Last month when Pope Francis held a Synod of Bishops on family and sexual issues, there were news reports of a sudden liberalization of attitudes on divorce and sexual preference. Others such as Glenn Stanton, after reading the Synod's report, assured us that "it is unspectacular, affirming a thoroughly Catholic and biblically faithful sexual, marital and familial ethic." ("The Catholic Synod on Family’s Final Report – No Reason to Freak".)
I've read it, and I say it is news.
First, the liberal elements of the Church's position on family and sexual issues, though they may not be new, would still be news to many people who think they know what the Church says and does. The document emphasizes meeting people where they are, and describes the difficult and demoralized family situations that they are often in. And that homosexuals should be treated with equal dignity and non-discrimination. It is very specific and urgent in calling for acceptance and pastoral care specifically geared to cohabiting, separating, divorced and remarried people, and their children.
Second, the document indicates that there will be further and more specific action in line with its principles at the "Ordinary General Assembly" next October, and possibly before.
Third, non-Catholics like me will always be surprised, in ways that are both refreshing and unsettling, at how the Church approaches the world and its problems. This report gives a deeply loving and insightful assessment, from a very different perspective and background, on family problems and how to begin to heal them. It includes crucial concepts that I've never heard of, such as "affectivity".
There is much fresh wisdom in the report, and much brokenness and suffering in the world's families, which all of our professions and policies have not come anywhere close to resolving. Here are excerpts I think are especially compelling and relevant, as a family-law attorney who is concerned with family breakdown individually and in society as a whole. I generally have left out parts that seem internal to the church's own doctrines and structure, as this blog is about families, not Christianity.
Within the family are joys and trials, deep love and relationships which, at times, can be wounded. The family is truly the “school of humanity”, which is much needed today.
At the Extraordinary General Assembly of October, 2014, the Bishop of Rome called upon the Synod of Bishops to reflect upon the critical and invaluable reality of the family, a reflection which will then be pursued in greater depth at its Ordinary General Assembly scheduled to take place in October, 2015, as well as during the full year between the two synodal events. These proposed reflections, the fruit of the synodal work which took place in great freedom and with a spirit of reciprocal listening, are intended to raise questions and indicate points of view which will later be developed and clarified through reflection in the local Churches in the intervening year leading to the XIV Ordinary General Assembly of the Synod of Bishops, scheduled for October, 2015, to treat The Vocation and Mission of the Family in the Church and in the Contemporary World. These are not decisions taken nor are they easy subjects.
Faithful to Christ’s teaching, we look to the reality of the family today in all its complexity, with both its lights and shadows. Anthropological and cultural changes in our times influence all aspects of life and require an analytic and diversified approach. The positive aspects are first to be highlighted, namely, a greater freedom of expression and a better recognition of the rights of women and children, at least in some parts of the world. On the other hand, equal consideration needs to be given to the growing danger represented by a troubling individualism which deforms family bonds and ends up considering each component of the family as an isolated unit, leading, in some cases, to the idea that a person is formed according to one’s own desires, which are considered absolute.
There is also a general feeling of powerlessness in the face of socio-cultural realities which oftentimes end in crushing families. Such is the case in increasing instances of poverty and unemployment in the workplace, which at times is a real nightmare or in overwhelming financial difficulties, which discourage the young from marrying. Families often feel abandoned by the disinterest and lack of attention by institutions. The negative impact on the organization of society is clear, as seen in the demographic crisis, in the difficulty of raising children, in a hesitancy to welcome new life and in considering the presence of older persons as a burden. All these can affect a person’s emotional balance, which can sometimes lead to violence. The State has the responsibility to pass laws and create work to ensure the future of young people and help them realize their plan of forming a family.
Many children are born outside marriage, in great numbers in some countries, many of whom subsequently grow up with just one of their parents or in a blended or reconstituted family. Divorces are increasing, many times taking place solely because of economic reasons. Oftentimes, children are a source of contention between parents and become the real victims of family break-ups. Fathers who are often absent from their families, not simply for economic reasons, need to assume more clearly their responsibility for children and the family. The dignity of women still needs to be defended and promoted. In fact, in many places today, simply being a woman is a source of discrimination and the gift of motherhood is often penalized, rather than esteemed. Not to be overlooked is the increasing violence against women, where they become victims, unfortunately, often within families and as a result of the serious and widespread practice genital mutilation in some cultures. The sexual exploitation of children is still another scandalous and perverse reality in present-day society. Societies characterized by violence due to war, terrorism or the presence of organized crime are witnessing the deterioration of the family, above all in big cities, where, in their peripheral areas, the so-called phenomenon of “street-children” is on the rise. Furthermore, migration is another sign of the times to be faced and understood in terms of its onerous consequences to family life.
