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Keep your Friends Close, but take their Advice with a HUGE Grain of Salt

When you are going through a divorce, it is important to have friends and family around to support you. This will be an emotionally devastating time, whether you initiate the divorce or your spouse does. Even if you know it is the best possible path, it will be a very difficult time.

You need friends to talk to, to vent your feelings to, to keep you grounded. If you have children, friends will help as a buffer to make certain you don’t take your frustration (there is always frustration) out on the little (or not so little) ones.

And friends like to help. They want to offer advice, to ease your pain, to help you with the transition. Some have gone through divorce themselves, other have family members or friends who have been through it. They will share stories and ideas and legal advice with you.

Listen carefully to them. They do this out of love and a sincere desire to help you.

Then ignore everything they say. Well, sort of.

More divorcing people have gotten into more trouble by following the well-intentioned advice of friends, family and therapists than can be counted. In my experience I had a client who lost custody of her children because she listened to advice that her therapy group gave her over my advice, and we had to fight for months (at a cost of thousands of dollars) to get custody back.

I have spent uncounted hours trying to undo the damage caused by clients acting upon loving advice from friends or family who knew a lawyer who said they should do this, or whose cousin Bob who just went through a divorce and he said they should do that.

The thing is, each divorce is different, with a different set of facts which differ from cousin Bob’s divorce. There is no telling if your friend is actually relating what this hypothetical lawyer said accurately, or if that lawyer understood the facts, or is even a family law lawyer. Each county is different, with different judges who have different approaches to the law, which is one of the reasons you want to pick a local lawyer who knows the judges and the way the courts work in your jurisdiction. A Bench Bar in Marin County is completely different from a Bench Bar in Contra Costa County.

Understand that your friends are trying to help, and that is a wonderful thing. Listen to them, thank them, then discuss any ideas you think are worthwhile with your attorney. Most of the time your attorney will explain why that idea, while it may sound good, is not practical. They turn out to be like Hansel and Gretel’s gingerbread house – appealing on the outside but not so great when you look into it.

But there are also times – maybe one out of fifty – when a friend has suggested a really good idea to a client that made me go, “Hmm. I hadn’t thought of that. Good idea. Here’s how we can do that.” It happens a couple times a year, and a good attorney takes ideas where they come. The important thing is to share them with your lawyer before you try to implement them on your own.

This is why you want to work out with your attorney some ground rules on billing and communication from the start. I never want my clients to feel that they cannot call or email or text me because I will charge them like some attorneys (text message: “has the other attorney called yet?” “no” ka-ching! $42.50!) I’d rather you feel free to run ideas past me without worrying that I will charge you. You will pay enough for the big stuff; you shouldn’t be nickeled or dimed for little questions (“my friend said … Is this true?”).

There is one source other than your attorney who will be a font of good ideas in your divorce, who knows the facts and will come to understand how things work – you. You will become an integral part of the team and will provide ideas working with your lawyer as you proceed. You want to find a lawyer who will listen to you as well as talk at you.

So enjoy the benefits of good friends who want to help. Be thankful that they care enough for you to give their advice and counsel, and are there to support you. But understand that their well-intentioned advice may not be the best help for you legally, and may actually hurt your case and interfere with your lawyer’s representation if you try to implement these ideas on your own (what is known as “self-help”). You never have to tell them this, just express your gratitude and say you will share their thoughts with your lawyer who is always open to new ideas.


Keeping an Eye on the Bottom Line

A divorce is about a lot of things.  It’s about money.  It may be about kids.  It’s about property.  It’s always about feelings, no matter how amicable the split is.

If the split is amicable, lawyers rarely see the people.  I actually see a lot of them because I volunteer most months for what in Marin we call the “Pro Per Calendar,” where people without lawyers are scheduled to come in on the first and third Tuesday afternoons in our two family law courtrooms.  A small group of lawyers volunteer to work with people without attorneys to try to help them along to settlement and judgment.  On a good day I may help settle two cases for people who usually don’t have a lot of possessions or income and get along fairly well.

