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.

 

 

What is an “emergency” for purposes of emergency custody?

Emergency custody is one of the most difficult concepts for clients, and lawyers, to understand.  The statute on point in Oklahoma is 43 O.S. section 107.4.  The statute defines conditions which constitute an emergency as follows: “the child is in surroundings which endanger the safety of the child and that if such conditions continue, the child would likely be subject to irreparable harm.”  The question then becomes “what situations endanger the safety of a child and make irreparable harm likely?”  There are as many opinions about this as there are people in the world.  While people have differing views on whether a given situation is an emergency, there are some situations that will typically constitute an emergency that judges recognize.  Here are some examples:

  1.  Physical/sexual abuse.  If a child has been abused, and there is evidence to prove it, pretty much all judges will grant emergency custody.  Suppose there is evidence that one parent yells at the children.  Some might consider this emotional abuse.  This probably would not be an emergency because emotional abuse is very subjective.  The fact that one parent yells at the children might be good evidence to use at trial supporting a request by the other parent for custody, but it probably isn’t enough to be an emergency the law will recognize.
  2. Drug abuse in the home.  If there is proof of drug abuse in the home of an illegal drug like cocaine, meth or heroin, then judges will likely grant an emergency order.  For drugs like marijuana, given the current legal climate, that is probably not an emergency in the eyes of the law because marijuana for medical use is legal in Oklahoma.  However, just because a drug is legal doesn’t mean abuse of that drug won’t give rise to an emergency order.  If alcohol use leads to multiple DUI’s, or other criminal activity like assault and battery, then judges will probably grant an emergency order.
  3. Uncontrolled mental illness.  Mental illness is a tricky situation, which may not necessarily be an emergency.  The fact that someone has bipolar disorder is not by itself an emergency; however, if the situation is not under control there may be an emergency.  If a bipolar person is sleeping long hours while a baby goes unfed, with diapers not changed, and without supervision, that is an emergency.  If a person with depression doesn’t take the kids to Main Event on a Saturday because they don’t feel like going, that is not an emergency.

These are just a few examples of situations that may or may not be an emergency.  I’ve heard clients complain that the law is too stringent.  Their babies are suffering and they can’t do anything!  I’m a parent, so I think I can understand how frustrating that feeling can be.  The reason that the law is so strict on what constitutes an emergency is because people cannot be deprived of the right to parent their kids without due process of law.  As a principle of constitutional law, the level of process someone deserves depends on the importance of the right at issue.  For example, you are entitled to less procedural safeguards for losing a drivers license than for losing your kids.  Kids are more important than drivers licenses, so the procedure is more protective of one than the other.

Emergency custody requires seriousness of the potential harm to kids as a procedural safeguard.  This makes it less likely that kids will be taken away without justifying circumstances.  An emergency custody hearing is much shorter than a custody trial.  This is because the emergency nature of the situation should be self-evident.  If the situation is more subjective, then the affected parent is entitled to a full hearing with more expansive presentation of evidence.

I think as a society we can all at least appreciate the idea that we don’t want the government to take away kids from one or both parents on a whim or without serious circumstances.  That may mean you will have to wait for a trial before your story is fully heard, but it also means that you are protected from non-emergency suspension of your custody rights.

Apples to Apples: why comparing your case to another might not be helpful.

 

I imagine many people are familiar with a family game called apples to apples.  In this game you receive a word prompt, and then you look through cards dealt to you, which also contain words, to determine which card most closely matches the word prompt. The players take turns picking which card amongst cards suggested by the other players is the best match to the word prompt. A fun, and often frustrating, part of the game, is dealing with the other players’ opinions.  For example, a word prompt might be daring, and the winning card is soap. You might pull your hair out thinking “why in the world is soap daring?” And the player picking the card will give an equally frustrating answer “I just really like soap.” The subjective preferences of each player make picking the winning card more complicated than simply picking a card that you believe is most on point.  You have to predict the other player’s preferences, and hope that choosing player doesn’t disregard your card because they are mad at you or simply don’t want you to win.  Hence, each players chosen card may not necessarily compare to the other chosen cards in an apples to apples type of comparison.

