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Lawyer Time vs. Real People Time
Recently, I had an unfortunate falling out with a client over what was perceived as the slow progress of his case. Over four month little had happened aside from me serving discovery and setting a motion, mostly due to the inopportune absence of the pro se opposing party for a month long vacation that it was unclear when it was starting and ending therefore effectively being a three month vacation.
Setting motion and such while the opposing party is absent will tick off judges, and for less than five thousand I’m not ticking off a judge. There is a point where a time delay will allow me to proceed without the other party, but a month or two is nothing in lawyer world, much less judge world. It has taken over a year to get a trial on a divorce trial that should last under an hour. A new divorce really doesn’t require any concrete progress, just the passage of time.
Eventually you can ask for a trial date, if you’ve done discovery then the other side can’t argue for as long a time to conduct while they neglect their case. After about a year the judge may decide to arbitrarily set the case for trial. The other time that screws people’s sense up is signing things and executing agreements. I can’t make someone else agree to something or sign anything in any period of time, that’s why it’s called an agreement. I like to look things over, other lawyers are the same. It may take two weeks to get to something trivial. That adds up. I’m penciling in trials over a year out at this point.
Cases start out at an exciting pace with complaints, an initial consult, and then some settlement discussions. Then it slows down. Sometimes lawyers get in laziness wars with one another. That’s where we don’t do anything hoping the other will convince their client to settle thus avoiding any additional work. It’s a surprisingly effective strategy, the stress of an open case can cause people to make very attractive offers just to end it.
I usually get things done a week or more before deadline. That makes me very proactive in lawyer world. So I might tell you I’ll try to get something done next week, but I’m being literal about the “try” part. It’s on my vague mental list of things to do. I might bump it in favor of the gym, working out, or a date if the actual deadline is more than three weeks off or signing up a new client or a really hot date if the deadline is less than four days off. The key is the deadline. The system is designed for the judge's convenience, then the lawyers, then the clients, then witnesses. Its that way so we all stay sane and so lawyers can manage heavy caseloads which keeps rates down.
I really do like getting things done before deadline, but I’m self-employed. I like flexibility. Sometimes I get things done well before deadline. All of which seems incredibly slow to you, especially if you think your case should be my first priority which is nearly universal. Virtually all my clients are paying me what seems to them a princely fee for my services, which would be a king’s ransom if all I had were one client. |
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| Posted by David Sandy at | | | |
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The Twenty Year Divorce
Sometimes there is more separation then happy marriage. After all, divorce is a drag, legal fees, filing costs and just plain paying the five bucks to park across the street from the courthouse. So people just move out, establish separate lives, maybe move in and out while having separate checkbooks.
Then something happens, a new boyfriend wants to get married or you finally want her out of your life after she breaks all your stuff after the argument you had after seeing each other for the first time in two years spirals out of control after you accuse her of not loving you.
So how do split the stuff up?
Most sane reasonable people choose to just keep what they have in each others name after living apart for twelve years.
However, you are married right?
What about that equal split stuff.
Bad news Tennessee is an equitable division state with a presumption of an even split. While logically long periods of separation should play a factor there is no caselaw where it is mentioned.
So what to do? Signing a separation agreement may work. Just going ahead and getting a divorce is also an option.
The best thing to do would be to sign a prenuptial agreement at the start specifying exactly what happens in the event of a separation. That way you don’t have to get divorced. Also that way when you aren’t separated everything should be split equally and you can feel like you really are unquestionably in a partnership. Also, a provision limiting co-mingling which is the doctrine that states if your spouse contributes a significant amount say 10-50% of the value of your separate property before the marriage they get half. That leads to strife.
Moral, everyone needs a pre-nup.
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| Posted by David Sandy at | | | |
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Bigamy Is BAD!