These aren’t the people who hire lawyers, for the most part.

Many people know from the start they need a lawyer because too much is at stake.  Many people try to settle things without an attorney and find that they cannot.  It is too complicated, they are too far apart in what they want, or their feelings are too strong and the distrust is too great.

One of the first things I do when meeting with a potential client is to try to find out what the assets of the marriage are, how much money the spouses make.

Being a greedy lawyer, you might suspect that I am doing this because I want to know how much I can get away charging this rube, but the real reason is that from the very beginning, and all through the case if I take it on, I have to maintain my eye on the bottom line.

Here’s an example I heard of recently from a lawyer who sat on the mediation panel that settled the case.  Woman was in a short marriage, maybe 1-2 years.  Her lawyer went all out, no expense spared in her case.  Case settled.  She got $40,000.  Her attorney fees?  They had asked for about $40,000 in settlement.

Now, I have no idea if her attorney reduced her bill given the settlement, but it shows that an attorney must, from day one, be very aware of how much is actually at stake in a divorce.

That’s why I try to get a clear picture – what assets are at stake, is it worth fighting over them, how can we best proceed if I take the case, what is my best advice for you.

The Family Code (section 2100) declares that it is a value of the Legislature to preserve the assets of the parties in a divorce, which means that as officers of the court it is the duty of the attorneys to promote this.  Clearly not all attorneys pay attention to this and judges do not enforce it literally (although they can be parsimonious with fee awards when they believe attorneys have padded bills).

Divorce can be expensive.  I’m told the self-help books say an attorney will cost between $15,000 and $20,000.  That’s wishful thinking in the San Francisco Bay Area, where attorney rates run from $300 to $500 an hour.  A single appearance for a case progress conference with the required form could cost you $1000 or more.  A simple email could cost $125.  A motion for support could cost $4000 to $6000 or much more.

If you are fighting over hundreds of thousands of dollars, these things are worth it.  If you are fighting over very little, then you are better off working together and making compromises, perhaps with a low-cost neutral mediator.

If you are mainly concerned about spousal support (what used to be called alimony), and you have a short-term marriage, use the rule of thumb that support will last about half the length of the marriage, generally starting from the judgment (not separation).  To ballpark what you might get or pay, add together what both parties earn (gross, before taxes and deductions) and divide it up so the person making less money gets about 40% and the person making more gets 60% of the total.  The person making more has to pay the person making less enough to bring them up to that 40% mark.  Only a very rough estimate, and there are online calculators that will give you more accurate numbers, but this will give some guidance.  While post judgment support is not based upon the same guideline numbers as is temporary support during the divorce by law, it is “uncanny” how these numbers often seem to apply even to post judgment support.

Thus if you were only married for four years, and you will only be getting $1500 a month in spousal support ($18,000 a year for 2 years or $36,000 total) do you really want to pay some lawyer $15,000 of that?

Better to agree to go to a mediator, each pay him or her $1000, and work out an agreement where you get that same $1500 a month.

If you have a house, where he claims his parents kicked in $100,000 down payment as a gift to him and you say that was a wedding gift to the two of you, then you have a real reason to hire an attorney.  I’ll leave the explanation of why for another post.

It’s all about the bottom line, and a good attorney will go over that the first thing with you to explain whether your case is worth a fight between attorneys or better suited to mediation or just sitting down, gritting your teeth and writing out an agreement.  It may be that you can use an attorney to prepare you for mediation, which I have done a number of times as another low-cost alternative to a long court battle.

If an attorney takes your case without getting into the details of your finances after simply asking if you have enough money to pay their retainer, beware!  They are only looking out for their bottom line!

So you want to be more than a Weekend Warrior Dad? Fighting for Father’s Rights – Part Two

Continued from “Fighting for Father’s Rights – Part One”

Recognizing that there is a cultural bias against dads, which cannot help but seep into the subconscious of lawyers and even judges, your next step is figuring out how you deal with the problem.