Just like comparing your view of the most relevant card to that of other players’ views can be upsetting, clients in family law cases often encounter confusion and frustration in comparing their case to that of friends, relatives and coworkers.  I hear all the time questions like “he has three kids and I have three kids, and yet he pays less in child support. Why am I paying so much?” or “my brother got joint custody of his kids, and he lives in another state; why can’t I have joint custody too?”  These types of questions ignore the numerous differences between the situations that dictate a different result. Here are some of the most common reasons that cases with a few similarities often have different results:

DIFFERENT JUDGES

The judge assigned to your case is a very important factor in determining the outcome of your case.  Some judges will award joint custody even if the parents are not getting along as a way to force parents to work together.  Some judges will not award joint custody if one of the parents doesn’t want it, or the parents have even minimal conflict.  Some judges think that infants need to spend the bulk of time with the mother even if the father is a competent caretaker. Some judges believe that if an infant is not breast-feeding, then there is no reason for the mother to have more time than the father.  The judge assigned to your case, and the particular decision-making style of that judge, can have important effects on your case.

DIFFERENT LOGISTICS

A lot of the time, the logistics of a case will have dramatic effects on the outcome. For example, suppose a father works at Tinker Air Force Base, with work beginning at 6 AM.  It would be difficult to take the children to daycare at such an early hour (probably at least 5:30 AM). The logistics of the situation might lead a judge to award more time to the parent whose schedule permits an easier child caring situation. Another factor that has significant impact on the case is the distance between each parent’s home.  Sharing time equally is a easier if people live closer to each other.  If you live close to each other, chances are you will be in the same school district. If you are in the same school district, travel-time to and from school will probably be similar for each parent.  I have had cases with clients living in Norman, but the kids attend school in Edmond. The parent living Norman would have to drive the kids to Edmond every day for school if equal time were awarded.  This would obviously be extremely inconvenient and burdensome for the family and equal time may not be a workable solution.

DIFFERENT PERSONALITIES

A case often hinges on the personalities involved.  This would include not only the judge, and the parties, but also the lawyers involved in the case.  There a lot of personality types for lawyers who practice family law.  Some lawyers have a pragmatic view of the case and work cooperatively with the other lawyer to create a coparenting framework that will give the parents and the children a workable custody plan.  Some lawyers will look at each case as if it were it pistols duel, where only one party can win.  These lawyers often encourage their clients to harbor animosity for the other parent, and refuse to negotiate in good faith. A contentious lawyer can often convince a judge that joint custody is not proper when the contentious relations between the parties were caused by one lawyer’s encouraging, or even creating, the contention.  Obviously, the personalities of the parents is also an important factor affecting the outcome of a case.  Some parents are very defensive, and seem to be unable to cooperate with the other parent to solve problems.  Parents like this will often focus on how the situation is the other parent’s fault rather than seeking a resolution.  Some parents have trouble controlling his/her anger, inhibiting the cooperation that is necessary for a functioning joint custody relationship.  The personalities involved in a case will differ from case to case, leading to different outcomes.

WILLINGNESS TO SETTLE    

As I have discussed in prior articles, settlement is a voluntary process.  It only works if both parties are willing to agree.  Sometimes clients will compare a situation where the other party is not willing to settle to a case where the parties settled by agreement.  “In my brother’s case, he received joint custody, and they do equal time. Why can’t I do that in my case?” a client might ask.  However, the client may not understand or acknowledge that in the brother’s case joint custody and equal visitation were awarded pursuant to an agreement between the parents whereas in the client’s own case the other party will not agree to joint custody or equal visitation making a trial necessary. Flexibility on settlement will vary from case to case.

CONCLUSION

All of the different combinations of these and other factors can make comparing one case to another, like apples to apples, a fruitless and frustrating exercise (did you get my awesome pun fruitless?)  Determining a likely outcome in a case requires years of experience and careful analysis.  You will need a lawyer capable of careful analysis and experienced enough to predict a case outcome based on your particular grouping of factors.

The Danger of Inaction: a call for Vigilance in Enforcing Fathers’ Rights

 

PART 1 – WHY INACTION IS A RISK.

The danger of inaction is one of the most pervasive problems in family law practice.  Let me give you a hypothetical to illustrate the nature of this problem and why it is so dangerous. Suppose you and your wife have been living apart, separated for years.  At the beginning of your separation, you asked to see your kids often, but your wife would not let you see them because she was angry about the separation.  Rather than get into yet another fight, you let it go, thinking that once everything settles, she will ultimately let you resume contact with the kids.  A month becomes two months, two months become six months, six months becomes a year and so on. Before you know it, it has been two years since you last saw your children. Throughout that time period, you made repeated requests to see the kids only to be rebuffed by your wife. At last, you’ve had enough, and you decide to file for divorce so that you can get court ordered visitation that does not depend on your wife’s consent. When you appear for a temporary order hearing, or a final hearing, your wife’s lawyer argues that you don’t really care about your kids because you haven’t seen them for two years. You counter that the only reason you did not see them is because your wife withheld them from you. Your wife’s lawyer then asks you why you did not file a case to enforce your visitation rights.  Your wife’s lawyer further claims that any request you made to see your kids was insincere because you never followed through.  The judge doesn’t know who to believe.  However, one fact is not in dispute: you have not seen your kids for two years.  On that fact alone, it is probable that a judge will award you less visitation than what you otherwise would have been awarded.  Your kids have built a routine and familiarity living in mother’s home without their dad.  Judges don’t often want to change the status quo just because a parent, after a long absence, has a change of heart.  The judge reasons that you willfully alienated yourself from the kids because you never took any action to enforce your right to visitation.