Yes, you do have to get a divorce before getting remarried. For some strange reason this is a frequently asked question. While I know the cost of a divorce can be high(uncontested from me is a whole gasp 651.50 currently including court costs), especially if contested. It is required that you get a divorce before getting remarried or it is a crime. It is still a crime if you have been separated for twenty years and still know the other is alive, you really dislike each other, or even if your new spouse is okay with it.
The only exception would be an absence of five years with a lack of knowledge of life. Then if the dearly departed resumes their place among the living they have a right to have the next marriage dissolved. So unless you’ve seen the body, I’d suggest not doing so. It really would suck to have your marriage annulled by a long dead spouse. |
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| Posted by David Sandy at | | | |
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Kicking and Screaming in Tennessee Legal Considerations in Moving from the Marital Residence because your Therapist told you too or other good or not so good reasons.
First, you need to read the below article. The consequence of moving out or staying in the marital house comes up in the majority of serious Memphis divorces. It is also one of the hardest questions to answer precisely. The first issue one must address is grounds for divorce in Tennessee. Tennessee divorce law requires if both parties do not agree to acceptable terms for divorce that one party desiring the divorce prove that one or more statutory grounds exist for a divorce. There are two ground implicated in leaving the marital home; firstly that of abandonment, secondly desertion for over a year.
The first is the one that must be studiously considered due to lack of a considerable period before the ground would be implicated. The ground also and this is often forgot provides that there must be a willful failure to provide. A spouse seeking to leave and avoid giving grounds should therefore render non-token support during the absence. Reading the prior article on evidence, that support should be provided in documentable form preferably cancelled checks. This can be difficult for a non-economically dominant spouse who may have to rely on the just cause exception to abandonment. Even an economically dominant spouse should document the reasons for leaving as well as support; remember this is an unpredictable wide brush system. Again, evidentiary and the general broad systemic view considerations come into play.
First, the system has a distrustful view of psychologists and experts, especially when no concrete evidence of a recommendation exists before the event. I have had several clients tell me their psychologists recommended XYZ. That brings up a difficult conundrum of getting that both believed and into evidence.
Softies that they are, wouldn't psychologists be inclined to say they recommended some course of action more strongly than they really did to help their client? A lot, of lawyers and judges, certainly suspect as much. Secondly, getting psychologist's opinion into evidence after the fact requires either a deposition or live testimony, both of which are terribly expensive and cut into the funds available to pay the legal dream team. If only counselors would give out these recommendations to clients on official letterhead stating that they frequently make such recommendations, that written recommendations as such are their standard practice, and stating potential negative risks of not leaving the marital home. The counselors need to do such before any action by the client and without being asked. This will allow the lawyer to get such statements into evidence much more easily.
Moving beyond grounds into the money and property division aspect. The effects of moving out on alimony are largely as above. Grounds increase alimony. Moving out rarely looks good, with a thoughtful pre-moving letter from a psychologist it looks vastly better. The ideal, of course, is to have the spouse sign the letter on the bottom agreeing with the proposed course of action and stating that possession shall have no effect in any potential divorce. On property division, it should in theory have little or no effect on the monetary amount. It will effect who keeps the residence if the court does not order it sold and the equity divided.
Since all potential divorcees should be aware of their soon to be decreased standard of living, this can lead to the strategy of moving out so the other party is stuck trying to dispose of a too large marital home while the other spouse gets compensated with liquid assets. Who keeps the children will have much more importance when a party moves out. Frequently, if a residence is not sold if there are minor children the Court will lock up the non-custodial and residential parent's share until the residence is sold.