I’ll list some steps, not in order of priority or even execution; they are all part of a cohesive plan you need to consider. Whatever stage you are in the divorce process (thinking about it, filing on your own, just got served, have a lawyer, have a lawyer you are unhappy with, have been handling divorce on your own and realize you are in over your head, etc.), here are the essential steps:

1. Locate and retain the right lawyer who understands your desires and needs as far as your kids are concerned, and who will fight for your rights

2. Document, document, document

3. Plan your life around your kids and work

Again, depending on where you are in the process, the order you do these will vary. You may start with 1 and work through them in order. Or you may start with 2 and 3 simultaneously and then move on to 1, and so on.

I’ll address them in numerical order, but you have to use them based on your own life situation.

1. Locate and retain the right lawyer who understands your desires and needs as far as your kids are concerned, and who will fight for your rights

There are a lot of fine family law lawyers out there (and a lot of terrible ones). If you are a dad who really wants to maximize your time with your kids because of a deep-seated desire to be a part of their life rather than wanting to minimize the amount of child support you pay, you want to be careful how you approach hiring your attorney.

Most attorneys who have been practicing family law long enough to become competent (10-15 years) become somewhat jaded. Their experience is that most working dads want to minimize child support while having some quality time with the kids, generally on weekends and maybe one or two nights a week. They want some time in the summer and alternating holidays. They are “Disneyland Dads” who want the fun times without all the worries about homework and driving to and from soccer practice and sitting up with sick kids and clothes shopping and getting them up and fed and to school.

This fits a lot of dads, who have gotten used to mom taking care of these things while they work during the marriage. Even in families where both parents work, here in the 21st century this stereotype often still holds true.  I’m sorry, feminists and emos and enlightened males, we’re still not that far from Ozzie and Harriet in terms of traditional roles in a lot of cases.  If you want to break that mold, you have to step up your game and show the Court you can handle it.

It is a system of role models that harkens back to when Og left the cave hunting each day while Ug stayed with the little trolls. We say how far we’ve come but that model still persists with variations a good majority of the time.  It’s the major reason we have to fight against the bias in the court system.

And lawyers see it most of the time with their male clients, so they aren’t necessarily sensitive to the dads who want more, and are not skilled and prepared to fight for them.

How can you spot a lawyer who truly understands you and your desire to be more than just a Disneyland Dad?

Tell your story and see how they respond.

One of the major ways to choose your divorce lawyer is how you emotionally connect, because this is a person you will be exposing to the deepest personal parts of your life. You will need to trust her or him and they will need to trust you. You want to be confident in their intelligence, skills and experience, but also need to be able to relate to them.

Don’t be afraid to explain what your children mean to you, how important they are to you, and how much you want them to be in your life. Explain how you want to make them a priority.

Moms do this all the time. They will come in and say “I don’t care about the money, all I care about is the children.” They are wrong, whether they know it or not (money is always important, if only to provide for their kids), but it’s a common theme I hear from moms.

Not so much from dads. Even when the kids are very important, they come in and their spoken concerns are almost always all about money first, about how much this will cost, about what will they end up paying her.

Before you meet with lawyers, get your priorities straight. Money is huge, no doubt about it. But your kids are… huger. Lead with your kids, and see how the attorney reacts.

If they are puzzled, then they probably aren’t for you. If you see a spark of understanding, if they nod and express some agreement or understanding, then you may have found someone who will be as dedicated to getting your result as you are.

Explain what you are able to do with your work and life schedule, and what you want out of custody – joint legal and physical, half time with you and mom, how you can make this happen. Go in with a plan (more on that in point 3). See their reaction. See if they come up with ideas on the spot to make your plan better or acknowledgement that they can make that plan work for the judge.

