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Showing posts with label STRATEGIES. Show all posts
Showing posts with label STRATEGIES. Show all posts

Friday, May 15, 2015

TOBY KLEINMAN'S REMARKS AT THE BATTERED WOMEN'S CUSTODY CONFERENCE IN NJ!

I am currently at the Clarion Empire Hotel listening to Attorney Toby Kleinman speak about advocating for a victim of domestic violence in court.  

Unfortunately, I was a little late getting in so I have missed some of the talk.  

She advised that when approaching the family court system you need to: 

1. have a real plan--don't throw yourself around; 

2. use analogies in order to illustrate what you are going through in a more impactful way; 

3. make sure that the evaluator in your case has experience in understanding domestic violence, appeal if you have to because this is so important; 

4. understand that the court doesn't understand the impact of domestic violence, so make sure you include impact statements in your motions; 

5. raise the issue of abuse in advance of your case so that you can strategize on how to address it; 

6. have a parenting therapist who can provide observations in regard to your parenting ability; 

7.  do not just trust you attorney.  Your attorney needs to earn your trust.  If you attorney does not appear to be defending you, don't just put up with that.

Thursday, September 19, 2013

THE MORAL HIGH GROUND ON ATTORNEY'S FEES, HOW THE GUYS GRAB IT!

Any time you ask me about my divorce, I can tell you exactly how much I had to pay for it, and how much each attorney charged me.  One reason I can do this is because I had to disclose that information to the other side during repeated requests for discovery. 
 
I want to tell you how awful that was to do as the sums of money mounted and mounted.  I am surprised that my attorneys weren't ashamed every time I had to submit their bills to the other side again. 
 
In contrast, I never once saw a single one of my ex husband's bills from his attorney.  Of course, what does it matter really.  With an agreeable divorce attorney, those things can be concocted!  I mean, I am already very well aware that my ex had his attorney provide him with a fabricated statement which he later used in his taxes to the IRS to get a reduction in his tax bill. 
 
But to get back to the point.  Why didn't I ever see bills from my ex husband's attorney? 
 
Because my ex husband was never required to comply with discovery requests the way I was.  He would give whatever documents he felt like giving and those he chose to provide were never that revealing.  He wouldn't even include information about how much he was paying his attorney on his financial affidavits.  Somehow he managed to evade accountability every time. 

This is why the rules of court are so amusing, because they usually only apply to the party the Court has decided to screw! 
 
If you were actually to believe my ex, he only paid around $15,000 for the first year and a half of litigation.  So imagine how it looked to the trial court that I was paying hundreds of thousands of dollars for my representation when my very frugal ex husband was only paying $15,000.  It made me look as though I was financially profligate while my ex husband looked like an economic Saint! 
 
From the beginning my ex had tried to portray me as this big spender, which wasn't actually true.  However, what with all the massive sums my attorneys were burning up, I sure looked like a big spender!  Then when I ran out of money and could no longer pay my attorney's fees, I was this bad person who was so irresponsible I wasn't paying my attorney's fees. 
 
Damned if I do, and damned if I can't any longer!  
 
This same thing happened to me recently in another situation in Court which was one of those spinoff lawsuits that emerged from my original divorce.  In this case, the opposing side is asking to be reimbursed for attorney's fees and the attorney is claiming that he is only being paid one fifth of his normal hourly fee out of friendship for his client and his faith in the cause. 
 
Now, I would love to believe in the high moral purpose expressed by this attorney, but the practical experience I have had in court all these years leads me to be doubtful.  What I really think is going on here is that the opposing side has been able to grab the moral high ground by claiming the attorney's representation is not motivated by financial gain but purely by the righteousness of his client's cause.
 
Meanwhile, here I am paying these exorbitant fees again appearing to be trying to destroy my wonderful underdog enemy with my greater financial resources! In this situation, the opposing side is likely to win just because they look so marvelous because of this bogus financial arrangement. 
 
The reality is, you and I know these attorneys. 
 
None of them works for free or for less than they can squeeze out of you.  Somewhere or somehow, they are getting pay back.  They are getting it through the barter system, through the exchange of power or influence, or they are getting it because they are taking money from their client under the table. 
 
One way or another, they are being paid. 
 
So my point is, when you are in Court for any particular reason, why not try the same scam? 
 
Why not grab the moral high ground, cut a deal with your attorney to reduce the apparent fees he or she is charging you, and find a way to let the judge know how financially virtuous you are, how frugal about the expenditure of attorney's fees. 
 
