Monday, August 30, 2010

Divorced with Benefits

In the long list of the myriad of methods in which people bond into family, a particularly interesting one is where the couple is no longer married yet continues to couple.

The joke about sleeping with your ex being like eating leftovers you rejected the first time notwithstanding, some couples do genuinely find it more difficult to break the bond of sex than of marriage and remain in an intimate relationship for years after divorce. 

Some couples enjoy the release from the obligations of marriage and the new found casualness of being divorced with benefits.  One former client's ex husband called it "coming over for coffee." 

I'm not a psychologist so I'll not delve into the extensive why issues, but all the judges I know have been around the block more than a few times and very little surprises them.  To learn that a couple remained intimate for years after a divorce and only recently have had a falling out resuling in that Contempt the ex-wife had been meaning to file for some time now, would not elicit expressions of shock, dismay, disgust or dismissal from a judge.

Nor does it make a whole lot of difference to a couple's legal status. 

Back when Georgia acknowledged Common Law marriages, I represented a woman who wanted a divorce from her Common Law husband.  The parties agreed they had gotten a divorce from their legal marriage some years before.  The husband denied that he had ever resumed a relationship with his ex that rose to the level of Common Law marriage.  Of course, if he hadn't listed her as wife on all of his insurance, real estate, loan and banking forms, hadn't told the whole world that his ex was again his wife and hadn't posed for umpteen pictures with the re-established family as he brandished the brand new, diamond encrusted wedding ring, he might have had a point.

But you get my point.  If you have to work that hard to change your legal relationship, you can probably do a lot and preserve your divorced status.  And Georgia doesn't even acknowledge any newly created Common Law marriages anymore.

Another situation arises when the couple resumes quasi habitation so that the child, who post divorce has a primary custodian and a secondary custodian, is somewhat living with both parents again.  Months if not years pass before the camel's back again becomes so burdened that some inevitable straw renders it asunder when the primary custodian suddenly recalls the vast amounts of child support which have gone unpaid.  Are there any writings which express that the primary custodian accepted the secondary custodian's financial assistance as satisfaction of the child support obligation?  Of course not.  These people were wooing each other, not writing contracts.

So we're off to the races with a large purse in play.  And some potential for legal injustice to ensue.

And that gives new meaning to Divorced with Benefits.

Michael Manely

Tuesday, August 24, 2010

Running for Judge.

Tonight I had the opportunity to participate in the perennial, time honored tradition of being part of the host committee for one of our local Judge's re-election campaigns.  It was a very well attended affair by the usual who's who of the local bar.  The Judge was in rare form, meeting and greeting as the occasion requires, quite a different persona from the one assumed on the bench as he metes out justice to the hopeful litigants.

I'm afraid I've been a bit out of the formal political loop recently, what with the practice providing much needed assistance to many parties desperate for access to justice, so I was surprised to hear that the Judge had  competition in this election.

This competitor is well known to the bar, as well.  She is a perennial runner, almost as certain to run as an election is to be held.  I suspect she has long since given up hope of winning, or at least I hope she has.  Rather, she constantly runs because it is the most inexpensive method of marketing that she has ever discovered. 

To some potential clients, she hopes to many, running for Judge gives them the imprimatur of success, of authority, of position.  Actually, running for Judge means you could scrape a few dollars together to get your name on the ballot and a few dollars more to print up signs.  But compared to the cost of bill boards, election signs are a steal, and you aren't tarnished with the impression of chasing ambulances.

I've met many a client who thought, at first, that this candidate had credentials and clout just because of her judicial attempts.  Through personal contact, not with the candidate, but as the practitioner, they were soon disabused of their notions.

The problem is not so much that the sitting, qualified, decent judges have to defend their seat.  Campaigning is a stressor for them that they would certainly rather not endure but it is a part of their political reality and I would sorely disapprove of a system that didn't require a judge to be accountable to the electorate.  Rather, it is the terrifying notion of what would happen if this candidate won.  Without purpose, without plan, without competence, without scruples, the bench in that post would first become a laughing stock followed quickly by a disaster of jurisprudence not seen since a Fulton County courtroom got a similar dose back in the 90's and the Judicial Qualifications Commission had to intervene to save the public.

But there is little way to warn the public, who sees this candidate's name time after time, running against whomever, whenever.  The public doesn't know the dangers that lurk in this candidate's election.  The public doesn't know the loss that would be suffered by this particular Judge's defeat. 