If they tell you that the courts rarely give joint physical custody, that your kids are too young, blah blah blah, you probably don’t have someone who will fight to get you what you want. A dash of caution, an acknowledgement of the bias is OK, a bucket of cold water is a flashing warning sign.  Better to move on and interview some more lawyers to find a better advocate for you and your kids.

2. Document, document, document

This is critical to all phases of your divorce, but parents often don’t think about it with their children, or may even think it is tacky. If you are separated, or even if you are not, you should keep careful records of the time you spend with your kids.

This may prove critical in supporting your claims that you are a primary caregiver or co-parent. Given the court’s natural tendency to assume that the mother does most caregiver duties, especially for very young children, keep a record (it can be hand-written on a calendar, or recorded on your phone or tablet or computer, or in a binder – however is most convenient) on a daily basis of what you do with your kids.

Record as much detail as possible.

     Monday 10/2

     Got kids up at 7

     Prepared breakfast and lunches for school

     Drove to school

     Took late lunch, picked up from school 2:45, took to sitter

     Suzy had bad cough, left work early took her to Urgent Care 4:30

I’ve had very good luck with toddlers and even infants with neglectful mothers when dads have kept logs of neglect and their care:

     Jan 20           Sharon showed up on doorstep with Clara, said could not care for her asked if I could take her for now

     Feb 12        Sharon only visited Clara once since 1/20.  Clara eating regularly now.  Rash cleared up. Wearing proper size diapers now, was in too small when dropped off.  We read every night. She points to words and I read and she laughs.

     Feb 15      Took Clara to nurse practitioner friend for checkup. Completely healthy.

     Feb 17       Have been able to rearrange work schedule so Clara always with me. Everybody loves Clara, many “aunts and uncles” to look after her in her play area when I have to step away

Record events, times you spend with them, the mundane as well as the big deals. You want to show that you help with the homework, not just the trips to the amusement parks. You want to record the dentist trips, not just the movie nights. Driving them to Staples to get the poster board for the science fair is probably more important than the amusement park.

Also note where you’ve been flexible, covering for mom when she asked. Flexibility whenever possible is important, not only because it is a reasonable thing to do as a parent, it helps your kid out, and it looks good to the court, but you will need it yourself at times and you don’t want mom to say “Remember when you said ‘No’ when I really needed you?  Payback is a bitch.”

Judges want to see mom and dad acting like adults, setting aside their personal animosities that generally accompany divorce to work together for the sake of the children. If you can demonstrate that, even if she cannot, you stand a better chance of getting what you want from the judge. Document that as best you can, as often as you can.

Keep a file of events, pictures, handwritten notes, copies of permission slips, programs of field trips you went on, etc. Take pictures of documents on your phone or tablet if you need to. If the kid comes back from a visit with mom and she is incredibly filthy, take a picture. No scanner? Take pictures of permission slips, etc. Be prepared as much as possible to show how active you have been in the kid’s lives, so when the judge says, “You’re a busy man with a job, how can you have half time or more with these kids?” your lawyer can pull out the documents and say, “Here’s how, your Honor.”

3. Plan your life around your kids and work

If you are still reading this, you are either really into pain or really love your kids and want to be a big part of their lives going forward.

That will mean setting priorities in your life, with work and your kids coming first. You may have a significant other by this time (who may even be the cause of the divorce), but at least for the divorce proceedings you need to work with them to understand that they will need to make some sacrifices and fit into your twin priorities of work and kids.

If your kids love your new partner, this may not be a problem. If you are wealthy and work is not an issue, again your partner may not be a problem.

Often, however, there is at least some friction between a new love interest and children. It can be a real test of a relationship to see if your new love is flexible enough to understand that your kids must come first for the time being.  Your new partner, as the adult, must be the one to make accommodations, not the children.  And you want to keep your new amour out of the picture and unmentioned with the Court wherever possible.  Generally if they get mentioned in a court proceeding it doesn’t help you.

