.  It doesn’t have to be that way.

What is a better response to a charging bull than an equally ferocious charging bull?  A bull-fighter.  You would never see a bull-fighter take on a bull head-to-head.  Successful bull-fighting requires finesse and foresight.  A bull-fighter will artfully dodge each charge until the animal finally tires out.  So how does this apply to conflict in custody cases?

Let’s return to our hypothetical.  The mother demands that she and only she can take the child to the doctor.  You respond saying you understand her wanting to be there, but you want to be there for the same reasons.  You are willing to compromise by letting her drive the child to the doctor, but you will be there too.  You ignore any traps or baiting techniques where she says you only want to be there so you will look good in court and that you have never been involved as a father.  Your response to these insults, if any, is you disagree with her assessment and you will see her at the doctor’s office.  She will most likely tire of the exchange and leave the matter alone.  Your job in this situation is to stay focused on what matters.  In the immortal words of Pops, a rebel-fighter from Star Wars, “stay on target!”

Sometimes these situations have unavoidable conflict.  Some people just don’t quit, and they will raise you one level of acrimony in perpetuity.  I think these situations would be far less frequent if one parent used constructive conflict resolution, but some are unavoidable.  If the situation does not jeopardize the health and safety of your children, then it might be good to make a record by text messages, emails or recordings, then just give in.  You will paint a picture of someone who tried his best to deal with an uncooperative co-parent to no avail.  You will protect your children from destructive conflict.

I often hear clients complain “why do I always have to be the bigger person?”  The answer is “because your kids are too important to risk their well-being just to satisfy your pride.”  I realize the response to this question is nauseatingly simplistic, but sometimes facing hard truths is just that simple, at least in knowing what to do.  I think oftentimes the most difficult part of facing a hard-truth is accepting it.  Living it then becomes much easier.  If you need another reason, following this pattern will be better for you strategically if you go to trial.  Judges will look at whether one party has been more flexible and compromising.  If joint custody can’t work, then sole custody is the only option.  You will be the better choice for sole custody because you are more likely to put the children’s needs first and keep the other parent involved.  Additionally, taking advantage of parenting opportunities as often as possible will show the Court that you can undertake any and all parenting responsibilities necessary to sustain an equal or sole custody role.  More importantly, it will give you more opportunities to bond with your children and build solid relationships.

Time and patience: the essential components of a come-back victory

Recall February 2017 when the Atlanta Falcons played the New England Patriots in the Super Bowl.  Anyone who watched would remember how dismal things looked for New England.  They were dismantled on all fronts, trailing 25 points.  But as my grandpa likes to say “there are four quarters of football.”  New England mounted a breath-taking comeback and won the game in overtime.  The same sort of scenario can play out in a custody case.  Just like a football game, custody cases are long and grueling.  Typically, a contested case will take at least a year to make it to trial.  This is especially true in Oklahoma County, where the family law dockets are very crowded.  While you languish in the commotion of a custody case, you may very well feel like the New England Patriots.  You came in with high hopes and the expectation that justice would be done.  Now, it seems you’re so far down in the game, you can’t possible hope to climb your way back.  Do not despair.

If you watched the 2017 Super Bowl, you’ll remember that the Patriots didn’t come back by scoring 4 touchdowns in a minute. It took time, patience and strategy.  If you think you’re down in your case, or if you’re actually down, you will need a realistic plan and perseverance to get back in the game.  Suppose you’re 5 months away from a custody trial.  All you have is supervised visits based on false allegations raised at the temporary order hearing.  To add insult to injury, your spouse won’t even allow the supervised visits.  What do you do?  Lots of clients in this situation want to go back to court and re-argue the temporary order hearing.  However, if you don’t have any compelling, new evidence, this would probably be a mistake.  Judges typically get annoyed when you bring the same arguments back to court and expect a difference result.  If you annoy a judge, you’re more likely to stand out in the judge’s memory, and you will be a familiar, displeasing face when your trial-day comes.  You need to build evidence other than your say-so which would prove the falsity of the allegations.  You need to consistently and diplomatically insist that you receive your visits.  If your spouse refuses, you can take it up with the judge asking for an order of enforcement with make-up time, or it may be wiser to just make your record of the incident and move on.  Making a record and moving on is very difficult for some people.  Maybe it was hard for Tom Brady to cede the field to the punt team on 4th and long rather than go for the improbable conversion.  Sometimes, it really is better to live and fight another day.