Sometimes that can even occur without children. So moving out can be a real risk in situations where the marital home represents the lion's share of marital assets and it would be impossible to compensate with other assets. Once you move out, getting back in will rarely be what the courts order without children. If something works why change it? The exception is relocation due to physical domestic violence. Then the court will frequently order the offending party to a different location. I would strongly urge anyone to consult with a lawyer before moving out. It is a strongly fact specific situation. If a therapist urges that course of action, then get a written recommendation before you do so. Ideally, the therapist will give you one without prompting and as a regularly conducted activity. |
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| Posted by David Sandy at | | | |
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While the days of cloning judges to follow people around and dispense perfect judgments may not be far off we are stuck, at least temporarily, with an imperfect system. For the mathematically inclined you can view the essence of the system as a one dimensional string cutting through a three dimensional swatch of reality with many points of light representing individual cases scattered in a chaotic randomness around the string. The objective of the justice system would be to obtain the minimal possible summated distance between all the points and the string. That’s the closest I can come to describing it for anyone who wants to mathematically model justice. I stopped taking math classes after getting a D in Real Analysis.
As a typical client you will be concerned only with the distance in your point of light (aka case). However, the reality of the situation is that your lawyer performs the role of equating your point into the string. The string is all knowing and wise. It has devised various rules and conventions to ensure the distance is kept to a minimum. This will inevitably cause you, the client, grief and panic. I have seen psychological evaluations of people in traumatic litigation describing them as believing their lives are controlled by forces outside their control, which being a well ederkated lawyer I know is a hall-mark of psychological syndromes.
Having practiced law for a small amount of time I now chuckle inwardly at such naively obvious observations being one of the primary puppet masters. If a client every completely understands and accepts this they will have gone a long way towards both Zen Enlightenment and dealing with life.
When a client identifies a problem with the other side in order to send the great and mighty legal system into action I must almost always do two things. First, I must identify some prior written statement within a recognized source of law identify the problem as one addressable by the law and bring it in loosely correct format before a court. Second, I must produce admissible evidence proving said problem exists.
The first is rarely a problem but takes time. Courts minimize the resources they expend by requiring that problems be categorized and placed before them in a rough queue. The second competent admissible evidence requires much more work.
Someone’s familiarity with their spouses works against understanding the process. Courts don’t know your relationship. Courts prefer concrete statements or acts by the opposing party testified to by a disinterested neutral. Failing that testimony by both parties which the court will weigh in some sort of coin flip as to credibility. Courts have institutionalized a rule called hearsay that you cannot testify to what someone else said, but need to bring them in person. This drives people crazy but makes a lot of sense. Think about how you judge characters on television. Imagine that process determining your future. Does it seem to have the potential to be random, unpredictable and shallow? As a lawyer I will attempt to minimize the effects of that process. Unfortunately, while I can give a very well educated guess at what will happen, I can’t tell you for certain. I’ve heard “but it’s not right” more times and in more ways than I can count.
As a lawyer, if I don’t give you a straight answer as to the reality of your situation you will never be able to find your way out of it, if indeed you are interested in doing so. Sometimes I will be wrong. That’s the nature of the process, but part of lawyering is to recognize the danger of such and make sure mistakes are within a margin of error. |
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| Posted by David Sandy at | | | |
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| Things they need to change about divorce law.
In the definition of marital and separate property there and the division therefore some provision needs to be made for long separations between the parties. Technically, someone could get married, split up and not see each other for 30 years and then have to divide everything equitably which could mean a 60/40 split even in such an extreme case.
Discovery needs to be strictly enforced. Its no wonder young lawyers aren’t civil being constantly harassed by clients about obviously insufficient discovery that the court won’t do anything about. Having prompt responses being a literal standing joke in the Bar Magazine indicates a clear problem, if its that hard make it 60 days instead of thirty.
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| Posted by David Sandy at | | | |
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What’s wrong with the Child Support System
Recently I expressed distress to other attorneys for what I feel is unreasonably high child support payments mandated by current guidelines. Coming from an economics background I recognize that the cost allocations are incorrect in that they seem to come from figures based on per-capita household costs, inaccurate market prices, or choices that at income levels calculated for would simply not be made.
This was inevitably met with a “try to raise a child for under $1000 a month” response, which made me realize where the problem lies. Child support policy is being made by aloof members of the upper class who have no idea what is like to budget and also cannot differentiate between fixed and variable costs.
