Modification: Teaching your ex a lesson

I recently spoke with a gentleman who was interviewing attorneys.  He told me he had spoken with several other attorneys (always a good idea), and particularly liked one who, after hearing the facts of this fellow's case said, "We're going to get her.  We'll teach her a lesson."

STOP

Family Law litigation is not about teaching anybody a lesson.  Not only does that do nothing more than abuse the court process, it completely misses the point and it is the quickest way to lose.  That's three excellent reasons to not choose this path.

Teaching your ex a lesson does nothing more than abuse the court process because the court process is designed to provide people with a forum to resolve their differences.  The key word there is resolve.  In Modification cases it is particularly appropriate, "re-solve."  Teaching your ex a lesson is not about resolving anything.  If you have a legitimate dispute and you can't get it sorted out with your ex without court, then litigate it, but litigate to get it resolved, not to satisfy vendettas or hum the legal equivalent of na-na-na-na-na.  There are too many people genuinely needing access to justice to tie the court up with feuds.

Teaching your ex a lesson completely misses the point because family law is about moving families forward.  It is results oriented.  It isn't a forum for the redress of past wrongs.  Even Contempt actions are really about the future.  While part of the remedy is getting back what you should have had in the first place (support, visitation) it is principally about changing conduct so that the act does not happen in the future.  That's why there are sanctions such as attorney fees or incarceration.  Modifications are exclusively focused on the future: what will the new child support be or what will the new custody award involve or how will visitation change?  To the extent that one party is caught up in past grievances, wanting to re-litigate old issues or "teach their ex a lesson" they've completely missed the reason for Modification.

And teaching your ex a lesson is the quickest way to lose.  Judge's have precious little time to give each case.  They have mere minutes before they assess the nature of the case and its probable outcomes.  If a Judge senses that a party is not forward looking but is litigating ancient hostility or retribution against their ex, that party will lose, immediately, having barely passed go.

In short, getting aggressive to "get" your ex or teach her a lesson is a no win scenario and a horrid waste of money.

After hearing what I just wrote, the fellow I was speaking with assessed, "Perhaps that attorney was just telling me what I wanted to hear.  Thank you for telling me what I needed to hear."

I'm glad I can help him.  Can we help you?

Michael Manely
http://www.allfamilylaw.com/CM/Custom/Firm-Overview.asp

I'll fight you 'till the day you die.

In an exclusively family law practice, it is easy to focus on the divorce cases.  They are parties' first bite at the apple.  All the issues are in play.  All the drama and all the strategies are brought to bear on resolution of these sometimes legally and always emotionally complex matters.

The other kinds of cases, usually modifications and contempts, cause less concern because they are usually more logic based.  Something needs to change in the agreement because life has substantially changed: Modification; or the other party is not doing something important that they were supposed to do based upon the Court's Order: Contempt.  Both are straightforward and, since they arise after the divorce, usually are far less vitriolic and emotional. 

However, there is a kind of post divorce case that can take the cake.  These contempt and modifications do not stem from logic but from need, some deep seated need to stay engaged, to stay embroiled.  They come from the party who never lets go.  In a sick sense, they come from the party who won't say goodbye.   It's as if they carry "till death do us part," to a whole new level.

We can identify these cases because the Complaint provides nothing substantive to sink your teeth into.  There is nothing hard and fast and objective, it is all innuendo, "hints and allegations."  We find a lot of pettiness in these Complaints.  It's a "she touched me first," kind of pleading.

And they usually come from just a few attorneys who are more than happy to stoke the eternal flame of post marital animus because they know that angry clients pay more.

There's a Don Henley song about this.  (Isn't there about everything?)  It's called, "Get over it."  Lord knows the judges wish the parties would. 

I was recently asked by a party defending yet another suit from an all too well funded ex-spouse, "Will it ever end?"  I had to answer that I didn't think it would.  So long as the Judge doesn't pop the Opposing Party, doesn't force them to some financial pain for continuing to inflict their anger on their ex-spouse, there is little hope that the offending party will ever stop. What would make them?  Boredom?  These people live to litigate.  This is what life is all about for them, staying in controversy.

So, judges, if you see a party bringing an action against an ex-spouse, and there's no real teeth to it, stop the madness, stop the destructive behavior.  Please charge the plaintiff with some fees for harassing their ex.  Make them think at least twice before they venture down this road again.

And parties, if you are in this never ending relationship with an ex-spouse who could never love but can always litigate, I'm terribly sorry.

Michael Manely

Long Term Consequences

I've recently worked on a matter that highlights a critical difference in different firm's philosophies.

The matter was a modification action.  A modification is a post divorce action where one ex spouse claims that there has been a "material change in circumstances," so much so that whatever was ordered in the divorce, should now be changed.  A modification action is most often either a modification of child custody or a modification of child support.

This case was a modification of child support.  The opposing party contended that the parties' incomes had materially changed so that he should now pay less child support. 

As I worked through the basis of the opposing party's argument and evidence his case seemed piddly.  He had nothing much to argue about with very little reason to bring an action and very little likelihood of success.