Trust me, you will benefit if you do.

Friday, August 2, 2013

HELP ME! HE'S DRIVING ME NUTS!

Have you ever had the experience of wanting to strangle the life out of the opposing attorney in your case? 
 
In the alternative, have you ever stood in a courtroom listening to the opposing attorney and experienced flashes of pure rage? 
 
I have. 
 
The fact is I've been in some pretty difficult situations in my life, but nothing can equal the difficulty of putting up with attorneys who lie, manipulate, and deceive on an hourly basis all day long, causing harm and damage, particularly to the ones I love. 
 
Because as we all know, our lawsuits in family court often mean life and death to our children, let alone ourselves.  That's when the Momma bear in us can rise up, ready to rip the heads off those disgusting attorney's in defense of our children. 
 
Unfortunately, it is exhausting to maintain that level of emotional intensity.  It can destroy your mental and physical health, pumping stress hormones into your body and causing damage to your heart and destroying parts of your brain.  So none of us can afford to be that way for very long. 
 
Of course, these attorneys know this, and so they carry on with these kinds of tactics as one of their primary approaches to destroying our defenses.  It is as if the attorney acts as a team of guerrilla warriors, shooting away at the troops  (us!) from invisible perches in the trees, taking out the enemy (us!) one by one. 
 
It is a war of attrition that not too many of us are equipped to handle, particularly since so many of us are taking care of our children, trying to protect them and ourselves from the damage of a high conflict divorce. 
 
I am currently dealing with this in a legal matter I am involved in right now. 
 
I am supposed to obtain medical information in regard to one of my children. 
 
At first the opposing attorney said that I should be given this information--that indeed I had a right to it. 
 
Yet, when I formally asked for the medical information, he refused to provide it acting like to was the most intrusive demand ever made of him. 
 
When I finally obtained authorizations from the court to obtain the medical information, this attorney then sent me a series of medical release documents that were clearly defective and unusable. 
 
When I confronted him, he told me that I was wrong and that the documents were perfectly fine.  He told me repeatedly that he had used the documents on many occasions and that they had always led to successful results. 
 
He was clearly lying. 
 
Sorting all of this out and explaining the problems and how I recommended solving them took hours of my time as I formulated letters and emails that I felt would appear well before the court should I eventually have to submit a complaint about what was going on. 
 
After insisting that I deserved to receive the medical information, then moving on to provide me with flawed releases, this attorney then progressed to denying I had a legal right to see the medical information after all. 
 
I'm like, wait a minute, didn't you just say several times last week that I could see that information? 
 
What happened? 
 
Thus, in the course of trying to collect the medical information I needed to prepare for court I got jerked around in so many different directions, it was hard to know where I was. 
 
Still, no sooner have I gotten used to the discussion on how I don't have a right to the information, the attorney switched to how he now thinks I do have the right and adds to this new insight additional vicious and nasty commentary on how he believes that I am a person of poor character who is abusing the legal system. 
 
People like you and me, faced with this kind of vicious abuse respond with anger and indignation--how dare this immoral attorney accuse us in this way.  The injustice of it all, the wrongdoing, just wrenches us apart.  The lies are frustrating and outrageous, the obvious adopting and rejecting moral standards and court rules at a whim, seems to be more than we can stand. 
 
It is only after years of being in this environment that litigants in high conflict divorces come to understand that such behavior is little more than a high stakes performance.  It is meaningless. 
 
Nothing the attorney has to say matters. 
 
The only reason the attorney indulges in this behavior is to get you all worked up, to get you all rattled, to wear you out emotionally and physically, so that you are defeated well before you set  foot in the courtroom for trial! 
 
In these situations, I've heard friends say, "Well, the opposing attorney believes that I do not have that legal right." 
 
They don't want to hear the truth, which is, the opposing attorney doesn't believe a Goddamn thing.  The attorney only believes what is convenient for him at the moment. 
 
If it is convenient for him to shift ground a second later, he will quickly shift. 
 
Nothing an attorney ever has to say is grounded in conviction; it is simply grounded upon what suits him at the time.  
 
This means that you should never let yourself get into a state simply because an attorney has made a provocative remark.  If there is anything you need to learn as a litigant in a high conflict divorce, it is to have a very, very thick skin. 
 
You need to listen to the most ridiculous, twisted, stupid, convoluted statements, learn how to screen out your perfectly understandable emotional response of outrage, and find a way to hit back in an intelligent way that has impact without harming yourself. 
 
