Defending marriage vs. unwanted dissolution, turning weakness into strength: Tim Kaine's first cases

"Diane married James against [her] guardian’s wishes and [the guardian] wanted to get the marriage annulled. Kaine represented Diane in a lawsuit to preserve her marriage. He fought the guardian and won, learning that the guardian wanted Diane’s dis­ability checks.

“'What started off as a marriage case in Richmond Juvenile and Domestic Relations Court ended up as a criminal trial against the guardian in federal court,' he said.

"Kaine said, 'I learned a lot from Di­ane.' including the responsibility of law practice and that what a lawyer does really mat­ters.

“'And I also learned a critical lesson that served me well through­out my career— whatever the is­sue seems to be at first, look deeper. The marriage law­suit, ostensibly filed to protect a mentally disabled person, was really the guardian’s effort to continue the subjugation of Diane and the theft of her disability payments,' he said.

From "The Education of Tim Kaine", by  in Virginia Lawyers' Weekly, May 27, 2016, p. 3.  Also available on Sen. Kaine's web site.

The article, about Kaine's talk at William & Mary's law school graduation, also includes some vital advice for lawyers and pretty much everyone else:

At one point Kaine said he sat at his computer with a mental block. Then he recalled a line from Second Corinthians, “in my weakness is my strength.” He said he understood then that “you can’t flee from your weak­nesses but have to embrace and own them as a natural part of being hu­man. I was afraid. But somehow, just admitting that to myself helped me jump back into the work and crank out all the pleadings and advocate at all the hearings right up to the last day.”

Kaine said, “This is a lesson that I come back to again and again in my life. Fleeing from your weaknesses or pretending that you don’t have them makes you weak. But acknowledging your weaknesses, which can be very hard to do, in one of life’s great mys­teries, can make you strong.”

He closed his remarks with a prom­ise to the new grads: “My clients taught me lessons that I still reflect on today, long after I gave up law practice because of the demands of full time public service. They changed me as a lawyer and they changed me as a per­son. And they will change you too,” he said.

 


How is family law like pornography? Google Ads is going to censor it, that's how.

Raleigh, NC lawyer Lee Rosen has been THE cutting-edge lawyer for every new innovation in law practice and firm management for the past 20 years, at least in my field, family law. When a friend of mine got a job with him in the late '90s, she wasn't given her own office or cubicle -- no one was. Instead, the firm had different areas for doing different kinds of work, like a hospital. It was exactly what she needed, as someone who, like many of us, had trouble focusing and staying  on task without some social and environmental reinforcement. Already, back then, The Rosen Firm had a form on its web site where you could check boxes for all the different issues in your family law case and get a quote for the firm's flat fee, a billing practice that eliminates most of the worry, friction, heartache and regret from the attorney-client relationship. Later I got a notice that the firm was closing its offices and replacing them with home/mobile offices and small conference centers. If it had been anyone else, it would have been a self-parodying last hurrah of a quickly-disappearing business, but since it was from Lee, I knew it was the wave of the future -- indeed, a long-overdue adaptation to the present. Lee -- still the owner of a relatively large law firm for our field -- posted a picture of his office -- his Macbook Air on a small folding bookcase in his kitchen. Then I heard he was getting rid of all his books via a service that scans them for a flat fee of a dollar apiece. Then most of the stuff in his house. Then his house,  following the same principle he already applied to office equipment, software, data storage, and most clerical services: why own when you can rent, why lease when you can month-to month, why that when you can on-demand? Today he's more prominent as a firm management consultant, trainer and speaker. He has always kept a hawk's eye on customer service, and on what everything we do looks and feels like to potential clients, and what they expect from other businesses they deal with.

Anyhow, today's issue of Divorce Discourse, Lee's longtime blog/newsletter, is titled "How Family Law Is Like Pornography". Its news was shocking and frustrating, at least to divorce lawyers: A message from Google's web advertising service said that "interest-based" banner/sidebar advertising would no longer include several sensitive subjects, including divorce. A sobering reminder of where family law stands.