Leo Tolstoy once said that patience and time are the most powerful warriors.  Time gives you the backdrop for showing a consistent pattern.  Your spouse didn’t just deny visits once, but several times.  The argument that she is non-compliant with visitation is more reasonable.  Consequently, you, as the compliant parent, become a better candidate for custody.  The suggestion that you can’t handle the kids for extended time periods seems less credible because you’ve done it several times before you head to trial.  Time and patience go hand-in-hand.  Patience keeps you from getting stuck in the moment, controlling impulses that might jeopardize the end-goal.  For example, without patience, you might go to your spouse’s house to yell and bang on the door demanding your visits.  You might give-up prematurely when you could have had a better result.  Patience helps you focus your efforts today in hopes of a successful future.  Just like the Patriots clawed back into the game slowly but surely, you steadily fill your case with helpful examples of your parental capability and efforts at cooperation.  You can’t hope for a 30 point touchdown because there’s no such thing.  There’s no substitute for careful planning and hard work.  A good plan, carefully executed, is very deadly weapon.

Road-mapping your child custody case: a sequential guideline.

Any sort of lawsuit can be confusing if being in court isn’t a part of your regular experience.  This article will provide a brief explanation of the major steps involved with a child custody case.

STEP 1 – THE INITIAL FILINGS

Your case will begin with filing a petition for dissolution of marriage (divorce) or a petition to determine paternity.  For children born during marriage, child custody is resolved as part of the divorce case.  For children born outside marriage, child custody is resolved in a custodial paternity case.  The petition is the first document filed in the case, often referred to as a “pleading.”  A petition identifies the issues of the case and what your proposed resolution would be.  Once the other party to the case receives a copy of the petition, that party has 20 days to file an answer.  Oftentimes the answer will come with a counter-petition or counterclaim.  A counter-petition/counterclaim is basically a competing petition, at-odds-with the initial petition.  The answer notifies the court whether you admit/deny certain allegations and whether you agree with the other party’s proposed resolution.

It is very typical for parties to take a position they don’t actually intend to stick with as their initial position in the case.  For example, a lot of people put that they want sole custody of the children when they file a petition or answer.  However, many people will settle for joint custody despite what their initial filing states.  It is a negotiating posture to start high then work down to a more realistic outcome.

STEP 2 – TEMPORARY ORDER

Many cases will have an application for temporary order filed along with or shortly after the petition.  An application for temporary order asks the judge to decide what temporary visitation/custody/support orders should be applied.  A custody case can take a long time before resolution, so it is helpful to have interim rules for how time-sharing and decision-making should occur for the kids while you’re working towards a trial.  If the parties cannot come to an agreement for temporary orders, they will have a brief hearing before the judge on the case.  In Oklahoma County, you will not get very much time to make your case for a temporary order.  It’s a bullet-point type of presentation, or a “cliff-notes” presentation if you’re old enough to remember what those are.  Most often, witnesses won’t testify, and all evidence is presented or described by the attorneys.  This is known as an “offer of proof.”  A temporary order is just that: it’s temporary.  The judge can modify a temporary order anytime before trial and entry of a final order.

STEP 3 – DISCOVERY

“Discovery” is the process for obtaining evidence from the other party or third parties.  For the other party, you can serve interrogatories (written questions), requests for production of documents, and requests for admission.  Basically, this is how you would find out what evidence the other party intends to use at trial.  It’s also a way for you to obtain evidence for your use at trial.  Interrogatories are just questions, which must be answered in writing and under oath.  For example, an interrogatory might ask “why do you think joint custody is not appropriate for this case?”  The answer would guide your trial strategy because you would try and counter whatever reasons were offered.  Requests for production of documents would ask for copies of income records, property records, phone records or any sort of documents you could use as evidence.  Requests for admission ask the other party to admit or deny certain statements.  For example, a request for admission might ask someone to admit or deny that the person did not see his/her child at all in the year 2017.  If the other party admitted this allegation, this admission could be helpful to the party making the request.  Discovery can often be a very tedious process.  Gathering documents and information is time-consuming and monotonous.  Get ready, it’s worse than applying for a mortgage, but it’s an extremely important part of building a case.

STEP 4 – MEDIATION

Most judges in Oklahoma require mediation before the case can be set for trial.  Mediation is a settlement-exploring meeting with a mediator.  The mediator is someone trained in conflict resolution.  Sometimes the parties will be in separate rooms with the mediator going between rooms to relay offers and explain the position of each party.  In my opinion, the best mediators are lawyers with experience in the subject matter.  However, not all mediators are lawyers.  A mediator can tell one or both parties whether their position is unreasonable or if their position is likely to be adopted by the judge if the case went to trial.  There is no requirement to settle in mediation.  In fact, whether you settled or not, or how close you came, cannot be used as evidence at trial.  Once mediation concludes, the mediator will make a report on whether mediation was successful.

STEP 5 – PRETRIAL CONFERENCE

Pretrial conference is a brief meeting with the judge, usually a couple weeks before trial.  The attorneys will give the judge a preview of the case from each side’s perspective, and the judge may hear evidentiary motions or other motions.  In some counties, the clients are required to appear with their lawyers for pretrial conference.  The lawyers will discuss how much time the case will take at trial, and what issues remain in dispute.  As part of the preparation for pretrial conference, each party will typically prepare a pretrial conference statement, which outlines the parties’ positions and proposed resolutions for the final stage of the case.  Often the proposed resolution will be different from the position taken in the initial filings.  Typically, you must have all evidence prepared and organized for trial prior to the pretrial conference.  Evidence should be marked in the manner it will be used at trial, which means separated into numbered exhibits.