The harsh reality is that your kids will always be your kids. You cannot be certain how long your partner will be with you. Your divorce tells you something about the permanence of romantic relationships…

Hopefully your partner will understand and will be able to adapt. Hopefully it won’t cause much of a disruption to your life. But it is a factor to be considered. I won’t lie to you.

To be more than a Disneyland Dad you will have to juggle work and kids. You will have them during the week, will have to figure out how you will get them to school or daycare some days, pick them up, deal with homework, provide rooms and sleeping arrangements, etc. Your cool bachelor pad will be a nursery or a hangout for noisy, messy teenagers or the rumpus room for a bunch of visiting toddlers. Where you may have only been an observer in the past you will be performing all of the duties without a net.

Your Friday date nights will be spent sitting at home waiting for that guy with the tattoo to bring Charmaine home by 10. Your Saturday golfing will be working on the volcano for the science project. You chose this. I think it’s wonderful. Hopefully you will, too.

You’ll have to figure out how much and where possible work can bend. Is flex time possible? Can you work from home at all? Shift your hours? Work longer shifts when you don’t have the kids? Does your job even lend itself to that kind of change?

If it doesn’t, how do you plan your schedule with the kids? The judge will not be happy if you have to wake the kids at 4 AM to get them to a sitter so you can catch a commuter train to Sacramento. You will be asked, why not have them stay with their mom instead during the week? You’d better have a good answer.  “Because I don’t want to pay more child support” is not a good answer.

Your answer will always have to take the best interest of the children first, and your desires and needs a distant second.

A good lawyer on your side can work with you to craft a plan to get you what you want and will then fight for you. They will understand that it is an uphill battle against the bias and prejudice of a society that underestimates how dads can be just as successful as primary caregivers as moms, even for young children.

A good lawyer will be your advocate for you as Father of the Year.  You want the judge to see you as Father Knows Best, not Homer Simpson.

Communication with your Attorney is Vital

One of the most frustrating things for a client in a divorce is not hearing back from their attorney.  A divorce is nerve wracking at best, a stressful experience unlike anything you have gone through before (unless this is not your first divorce…).  If your attorney will not return your calls or emails, this just adds to your distress.

That means you have the wrong attorney, and there is a simple solution to that.  There are a lot – and I underscore a lot – of fine divorce attorneys in your neck of the woods.  Fire yours, and hire someone who will work with you.

By the same score, it is important that you be responsive to your attorney.

There can be a number of reasons you may not return a call or email from your attorney.  You may truly be busy – but realistically – how long does it take to send a 2-sentence text saying so?  You may not want to answer the question or provide the information.  You also may not want to incur the cost of another phone call.

Let’s look at cost first.  This is almost always an issue.  Lawyers generally charge a minimum of 1/10th of an hour (6 minute increments).  If a lawyer charges $300 an hour (for ease of math sake; yours may charge much more or much less) that boils down to $5 a minute!  Wow.  So that minimum charge is $30 if they answer a phone call and say, “Hello.”  Or answer a text and say, “No”.  That’s $15 a letter.

A good family law lawyer would rather have you communicate with her/him than nickel and dime you to death.  While they may have minimums, knowing your financial situation they may be willing to waive their minimums just to keep communications open.  You may be able to get them to agree not to charge you for calls or texts of less than 5 minutes, for example, but you need to negotiate this up front rather than protest a bill after getting it.

I tell my clients up front a) that family law does not always happen between 8 AM and 5 PM so I expect them to call me in evenings and on weekends when emergencies come up (as they always do especially when kids are involved), and b) I’d rather they call me with a problem than not call me because they were worried about how much it would cost them.  I’d rather donate the time than not hear of their concern.  Often people stress over nothing, something I can set their mind at ease over in a few minutes over the phone or by email or text.  I don’t want to charge them big bucks for a little comfort.