As I worked with the client, learned the history of the parties and got down to the core issues, I figured out the motivation of the suit, and it wasn't financial.

In her divorce, my client had hired a rather infamous attorney who practice what I call scorched earth litigation.  No one survived his wrath in the courtroom.  His litigation style felt like the Harry Potter characters describe the dementors.  My client hired this fellow because she thought her soon to be ex was difficult and stubborn and needed an aggressive attorney to bring her divorce to a successful conclusion.  What she wanted was a firm hand.  What she got, apparently, was armegedon.

As my client expressed, you never knew what this attorney would say in the courtoom, but she quickly learned it wasn't going to be good.  She found herself cringing for her in laws and husband's friends as they endured this counsel's harsh, cruel onslaught. 

As she reports, her husband, now her ex, received a much worse result if he'd just been reasonable.  I submit, so did she.  For ever since the divorce, the ex has been constantly cantankerous, mean, vengeful, spiteful, and sometimes even wicked in his treatment of his ex wife, my client.

As I came to realize, the opposing party still felt brutalized by the divorce, by the scorched earth counsel.  The opposing party was vengeful allright.  He wanted my client's metaphoric blood and his thirst for vengeance seemed to grow stronger with each passing year.

This ex, this opposing party, was still battling through the beating he'd received in the courtroom. This man had become a bit of a monster, where as before the divorce he was just stupidly difficult.
 
Scorched earth can be a succesful strategy for attorneys.  We look tough; we act tough; we beat up the opposition and then we walk away.  At the end of the case whether its divorce, modifcation or contempt, we just walk away.  But it's our clients who live with the aftermath.  They can't walk away.  They can't escape the harm we've caused.  Good strategy for the attorney, bad strategy for the client.

Aggressive representation sounds serious; it sounds firm; it sounds like it commands respect.  But I've found that far more often than not, aggressive representation yields negative consequences for the client for years to come.  Parents, already torn assunder by the nature of divorce itself, become bitter enemies, ever more distrustful, never fully enjoying the moments with their children without looking over their shoulder with cynical eyes.  With the additional pain inflicted by scorched earth, or aggressive representation, the pain endures and grows.  The healing takes much, much longer, if it can ever occur at all.

Aggressive representation is unnecessary and counter productive.  If your position is true, if your cause is just, the truth will out.  Nastyness only clouds your merits.

In the matter I'm writing about, as his ex's new counsel, I worked toward getting the opposing party past that divorce trial and into the 21st Century.  While he was successful at harassing his ex a little longer just by filing his modification action, he wasn't successful at lowering his child support.  But, just as importantly, I helped moved this couple along a little bit further toward re-forming their relationship as good parents to their children.

Objectively and subjectively that's the right a result.  Those are long term consequences that parents can live with. Those are long term consequences I can espouse.

Michael Manely

Behavior Modification

Dear Reader,

The judges don't dislike you.  They don't want to punish you.  They don't want to make you cry.  They just want to change your behavior.

I don't know if I'll ever cease to be amazed by mere mortals' efforts to win the battle against a judge on the bench.  The battle takes many forms.  Some folks are down right antagonistic.  They'll attempt to argue with the judge.  "You can't do that to me," or some similar phrase will be cast out miliseconds before the judge asserts unrivaled control over the courtroom and, more importantly, over the miscreant who issued the ill conceived challenge.  And you thought the fourth of July had fireworks.

A craftier sort is the gamesman.  He thinks he's smooth.  (I write "he" but this is equally applicable to "she.")  He pretends he didn't understand what the judge told him to do, or his answer is far from unequivocal.  He is certain he is smarter than all of us and certainly smarter than the judge.  Of course, one could ask, "if he's so smart, why is he the one in jail on contempt?" 

The gamesman often thinks he's cute.  He likes to mince words.  He feigns confusion over the clearest of orders.  He's not oppositional, just obstinate.  His antics meet with no more success than the antagonist.

A judge might get riled by the antagonist, but seldom is really riled at the gamesman, though you wouldn't know it from observation alone.  In either event, the judge's chief and often sole aim is to modify behavior.  The judge wants compliance with her order.  She wants people to do what she told them to do.  Any resistence is futile.

This is not to say that there are no legal remedies to right an error.  But fighting with the judge or believing you can outwit her are not two successful strategies.  They are strategies for a quick one way ticket to an 8 x 12 gray room with two bunks and a guy named Tiny who is anything but.

So, if your attorney advises you to pay the $2.00 and go home, pay the $2.00 and go home.  Home is far more comfortable than the alternative. Unless, of course, you need a new best friend named Tiny. 

Michael Manely

"Am I Jewish, or what?"

Perhaps you've seen the news about Joseph Reyes, the Chicago divorced father who baptized his three year old daughter as Catholic. As a family law lawyer, that raises a red flag.  In a divorce, usually one parent is designated to make religious decisions for the child.

Apparently, in this case, it was the Mother.

Mom is Jewish.  At one time, Dad was apparently Catholic.  When the parties married, Dad converted to Judaism and agreed to raise the child in the Jewish tradition.  When the parties divorced, Mom received  custody of the daughter and apparently obtained the authority to make religious decisions for their daughter.