Faced with the afore-mentioned social situation, people in many parts of the world are feeling a great need to take care of themselves, to know themselves better, to live in greater harmony with their feelings and sentiments and to seek to live their affectivity in the best manner possible. These proper aspirations can lead to a desire to put greater effort into building relationships of self-giving and creative reciprocity, which are empowering and supportive like those within a family. In this case, however, individualism and living only for one’s self is a real danger. The challenge for the Church is to assist couples in the maturation and development of their affectivity through fostering dialogue, virtue and trust in the merciful love of God. The full commitment required in marriage can be a strong antidote to the temptation of a selfish individualism.
Cultural tendencies in today’s world seem to set no limits on a person’s affectivity in which every aspect needs to be explored, even those which are highly complex. Indeed, nowadays a person’s affectivity is very fragile; a narcissistic, unstable or changeable affectivity does not always allow a person to grow to maturity. Particularly worrisome is the spread of pornography and the commercialization of the body, fostered also by a misuse of the internet and reprehensible situations where people are forced into prostitution. In this context, couples are often uncertain, hesitant and struggling to find ways to grow. Many tend to remain in the early stages of their affective and sexual life. A crisis in a couple’s relationship destabilizes the family and may lead, through separation and divorce, to serious consequences for adults, children and society as a whole, weakening its individual and social bonds. The decline in population, due to a mentality against having children and promoted by the world politics of reproductive health, creates not only a situation in which the relationship between generations is no longer ensured but also the danger that, over time, this decline will lead to economic impoverishment and a loss of hope in the future.
The great values of marriage and the Christian family correspond to the search that characterizes human existence, even in these times of individualism and hedonism. People need to be accepted in the concrete circumstances of life. We need to know how to support them in their searching and to encourage them in their hunger for God and their wish to feel fully part of the Church, also including those who have experienced failure or find themselves in a variety of situations. The Christian message always contains in itself the reality and the dynamic of mercy and truth which meet in Christ.
Jesus looked upon the women and the men he met with love and tenderness, accompanying their steps with patience and mercy, in proclaiming the demands of the Kingdom of God.
Jesus himself, referring to the original plan of the human couple, reaffirms the indissoluble union between a man and a woman and says to the Pharisees that “for your hardness of heart Moses allowed you to divorce your wives, but from the beginning it was not so”(Mt 19: 8). The indissolubility of marriage (“what therefore God has joined together, let no man put asunder” Mt 19:6), is not to be understood as a “yoke” imposed on persons but as a “gift” to a husband and wife united in marriage. In fact, Jesus was born in a family; he began to work his signs at the wedding of Cana; and announced the meaning of marriage as the fullness of revelation which restores the original divine plan (Mt 19:3). At the same time, however, he put what he taught into practice and manifested the true meaning of mercy, clearly illustrated in his meeting with the Samaritan woman (Jn 4:1-30) and with the adulteress (Jn 8:1-11). By looking at the sinner with love, Jesus leads the person to repentance and conversion (“Go and sin no more”), which is the basis for forgiveness.
In accepting each other and with Christ’s grace, the engaged couple promises a total self-giving, faithfulness and openness to new life. The married couple recognizes these elements as constitutive in marriage, gifts offered to them by God, which they take seriously in their mutual commitment, in God’s name and in the presence of the Church. Faith facilitates the possibility of assuming the benefits of marriage as commitments which are sustainable through the help of the grace of the Sacrament, offering them assistance to live their faithfulness, mutual complementarity and openness to new life.
The Second Vatican Council wished to express appreciation for natural marriage and the valid elements present in other religions (cf. Nostra Aetate, 2) and cultures, despite their limitations and shortcomings (cf. Redemptoris Missio, 55). The presence of the seeds of the Word in these cultures (cf. Ad Gentes, 11) could even be applied, in some ways, to marriage and the family in so many societies and non-Christian peoples. Valid elements, therefore, exist in some forms outside of Christian marriage — based on a stable and true relationship of a man and a woman. With an eye to the popular wisdom of different peoples and cultures, the Church also recognizes this type of family as the basic, necessary and fruitful unit for humanity’s life together.
The Church is conscious of the weakness of many of her children who are struggling in their journey of faith. “Consequently, without detracting from the evangelical ideal, they need to accompany with mercy and patience the eventual stages of personal growth as these progressively occur. [...] A small step in the midst of great human limitations can be more pleasing to God than a life which outwardly appears in order and passes the day without confronting great difficulties. Everyone needs to be touched by the comfort and attraction of God’s saving love, which is mysteriously at work in each person, above and beyond their faults and failings”.