Don't allow these idiot attorneys to press your hot buttons or trigger a trauma response.  Learn to respond dispassionately and with reason.  Don't get angry. Get even, by continuing to launch a defense that shuts the opposing attorney down at every turn.

There will continue to be times when the opposing attorney will actually sucker you again or get under your skin, but don't get down on yourself about that.  It only goes to prove that you continue to be human whereas the opposing attorney turned into stone a long time ago.

RELATED ARTICLES:

http://divorceinconnecticut.blogspot.com/2013/01/why-am-i-not-surprised-study-reveals.html

http://divorceinconnecticut.blogspot.com/2011/10/bad-attorneys-bad-bills.html

http://divorceinconnecticut.blogspot.com/2012/01/going-going-gone-when-your-attorney.html

http://divorceinconnecticut.blogspot.com/2012/03/lawyer-joke-from-internet.html

Wednesday, May 18, 2011

THE FINANCIAL TAKE DOWN

One way that women get targeted for take down in high conflict divorce is through the process of discovery.  I noticed this particularly when I went through a friend's file in court the other day.  


From my own experience of this friend, I am aware that she has had tremendous difficulty getting her X to comply with discovery.  However, if you look at the court file, the situation looks entirely reversed.  "How is that?" you ask.  I'll tell you.  What happens is that the abuser's side will file multiple requests for discovery, while the victim's side will file one or two.  


In order to justify adding these extra requests, the abuser might vary the requests so they are each slightly different, or use a complaint that there has been no response to discovery in order to file another request.  


Another thing that will happen is that the abuser will file a document indicating their compliance with discovery requests, even going to the extent of absolutely lying that they have complied when they haven't.  In contrast, often the lawyer representing the victim will simply fail to provide documents indicating compliance with discovery.  


So what you have is a situation where there are repeated requests for discovery from the victim, who appears to be obstructing discovery.  At the same time, while the abuser has indicated that he has responded to discovery, it appears as though the victim has not, because she doesn't file notice of compliance.  


When I saw this situation with my friend, I advised her to have her attorney document what she had done with the court.  The response from the lawyer was a simple "Why?" Duh.  Like she doesn't know.  So there is a kind of collusion that goes on between the perpetrator and the victim's lawyer.  


Unless each side carefully logs in the response to discovery, lawyers will get into the act of saying, "I did provide the documents, so if you can't find them, you just were careless and lost them."  It is amazing how much carelessness takes place around the issue of money, so much so where you just can't believe its an accident any more.  


Then abusers take advantage of discovery and use it as a means to investigate what kind of counseling the victim is receiving and what kinds of medications she is taking, etc., etc.  So discovery is used as a terrorist tool to intimidate and coerce the victim into silence.  


Another interesting point is that, men are given a free rein in court to do whatever they wish with the family assets.  They can disappear large sums of the joint assets of the marriage without facing any legal consequences.  They just say things like, I had to pay the oil bill, or the car insurance, or something "important" like that.


Also, another trick abusers like to play in court is to take the proposed alimony and child support, put that down on the woman's side, and then add on the remaining assets until both have what appears to be an equal amount.  So what I'm saying is, they don't divide marital assets equally between the parties, and then add the alimony and child support.  They give the alimony and child support to the woman as if it were merely an additional asset of the marriage.  


Under those circumstances, women then end up with very little financially at the end of the divorce.  Attorneys feel they have done the job if the woman gets the kids, and they figure the money is not a significant matter.  So they leave women with the children, but without the means to house, feed, or educate them.  And then such women are told to be glad they got what they got.  But there isn't any reason to be glad, because under those circumstances few women can afford to take care of their children and thus they lose them anyway further down the line.  


It's a complete scam and it happens every day in divorce courts across this country, and most definitely here in Connecticut.  


The best thing to do under these circumstances is to challenge your attorney on the matter. Ask them, is this what you are doing?  Are you considering child support and alimony as an asset I am gaining after divorce?  Have you documented my compliance with discovery?  Have you documented my requests for discovery?  Sure they may shut you up and put you off, but at least you have the satisfaction of trying.

Saturday, May 14, 2011

COURT FILE MANAGEMENT

As you may know, I talk to quite a few people about family court and often end up having folks talk to me about their cases.  Sometimes, if a case interests me enough, with the permission of the person involved, I might end up looking at the court file for a particular case.  Which leads me to this particularly important point: Make sure that you have an exact copy of everything that is in your file. 