Judge's are central to keeping the peace in our communities.  Judges provide a valve to the steam of anger and resentment that is borne from perceived injustice.  A good judge won't make all people happy.  Never.  But a good judge will leave a litigant feeling heard and knowing that they had their day in court.  A judge is a perfect leveler.  Get a good judge, get a fair result.  Get a bad judge and there can be no peace, only another layer of suffering.

So what if the candidate wins?  The judicial system will suffer, sure enough.  But the public will suffer so much more. 

The moral to this story is that, come election time, investigate your judges.  Find out what the bar has to say about the judge.  See what the community says through the press and through the internet, though every judge has at least a couple of never happy litigants to defile them.  Investigate the opposition.  If the judge's campaign is doing its job, there should be some negative information about the opposition.  Look into it.  Determine as best you can whether it is valid.

Think about your values and priorities.  Every so often the business community will get outraged at a judge enforcing the law that winds up resulting in a fair verdict for an injured party.  The business community finds someone of reasonable stature to run against the offending judge.  But those issues are usually laid bare in the political pieces put out by each campaign.  How do you feel about businesses trying to gain an advantage by putting their own judge in office?

The issues that motivates the candidates present themselves, if you look for them. 

Our judges impact our lives in significant enough ways that it merits us to know as much about them as we can, so that our judgments about them are as sound as we want their judgments about us to be.

Michael Manely

Monday, August 23, 2010

The Melting Pot

There are so many fascinating aspects of Family Law that I think I could write about for ages, albeit sporadically.  One of the fascinating aspects is the question of what is a family.

Families come in an almost infinite range of hues, attitudes, preferences and origins. Some families appear homogenous, but as I am increasingly discovering, there is no such thing.  And homogeneity is a question of the definitions you impose. 

"Our family is of European origin," is both limited and broadened by that geographic reference.  Not that long ago the identifications would have been much more specific.  "Our family is of Irish origin."  Or, "our family is of German origin."  Or, "our family is of Italian origin."  Now it's "European" by convenient definition and often of necessity.  It's "European" because the European countries of origin have melted into a broader, more inclusive base in America.

"Our family is if African origin," is also a convenient definition.  Not only does it ignore the not so subtle differences from different regions in the African continent, but also ignores the apparently not so infrequent and often unwelcome intrusion of European ancestory. "African origin" is also a convenience because it may belie the centuries that the ancestors have been in America, far longer than many descendants of European ancestory.

"Our family is of Hispanic origin," is a similarly broad definition that spans many cultures and lattitudes.  Mexico is distinct from the Dominican Republic which is distinct from Guatemala and is distinct from Argentina or Chile, which says nothing yet of Brazil, which does not consider itself Hispanic with its Portugese ancestory, but is often so defined by those of us less aware of the identities.  But, for the sake of convenience, and for the American experience of the melding of cultures, "Hispanic" is the bandied about term.

"Our family is if Arab origin."  Again, a conveniently broad definition disguising intricately distinct  populations, rendered less so by their migration to America.  And this doesn't yet include persons of Persian descent.  And I haven't even touched on people of Asian descent or Polynesian descent, or Native American descent, the true originalists (especially the Iroquois). 

And, of  course, each of these identities, some self imposed, some imposed by others, all gross in their  description and ever expanding in their fuzzy edges form, only begin to contemplate the function, purpose and great success which is America. 

As a boy here in Georgia, I have witnessed anti-miscegenous indoctrination carried out with ruthless, bloody cruelty. And now, as a man, I watch couples not only walk hand in hand, but marry, have children, watch their children welcomed and embraced into our larger culture, whether the children come from parents of apparently similar backgrounds, or obviously diverse backgrounds.  Our ancestoral identities change day by day, merge generation by generation.

I'm not suggesting that all is a bed of roses in America.  I wouldn't be writing tonight's blog if that were the case.  Today's version of the anti-miscegenist is the xenophobe.  While racism in all its insipid forms still flourishes in quaint corners of American culture, the current cause celebre for the divisively inclined is to narrowly interpret what and who is American.

Without equivocation, the American family looks like America. We are black. We are brown.  We are tan.  We are pink.  We are yellow.  We are Christian.  We are Muslim.  We are Jewish.  We are Unitarian.  We are Atheist.  We are hedonist.  We are self absorbed.  We are utilitarian.  We are selfish.  We are generous.  We are having a teenage meltdown.  We are having a mid life crisis.  We are bounding for childhood joy.  We are espousing the wisdom of sages.  We are demagogic.  We are all embracing. 

With the exception of the Native Americans, we are a nation of immigrants.  We can't help but be.  We are and always have been a nation of immigrants melting in one giant, ceaseless pot.  Ever shall it be.