In considering a pastoral approach towards people who have contracted a civil marriage, who are divorced and remarried or simply living together, the Church has the responsibility of helping them understand the divine pedagogy of grace in their lives and offering them assistance so they can reach the fullness of the God’s plan for them.The Church turns with love to those who participate in her life in an incomplete manner, recognizing that the grace of God works also in their lives by giving them the courage to do good, to care for one another in love and to be of service to the community in which they live and work.
The Church looks with concern at the distrust of many young people in relation to a commitment in marriage and suffers at the haste with which many of the faithful decide to put an end to the obligation they assumed and to take on another. These lay people, who are members of the Church, need pastoral attention which is merciful and encouraging, so they might adequately determine their situation. Young people, who are baptized, should be encouraged to understand that the Sacrament of Marriage can enrich their prospects of love and they can be sustained by the grace of Christ in the Sacrament and by the possibility of participating fully in the life of the Church.
In this regard, a new aspect of family ministry is requiring attention today — the reality of civil marriages between a man and woman, traditional marriages and, taking into consideration the differences involved, even cohabitation. When a union reaches a particular stability, legally recognized, characterized by deep affection and responsibility for children and showing an ability to overcome trials, these unions can offer occasions for guidance with an eye towards the eventual celebration of the Sacrament of Marriage. Oftentimes, a couple lives together without the possibility of a future marriage and without any intention of a legally binding relationship.
In accordance with Christ’s mercy, the Church must accompany with attention and care the weakest of her children, who show signs of a wounded and lost love, by restoring in them hope and confidence, like the beacon of a lighthouse in a port or a torch carried among the people to enlighten those who have lost their way or who are in the midst of a storm. Conscious that the most merciful thing is to tell the truth in love, we go beyond compassion. Merciful love, as it attracts and unites, transforms and elevates. It is an invitation to conversion. We understand the Lord’s attitude in the same way; he does not condemn the adulterous woman, but asks her to sin no more.
This work calls for not stopping at proclaiming a message which is perceived to be merely theoretical, with no connection to people’s real problems.Proclamation needs to create an experience where the Gospel of the Family responds to the deepest expectations of a person: a response to each’s dignity and complete fulfillment in reciprocity, communion and fruitfulness. This does not consist in merely presenting a set of rules but in espousing values, which respond to [people's] needs.
The synod fathers repeatedly called for a thorough renewal of the Church’s pastoral practice in light of the Gospel of the Family and replacing its current emphasis on individuals. For this reason, the synod fathers repeatedly insisted on renewal in the training of priests and other pastoral workers with a greater involvement of families. They equally highlighted the fact that evangelization needs to clearly denounce cultural, social, political and economic factors, such as the excessive importance given to market logic which prevents authentic family life and leads to discrimination, poverty, exclusion, and violence. Consequently, dialogue and cooperation need to be developed with the social entities and encouragement given to Christian lay people who are involved in the cultural and socio-political fields.
Preparation for Marriage
The complex social reality and the changes affecting the family today require a greater effort on the part of the whole Christian community in preparing those who are about to be married. The importance of the virtues needs to be included, among these chastity which is invaluable in the genuine growth of love between persons. In this regard, the synod fathers jointly insisted on the need to involve more extensively the entire community by favouring the witness of families themselves and including preparation for marriage in the course of Christian Initiation as well as emphasizing the connection between marriage and the other sacraments. Likewise, they felt that specific programmes were needed in preparing couples for marriage, programmes which create a true experience of participation in ecclesial life and thoroughly treat the various aspects of family life.
The initial years of marriage are a vital and sensitive period during which couples become more aware of the challenges and meaning of married life. In this regard, experienced couples are of great importance to be of service to younger couples.
Pastoral Care for Couples Civilly Married or Living Together
While continuing to proclaim and foster Christian marriage, the Synod also encourages pastoral discernment of the situations of a great many who no longer live this reality. Entering into pastoral dialogue with these persons is needed to distinguish elements in their lives which can lead to a greater openness to the Gospel of Marriage in its fullness. Pastors ought to identify elements which can foster evangelization and human and spiritual growth. A new element in today’s pastoral activity is a sensitivity to the positive aspects of civilly celebrated marriages and, with obvious differences, cohabitation. While clearly presenting the Christian message, the Church also needs to indicate the constructive elements in these situations which do not yet or no longer correspond to it.
The synod fathers also noted in many countries an “an increasing number of people live together ad experimentum, in unions which have not been religiously or civilly recognized” (Instrumentum Laboris, 81). In some countries, this occurs especially in traditional marriages which are arranged between families and often celebrated in different stages. Other countries are witnessing a continual increase in the number of those who, after having lived together for a long period, request the celebration of marriage in Church. Simply to live together is often a choice based on a general attitude opposed to anything institutional or definitive; it can also be done while awaiting more security in life (a steady job and income). Finally, in some countries de factomarriages are very numerous, not because of a rejection of Christian values concerning the family and matrimony but primarily because celebrating a marriage is too expensive. As a result, material poverty leads people into de facto unions.