There are four categories of "major decisions" which comprise legal custody:  medical, educational, extracurricular, and religion.  These distinctions are ever evolving, as is the nature of law, as is the nature of society.  For example, the extracurricular category didn't exist 10 years ago.

In the religion category, one parent, usually the primary physical custodian, makes decisions about in which, if any, religion the child will be indoctrinated.  Even so, there is no requirement that the non-custodial parent take the child to the custodial parent's church or even to a church of the custodial parent's denomination.  There is no prohibition against the non-custodial parent taking the child to his own church on Sunday morning or Saturday afternoon or even during the Solstice.  The prohibition is against overt acts which would create identity, such as baptism.  Which is where we re-join our story.

Mr. Reyes not only took his daughter to Mass but he had her baptized Catholic, asserting, then, a Catholic identity.  Mom hit the roof and obtained a restraining order against Dad from exposing the daughter to any religion but Judaism.  Dad, not content with the negative spotlight already upon him, next notified the local television station that he was taking his daughter to Mass again, this time in living color on every Chicagoan's evening news.  Now, Dad is looking at six months in lock up for contempt.  I suspect that not only will daughter not be attending Mass in those six months, she probably won't be seeing a lot of Dad during that time, either.  And she probably still won't be seeing a lot of Dad after his release.

This case is not about religious freedom.  It is entirely possible that the Judge's Order prohibiting Dad from exposing his daughter to any religion but Judaism is unconstitutional.  But there was no emergency need to rush the daughter to Mass.  Dad did not have to violate the Judge's Order.  Dad could have revisited the Judge's Order in many ways, Appeal, Motion to Reconsider, Motion for New Trial.  And Dad could have been successful.  But Dad took daughter to Mass, in wilful contempt for the Judge's Order, with the television cameras rolling, just to make it personal for the Judge.  And I suspect he did.

This case is about power, Dad's power.  First, Dad's effort to assert power over Mom.  Now, Dad's effort to assert power over the Judge.  And truly, Dad has power over neither. 

Dad will quite possibly go to jail.  I can imagine an outcry from an ill informed religous cabal that Dad's  incarceration would be discriminatory, that he would be a martyr, but Dad was clearly in wilful contempt and jail would be appropriate.  Further, Dad will have his access to his daughter significantly curtailed.  He might be looking at supervised visits next fall, when he is released from jail. 

Finally, and this tells you a lot about the story, Dad is a law student.  Law students are supposed to show respect, not contempt for the law.  It is quite possible that Dad will not be allowed to sit for the Bar, to become a lawyer.  It is also possible that his stunt is an Honor Code violation for law students at his law school, which will result in his expulsion. 

Given the brief 15 minutes of fame that will flow from Mr. Reyes' infamy, I'm reminded of Dr. Phil's famous question, "So, Dad, how's that working out for you?"

It is certainly not working out well for his daughter.

Michael Manely

"I'll never let you go." The post divorce saga.

Divorce is about cutting ties and moving on, right?

But suppose that, even though the parties are divorced, the ties don't cut and there's no moving on. There's not even moving.

We see that often, the ex-spouses who have divorced but won't, or can't, let go.  They are still almost as connected to each other as they were when they were married and their on-going relationship has not worn those years gracefully.

The destructive connections continue despite time, despite new relationships, despite new children.  Sometimes even the new spouses become enlisted in the age old struggle.  These cases arise as contempt actions, not over monies due or actions required to facilitate settlements, but over a grudge or just enduring spite.

In one case that comes to mind, the parties are still fighting over anything and everything.  At this point, their fight centers on the exchange of the children.  She won't stay indoors when he arrives.  He won't stay in his car.  The new husband won't stay out of it; he wants to push his 6'3" linebacker frame around.  The parents aren't fighting over the kids. The kids are an excuse for the parents to stay in relationship with each other.  The kids are just a convenient tool.  I can imagine how much the kids must look forward to Dad's arrival or to returning to Mom's house.  "What's in the best interest of my children?  Not right now.  Can't you see I'm having a good fight with my ex?"

Another case stems from an early 1990's divorce.  Many financial ties held the ex-spouses together, but these ties were finally wrapping up, one by one.  Just when it seemed there was nothing left to fight about,  the parties found something, a paper, a single piece of paper.  He should have given it to her.  She wanted it.  He didn't want her to have it.  It just didn't matter.  The parties couldn't say goodbye almost 20 years after their divorce.  A couple of new spouses and several new kids later, they still clung to each other.  You might call that a death grip.

You might think these people are frivolous for fighting in court, but we can probably agree that they are not ready candidates for couples therapy.  I'd be the first to say that litigation is woefully inefficent for working through these issues, but sometimes the energy of resolving the legal issues can open opportunities for self reflection, particularly if your attorney is telling you, "you don't want to go to trial over this."

How about this for a litmus test:  Can't let go?  How do you feel about reconciling?  It makes you sick?  Okay then, what are you holding on to?

Let go.

Michael Manely