Goodbye to a Terrific Site

Internet pioneer Clark Lee Shaw is transferring DivorceTN.com to another lawyer at the end of this month. Clark's site contains a wealth of information about Tennessee family law. Although the site is aimed at parents, it is a useful resource for lawyers as well. Clark is ceding control of the site because of health issues.

Hopefully the site's new owner will continue to provide access to the content that Clark has produced, and will keep the site updated. But just in case, you might want to take a last look before May 1.

Difficult Clients

Tennessee tort guru John Day has posted a link to a very good article, and a longer paper, about dealing effectively with difficult clients. Now I know that domestic relations lawyers rarely encounter difficult clients -- but you might want to give the article a read just in case.

Flat Fee Billing

Alternative billing is back in the spotlight thanks to a new ad campaign by the Chicago law firm McguireWoods. (Click here for a sample of the ad.) Marketing professional Larry Bodine reports that McguireWoods is raising some eyebrows with the marketing message "It's not about serving the clock. It's about serving our clients."

Flat fee arrangements are not unknown in domestic relations practices. Alabama lawyer Lee Borden handles uncontested divorces for a flat fee. If you are really adventurous you can try using a flat fee system even in contested proceedings. The idea is to identify discrete tasks, such as "draft petition" or "answer interrogatories," and assign a flat fee to each. To see an example, take a look at this sample fee schedule from ProDoc.

Flat fee billing can also make sense for appeals. The amount of work involved is reasonably predictable, and clients appreciate knowing in advance what the appeal will cost.

Flat fee billing rewards efficiency, improves collections, and reduces fee disputes. And if McguireWoods is right, it can also help you market your practice.

More on Young Children and Overnight Visits

Here are some resources containing helpful information about the effects of overnight visits away from the primary custodian, and suggestions for addressing the issue in the context of a divorce:

The Spokane County Bar Association publishes Child Centered Residential Schedules, which contains suggested residential schedules and other information. The booklet was drafted by a committee of family law attorneys, psychologists, and child development specialists in the Spokane area, and it is based upon input from child development specialists throughout the United States, England and Canada.

The Minnesota Supreme Court Advisory Task Force on Visitation and Child Support Enforcement has a pamphlet dealing with these and other issues: A Parental Guide to Making Child-Focused Visitation Decisions. This pamphlet was approved by the Minnesota Conference of Chief Judges in January of 1999.

The Oklahoma State Department of Health has issued a booklet called Divorce and Visitation: Issues for Children Birth-5 Years.

Attachment Parenting International has posted some material by Dr. Isabelle Fox: A Letter to the Court and OVERNIGHTS: The Difference Between Night and Day

New Study: Infant Overnights Can Be Harmful

A new study by researchers at the Mills College and the Early Childhood Mental Health Program confirms that overnight visitation away from the primary caregiver can have harmful effects on infants. The study found that two-thirds of infants who lived with one parent and had overnight visits with the other had "disorganized attachments" with both parents.

The formation of secure attachments to parents or other caregivers is important to children's healthy development. The children with disorganized attachments in the study "could not cope with separations and reunions with the parent in the lab setting, and did not trust their parents as a resource to handle stress."

Parents and courts should take these findings seriously. Suggested solutions include (1) replacing overnight visits with increased daytime contact, (2) trial overnights to see how well the child adjusts, and (3) waiting until the child is older before introducing overnight visits.

Online: ABA TechShow's 60 Sites

Links from the popular ABA TechShow 60 Sites in 60 Minutes presentation are now available online. Despite the name, you will find far more than 60 sites. I don't think that the sites are quite as good as in prior years, but the list is definitely worth a look. One good example is the litigation resources page hosted by DOAR litigation consulting.

Thanks to presenter Jim Calloway for the link. Jim hosts a very good blog on law practice management and technology.

AZ governor vetoes "marital misconduct" law

Arizona's governor recently vetoed a bill that would have had judges consider "marital misconduct" when deciding how to resolve financial issues in divorce proceedings. Governor Napolitano said in her veto letter that the bill would have clogged family courts with new issues. She also said that current law already protects innocent spouses against criminal conduct by their spouses.

Sound familiar? The proposed Arizona law was more vague that the proposed Tennessee legislation. But it appears that the bill was promoted for similar reasons.

Keep in mind: the bill was vetoed. That means that it was actually approved by the Arizona legislature. I wonder what Governor Bredesen's position is.

Preparing for Divorce

Consumer Reports has published an article giving advice to those contemplating divorce. The article recommends taking five steps before breaking the news to a spouse: (1) investigate and document your assets, (2) talk to a lawyer, (3) stay in the home if possible, (4) make sure that benefits such as health insurance are taken care of, and (5) try to patch things up.

Joint Custody Bill

Channel 5 in Nashville is reporting that a proposed bill in the Tennessee legislature would change the way judges award custody.