What do I mean by the court file?  According to the 2011 Practice Book 7-1 the clerks are required to keep a record of all pending cases, including applications and petitions made to the court, together with a record of each paper filed and order made or judgment rendered therein, with the date of such filing, making or rendition.  The record of your pending case is what is known as your court file.  What is in this court file is sometimes referred to as what is in the record or on the record. 

The court file includes whatever documents your attorney sends to the court and/or whatever documents your attorney receives from the opposing attorney which was sent to court.  It also includes court orders. 

You should have your own personal copy of all these documents. Also, always get copies of the court orders that the clerks put in your file, because if you don't see the exact wording of the order, you may not entirely understand it, and if you don't fully understand it, you may not require that your X obey it, or you might just inadvertently disobey it yourself. 

Also, sometimes orders can be worded in ways that you might interpret differently than your own attorney or the opposing attorney interprets it, or the judge could provide explanations in writing on the order which provide insight into the judge's intentions. If you understand the order differently than other parties to the case, or you have trouble understanding it at all, you need an exact copy of the order so that you can obtain further clarification either from your lawyer or the court.  Without an exact copy of what is in your file, you cannot expect to be on top of what is going on in your case. 

This leads me to my next point, which is, most divorce cases in Connecticut, particularly high conflict divorces, take at least a year or more to resolve.  Since this is true, always make sure that you go personally to the courthouse every couple of months and review the documents that have been placed in your file. 

There are two reasons for doing this.  One, I know this is against the rules, but every once in a while the opposing attorney could be tempted to slip something into the file without giving you a copy of it. Two, every once in while your own attorney could be too lazy or avoidant to send you a copy of documents he or she receives and/or sends.  Unless you personally review your court file, you are not going to find out about it. 

Plus, every once in a while a judge or a clerk might just scribble a few words on a document or court order that will provide some explanation of the thinking in your case that is going on in court.  Another consideration you should keep in mind is that sometimes clerks will simply fail to include a document that you have submitted to court.  This may just happen with self represented parties like me, but even so, you want to be sure that all documents relevant to your case which you submitted in good faith and believed were in the record are, indeed, in the record. 

A good way to make sure that everything that should be there, is there, is to print out the case detail from the judicial website:  http://www.jud2.ct.gov/.  The case detail is the listing of all documents that have been submitted to the court in your case along with the individual number provided for each document.  Match all the documents listed on the case detail with the documents you have in your file.  This is helpful because whenever you refer to these documents in any motions you submit to the court later on, you can use those numbers as an additional means to identify them.  Also, if you have more documents in your possession that you have submitted to court than you have numbers, you can be alerted immediately to any problems with clerks not listing your motions in the file. 

Finally, it is important to think about what kind of impression does this file, your file, convey regarding the kind of person that you are?  Remember, sometimes the first impression a judge will get of your case will arise solely from the opportunity he or she has to review your file.  And first impressions are often indelible. 

Are there any unanswered accusations that should be responded to?  Make note of that as something that should be addressed at a later time.  Has your attorney stated that he or she filed certain documents, but you can't find them in the court file.  Again, this is something to make note of and bring up with your attorney.  Is there anything in the file that could compromise you in any way if seen out of context?  Make note of that as well and plan on providing the appropriate context. 

They say that the devil is in the details.  Make sure he isn't in YOUR case detail!

Thursday, March 17, 2011

ELECTRONIC EVIDENCE: IS IT ADMISSIBLE?

Ok, don't laugh.  But when my ex and I went into our divorce, he forgot that I had the password to his email account because I basically set up his account.  

Or, maybe he didn't forget.  My other theory is that he knew that I had the password to his email account, but he didn't care because he was immune to any challenges and every time we went to court he was winning.  So he didn't care if I knew his password or not because he figured I couldn't do anything with the information I got from his account anyway.  And, in most ways, my X has been right about that. Still, I have felt better having the information that access to his email account gave me.  

Meanwhile, there did come a time when I decided that I was going to present to the court some of the emails I'd obtained.  Did I have to be concerned about any legal consequences in the same way I did when I considered tape recording phone calls with my X?   The answer to that question is: It depends.  

When you intercepted the emails were they in transmission or were they stored in the computer? According to the Electronic Communications Privacy Act of 1986 there are criminal and civil penalties for the unlawful interception of electronic communications while such communications are in transit. In that situation, you can be charged with wiretapping.  However, once an email is stored and downloaded into the computer's memory, it is no longer subject to wiretapping.  See Steve Jackson Games, Inc., et al. vs. United States Secret Service 36 F 3d 457 (5th Circ. 1994).  