Believe me, this happens more than you would think.  It is a pet peeve of mine that people make these arguments; but people keep making them all the same.  I personally do not believe that someone’s failure to initiate a contested custody case, in and of itself, demonstrates that the person does not care about his/her children.  However, it is a common argument, often done successfully. The danger of inaction is that your failure to act will be perceived as apathy toward being an influence in your kids’ lives.

PART 2 – YOU SHOULD BE SELFISH ABOUT GIVING UP TIME WITH YOUR KIDS WITHOUT RECEIVING MAKE UP TIME.

Consider this less dramatic hypothetical: you get a temporary order allowing you to see your kids every weekend. A day before your weekend visitation, the mother asks you to relinquish your visitation for that weekend because the kids have sporting activities or relatives in town.  You think to yourself that it will be good if you can show that you are a team player, so you agree that you will not have visitation that weekend.  This same scenario becomes a repeating pattern. Before you know it, you agreed not to exercise seven out of 10 weekends where visitation was available. At trial, the mother’s lawyer argues that your failure to exercise the majority of time available to you shows that you put yourself and your own desires above being a father.  You respond, explaining that you were just trying to be flexible.  The judge agrees with the mother’s lawyer, and reduces your visitation to a time commitment more in keeping with the visitation you actually exercise.

Of course, being a team player and being flexible is an important attribute for a healthy co-parenting relationship.  However, if the pattern becomes you giving time but not getting any time back, this will be a problem.  While we all aspire to be unselfish people, the time that you have with your kids is something you should be adamant about keeping.  At the very least, if you give up time, you should insist on making up that time as part of your agreement.  There should be a specific plan for how you will make up the time before you reach an agreement on giving up time.

PART 3 – SPENDING TIME WITH YOUR KIDS IS MORE IMPORTANT THAN TRYING TO SAVE YOUR RELATIONSHIP.

What do you do if you’re in a situation like the first hypothetical?  If your case has not been filed, then you need to file a case.  Of course, some men find this difficult because filing a case signals the end of the relationship. In my experience, that isn’t necessarily the case. Lots of times people will get back together even after they divorce, and then ask the judge to nullify the divorce (a right under Oklahoma law).  But let’s assume that filing a case does fully and finally end any hope you had at reconciliation.  While I can understand the catastrophic heartache that comes with the end of marriage or other romantic relationships, your children have to come first.  You have to ask yourself, is someone who impairs your ability to be in your children’s lives and spend time with them a good partner anyway?  I know that I’m oversimplifying, but I think most of the time it really is that simple.  If there is no reason that you can’t safely be around your kids (you don’t have drug addiction or domestic abuse problems etc.) then you should be adamant about your rights.  There’s an old adage that “justice favors the vigilance.”  I personally believe this to be true with regard to child custody rights.

PART 4 – OPTIONS FOR ENFORCING CUSTODY ORDERS

Suppose you have a case that is is pending or already completed.  In this situation there is typically a visitation order issued by the court. If you have a visitation order, and the other parent refuses to allow or facilitate visitation, there are a few options you can utilize to enforce your rights.

First is what we call a Motion to Enforce Visitation.  The good part about this motion is it has a relatively short lifespan – usually not more than 20 days from the filing date to the date of your hearing.  If the court determines that your right to visitation was impaired or unduly restricted by the other parent, then you can get make up time for the time you missed, and potentially you can recover your costs and attorney fees for the case from the other parent.

Another option is seeking contempt charges.  When a parent violates a court ordered visitation schedule, we typically call this indirect civil contempt of courtIndirect contempt of court is a violation of the court’s orders which occurs outside of the courthouse, or outside the presence of the judge.  Contempt, or violating a court order, is a crime. Someone found guilty of contempt could potentially end up in jail or pay fines.  Because contempt is a crime, constitutional rights, such as a trial by jury, will attach.  There is also a necessity of having the defendant (contemnor) arraigned.  This adds additional time to the life of the contempt case.  If there is a jury trial, that time increases exponentially.  Even if the contemnor agrees to have a trial before the judge (a bench trial), you are still probably looking at a minimum of a few months before the trial takes place.  The benefit of contempt over a simple motion to enforce is the prospect of jail time is a very good motivator to change bad behavior.  Additionally, all the rights of time restitution and attorney fees etc. would typically be available in any contempt case the same as a motion to enforce.

