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.
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.
The original headline is definitely misleading. Depending on what you think is unconventional. The story is about marriages of "one man, one woman."
Carl Forsling repeats several often-heard, and quite true, observations about how the military is bad for marriage, plus some insights that are original but intuitively very convincing once he points them out. Which explain why it's also so hard on divorce.
"Divorce — it’s no stranger to those in the military. At the same time, the military is a very tradition-minded institution, so divorce is often treated like the family secret no one talks about. ... some commanders have very black and white attitudes in regards to marriage. ... surprisingly prevalent in an institution where divorce is commonplace. The military attracts strong personalities, and they tend to either be very religious with very traditional views of morality or very not."
Very true. I'm more familiar with the strong personalities who are very non-traditional about marriage -- well, they may be traditional and sentimental about it in some ways, but in ways that get them married five times and divorced four times, if they're lucky. And hopefully with a divorce between each marriage. Or divorced early and married never again. Sometimes getting taken advantage of royally, as they see it, in their first divorce, and then becoming determined that next time, and every next time, they will be the ones in the relationship with the power, the knowledge, the leverage and the manipulation. Whether that's in a divorce or in devoutly unwed cohabitation.
On the other hand, there are many who are honorable and generous to a fault. Or who want what's best for their kids even if it isn't best for themselves.
Many, whether honorable or manipulative, are gung-ho and unashamed of whatever course they're pursuing, in divorce, adultery or whatever. If they're war veterans, they usually have a sense of entitlement, understandably. The military rightly tells them that they and their jobs are important, and that the civilian world should accommodate them. They may see divorce and other family breakups as just part of the petty civilian-life BS that the military requires them to take care of, but that could never be compared in importance to their mission or their careers.
And yet again, there's another side of this: Timid careerists who are always looking over their shoulders. Junior officers who are expert at creating paper trails to shift blame and responsibility to others, and who think that will work for them in family court.
I've only recently begun to see the very religious and neo-traditional officers and servicemembers the author talks about, but I know they have been out there for quite a while now.
He has a refreshing point of view on a practice that is widespread, widely advised, encouraged by regulations, but which also can make civilian courts get really mad at spouses and treat them like stalkers who are trying to destroy the careers they have benefited from:
"On top of that, some hurt soon-to-be former spouses have in the past called up commanding officers and sergeants major, and in today’s “pro-family” military, those leaders usually picked up the phone to an earful of often highly exaggerated drama. Sometimes those senior leaders rightfully take it with a grain of salt. Other times, service members get chewed out or worse based on the spouse’s account of events that may or may not have happened as described. ... Many units now have “human factors” or “commander’s safety” councils, wherein members’ personal lives are aired out in the name of “safety.” Guess who gets talked about in those? In today’s environment, where the phrase “perception is reality” is too often said without irony, too many service members end up with their reputations tarred."
(That's not just "in the past", by the way.)
As for two well-known factors that weaken military families, he describes them freshly and eloquently:
"Service members often marry young. Part of that is the rapid maturation the military forces on people, part of it is undoubtedly bad decisions based on housing allowance rates, and part of it is ironically likely the military’s old-fashioned views on marriage. Whatever the reason, marrying young is not a good indicator of matrimonial success."
"Add in the deployments, long hours, etc., and things don’t bode well for military couples. There are some marriages that thrive despite the challenges — as those in the military are fond of saying, 'What doesn’t kill you makes you stronger.' For others, though, what doesn’t kill them severely damages their relationships."
Another factor Forsling doesn't mention: The continuing reluctance to seek mental health treatment for reputation and career reasons. That has been a huge problem in many of my cases.
The military has made a big push to be more family friendly in recent years. ... As it tries to be better for traditional families, it needs to improve the culture for non-traditional ones, as well."
That's so true. Our society needs to understand that being pro-family means strengthening intact nuclear families, but also honoring all family bonds and strengthening what's left of "broken" families too.
This also explains how to legally be your own grandpa.
"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! / a 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:
By JOE PATRICE 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:
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."