STEP 6 – TRIAL

If the case cannot be settled, then the only way to resolve the dispute(s) is by having a trial.  At trial, each party will call witnesses and introduce evidence.  Oftentimes, in a custody case, the parties will be the only witnesses.  Upon hearing the evidence, the judge will pronounce a ruling.  Typically, this will happen after both parties rest their cases.  Sometimes the judge will take the matter “under advisement” which means the judge wants to look at the admitted evidence, study his/her notes, and issue a later ruling after independent review and reflection.  Once a ruling is pronounced or issued, it is enforceable immediately.  This means enforcement does not require a formal, type-written version of the ruling.

STEP 7 – MEMORIALIZING FINAL ORDERS

After the judge pronounces or issues a ruling, the lawyers prepare a type-written Decree of Divorce or Final Order Determining Paternity.  Final oreders will include a Joint Custody Plan if the judge awards joint custody.  The orders will also include a child support computation and visitation schedule.  Sometimes, the lawyers and parties can’t agree on the proper wording for the judge’s ruling at trial.  In these situations, one or both parties will file a motion to settle journal entry which will be heard by the judge.  The judge will decide which party’s version is an accurate reflection of what the judge decided at trial.

STEP 8 – APPEAL

Once a type-written, final order is approved by the judge and filed with the court-clerk, a party has 30 days to appeal that judgment.  Appeals take a long time to resolve, sometimes longer than the case itself.  While your appeal is pending, the trial judge’s orders remain in effect.

Why I Chose Family Law as my Primary Practice Area.

MY JOURNEY TO BECOME A FATHER’S RIGHTS ATTORNEY

I graduated from law school in 2009.  At that time we were in the deepest part of the economic crater now referred to as the “great recession.”  I was working at a firm in Oklahoma City doing mostly business and personal injury litigation.  They offered a full-time position after I passed the bar exam, but the salary was very meager.  It was a toxic work environment, and I really didn’t like working there.  I decided go out on my own and learn from the ground up.  I teamed up with a firm in Norman, basically on an eat-what-you-kill basis.  If I didn’t produce my own work, then there probably wouldn’t be enough firm-work to make ends meet.  I used all outlets I could think of, however debasing others might consider them.  You can’t afford to be proud as a baby lawyer trying to survive.  I even used craigslist (back then it wasn’t as creepy as it is now, or at least that’s what I tell myself).

A lot of the calls I got from my pitiful marketing efforts were family law cases.  At first it was very difficult; sometimes it still is.  There is a human element to practicing family law that most people cannot handle.  Clients going through a divorce or custody case are some of the most stressed, irritable and anxious people on the planet.  How could they not be?  In that sort of mental state, even successful and intelligent people do foolish things.  Persuading clients to accept a difficult and arduous course of action while in that mental state is well…really hard.  When I first started out, it was a rough learning curve.  I would get so frustrated and anxious because I didn’t know how to lead people where they needed to go.  I kept thinking I would just keep doing family law until I got other areas of practice off the ground.  With a lot of ibuprofen, and with the support of my patient/long-suffering wife, I improved and adapted.  I saw that practicing family law was something I’m good at, or maybe even something I was meant to do.  I also saw that doing family law was a way to see direct and immediate improvement to people’s lives.  I live for those moments when the judge pronounces a ruling at trial that gives my clients more time to be with their children and more ways to be an influence in their lives.  That look of unrestrained happiness on clients’ faces is a high I never get tired of.  I also enjoy plotting a course out of the madness that is a custody dispute and seeing the peace a well-conceived plan brings into clients’ lives.  Custody litigants are in a fog of frustration and sadness, a quicksand of despair.  Often they can’t see a way out, so helping them see the reality of their situation (often less dire than what they think) is very rewarding.

My love of family law solidified when I became a Dad.  There is nothing better than quality time with my son, and I consider it my honor to help other Dads increase their presence in the lives of their kids.  Dads face unique challenges in custody cases.  While there isn’t as much conspicuous bias as in the past, I still see a lot of favoring for Mothers.  As a Father’s Rights lawyer, I don’t seek to diminish Mothers’ influence on children; rather, the goal is to have equal influence for both Mom and Dad.  I’m proud of my small role in helping men live up to their God-given responsibility of being a Dad.

I was blessed with enough work to open my own office in October 2017.  Having my own office gives me freedom and flexibility to limit my case-load to a level where I can give personal advising to my clients and be accessible to them.  Give me a call today to see if I’m a good fit for handling your custody case.