My explanation of procedural mechanisms to address withholding of visitation is only a cursory explanation. If you have been having trouble getting visits, you need to speak with a lawyer right away. The process is complicated, and it will be very difficult for someone to prosecute a motion to enforce or content case by themselves without a lawyer.  Furthermore, as explained above, waiting can be very dangerous to your case.  There is a price for inaction which no father should ever allow himself willingly to pay.

 

Shaping a Compelling Trial Presentation.

 

Building a compelling case at trial involves shaping the case.  The shaping process begins before the case filing and continues through the life of the case.  Just like a long and dangerous journey, a trial requires knowing where you want to go and the best way to get there.  Here are some factors I believe are crucial to shaping a persuasive trial presentation.

1.  Decide what points are most important, then organize evidence supporting those points.

The whole point of law school is teaching “how to think like a lawyer.”  It means we learn to be razor sharp in determining which facts support a particular conclusion.  We then learn how to weave these facts into a coherent legal argument.  Clients sometimes don’t know which facts really support the point they’re trying to make.  It’s not because Clients are stupid, it’s just that divorce/child-custody cases inevitably have an emotional component which clouds judgment.

For example, in any given child-custody case, one goal is to prove that you are a fit parent.  Suppose you want to establish the fact that the mother wanted to have an abortion before your child was born.  It is easy to see the emotional importance of that fact, but does that fact necessarily support the idea that YOU are a fit (adequate) parent?  No it does not.  Another parent’s actions or prior acts/thoughts/words do not really affect the issue of whether YOU are a fit parent.  Moreover, even if this is true, does it mean that the mother is unfit?  Probably not.  The fact that someone wanted an abortion prebirth doesn’t necessarily mean that they won’t take care of a child.  At best it minimally advances the allegation that mother is unfit, very minimally.

It is often bad strategy to establish a fact that doesn’t help your case just because you want the satisfaction of having that fact aired in open court.  Doing so may lead the judge to think that you are more interested in humiliating the other parent than showing what custody decision is in the best interests of your child.  If your lawyer says that a fact you want to establish isn’t important, you should probably listen.  You may be too close to the situation to make that determination.  Furthermore, your lawyer should know the facts that support the points you need to make.

2.  Use proper time management.

Any case that ends with a trial has a long road that leads there.  There may be many hearings along the way.  Pretrial hearings usually are short, and the evidence presentation is minimal.  Court appearances always require good time management.  A pretrial hearing involves very little face time with the judge.  You have to choose which facts are most important based on the time allowed and the purpose of the hearing.  For example, I once attended a temporary order hearing where a wife used the little time we had to try and establish that her husband had been unfaithful.  Suppose that this were true.  Does that mean that the husband shouldn’t be able to spend time with their son?  Does it mean that the husband won’t properly supervise or protect their son?  Probably not.  The exasperated sighs and head shakes from the judge were not enough to convince the person to stop inquiring on this issue.  Judges are human beings, and like any human being, he/she may not be as sympathetic to you if you waste time.

Even if the fact you want to establish is helpful, there may be other facts that are MORE helpful, so you should concentrate your time around those facts.  Suppose the mother doesn’t keep a clean house.  However, she also has an anger problem.  Do you spend more time on the clean house point or the anger issue point?  Probably the anger issue.  Unless the house has roaches crawling over all the food and a mold infestation, an anger issue presents a more dangerous threat to a child.  At the very least you will need to leave enough time to adequately establish both points.

3.  Choose your battles.  

Choosing your battles involves choosing which battles to fight and when to fight them.  The other side may make allegations in a pretrial hearing or trial which you know to be completely untrue.  For example, suppose the mother alleges that you have a drug problem, which is untrue.  Do you invest a lot of time showing how she often lies based on past examples?  Probably not.  You go get a hair follicle test immediately after the hearing which shows no drug use over the past 6 months.  You choose not to engage on that issue but rather offer to produce evidence at a later date which disproves that allegation.  This is an example showing a proper choice about when to fight a battle.  Suppose in that same hearing the mother alleges you watch too much TV.  It is probably a good choice not to engage on the TV allegation but focus instead on the drug allegation.  In any child-custody case there are way too many accusations to respond and disprove each and every allegation.  You have to pick and choose the points that are most damaging.

Shaping a good trial is much more complicated than any blog article can explain.  However, if these points are utilized your case will be well on its way.

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.