Tuesday, December 14, 2010

Negotiation 101

There has been a lot of press about the art of negotiation this week.  A very good argument can be made that any deal which divides a pie with 16 pieces to one party and 1 to the other is not a good deal.  Yet that is the result of a significant deal which the national press has extensively covered. 

I think an argument can also be made that no one is that bad of a negotiator.  This leads to the direct inference that the negotiator who accepted one for his side while conceding 16 to the other may not have actually been playing for his side. 

So how is this relevant to family law?  Only in that sometimes clients jump ship, they move from one attorney to another.  When I am consulting with a potential client who has left his prior counsel, I sometimes hear that the former counsel was so bad  at negotiation that he must have been bribed or at least favored the opposing party or opposing counsel to such an extent that he took a fall against the client's interest.

In my several decades long experience that doesn't happen.  It is true that extremely poor results can be attribued to counsel.  Attorneys, like people everywhere, fall somewhere along a continuum.  Some are great.  Some are awful.  But poor results can also be attributed to other factors.  If it is the potential client's facts, that is usually easy to spot.  Harder to spot are issues related to the Judge such as immutable pet peeves. 

However, if the deal is 16 to 1, you can probably figure that the fix was in.  But how often has that happened?  Except for the recent infamous deal,  I've never seen such a bad deal.  Usually negotiations work more like my recent experience where we tortured numbers over months of work, analysis, research, offer and counteroffer to finally arrive at a settlement that cut both ways to both parties and was about as fair and equitable as you could ask.  After a very long term marriage which accumulated significant assets, the parties were finally able to let go the years of building vitriol to allow each other, and most importantly themselves, permission to move on.  The parties maturation allowed counsel to cross the Rubicon to end the litigation and strike the deal. 

So if you think your counsel is taking a dive, if the deal is something like 16 to 1, you are probably right.  If the deal is much closer to equal, then something far less sinister is taking place.  It is probably the nuance of law, particularities of your history and vagaries of circumstance operating directly on your experience. 

Michael Manely

Wednesday, December 8, 2010

Addiction, your spouse's real partner.

Marriages fail for a myriad of different reasons.  Some fail because of addiction.  Addiction can be to gambling, to shopping, to pornography.  I have worked on divorces in 50 plus year marriages which are coming apart because of a recently surfaced sex addiction.  But the most common addiction is drugs or alcohol.  Tonight I'll talk about alcohol.

People are often isolated.  They come to me with their own stories, their own experience.  They know what they live through but they don't have the advantage of hearing thousands of stories.  They can't see their story in the context of our larger culture.  Almost always the client and I will consider the question of whether the spouse is just drinking or is addicted.  "Does the drinking interfere with your relationship?"  I'll ask.  If the answer is yes, then there is a problem whether it is from addiction or from mores against alcohol.  "Can your spouse put it aside at any time, not touch it for days or weeks?"  If the answer is no, there is a problem.  That may be simplistic but I think it boils down to that issue.  If you can't leave the alcohol alone for a significant period of time, there's a problem, an addiction in some form.  "If your spouse drinks sporadically when they drink, do they often get inebriated, affected?"  A purely social drinker only drinks on social occassions and rarely drinks to excess.  If your spouse often gets trashed when they drink, a binge drinker, there's a problem.

People who come to see me with this issue have often been living with a raging alcoholic for years but haven't really wanted to face it.  Like Battered Women's Syndrome, there is an inherent denial in it.  This is why groups like Al-Anon exist, to help you get out of that co-dependency.  And alcoholics, like all people everywhere, are on a continuum.  I have worked with folks who have been institutionalized for alcohol abuse and I have worked with folks who can't finish out the day without a couple of stiff drinks, though they don't slur their speech and they don't miss work because of it.  Both, I think, are alcoholics.  I don't know if the APA would support this, but in my practice it's a pretty safe charge. 