And yet, when you think about it, it makes sense. These are ads that tell you, and anyone looking at your computer, what you have been searching for and reading. And of course it's not really censorship, that's just a shorthand, in a twitter-length headline, for a decision by a private company about who to do business with and what unsolicited images and words to stick into people's computer screens. 


Sorry, America, you're not sharp enough to safely have affairs, or computers -- @JenniferWeiner

Jennifer Weiner is a first-rate writer, bestselling novelist, old-style newspaper journalist and Princeton grad who gets dismissed as "chick lit" because she chooses to write about something that was long one of the main subjects of Literature but is now considered "Romance" or "Young Adult" -- the mating and marriage habits of young-to-middle-aged people who are fairly normal, at least compared to most characters in Literature. For those of us who aren't up for one of her novels right now, she shows off what she can do in:

The Ashley Madison Hack Shows We’re Too Dumb to Cheat

 By Jennifer Weiner, New York Times, AUG. 20, 2015

TN court denies divorce under #Obergefell gay-marriage ruling, but also for good, routine reasons

"This is not actually unusual in family law." That's the most typical thing we say on this blog, and the main reason I started it. To give the public and journalists background whenever -- and ideally before -- the media blows up with some story that essentially says, "In a shocking and unprecedented development which must be caused by corruption, politics or ideology, a mother lost 'full custody'! / was barred from moving her baby across the country / an American citizen was forced to return her children to the foreign country where they were born and raised! / a soldier was forced to share his pension with his slutty ex! / a child was forced to spend time in the care of his father when she could instead be in quality day care! / white woman was jailed for disobeying a court order! / an orphaned child was sent to his non-custodial father instead of the heirs whom the mother left custody to in her will!"

What this blog usually says in such cases is no, that's actually routine and what happened in this case was for reasons that we in the family law field have come to accept as normal. So if you don't like it, you should realize that the problem is not with one judge who is corrupt, or anti-female or anti-male, rather, this is just one of thousands of similar cases of widespread suffering and irrepressible conflict that our current system, and perhaps any system of widespread family breakup, imposes on men AND women! And children.

We've also been able to say when a court decision truly is a wrongheaded outlier, such as the one forcing skier Bode Miller's ex-girlfriend to move across the country to give birth. 

The case that's breaking the internet today is a little bit of both kinds:

If You Thought The Kentucky Clerk Was Stupid, Check Out This Tennessee Judge

By  on abovethelaw.com, 9/2/15

The court opinion in the case includes two good and routine reasons to dismiss both parties' dueling divorce claims -- failure to prove the divorce grounds, and non-compliance with the court's procedural rules. Independently of the bad, creative, and publicity-attracting argument that the US Supreme Court has preempted any action on marriage by any other levels or branches of government. 

 If you read it to the end, it dismisses the divorce claims not only for for one bad reason, which is, as I had suspected when I first heard of this, a counterpart to the liberal judges who used to deny DV protective orders based on DOMA just to make DOMA look savage and harmful; a very good reason (failure to prove the divorce grounds), and a so-so but widely accepted reason (complete failure to comply with procedural requirements of local rules, such as filing financial statements).
 
It looks like the parties had normal relations the very night before the divorce complaint was filed and/or served. This cast doubt on the "irretrieveable breakdown" claim and also on the credibility of other claims in the complaint. And there were other problems with the parties' credibility. Quotes:
 "The Court is also compelled to comment upon its observations concerning the credibility and demeanor of thePlaintiff and Defendant. As noted when the Court announced its decision, this matter suffers from a bad case of excellent cross- examination. Perhaps the Court's observation as announced was less than delicate, but the fact that the parties were gutted like a fish during cross-examination is nonetheless accurate."