And we are one, big happy family, whether we like each other today or not. 

We, collectively are and rightfully shall be America.  And like all families, we ought to have each other's backs.  For united we stand.  Need I say more?

Michael Manely

Thursday, August 12, 2010

It's finally over.

So, how does it feel to finally be divorced? 

Imagine, you've suffered through years of increasing distance in your relationship, growing enmity, resulting in downright hostility, and you eventually muster the energy, the inititative to retain an attorney, to finally seek your freedom.

I just finished a tortuous divorce trial that extended over a month.  Now, I didn't try this case every day for a month, but it started a month ago and, with a bit here and a bit there, the trial concluded today.  Even more importantly, this divorce was filed by a former counsel quite some time ago and had not lingered but had been actively litigated from day one.

The opposing party in this divorce practiced Machiavellian parenting.  She was (is) out there.  She feels the children are her property and, if she could, she would keep them under lock and key, away from her husband who had the tamarity to leave her.  The opposing party's mission in life was to make my client's life as miserable as possible.  In that way, her attitude in the divorce was not terribly dissimilar to her attitude in the marriage.

She used the divorce to torture my client every step of the way, and did all that she could to keep the divorce from being final.  She couldn't let him go.  She wouldn't let him go.  She was going to keep him forever.

So we bruisingly battled through each and every possible issue that the opposing party could concoct.  No matter how easily the issue could have been settled, she wouldn't hear of it.  Everything needed to be tried.

Throughout the ordeal I had the distinct impression that this woman was hunting my client.  I can only imagine how trapped like a caged animal he felt.  My firm was the only thing standing between this possessed woman and my client's annihilation.  If she had her way, my client would have been crushed under her heal in eternity.

So, despite his worst fears that it might not ever happen, today my client got his divorce.

Now he is liberated. 

His long nightmare is finally over.  The woman who had her clutches, nails, whatever, dug into him for so many years, no longer has that hold on him. 

Tonight he is popping the champagne, just beginning to sense his independence.  His full blown knowledge of freedom will take a long time to set in.  But for tonight, the first taste is so, so sweet. 

Happy Divorce Day, buddy.

Michael Manely

Tuesday, August 10, 2010

Nowhere to hide.

I've been pondering whether I want to comment on the California Federal Court's decision to hold Proposition 8 unconstitutional.  I guess this blog means that I decided I would.

I followed the case somewhat closely.  I read synopses of the trial on many days.  Unless the Judge were an activist judge who wanted to rule based upon his bias, the result was a forgone conclusion, based upon the evidence at trial.

In a nut shell, the witnesses for Prop 8 had firmly held opinions about how everyone should live, but no facts.  And one sect's demands for how everyone in our nation should live will often violate the constitution. 

I had the same scenario in the Evolution trial.  The School Board trotted out all manner of die hard opponents to evolution.  Each one more fervent than the last that students should not be taught evolution because, they claimed, it was innacurate, it was against God's law, it was a liberal conspiracy...  But to a one, the witnesses had their conclusions, but no facts.

And when you are on the witness stand, being grilled in cross examination, conclusions are a thread-bare blanket which provides no cover at all. 

Our trial process is a great one for discovering truth.  It is still the best method humankind has ever developed.  Liars and blowhards are given no quarter on the stand.  Their a priori conceptions, their biases, their prejudiced judgments are laid bare in the brilliant light of cross examination.

So in the Proposition 8 trial, like the Evolution trial, conclusions devoid of facts fell flat.  Truth, not bias, won the day.  And the country is a better place because it is fact based, not prejudiced based.

And like the country, the family has a chance to be a better place because under the brilliant light of cross examination, where there is nowhere to hide, truth, not fiction, not prejudice, not bias, wins out.  And the brilliant light of truth is always a good thing.

Michael Manely 

Monday, August 9, 2010

"What do you think I owe you?"

When a marriage ends at one party's request, it is often hard to perceive how the party who wants to leave has any claim to the future work of the party who gets left. 

Tonight's topic: alimony.

And alimony in that particular situation, where the party seeking alimony is the one who has left yet still wants to continue a relationship with her ex spouse.  She wants that kind of relationship where she has no responsibilities but he will continue to support her.  It seems the height of cynicism. 

"I don't want to live with you anymore.  I don't want to share meals with you anymore.  I don't want to have Christmas with you anymore.  Oh, but I still want you to take care of me." 

I don't think that position works.  I don't think you can sell that position.  I think there is no market for that position.