Not calling or emailing your lawyer back may also cost you more money in the long run.  I have a couple of cases now where the opposing party failed to respond to her lawyer and produce documents for discovery – easy documents to produce, including bank statements.  We went to court, I got an order, and the other parties will be paying tens of thousands of dollars because they didn’t work with their lawyers on simple things, wouldn’t communicate, wouldn’t cooperate.  If it goes much further they could even face jail time for contempt of court.  These are extreme examples to be sure.

Less extreme examples are that, if your lawyer is charging you for every phone call or email, then every time they try to contact you, you are being charged.  This will quickly surpass the amount of your responding to the first contact.  And failing to respond may well lead to some court default which leads to serious consequences to you, your children or your property.

Your lawyer cannot do it alone.  You have to fully participate.

The last reason people don’t respond to their lawyer’s communication is that they don’t want to answer the question or provide the information.  It is important to understand that you must be willing to reveal everything – good and bad – to your lawyer.  If you don’t, then you run the probable risk that your lawyer will be blindsided by what you kept from them in court, and they will not be prepared to defend you.  Dirty secrets almost always come out in a divorce, and although California is a “no fault” divorce state (i.e., it doesn’t matter if your spouse had an affair during marriage as grounds for divorce any more), it doesn’t mean that such things cannot be used for other things in the litigation.

Married persons (and you are married until the judgment, even though separated) owe each other a high fiduciary duty by law.  That means that they must (emphasize must) disclose all financial records to the other, and deal with each other with the utmost levels of good faith and fair dealing in all financial transactions.  This translates that each side must produce all bank statements, credit card records, etc., that can be obtained or are in their possession (which includes available through the bank)  If one side refuses to do so (often a reason people refuse to respond to their attorneys) they need to understand that the judge will order them to do so, and eventually they will be forced to produce them.  By the time it gets to the point where they are forced to produce them, they will have been ordered to pay thousands of dollars in the other side’s fees and possibly sanctions.

When I worked for a firm that made me record every minute spent during the day I had a client who always called me between 7:15 AM and 7:30 AM.  He knew I was commuting and I wouldn’t charge him for the call.  We conducted much of his case during those early-morning calls.  My clients today don’t have to play those games, and hopefully your attorney encourages you to freely communicate without fear of getting a heart attack with your next bill.

Return your attorney’s calls to enable them to represent you.  Be honest and forthcoming, and let them handle troublesome issues rather than hide them from them.  The issue you think is so bad that you keep it from your attorney may mean nothing and you are hiding for no reason.  And it may lead to bigger costs down the road.

Expect the Judge to See Everything You Write, So Write For the Judge

Divorce or parentage actions touch upon our most raw emotions.  Anger, betrayal, fear, regret.  Whether you initiated the proceeding or were blindsided by a deputy sheriff at work, you will be going through a crock pot of emotions and really, really want to vent them.

Make sure you don’t do that in texts or emails to your former partner.  You need to be aware that everything you say, do or especially write will probably end up being presented in some way before the judge at some point in the proceeding.  While you may get a momentary satisfaction for telling the $@*!& just what you think of them, that text or email could cost you plenty later on.

Write every text message, every email with the understanding that you are writing it for at least four people – your former partner, the judge, and two attorneys.  All will probably see it.

Every text or email should be written for the judge to show what a reasonable person you are, and where possible to show how unreasonable your former partner is.  You are creating a paper trail so that the judge has something in her hand at a later date when both sides are declaring how they have tried to settle this or solve problems.  The judge doesn’t want to be the arbiter of little issues, she wants to have the parties act like adults and solve things without wasting limited judicial resources.  When you can show that you tried, via texts going back over time, to solve these little issues in an adult manner with a reasonable tone, you are more likely to have the judge listen to your side of the story in other matters that, well, really matter.

Don’t answer emails or texts when you are angry at something your ex just wrote; cool down a bit, run it past your attorney before replying.  Anger will lead to sharp words that may hurt more than help.  When they have written something nasty and you respond with something reasonable, you will win much more than the immediate battle – you may win the longer war.