... "The only excuse for Plaintiff' s decision to be intimate with Defendant after she had executed her 'fear for her safety' verification page in support of the divorce and request for a TemporaryRestraining Order was 'I wanted to give him one more chance' to avoid the filing."
Tennessee often has cases denying divorces because "irrevocable breakdown" was not proven. Even in Virginia, where no-fault is a matter of six or twelve months of separation with intent to permanently separate, I've had that happen, rarely but always with very good reason. (In one such case, the couple later reconciled and the wife became a marriage therapist.) Divorce cases also get dismissed for procedural reasons, such as failure to prosecute with a speedy trial, since they don't want cases hanging around on the court's open-case docket forever, making the court's statistics look bad. (Even if there are good reasons for the delay, such as the parties working on reconciliation or dealing with other more pressing issues such as a child's medical or mental health crises.)
 
It's very disappointing that abovethelaw.com, which I believe is a blog specifically about the law, merely calls the judge "stupid" instead of looking at the actual law and reasoning involved in the case.

Ashley Madison breach offers land of milk & honey for divorce lawyers, & a lesson for adulterers: there's no contract

For divorce lawyers, the breach in the firewalls of Ashley Madison is like the breach in the walls of Jericho, when the trumpets did sound for seven go-rounds and the walls came tumbling down. Soon we'll be making money hand over fist.

It's also a reminder of how silly we are when we suppose that adultery is a contract that promises mutual silence and non-entanglement, even at a time when marriage itself is less of a real contract than ever. There are so many ways for the truth to get out.

For the rest of the story, as told by Northern Virginia family lawyer, bar leader, and tech-security guru Sharon Nelson, see:

You May Rue Your Cheating Heart: Ashley Madison Breached

 


NY's Unilateral No-Fault Law Increases Divorces 18%, Makes'em Nasty, Brutish & Long. Lawyers Mystified.

New York joined the rest of the U.S. and most of Europe a few years ago by allowing no-fault divorces that were unilateral -- not requiring a separation agreement on the economic and child-related details of the divorce -- and quick -- well, quick to start, anyway. Not so quick to finish. Now the divorce lawyers who pushed for the change are dumbfounded to discover that divorce in New York is starting to look exactly like divorce in the rest of the country, the New York Law Journal reports.

In the past, couples who lacked grounds for a divorce or didn't want to assert grounds had to work out an interim agreement and wait a year, said Lee Rosenberg, a partner at Saltzman Chetkof & Rosenberg in Garden City. Rosenberg, a fellow with the American Academy of Matrimonial Lawyers and former chairman of the Nassau County Bar Association Matrimonial Law Committee, said that while he is writing far fewer separation agreements now, he is seeing more divorces—and an inexplicable elevation in hostility. "There is a proliferation of litigation," Rosenberg said. "The amount of recalcitrance and expectations which are illegitimate, the amount of infighting amongst the litigants, and to some degree amongst counsel, is from my perspective at an all-time high."

The number divorces jumped from 49,816 in 2009 to 56,382 in 2010 and 58,556 in 2012* .  "If there are more cases filed, there are more cases in the pipeline and less resources to deal with them. We have judges triple-booked for trials through the end of the summer," Rosenberg said.

"Data from the New York State Department of Health showed that in 2012, only one of every 32 divorces followed a separation agreement, compared with one in seven in the pre-no-fault era."

"Just a few years ago, separation agreements consistently preceded about 7 percent of divorces, providing a cost-effective way for unhappy couples to start dissolving their marriage and a steady source of income for matrimonial attorneys drawing up the agreements." Richard W. Cole of the Albany Law firm of Tully Rinckey said: "Previously, separation agreements were like a two-step divorce because you didn't want to fight over fault grounds. So, the parties would reach a separation agreement and wait out the year without having to prove cruel and inhuman treatment or any of those other unpleasant things that come up in divorce complaints."