All these situations require a constructive response, seeking to transform them into opportunities which can lead to an actual marriage and a family in conformity with the Gospel. These couples need to be provided for and guided patiently and discreetly. With this in mind, the witness of authentic Christian families is particularly appealing and important as agents in the evangelization of the family.
Caring for Broken families (Persons who are Separated, Divorced, Divorced and Remarried and Single-Parent Families)
Married couples with problems in their relationship should be able to count on the assistance and guidance of the Church. The pastoral work of charity and mercy seeks to help persons recover and restore relationships. Experience shows that with proper assistance and acts of reconciliation, though grace, a great percentage of troubled marriages find a solution in a satisfying manner. To know how to forgive and to feel forgiven is a basic experience in family life. Forgiveness between husband and wife permits a couple to experience a never-ending love which does not pass away.
The necessity for courageous pastoral choices was particularly evident at the Synod. Strongly reconfirming their faithfulness to the Gospel of the Family and acknowledging that separation and divorce are always wounds which causes deep suffering to the married couple and to their children, the synod fathers felt the urgent need to embark on a new pastoral course based on the present reality of weaknesses within the family, knowing oftentimes that couples are more “enduring” situations of suffering than freely choosing them. These situations vary because of personal, cultural and socio-economic factors. Therefore, solutions need to be considered in a variety of ways.
A special discernment is indispensable for pastorally guiding persons who are separated, divorced or abandoned. Respect needs to be primarily given to the suffering of those who have unjustly endured separation, divorce or abandonment, or those who have been subjected to the maltreatment of a husband or a wife, which interrupts their life together. To forgive such an injustice is not easy, but grace makes this journey possible. Pastoral activity, then, needs to be geared towards reconciliation or mediation of differences, which might even take place in specialized “listening centres” established in dioceses. At the same time, the synod fathers emphasized the necessity of addressing, in a faithful and constructive fashion, the consequences of separation or divorce on children, in every case the innocent victims of the situation. Children must not become an “object” of contention. Instead, every suitable means ought to be sought to ensure that they can overcome the trauma of a family break-up and grow as serenely as possible. In each case, the Church is always to point out the injustice which very often is associated with divorce. Special attention is to be given in the guidance of single-parent families. Women in this situation ought to receive special assistance so they can bear the responsibility of providing a home and raising their children.
A great number of synod fathers emphasized the need to make the procedure in cases of nullity more accessible and less time-consuming. They proposed, among others, the dispensation of the requirement of second instance for confirming sentences; the possibility of establishing an administrative means under the jurisdiction of the diocesan bishop; and a simple process to be used in cases where nullity is clearly evident. Some synod fathers, however, were opposed to this proposal, because they felt that it would not guarantee a reliable judgment. In all these cases, the synod fathers emphasized the primary character of ascertaining the truth about the validity of the marriage bond. Among other proposals, the role which faith plays in persons who marry could possibly be examined in ascertaining the validity of the Sacrament of Marriage, all the while maintaining that the marriage of two baptized Christians is always a sacrament. In streamlining the procedure of marriage cases, many synod fathers requested the preparation of a sufficient number of persons — clerics and lay people — entirely dedicated to this work.
Divorced people who have not remarried, who oftentimes bear witness to their promise of faithfulness in marriage, ought to be encouraged to find in the Eucharist the nourishment they need to sustain them in their present state of life. The local community and pastors ought to accompany these people with solicitude, particularly when children are involved or when in serious financial difficulty.
Those who are divorced and remarried require careful discernment and an accompaniment of great respect. Language or behavior which might make them feel an object of discrimination should be avoided, all the while encouraging them to participate in the life of the community. The Christian community’s care of such persons is not to be considered a weakening of its faith and testimony to the indissolubility of marriage, but, precisely in this way, the community is seen to express its charity.
The synod father also considered the possibility of giving the divorced and remarried access to the Sacraments of Penance and the Eucharist. Some synod fathers insisted on maintaining the present regulations, because of the constitutive relationship between participation in the Eucharist and communion with the Church as well as the teaching on the indissoluble character of marriage. Others expressed a more individualized approach, permitting access in certain situations and with certain well-defined conditions, primarily in irreversible situations and those involving moral obligations towards children who would have to endure unjust suffering. Access to the sacraments might take place if preceded by a penitential practice, determined by the diocesan bishop. The subject needs to be thoroughly examined, bearing in mind the distinction between an objective sinful situation and extenuating circumstances, given that “imputability and responsibility for an action can be diminished or even nullified by ignorance, inadvertence, duress, fear, habit, inordinate attachments, and other psychological or social factors”.
