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

It's a math question.

There are many family law issues that involve soul searching, asking tough moral and ethical questions striving to find the right answer.

This is not one of them.

I will often consult with someone who has a money question.  Much of family law is a money question.  Quite often the subject is child support modification.  Regardless of which parent is asking me, the analysis is the same: how much money do you stand to gain (either through an increase in child support you receive or decrease in the child support you pay)?  You want to be as realistic as possible in your assessment because you want the math to be correct.

If the amount in controversy is less than, equal to or only somewhat greater than the attorney fees involved, for God's sakes don't do it.  Don't spend good money after bad.  Don't roll the dice on a slightly favorable verdict.

Modification only makes sense when you are necessarily going to make or save some significant money after the process if done.  And if an attorney tells you that the attorney fees don't matter because you'll get them awarded by the court, ask them if they will give you a contract that provides that they will only get paid by the other side.  See if that attorney will take the risk.  If he or she won't, then what does that tell you?

Let me give you an example.  Suppose a fellow wants to reduce his child support.  He's making a little less money now so we feel comfortable that his child support would be approximately $100 less per month.  This means that over the course of a year he will save $1,200.00.  This means that over the course of two years he will save $2,400.00.  I use a two year figure because parties can seek to re-adjust their child support after two years. 

Now you need to factor in the attorney fees.  Suppose the attorney fees are slightly greater than the two year savings.  It makes no sense to spend that money to save less money.  Again, it is possible that the judge could award you attorney fees, if you are the prevailing party, but you won't know until the money is spent and you've played your hand.  That is a risk which better be worth taking.  For example, if you were going to save $5,000.00 over two years you have more motivation to spend $2,500.00.  Now we enter the realm of "what is it worth to you."  Everyone has a different threshold here.  Some folks feel that the probability of saving $5,000.00 makes is worthwhile to spend $2,500.00 with a hope of recovering even that.  Some folks hold out for far more savings before they make that kind of investment.

Of course, no one expects you to know off the top of your head what child support would probably look like under a new scenario, that's why God gave us family law lawyers.  So you should call one for a free consultation to find out the facts, gain knowledge.

After all, knowledge is power.  And it's never a bad idea to have a little more power now and then.

Michael Manely
http://www.allfamilylaw.com/PracticeAreas/Modification.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