Actually, there are competing bills. One would require clear and convincing evidence to override a joint custody agreement. The other would require a court to order joint custody at the request of either parent, unless there is clear and convincing evidence that such an arrangement would cause the child substantial harm.

Related Links: House Bill Senate Bill Other Senate Bill

News: Florida Completes Foster Care Privatization

Florida has completed the process of privatizing its foster care system. It is now the only state to have a fully privatized system. Hopefully this initiative will work out better than most of the school privatization experiments.

News: Pregnant Women Can Now Divorce in WA

Washington State has just enacted a law to ensure that pregnant women can be granted a divorce. The law was passed in reaction to an earlier court ruling that marriages could not be dissolved until the paternity of the unborn child was established, so that the state would know who should pay child support.

Divorce Lawyers Abuse Act

Well, it seems that it's not all wine and roses between domestic relations lawyers and the Tennessee legislature. (See Divorce Lawyers' Relief Act). The legislature has two bills pending that would require domestic relations lawyers (and only domestic relations lawyers) to make certain disclosures to their clients:

(1) A statement of rights and responsibilities describing that party'’s financial obligations to the attorney and his or her general rights and responsibilities in pursuing the representation; and

(2) A good faith estimate of the charges that the party is likely to incur as the attorney pursues the representation.

The Nashville Bar Association has officially come out against this proposal:

Be resolved that the Nashville Bar Association objects to the passage of Senate Bill 0033 and House Bill 1231. It is a bill which is prejudicial to the administration of justice; it is directed only at domestic relations lawsuits; and the protections it purports to offer are not necessary in light of the regulations imposed upon members of the bar of the State of Tennessee by the Supreme Court of the State of Tennessee and the Tennessee Rules of Professional Conduct, Rule 1.5, Fees.

Wherefore, the Nashville Bar Association strongly recommends against passage of this act.

Talk about a can of worms. I wonder if the bills' sponsors have any suggestions about how to estimate the charges that a client is likely to incur. Maybe they could create a statutory presumption that the cost of the representation will be the size of the marital estate times the number of children divided by the year of the marriage plus the weight of the couple's tax returns divided by the square root of opposing counsel's caseload.

Related Links: House Bill Senate Bill

Appeals: Don't be a victim of your own success.

Most advice about appellate advocacy is aimed at appellants. After all, it is appellants who are most in need of advice. Yesterday at the TTLA family law seminar in Nashville, Williamson County Circuit Court Judge Robert E. Lee Davies offered some good advice to potential appellees.

First, if you are wildly successful in the trial court, take a step back and assess the chances of preserving your victory on appeal. If you decide that you might have trouble on appeal, consider trying to settle the case while you have the advantage.

Second, if you do end up in the Court of Appeals, don't try to defend the indefensible. Conceding obvious points will preserve your credibility with the court and help you win the issues that you ought to win.

All assets are not created equal.

The Dallas Morning News Service published an article Monday about the difficulty of valuing retirement benefits during divorce negotiations. (Of course the issue is just as important when assets are divided by the court.) The article points to the recent run of corporate collapses and to the pension fund crisis to illustrate the point that current assets and anticipate benefits should be valued very differently.

What solutions does the article suggest? Option 1: give the uncertain assets to the other spouse. (Hard to argue with that suggestion.) Option 2: spread the risk.

The trick is that spreading the risk could require use of a "qualified domestic relations order," which gives one spouse rights in the other's retirement benefits. QDROs are based primarily on federal law, and a "valid QDRO must meet the comprehensive requirements of at least three federal acts, as amended: the Internal Revenue Code, the Employee Retirement Income Security Act of 1974, and the Retirement Equity Act of 1984." Jordan v. Jordan, 147 S.W.3d 255, 260 (Tenn. Ct. App. 2004).

For a helpful introduction to the subject of QDROs and related issues, take a look at the ABA publication Sizing Up the Pension Pot.

Practice Tip -- QDROs can be used to enforce judgments for alimony or child support arrearage.

Other online resources:
Good advice from Alabama lawyer Lee Borden
Guidance on drafting QDROs from the U.S. Department of Labor
Lots of information from Pennsylvania lawyer Mark L. Silow

Marriage and Adoption

The Institute for Marriage and Public Policy just came out with a survey of marital preferences in adoption law in the 50 states. In all states, the most important consideration is the "best interests of the child." Utah is the only state that explicitly gives preference to married couples. Alabama, Kentucky, Maryland, New Jersey, and New York ban discrimination on the basis of marital status in adoptions.

In Tennessee, as in most other states, the importance of marital status is in the eye of the trier-of-fact.

Motions: Get to the Point

Trial judges are busy people, and most judges who handle domestic relations cases are perpetually overwhelmed with motions. As an advocate, your job is to make it easy for the court to rule in your favor. One way to accomplish this goal is to organize your motion papers so that the judge can quickly and easily understand the nature of, and basis for, your motion. In other words, provide a summary at the beginning of your pleading.