Persons with Homosexual Tendencies
Some families have members who have a homosexual tendency. In this regard, the synod fathers asked themselves what pastoral attention might be appropriate for them in accordance with the Church’s teaching: “There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God's plan for marriage and family.”Nevertheless, men and women with a homosexual tendency ought to be received with respect and sensitivity. “Every sign of unjust discrimination in their regard should be avoided” (Congregation for the Doctrine of the Faith, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, 4).
Exerting pressure in this regard on the Pastors of the Church is totally unacceptable: this is equally so for international organizations who link their financial assistance to poorer countries with the introduction of laws which establish “marriage” between persons of the same sex.
Having and Raising Children
Today, the diffusion of a mentality which reduces the generation of human life to accommodate an individual’s or couple’s plans is easily observable. Sometimes, economic factors are burdensome, contributing to a sharp drop in the birthrate which weakens the social fabric, thus compromising relations between generations and rendering a future outlook uncertain. Openness to life is an intrinsic requirement of married love. In this regard, the Church supports families who accept, raise and affectionately embrace children with various disabilities.
Pastoral work in this area needs to start with listening to people and acknowledging the beauty and truth of an unconditional openness to life, which is needed, if human life is to be lived fully. This serves as the basis for an appropriate teaching regarding the natural methods for responsible procreation, which allow a couple to live, in a harmonious and conscious manner, the loving communication between husband and wife in all its aspects, along with their responsibility at procreating life. In this regard, we should return to the message of the Encyclical Humanae Vitae of Blessed Pope Paul VI, which highlights the need to respect the dignity of the person in morally assessing methods in regulating births. The adoption of children, orphans and the abandoned and accepting them as one’s own is a specific form of the family apostolate (cf. Apostolicam Actuositatem, III, 11), and oftentimes called for and encouraged by the Magisterium (cf. Familiaris Consortio, III, II; Evangelium Vitae, IV, 93). The choice of adoption or foster parenting expresses a particular fruitfulness of married life, not simply in the case of sterility. Such a choice is a powerful sign of family love, an occasion to witness to one’s faith and to restore the dignity of a son or daughter to a person who has been deprived of this dignity.
One of the fundamental challenges facing families today is undoubtedly that of raising children, made all the more difficult and complex by today’s cultural reality. The Church can assume a valuable role in supporting families, starting with Christian Initiation, by being welcoming communities. More than ever, these communities today are to offer support to parents, in complex situations and everyday life, in their work of raising their children.
How Marriage Matures and Fulfills Us
Affectivity needs assistance, also in marriage, as a path to maturity in the ever-deepening acceptance of the other and an ever-fuller gift of self. This necessitates offering programmes of formation which nourish married life and the importance of the laity providing an accompaniment, which consists in a life of witness. Undoubtedly, the example of a faithful and deep love is of great assistance; a love shown in tenderness and respect; a love which is capable of growing over time; and a love which, in the very act of opening itself to the generation of life, creates a transcendent mystical experience.
Every so often one of my colleagues re-posts "The 5 Best And Worst States For Getting A Divorce" by Brittany Wong in The Huffington Post; based on, and referencing, the full charts titled "Compare Divorce and Family Laws" at findthebest.com. Lawyers' empty blogging for the sake of visibility and perceived expertise helps make this purported advice an enduring part of the conventional "wisdom" that well-meaning friends and those in the "helping professions" uncritically repeat to those beginning the divorce process.
The chart uses filing fees to gauge the cost of divorce. But filing fees range from the tens to the low hundreds of dollars, while the actual cost of divorce is somewhere in the five figures for most people, four figures for those with simple and amicable cases, and six figures for really hellish cases, which alas are not uncommon.
Then the chart takes the legal waiting periods, most of which are separation periods before a divorce is filed, and adds them to other procedurally required periods to get something called "processing time". Playing right into people's fantasy that a divorce is something that one simply registers with some kind of bureaucratic office which then takes care of "processing" it. That's one of the reasons people jump into divorce just as ignorantly and optimistically as they jump into marriage.
Actually, in a divorce, people have to either work out all the financial and child-related details of their separation, or have a court decide them in a trial -- and the litigation process that leads up to that can take from one to two years. Negotiation, on the other hand, can happen during physical separation, or ideally, before it. The faster you can go to court and start a case without having negotiated a complete agreement, the uglier and more expensive it can get, and the longer it might ultimately take. So what really matters is not what state you live in, but how simple your personal and economic lives are and whether the two spouses can work out a practical agreement on everything.