For example for true dual parenting to occur, which is the ideal, both parents would need to maintain housing for both children. There should only be a marginal increase for time spent in terms of utilities. Similarly, clothing should be calculated at a basic level. Australia has an excellent idea to allow the non-custodial parent credit for items bought directly for the child. What too often happens is that the guidelines appear calculated to assume all durable or semi-durable items are bought exclusively by the custodial parent. This leads to a diminishing parent child relationship as children question why the non-custodial parent doesn’t buy them as many non-necessities or perceived to a child as luxury items.
This also leads to custody battles being waged over “the child support money”. This effects both custodial and non-custodial parents and leads to strife and turmoil. Six figure lawyers can’t understand this having conditioned themselves to believe designer clothing, cars, tutoring, electronics, are all normal items to be bought for children and thus perceiving without performing a calculation the child support as barely adequate.
The enforcement mechanism is also messy. Parents who fall behind often are not allowed to pay small amounts owed to the government first, even with the custodial parent’s request. A particular problem is license suspension, while an effective tool there has been no provision made for those whose jobs require driving.
By all means if someone won't support their children and has the funds available they should go to jail, but the current enforcement mechanism has run amuck. The kicker to all this is that the law on the subject clearly indicates punishment should only occur for a failure to pay in the presence of a clear ability to pay. The controlling Supreme Court case on the subject actually supports that all that is required is the testimony that payment is impossible and then the burden shifts.
However, courts have failed to read the entire case and are now requiring the borrowing of money from family and friends, deeming payments made outside the system gifts which I can find no authority for unless they occured before amounts were due in some circumstances, prove that it is impossible to find work which is irrelevant logically to a “present” inability to pay, and frequently just outright ignoring the law to the point where the process as currently performed has become accepted as the law in an urban legend gone insane.
These cases usually deal with the most down on their luck members of society. Lawyers who defend them can’t establish the law for several hundred dollars and to properly try one of these cases would require five to ten thousand dollars of legal work for appeals.
Evil in truth rather then fiction usually results from sloth, laziness, and arrogance. The child support system as currently setup is a classic example of this. |
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| Posted by David Sandy at | | | |
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The Supreme Court decision on the He case recently came down. Firstly, it was a beautiful decision. Well written and well reasoned. It was critical of the trial court appropriately with being disrespectful or undermining their authority. I’ve read a lot of opinions where the Court of Appeal s especially seemed to go to extreme lengths to avoid doing so and thereby let unfortunate practices slip. A criticism of a trial judge isn’t the end of the world and Judges are still human. Assuming, they desire to Improve I don’t see why any Judge should take offense, given the magnitude of the issues and the power granted anyone should be able to see; themselves, departing from the ideal on occasion.
While it is easy to say that the rights of blood parents should not be primarily controlling that’s easy to take for granted. That legal protection is a recognition of the importance of family. Take that away and it will become less meaningful over time. Law is a reflection of a society and reflects back into it.
I’ve heard a lot of criticism of the original decision as lacking in sensitivity as to different cultures. Also, that such criticism is clearly unfounded because Judge Childers has a long history of fair and unbiased judging and is indisputably one of the most highly respected Judges in Shelby County. Having read the decision I must admit there was a clear lack of understanding for different cultures. Being a young white male, as opposed to most Caucasian lawyers who seem to be old and white, I know that prejudices are most frequently unconscious. I know from my family that prejudice lessens through generations. The oldest is very aware, the next knows it is wrong but denies it both to others and to themselves, and the third either overcomes the disability or continues the process of overcoming it. All of which is to say taking a sensitivity class isn’t the end of the world and shouldn’t reflect poorly on someone.