If you want out, fine.  But don't expect others to keep picking up your tab.  It doesn't tend to work that way.

Put yourself in the juror's shoes, a relatively randomly chosen group of 12 regular folks, folks you might pass  in the grocery store.  Not your grocery store, but some other grocery store somewhere in your county.  You're going to tell those jurors, those strangers, that you just want the allowance without the chores.  You want the cake, you just don't want to have to bake it.  You want the reward without the work.  I can't think of a more spoiled meme. 

And the jury never buys it.

Sure, you can think of circumstances where this scenario would work: spousal abuse, habitual adultery (on the non-leaving party's part), incurable alcohol addiction.  But that doesn't happen often.  That is not the norm.  There's a reason why that's called the exception.  And it is the exception that proves the rule.  The rest of the time, the leaving party just wants out, wants to move on, wants to see other people, wants to have her own life. 

She's more than entitled to have her own life.  She just has to fund it.

But the jury will tell her that.  Lord knows her attorney won't.  There's too much money to be made until the verdict.

Michael Manely

Thursday, August 5, 2010

Adolf Hitler Campbell

A New Jersey couple have lost custody of their three children.  The parents named their children Adolf Hitler, Aryan Nation and Honszlynn Himler. The authorities became aware of the couple when they asked a supermarket to inscribe a birthday cake with best wishes for their son, named above.

In its ruling the Court of Appeals did not reference the birthday cake, but did find that the couple had significant physical and psychological problems. The Court found that both parents had been victims of childhood abuse and neither "have received adequate treatment for their serious psychological conditions."

The father, age 37, cannot read.  The mother only finished the 10th grade.  The Court considered a letter the mother admitted to have written.   The letter stated, in part, "Hes thrend to have me killed or kill me himself hes alread tried it a few times.  I'm afread that he might hurt my children if they are keeped in his care."

It seems undisputed that the birthday cake incident is how the authorities, New Jersey's version of DFCS, learned of the Campbells.  That the couple would saddle their three children with Nazi names is easily beyond  what reasonable parents would do.  But is that the issue?  If DFCS disagrees with your political persuasion, no matter how reprehensible, is that grounds for seizing your children?

I have a distant cousin named Reagan.  I have friends who've named their child Barak.  Are we sliding down a slippery slope when DFCS becomes a political police?

I deal with this issue in my family law practice.  For example, I represented a couple who lost their five children to DFCS a year before they hired me.  Their little boy had been playing doctor with an older, little girl.  Another family whose son had played the same game with the girl complained to the police.  DFCS spoke to my clients in developing a case against the little girl.  What DFCS found was that my clients had very odd familial behaviors which I won't go into here.  Long story short, when DFCS learned of the family's behaviors, they seized the children and would not let them come home.

After a year of begging, pleading and following every single DFCS instruction, the children were still being kept away from their parents, a year of the children's lives, lost forever.  Then the parents hired me.  I realized that the parents' peculiar conduct was entirely cultural.  Though it was not behavior that middle class white folks engage in, it was my culture's perjorative interpretation that determined that the conduct was harmful to the children.  There was no universal condemnation of this conduct.  Under a different value system, there was nothing harmful about it.

I immediately scheduled a meeting with the case officer, the DFCS supervisor and the Cassa. I would like to believe that I showed these folks the error of their cultural blinders and they became enlightened from my impassioned narrative, but I think the fact that my clients were Native Americans and that the treaty between the U.S. Government and their tribe required that all children seized had to be immediately returned to the tribal elders for determiniation and placement and that DFCS was therefore in violation of international law, probably had a lot more to do with DFCS surrendering the children back to the parents that very afternoon.

Our cultural and political norms define much of our comfort level.  I find naming a child Adolf Hitler personally repulsive.  I can probably correctly guess much about the stunted upbringing that child would have in his parent's care.  But taking a child is a huge step.  Our nation once took children just because they were Native American and wouldn't receive a proper Christian upbringing in their tribe.  I'm not so sure that telling Nazi's that they can't raise their children isn't somewhat the same thing.

Obviously the letter from the mother takes today's case in a different direction, but discovery of the letter came later.  Remember, what started it all was Adolf Hitler's name on a birthday cake.

Each case is wholly dependent on its facts.  Maybe these parents are really wacked out.  Maybe if anyone met them you'd get cold chills and agree with the Court that these parents were in no condition to raise their children.  I'm not saying the New Jersey Court of Appeals is wrong.  I don't know.

I'm just saying go slow.  Be careful.  Respect diversity.  After all, I don't think diversity fits in the Nazi playbook anyway.

Michael Manely