People facing divorce are so starved for useful information that they actually take such articles seriously. So this kind of throwaway journalism can do real damage.
Leading Minneapolis family lawyer Nancy Zalusky Berg shared this article, commenting that "the law in Minnesota is very clear - every parent is expected to work - there is no such thing as a stay-at-home mom anymore."
For many men and women, that's reality, that's modernity, that's how it should be. "Alimony" strikes them as a form of medieval serfdom. But for many other families I deal with in Northern Virginia, contemporary life is not really as modern as that idealized vision of economically autonomous individuals. And in fact, maybe that vision is not truly modern at all. Minneapolis family lawyer Michael Boulette says that for many, marriage is still more than a passing association of economic producers and consumers. People still sacrifice individual career goals for the family's overall well-being. I agree.
A thorough and informative story on the Hamm divorce trial in Oklahoma raises questions about the degree of involvement of a lawyer for Continental Resources, of which Mr. Hamm is the founder, CEO and major shareholder. But I can't see any one thing in the story that is unique or wrong; it is just the size of the company and the personal fortune at stake that make it a story.
It is very common for employers and their in-house counsel to get concerned about their information coming out in a divorce trial, or other things that could affect the employer or fellow employees. Here in the Washington area, that is true of federal agencies as well as private employers. And it applies to many middle-class litigants, not just CEOs. In-house counsel generally try to do this by working with the parties and their lawyers, but I have seen them formally intervene and appear in the courtroom.
As for where the lawyer sat in the courtroom and his role in arguments and in informal conversation, that is a matter of local custom and usage and nothing in the story sounds particularly unusual. Just like the court-appointed lawyers or "guardians ad litem" for children, whom I deal with routinely in my cases, he had to find a place to sit in a courtroom designed for a two-sided case. Nearly everywhere you choose to sit or stand is freighted with meaning. Would it look better, or worse, to sit at one side's counsel table? The bailiff's chair? The judge's bench? The witness stand? Family law cases don't have juries except in a couple states, so the jury box often is used for overflow seating.
Judges rightly resent the implication that they are so weak-willed that they would be influenced or "intimidated" by anyone, especially a lawyer, no matter how accomplished or well-heeled.
The reporters got several commentators to speculate about the lawyer's involvement posing a conflict with other shareholders' interests, but all the comments are just that: speculation. Or, as we say in law school at exam time, "issue-spotting". Flagging problems that could come up in theory and in practice, but which might not be actual problems. To some extent, that is a lawyer's job. But because it is so highly prized in our law school exams, we often forget that it is not our main job, but only the first step in what clients and society need us to do.
Postscript: On Nov. 10 the court issued its ruling. It awarded Mrs. Hamm $999.5 million out of a fortune of over $14 billion. It sounds like the disparity is mostly because his ownership of his company, which he held before marriage, appreciated "400-fold", but more from market conditions and the work of other executives and employees, and only partly from his own efforts during the marriage.
New York lawyer Daniel Clement reports on a recent case from Brooklyn of a couple who tore up their prenup on the honeymoon and threw it off a cruise ship, leaving no originals of it in existence. If that were a will, it would revoke it, but a prenup generally has wording like this one did, saying that it can be revoked and modified only by a new document signed with the same formalities as the original. Usually this would mean notarization, and in some states, additional witnesses.
In the divorce twelve years later, the wife claimed the couple had never intended the prenup to be binding, did not even read it, and only signed it to placate the husband's family. The husband denied this, but the court said it wouldn't matter anyhow: Like almost all such contracts, this prenup had language saying there were no side agreements or other understandings which would change or condition its effects.
The law holds people responsible for what they signed, and assumes they read and know what they signed. And if they didn't, they should be responsible for it anyway. And that's a very good thing. Without binding and enforceable contracts, a modern society can't function and ordered liberty is impossible.
Clement concludes: "Negotiate every term as if it means something, because it does. If the agreement is to be revoked, revoke it with the requisite formality."
Just sayin'. We get a lot of these green-card marriages here in the DC area, and they would hardly be conceiveable without laws that make people assume - - often mistakenly - - that divorce will be easy and will automatically be granted when either spouse asks for it. These marriages cannot qualify for annulments unless one spouse can show that they were truly innocent, believed in the marriage, and were defrauded by the foreign suitor. Divorces in such marriages might be easy or might be ugly, hard and expensive: one never knows at the beginning, since it takes two to have an amicable divorce.
This New York Post article by Julia Marsh (10/29/14), via DC-Maryland family lawyer Melissa Kucinski at MK Family Law, gets the big picture, nuances and background right and is very informative. It's the kind of family-law reporting I like to see, and rarely do see.