If it isn't wiretapping, could looking at your X's email be considered an invasion of privacy?  An invasion of privacy occurs when a person intentionally intrudes upon the private affairs, seclusion or solitude of another person by means that would be highly offensive to a person of ordinary sensibilities.  An invasion of privacy would consist of opening someone elses' wallet or taping someone elses' phone conversation without authorization.  

The operative concept is the question of authorization.  In White vs. White 781 A 2d 85 (N.J. Super 2001) for instance, the Court determined that there was no invasion of privacy when Mary White accessed William White's emails.  The Court's reasoning was that because both spouses had access to the computer since it was stored in the family home, there could be no expectation of privacy on Mr. White's part.  In other words, in these circumstances Mary White was, indeed, authorized to access the computer and thus the emails stored in it. 

However, keep in mind that email evidence is admissible even if it were illegally obtained because there is no express provision in the wiretapping laws stating that information acquired under these circumstances is not admissible.  This means that, as a general rule, the fact that electronic evidence is obtained illegally is generally not a sufficient reason to exclude it from admission.  In fact, the Court has held that even electronic evidence obtained fraudulently, wrongfully or illegally is admissible.  See Lee v. Lee 967 S.W. 2d 82 (Mo. Ct. App. 1998); Gurevich vs. Gurevich 24 Misc. 3d 808, 886 N.Y.S. 2d 558.  

So, the answer to the question is, yes, there could be some consequences to obtaining electronic evidence without your X's permission, but there appear to be ways to make admissible in Court the information you obtain through these emails.  My best guess is, go in, see what you get, make sure you consult with your attorney before you make a move.  Good luck!

Friday, March 11, 2011

TAPE RECORDING CONVERSATIONS--LEGALLY OR ILLEGALLY

When I started out my divorce I had a tape recorder hanging around my neck at all times when my X was in the house with me.  Unfortunately, out of all the hours of taping that added up to, I maybe ended up with one tape that was particularly useful. 

I also tape recorded meetings with attorneys, meetings with my GAL and meetings with the custody evaluator in my case.  Some of that recorded material may come in handy one day, but up to this point, years after my high conflict divorce started, it hasn't really added up to much.

It did make me feel safer when I was alone in the house with my X, because I figured that if he did anything it would all be caught on tape. I also felt better that there were tape recordings of meetings so if I was too upset to grasp anything, I could listen to the tape and refresh my memory and understand better what had been said.

Of course, there were those times when I didn't have a tape recorder with me and that was when a lot of really good conversations took place that I really would have liked a tape recording of!

The big question I had when I started to consider tape recording conversations during my divorce was what kind of tape recorder should I use.  Thinking back, I probably could have purchased a nice, compact tape recorder that was unobtrusive from my local CVS for $20.00.  But seeing as I'm the thorough type, I ended up traveling for over an hour to a surveillance store where there were all sorts of devices for spying on other people, and purchased one for $100.00.  It was an oversized cylinder the size of a slightly overlarge lip stick case.  There were other very interesting kinds of recording devices, one the size of a quarter which was supposed to record for a full 24 hours which never really worked properly. 

Still, despite the fact that tape recording conversations never really worked for me, this doesn't mean doing so might not work for you.  You might end up doing a far better job that I was capable of.  To be honest, the whole divorce weighed me down so badly in the first three years that I was too exhausted to really utilize many of the options I had at my fingertips in the least bit effectively.

Often, I tape recorded these conversations with the full knowledge and permission of the participants, which was entirely legal for me to do.  But sometimes I went ahead and tape recorded conversations secretly.  Of course, the big question that came up when I tape recorded conversations secretly was the following: Were the tape recordings that resulted from those conversations I had with other people either in person or on the phone the least bit legal and/or admissible in court?  

For the Court, the answer to that question is two fold.  And in making these statements, understand again that I am not a lawyer, so what I am providing here is not legal advice, and if you want to be sure of what I am saying from a legal professional's standpoint, you will have to speak to a lawyer.  But, from my limited perspective, these are the considerations. 

First, did the other party or parties to the conversation have a reasonable expectation of privacy?  If a court were considering legality or admissibility, that is the first thing the Court would have to establish.  For example, did the conversation take place in your home or on the street.  If it took place in your home, there was probably a reasonable expectation of privacy, but if it took place on the street, in a public place, then there was probably not a reasonable expectation of privacy. If there is no reasonable expectation of privacy, then your tape recording could be admissible in court.