Rosenberg said court system is being strained due to an influx of unrepresented litigants and budgetary constraints. The Judiciary, which has been functioning for years with flat budgets, is seeking about a 2.5 percent increase from the Legislature for the fiscal year that begins April 1.

"It is extremely burdensome on the judiciary and court staff to try and manage these cases," Rosenberg said. "If there are more cases filed, there are more cases in the pipeline and less resources to deal with them. We have judges triple-booked for trials through the end of the summer."

Condensed from "With No-Fault Divorces, Separation Agreements Plummet" By John Caher, New York Law Journal, March 7, 2014. 

Read more: http://www.newyorklawjournal.com/id=1202645838937/With-No-Fault-Divorces%2C-Separation-Agreements-Plummet#ixzz2vJ4d6MkO


If you work with families or have one, learn about Discernment Counseling March 18!

I'm so proud and lucky to be training to work as a divorce lawyer and mediator with couples in discernment counseling. It fills a generations-old need so fundamental that people have turned to all kinds of crummy substitutes over the years with demoralizing results -- marriage counseling that turns into divorce counseling and leaves one spouse feeling that that's what it was all along; "trial separations" that do the same and escalate the divorce conflict, mediations where the spouses and mediator have five different ideas of what they're meeting for. "DC" gives a safe space where people can weigh both options without getting into actions, threats and misunderstanding that drive people apart and quickly make divorce inevitable and nasty. 

March 18th Webinar -  Discernment Counseling for Couples on the Brink with Dr. Bill Doherty!

Learn about an innovation in working with couples on the brink of divorce where one spouse is leaning out of the marriage and the other wants to save it. This is a common presentation to marriage therapists, clergy and divorce lawyers, but there have been few protocols for helping these couples. Discernment counseling is a structured way to help "mixed agenda" couples decide whether to work on preserving their marriage or move toward divorce, based on a deeper understanding of what has happened to their relationship and each person's contributions. Bill Doherty has developed discernment counseling protocols for couples therapists (five sessions) and for clergy (one session and referral), plus an "ambivalence" protocol for family-friendly divorce lawyers and mediators.

 

Objectives

  1. Identify the special challenges that mixed agenda couples face when they see helping professionals.
  2. Describe how couples therapist use discernment counseling to help these couples decide on the next step for their relationship.
  3. Describe how clergy use their own version of discernment counseling.
  4. Outline an ambivalence protocol for divorce lawyers and mediators who see mixed agenda couples.

Stopping marriage/divorce data collection isn't "quitting while we're ahead"; comments due today

Lawyer Beverly Willett of the Coalition for Divorce Reform offers a snapshot of the various current marriage and divorce trends that provide the context for the Census Bureau's upcoming decision on whether to keep asking about marriage, divorce and marital status in the "American Community Survey" (ACS), the current name of the "long form" sent to about 3.5 million households a year. ACS and similar data is used for most non-governemntal studies of marriage and divorce, and for very valuable analyses issued by the Census Bureau itself. As Willett reminds us, marriage is at an all-time low, divorce rates have recently been revealed to have been higher than anyone thought, and the current reduction in divorce rates is confined to a younger and well-educated demographic.

Today, Dec. 30, 2014, is the last day for public comment on the proposal.

Willett: "National marriage rates in nosedive"

Deseret News 12/25/14

[See also my Comments to Census Bureau on proposal to stop collecting marriage & divorce info]

[Update: It's nice to see our opinions confirmed, with much more understanding, context and background, by an eminent statistician and demographer, Justin Wolfers, in the New York Times! "Census Bureau’s Plan to Cut Marriage and Divorce Questions Has Academics Up in Arms" (12/31/14)]


Comments to Census Bureau on proposal to stop collecting marriage & divorce info

[Update: It's great to see my opinion confirmed, with much more understanding, context and background, by an eminent statistician and demographer, Justin Wolfers, in the New York Times! "Census Bureau’s Plan to Cut Marriage and Divorce Questions Has Academics Up in Arms" (12/31/14)]

Practicing what I preach, I have sent in my comments on the Census Bureau's proposal to stop collecting information on marriage and divorce. The deadline is tomorrow, Tuesday, Dec. 30. (In case you missed what this is about, see my original posting, "Census will stop studying marriage, divorce; Dec. 30 public comment deadline").