In the case of a Vietnamese-American woman who married a parent's half-brother, who was close to her age, New York's highest court observed that the state's relevant statute says:
"“a marriage is incestuous and void whether the relatives are legitimate or illegitimate between either: 1. An ancestor and a descendant; 2. A brother and sister of either the whole or half blood; 3. An uncle and niece or an aunt and nephew.”
Thus, using common techniques of statutory construction, it reasoned that since "either the whole or half blood" was included in the provision about siblings but left out of the uncles and aunts provision, it must be intentionally not applicable to it, and thus a half-uncle is not an uncle.
The court's commentary about uncle-neice marriage not being as rare or shocking as sibling or parent-child incest, and having been legal in certain times and places, is not, by itself, justification for nullifying the law. But it provides context for understanding the statute and its intention. The court said the couple only shared one-eighth of the same "blood", the same as first cousins, who are allowed to marry in New York and many other states.
However, I think it is very possible that if the case had arisen only a very few years ago, the statutory interpretation and evaluation of context could have turned out very differently. On the other hand, the same result was reached on the same precise question in a 1924 Missouri case, a 1968 California case, People v. Baker, and a 1969 Connecticut case, State v. Moore.
Maryland family law specialist Hadrian Hatfield notes that the new "Phased Reitrement" offered to federal employees will change now we divide their pensions in divorce cases, and may also affect alimony; but fortunately the government has anticipated this and its new regulations on the subject address how it affects family law, including both new pension-divisions and pased-retirees who already have court orders prospectively dividing their pensions.
German attorney turned American mom Anke Dürr McCown, who naturally takes a different, fresher point of view on American parenting, sent me this:
By Danielle Teller and Astro Teller on qz.com
"It’s striking to consider the attachment implications when parental behavior isn’t really about what it seems to be about, but is in service of a whole other agenda. Yet this is exactly what I hear from diverse groups with statements like “I give my child a hug when he does something well because kudos build self-esteem” or “When she bumped herself, once I realized she wasn’t really hurt, I let her cry because she needs to develop grit” or “We’re strict about keeping schedules because rituals instill emotional security.”
"The usurpation of parenting instincts has serious attachment consequences. For one thing, as brain imaging one day will show, kids can tell the difference between authentic, three-dimensional connection and a two-dimensional parental processing that passes for the real thing.
"We live in a culture immersed in emotional dysregulation -- a kind of nonstop, excessively stimulating too-muchness. This is all fine, as long as you have the ego strength and stability to absorb hyperstimulation without being undone by it. But, as we’re learning, people need secure attachment to develop a sturdy sense of self. And this is exactly where the long-term erosion of effective parental hierarchy, and now the diminution of un-self-conscious parenting, create many new shades of pseudo-attachment."
The Virginia State bar has proposed new ethics rules on a duty to be informed of the risks and dangers of specific technologies. Virginia Lawyer's Weekly calls it "an explicit duty to be familiar with modern computer technology and to avoid digital secutiry blunders," and their headline says it "would mandate tech savvy." That kind of press coverage will probably influence the comon understanding and application of the new rules, if they are adopted.
Comments on the new rules will be accepted through November 3, 2014 by Karen A. Gould, the Executive Director of the Virginia State Bar.
In the Comment to Rule 1.1 (Competence), in Comment part , "Maintaining Competence", after
"To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education,"
including the benefits and risks associated with technology relevant to the lawyer’s practice.
In 1.6 (Confidentiality), ADD a new subpart of the Rule:
(d) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information protected under this Rule.
AND A NEW COMMENT:
Acting Reasonably to Preserve Confidentiality
 Paragraph (d) requires a lawyer to act reasonably to safeguard information protected under this Rule against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of confidential information does not constitute a violation of this Rule if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures or may give informed consent to forego security measures that would otherwise be appropriate under this Rule. Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other laws, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules.
(I've never spoken my mind on gay marriage in public, and seldom in private. But with my friends and colleagues having a big debate on it here at the State Bar meeting, at least ten years too late, it's time. I thought that if I get a chance to speak I had better prepare carefully, make sure I include the most important things, and boil it down as far as I can. Got it down to a little over three minutes. Wish it could be shorter, as I once performed a Christian marriage in two minutes. But this thing has as many sharp angles and hidden dangers as, well, a Christian marriage.)
[Remarks prepared for a State Bar forum on marriage, June, 2014.]
I’m John Crouch, a divorce lawyer from Arlington. I’m active in the Coalition for Divorce Reform and the Marriage Opportunity Project, which wants to strengthen, deepen and improve marriage for all economic classes, races and orientations.