I also noted that the President of the Memphis Bar came out in the commercial appeal and defended Judge Childers as being prompt after the other now retired Chancellor took forever. That was true but was apparently oblivious to what was actually being written as to the actual criticism. |
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| Posted by David Sandy at | | | |
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I heard the other day in Court a discussion of jury trials in divorce cases and that one had not been conducted in Shelby County for 20 years. Also, that a Jury Trial could only address grounds for divorce. I had read some cases referring to jury trials and custody issues, so I decided to investigate further. A jury trial may be had on factual “issues” per the applicable; this would naturally include grounds, but could also include who provided primary care and lots of other issues that would effectively craft the ruling as to the equitable relief granted by a court. The appellate cases referring to such would indicate my interpretation is correct and that the grounds only exclusion is the legal equivalent of an urban myth.
So when should a jury trial be used if that is the case? I think for child custody issues where there are disputes such as drug use, abuse, and who provides the primary care it would be very useful. Judges can fall prey to what I term “Judge Think” and give routine evidence in child custody cases far too much weight and not realize it was created for their benefit. A jury will be much more skeptical being for example familiar with the well known routine of child custody cases of accusations of abandonment, drug use, and abuse in that order. In addition, it would make later changes in custody much more difficult as a Jury Trial would be needed.
Also, in cases where there is extreme failure to contribute by one of the parties a jury verdict as to that could make it more likely a Judge would ignore the tendency to “split the baby” in terms of dividing assets.
The downside would be the cost in the amount of time required additionally, and that it might irritate the Judges who are fighting with dockets crowded with child support and alimony contempt hearings.
In any case, ask a lawyer about a jury trial in your divorce just to ensure a potentially useful option is not ignored. |
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| Posted by David Sandy at | | | |
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Divorce for everyone is a long and painful process. Divorce does not only affect one aspect of your life, it affects all of them. In some situations, there is apparently no option other than divorce but religious or moral beliefs may prevent abused or maltreated spouses from seeking legal counsel. This is especially true for the Memphis lawyer who serves a fairly conservative community. The legal alternatives to divorce come mainly from the period before the easy availability of modern divorce. They maintain basic duties of support and the status of man and wife but relieve the spouses of the duty to live together and serve to separate property interests. In Tennessee, remember, in case of a divorce, all property acquired up to the time a divorce is filed is usually considered marital property.
The first option for those trying to avoid divorce is marriage counseling. While not a legal option, it should be your first step if nothing else to ensure a clean conscience. You may have considered this before, but simply concluded it would not make a difference. Marriage counseling is effective because it makes all the underlying issues of your marriage come to the forefront. For counseling to work, you must evaluate your marriage for improvement. You cannot realistically expect for a one time 30 minute counseling session to save your marriage. Instead, it will take time, hard work, and dedication from each spouse to commit to changing their lives for your marriage. Marriage counseling can come from your pastor, family, friends, therapist, or other counseling service dedicated to saving marriages.
The second option is annulment. Traditionally, certain acts such as co-habitation, setting up households, or being able to bear children were requirements before a marriage ceremony created a valid marriage. So if you’ve realized you made a bad decision, but are unable to seek a divorce for a religious or moral reason, then immediately seek legal advice. A divorce may not be necessary.
A third option is separation or divorce from bed and board. The legal duties of fidelity remain. A legal separation for two years without minor children gives the other party grounds for divorce and a court may sua sponte order the parties divorce, but if you cannot ask for a divorce, then this may be the only option available to you. The legal issues of child custody, support, and property can all be dealt with accordingly. A separation order can be temporary or permanent.
A fourth option is an order of protection. Unfortunately, in Memphis these are granted in the inferior general sessions criminal court unless a divorce or perhaps a legal separation is concurrently sought. This means support and custody issues frequently are not dealt with at this stage. This is an effective way to keep an abusive spouse away from the home without seeking a formal divorce.
The important thing is to contact a Memphis lawyer or a lawyer in the appropriate area who usually works with family law issues. Most lawyers aren’t just divorce lawyers but work with custody, adoption, and other family law issues. A good family lawyer will always be willing to discuss alternatives keeping your religious and moral preferences in mind. |
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| Posted by David Sandy at | | | |
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