December 29, 2014

Jennifer Jessup, 
Departmental Paperwork Clearance Officer,
 Department of Commerce, 
1401 Constitution Ave., NW, Room 6616, 
Washington, D.C. 20230

 Re: Comment on Proposed Changes to American Community Survey

 Dear Ms. Jessup:

 Your notice in the Federal Register classified the ACS questions on marriage and divorce as low-cost, but “low value”. On the contrary, they are of very high value to our society, to the public, the press, students, researchers, legislators and parts of the executive branch.

 Social and public usefulness of these statistics

 I have been a family-law attorney for 19 years and for almost as long I have operated a divorce statistics web site. In its current form it is called the Divorce Statistics and Studies Blog, at http://familylaw.typepad.com/stats. From doing that work, I have been able to observe that the public, the media, students, academic researchers, and state and federal policymakers all have a widespread, lasting interest in marriage and divorce, and in current statistics on them of a kind which only the American Community Survey provides. Anyone writing an article, research paper, or presentation on marriage or divorce wants to use statistics in it. Any legislator proposing a bill related to either topic wants accurate, current statistics to frame his or her argument. Although I put a great many statistics and studies on the blog, I frequently get calls, e-mails and letters asking for more statistics.

The public rightly considers marriage and divorce to be extremely important subjects, and people overwhelmingly assume that the government keeps detailed, up-to-the-minute statistics on them, far more than is the case even now. People have been hearing about divorce statistics for many decades now, and most people I deal with simply could not comprehend that the government was no longer keeping them. If I told them that, they would keep looking, use outdated numbers, or just make something up that they thought was what they heard somewhere.

Governmental uses

The ACS-based statistics are also very useful to parts of the federal government. Two examples:

  • The Department of Defense and the various branches of the military keep very detailed statistics on divorce and marital status, but those would be much less useful without your corresponding numbers on the general population for comparison purposes. The military has realized in recent years that it needs to take much better care of families, and statistics are essential for measuring progress.
  • The Department of Health and Human Services provides many services to families that have experienced divorce or unwed childbearing, including many services related to child support, and specifically funds fatherhood, marriageability, marriage skills-building, and divorce-prevention programs as part of the Temporary Assistance to Needy Families (TANF) program.  The department and its grant recipients need statistics in order to understand the populations they work with and the need for particular programs.

 Why ACS statistics are crucial 

Most private and academic studies of marriage and divorce are based on information from the ACS and its predecessors. The Census Bureau has also produced very important studies of marriage and divorce based on the ACS and its predecessors, including generational-cohort studies and probability projections. These are where we get the kind of numbers that actually answer the questions people wonder about: What are our overall chances of divorcing, ever? How long do marriages last? What about second and third marriages? How many children grow up without one parent? What is the divorce rate for people of my age, educational level, etc.? And what can we do about it?

The other source of marriage and divorce statistics is the National Center for Health Statistics (NCHS), which collects annual totals of marriages and divorces reported from county courts to state vital statistics offices. But this information, by itself, is not very useful to governments or to the private sector. It yields such measures as “3.6 divorces per 1000 population per year”. I.e., 0.72% of the population gets divorced each year. That does not tell people anything that sounds relevant to their lives. Also, NCHS divorce numbers are much more useful when compared to a count of the married population, which comes from the Census. And they are incomplete: California and several other states are not included.

Conclusion

This proposed change was not widely publicized. A very broad cross-section of the general public, media, academia and policymakers are affected by it, and so the eventual disappointment from the elimination of these survey subjects will be much more widespread than the comments you receive will indicate.

 Sincerely,

 

 

John Crouch