When gay marriage first came along, they called it “redefining marriage”. That was deeply scary, arrogant and Orwellian, to think government could redefine a basic fact of human life that’s older than government. And thus could redefine it out of existence, or “redefine” other crucial facts of life, such as parenthood. Many people would not have minded keeping marriage the same and just letting more people into it. But they put an immense amount of energy into “defending” marriage that could have gone into improving it and adapting it to modern life.
20 years later, the question is not whether the law should be used to change family life, but whether the law should adapt to changes in life that have already happened. Gay people have formed traditional families and raised kids. Like the rest of us, they want to form binding, exclusive contracts of marriage, which make it safer for each of them to play complementary roles, increase their combined self-sufficiency, and give back more to their children, friends, and communities.
But we lawyers know that it’s not just the result that matters, sometimes how you get to the result is just as important. Because of all the side effects on how other things are done in the future.
If this change happens in constitutional litigation instead of by legislation, it’s probably going to weaken America’s Constitution and weaken marriage for everyone. In the past generation we’ve escaped from the dangerous, lawless idea that the Constitution says whatever the elites want it to say. Liberals and conservatives now look at the text and the intent of the framers, even on tough political issues like campaign finance and gun control. But lately even conservatives, belatedly racing for the exits of the gay marriage debate, are abandoning that constitutional conservatism.
If the courts protect gay marriage rights by agreeing with the great Supreme Court Justice Joseph Story, that it’s an unconstitutional impairment of contract to void a marriage without fault or mutual consent, that would certainly strengthen marriage. Or if they decide purely on equal protection grounds, that wouldn’t do violence to marriage. But far more likely and worrisome is if courts find new rights to complete sexual freedom, or say we can’t regulate coupling and uncoupling at all, can’t make marriage exclusive, permanent or binding. That will destroy the fundamental building block of society. The little bit of leverage that family law still has to influence our behavior - - the mild marriage-saving devices built into no-fault divorce laws, the fact that a man can’t marry the other woman until a court has sorted out what he owes his first wife and children - - will be the next dominoes to fall. We’ll have the shallow, adolescent freedom that people have in Las Vegas, to do what we want in the moment and keep our options open. But we won’t have freedom that matters, the adult freedom to truly choose by forsaking other choices, binding ourselves over time, so that others can rely on us.
So don’t make the Constitution the battlefield, and don’t destroy what both sides are fighting for. Conservatives can conserve, liberals can liberate, by ending these lawsuits and legislating to amend the state constitution and legalize same-sex marriage. And then join in a Marshall Plan for marriage, so we can all say we didn’t fight this war in vain.
Oklahoma's governor has signed a law requiring educational programs for divorcing parents who have children under 18. It amends a law that already lets courts require such classes, following a model common in many states and localities around the country. But it adds a few new topics, to help couples work on their marriage, if they want, as well as their coparenting. It also teaches communication and cooperation skills that are useful for the current marriage, and/or for divorced co-parenting, and for later relationships with others if they do divorce. The relevant part reads:
B. In actions for divorce based upon incompatibility filed on or after November 1, 2014, where the interest of a child under eighteen (18) years of age is involved, the adult parties shall attend, either separately or together, an educational program concerning the impact of divorce on children. The program shall include the following components:
1. Short-term and longitudinal effects of divorce on child well-being;
2. Reconciliation as an optional outcome;
3. Effects of family violence;
4. Potential child behaviors and emotional states during and after divorce including information on how to respond to the child's needs;
5. Communication strategies to reduce conflict and facilitate cooperative coparenting; and
6. Area resources, including but not limited to nonprofit organizations or religious entities available to address issues of substance abuse or other addictions, family violence, behavioral health, individual and couples counseling, and financial planning.
Program attendees shall be required to pay a fee of not less than Fifteen Dollars ($15.00) and not more than Sixty Dollars ($60.00) to the program provider to offset the costs of the program. A certificate of completion shall be issued upon satisfying the attendance and fee requirements of the program, and the certificate of completion shall be filed with the court. The program provider shall carry general liability insurance and maintain an accurate accounting of all business transactions and funds received in relation to the program. The program shall be completed prior to the temporary order or within forty-five (45) days of receiving a temporary order. However, and in all events, a final disposition of child custody shall not be granted until the parties complete the program required by this subsection. The court may waive attendance of the program for good cause shown.
C. Each judicial district may adopt its own local rules governing the program programs.
D. The Administrative Office of the Courts may enter into a memorandum of understanding with a state entity or other organization in order to compile data including but not limited to the number of actions for divorce that were dismissed after participating in the program, the number of programs that were completed and the number of program participants for each fiscal year. The report shall include data collected from each judicial district. The report shall be published on the Administrative Office of the Courts website and distributed to the Governor, Speaker of the House of Representatives, Minority Leader of the House of Representatives, President Pro Tempore of the Senate and Minority Leader of the Senate.