Some people are violent when they drink.  Some just fall asleep in their recliner by 7:00 p.m.  All are removed, more distant than they would be without the drink.  All are less engaged, less committed to their partners, because they are committed to their addiction.

Their addiction is not rational.  This is the nature of addiction.  It takes over rational thought.  Rational thought is not a rational proposition in the face of addiction.  Addiction is something else entirely.  It can't be argued away.  The addiction is the spouse's partner, not the person they are married to.  And being the third wheel is very lonely.  There is no intellectual adjustment that can be made.  If your spouse won't get help, you will either live with it forever, in all of its forms, or you escape.

Addiction is not a fault in a moral sense.  It is an illness.  But at the same time, it is not a sinking ship with which you must perish.  You can save yourself; that's fair.  If you have kids, you must save them.  Maybe leaving your addicted spouse will be the wakeup call they need, but that is irrelevant.  You don't leave your spouse to get their attention, you leave your spouse to save yourself, to save your children.

I'm not being melodramatic here.  It is a question of saving yourself and of saving your children.  The life your children will live, growing up in the home of an alcoholic, is a brutish life in the best of circumstances.  It's a short life in the worst.  The abuse, even if it is purely psychological, is something no one should ever have to endure, certainly not the children.  You don't want your children to grow up to be like your addicted spouse.  But you make that outcome all the more certain by staying.

Addiction is a ground for divorce in Georgia, though most people still just claim "Irretrievably Broken" in their Complaint.  You are permitted to end the marriage when your spouse is married to the bottle.

Michael Manely

Monday, December 6, 2010

Child Support: it's a matter of ethics and a matter of law.

We were recently hired by a mother who needs child support from the father.  The parents were never married so this is not a divorce case.  The parties lived together until she was three months along, then he decided he really didn't want the commitment so he left, he moved on.

This is not an atypical story.  We handle many, many cases like this.  What makes it fairly atypical is that the father earns seven figures a year.  Yes, seven figures.

Laws are written by rich legislators, most often to benefit rich people, or so my perception holds.  Laws almost always seem drafted to protect those that have so that they can have more.  Our child support laws fall into this category, too.

Until January 1, 2007, we had a very straightforward percentage basis for child support.  Roughly put, if you were calculating child support for one child, you took 20% of the non-custodial parent's gross income as child support.  Under the 2007 law, percentages no longer apply.  The way the child support law is now applied is premised upon how much it costs to raise a child.  What child?  Apparently one that eats a lot of Kraft Macaroni and Cheese.

The law has become almost impossibly complex, but the gist of it is that a parent earning greater than $30,000.00 a month can now pay less than a parent earning $6,000.00 a month paid under the old guidelines.  It's nice to have friends in legislative places, huh?

But the law does provide room for the judges to maneuver.  The law does seek equity and fairness, in the best interest of the child. 

In the old law, passed in 1984, the statute said that a judge could deviate from the percentage guidelines if the parent had unusually high income, which it defined as $75,000.00.  That law, too, had wiggle room.  Before too awfully long, about 10 years from its enactment, judges began to blow the doors off of that cap, finding that it bore no rational relation to how a child of a particular parent should be raised. Hence the new statute with the new effort to keep children in penury. 

But this is what the bard meant when he called for the killing of all the lawyers in King Lear:  we have recourse, we have argument, we have rightness and righteousness on our side.  For the child of Donald Trump should live no differently than a child of Donald Trump's should live, as Donald Trump's child.  (Pardon me, Donald Trump for using you as an example.)  What would The Donald do?

This is the standard the judges can and should employ when setting child support on non-custodial parents of significant means.  Payment of Child Support should pinch.  It's your child.  It should not matter whether you are poor, of modest means or quite well off, your obligation to your children, financial and otherwise, should not be easily tossed off, like a nice night on the town.

Some non-custodial parents will read this and decide that mine is not the firm for them.  So be it.  If they so grossly put their pocket book before their progeny, I couldn't represent them anyway.  After all, if there is no right answer in the caring for children, are there ever any?

Michael Manely