Most lawyers begin their motions with the antique formula "Now comes the ___ and brings this motion for ___ against the ___ . . . " This kind of introduction is what legal writing expert Bryan Garner calls a "hence the title" introduction. It is simply a recitation of information already contained in the caption.

Briefs often begin with a similar statement, followed by an introduction of the parties or other "background" information.

Instead of making the court wade through a bunch of preliminaries, start by providing the information that the court needs to understand your motion. University of Texas legal writing teacher Wayne Schiess advocates a method he calls the "bold synopsis." A bold synopsis is a one- or two-sentence summary of your main point(s), indented and highlighted in boldface text. The bold synopsis should appear directly below the caption.

Even if you are not adventurous enough to try the bold synopsis, you should begin your pleadings with a short summary setting out what you are asking the court to do and why. For more on writing judge-friendly motions, see the full Schiess article.

It ain't over til it's over.

Here's the scenario: a couple agrees to a marital dissolution agreement during Rule 31 mediation. The agreement is dictated to audiotape by the mediator and agreed to, though not signed by, the parties. Then, before court approval, the husband repudiates the agreement. Is the agreement enforceable?

According to a recent Tennessee Supreme Court opinion, the answer is "no." First, the court does not have the authority to enter a consent judgment unless the parties consent at the time the agreement is sanctioned by the court. Second, the marital dissolution agreement is not an enforceable contract because it was not reduced to writing, and "statements" made and "information" obtained during mediation are not admissible.

I would like to have seen more analysis of whether the agreement itself should be considered "statements" under Rule 31 or Tenn. R. Evid. 408, and whether it should be considered "information" obtained during mediation under Rule 31. But once again the Supreme Court has inexplicably declined to consult me before issuing a decision.

Another interesting aspect of this case is its procedural history. The trial court granted a request for interlocutory appeal, but the Court of Appeals denied the application. Then the Supreme Court agreed to hear the case. In effect, then, the trial court's interlocutory decision received direct review from the Supreme Court. I would have thought this a unique situation, but a little research reveals that it has happened several times before.

Practice Tip -- If you want a mediated agreement to stick, put it in writing and get it signed. Also, if your Rule 9 application is denied by the Court of Appeals, don't give up. The Supreme Court may be more accommodating.

Divorce Lawyers Relief Act

If you think that trial lawyers and Republican legislators can't agree on anything, take a look at the lead story in the Tennessean this morning. A proposed law would allow a party in a divorce proceeding to recover "for pain and suffering, for alienation of affection, or for punitive damages" if the spouse proves by clear and convincing evidence that the other spouse "committed adultery, abandoned the spouse, or subjected the spouse to physical abuse" in the year preceding the divorce petition. A complaining spouse would also have the burden of proving that he or she did not engage in any of the prohibited activity.

One averred purpose of the law is to discourage bad behavior and thereby discourage divorce. But I don't think many divorce lawyers are concerned that the law would cause a drop in business. I would also expect private investigators to get behind the law (I shudder to think what would constitute clear and convincing evidence of adultery.)

John Hollins Sr. is quoted describing the proposed law as "harebrained." Cynthia Bohn takes the opposite view, calling it a "great idea." The TBA is concerned that the law would make divorce proceedings messier. I think we can all agree with that assessment.

Related Links: Senate Bill House Bill

Online Alimony Calculators

Is your inbox filling up with notices of CLE courses on the new child support guidelines? DHS to the rescue!

The Department of Human Services offers two tools to help you apply the new guidelines. First, it offers a downloadable calculator that guides you through the process and generates a completed worksheet. If you are more of a do-it-yourselfer, DHS also provides Excel child support and credit worksheets.

Alllaw.com also offers an online calculator. But if you want my advice, stick with DHS.

How many kinds of alimony does one state need?

A recent Court of Appeals decision, Young v. Young, raises a compelling question: Just how many kinds of alimony are there anyway?

In Young v. Young the court grappled with the perplexing argument that all alimony is rehabilitative. In the course of rejecting this assertion, the Court of Appeals managed to mention no fewer than five types of alimony: alimony in solido, rehabilitative alimony, periodic alimony, alimony in futuro, and transitional alimony.

For a good introduction to all of the different kinds of alimony recognized in Tennessee see the Alimony Bench Book put out by the Tennessee Bar Association's Family Law Section [link updated 4/8/05].

Practice Tip -- Don't forget about the most important form of alimony: alimony in arrearage.

Domestic Relations Seminar

On April 14, the Tennessee Trial Lawyers Association is offering an all-day domestic relations seminar in Nashville. Topics include the new child support guidelines, child custody, alimony, divorce appellate advocacy, business valuation, mediation, ethics, and contractual issues.

For more details, see the TTLA website.