Second, did you obtain the appropriate consent of the parties to the conversation?  Thirty eight states, including the District of Columbia,  are one party consent states meaning they only require that one person in the conversation provide his or her consent.  In that case, as long as the person recording the conversation consents, and of course, why wouldn't he or she!!! then again there is no problem. 

However, if you are living in one of the twelve states that have two party consent laws, and Connecticut by the way is one of them, then all the parties in a conversation must give their consent in order for the tape recording of the conversation to be legal or admissible.  [By the way, since all parties in the conversation must give their consent, it would be better to call these twelve states all party consent states, but for some reason they just call them two party consent states.]  Still, remember, you have to get consent of all parties, and, again, that means Connecticut. 

If you disobey these laws in regard to privacy and/or consent, then your tape recording is not only illegal, it is inadmissible AND you could end up being sued for doing the tape recording. On the other hand, I have had friends tell me they made tape recordings and illegal though they may have been they provided the basis for a favorable ruling in family court. 

Still, I would be careful.  If you have a tape recording that you think would benefit your side, make sure you discuss it with your attorney before letting anyone know you have it. 

In addition, there are some practical considerations to take into account when you are tape recording: 

If you are in a situation of domestic violence and you are in the least concerned about your safety, if your X were to find out you were tape recording him, it could push him over the edge and lead you to be subjected to even worse violence. 

In any situation, where you are tape recording anyone, and you were caught doing it, you could be in a whole lot of trouble, just trying to explain what you were up to.  So do some simple self protection like, don't get a thirty minute tape for a one hour meeting and then have the tape recorder click off loudly right in the middle of the meeting. 

And last but not least, keep the tape recorder away from a lot of paper rustling and chair scraping. 

As a final caution, I'd urge you to be sensitive to the circumstances and how the tape recordings would make you look.  Sometimes they make you look like a sleazy, scheming, scumbag of a human being because you are using a semi-illegal approach to getting information.  You don't want to come off that way. 

Whatever you choose to do, however you choose to do it, God bless you, and Good Luck! 

Wednesday, January 19, 2011

KEEPING YOUR LEGS SHUT TIGHT

I know, I know, Connecticut is a No-fault Divorce state, just the same as all the other fifty states.  



What do I mean by no-fault?  



The story is that originally, in order to get a divorce, you had to prove fault on the part of one or the other spouse.  This meant proving abuse or adultery or something like that.   In order to get a divorce, spouses would often invent stories so that they could get a divorce even though nothing had really happened.  They just didn't love each other any more.  



Finally, around the 1970s, the no-fault divorce concept began to spread throughout the country.  What the no-fault divorce did was allow couples to divorce simply on the basis of irreconcilable differences.  



The first law legalizing the no-fault divorce was passed in California in January 1970 and signed into law by then Governor Ronald Reagan. And from there it spread around the country.  The last state to sign it into law was New York State this year. 



Yes, I agree.  This is the modern world where everyone is having sex with everyone else.  You put on the TV and there are the most amazingly lewd situations on film at all times of the day and night.  The porn section of bookstores takes up several bookshelves.  



You would think that under the circumstances adultery wouldn't be such a big deal.  The news is, as far as divorce court is concerned you are wrong.  I would say that this particular point is quite shocking to many folks who end up in divorce court.  



Our culture is so casual about sex and when and where and how and with whom you have it that folks never consider that divorce court might look at their actions differently and actually condemn with the same level of condemnation you might ordinarily associate with some of the eminent Puritan preachers who founded our state several centuries ago. 



The fact is that the good majority of judges dealing with high conflict divorces are judge referees who are in their 70s and their morality was shaped by the forties and fifties.  So when you walk into their courtrooms and you have had an affair and they know you have had an affair, prepare for big time trouble. You are in for it and your attorney knows it. 



Now I've got to say I heard of one case where the husband accused the wife of adultery because she masturbated with herself.  No, this is not what I am talking about.  I'm talking about real sex with someone other than the person you are married to.



If there is the slightest possibility at this point that you could hide whatever affair you might be having with whomever, make sure you do it.  If you are currently not having an affair, keep your legs shut tight and stay that way until the divorce is over.  This has to be the best advice I can give you.  



In divorce court, the penalty for adultery is very severe financially and you could live the rest of your life in poverty if you don't handle the situation right.  



Trust me.  The flip side in your favor is that if your ex committed adultery, make sure you subpoena his baby doll to the trial so you can take full advantage of the situation.  Your ex, who hasn't read this article, will probably not even know what hit him.

Thursday, December 30, 2010

NEVER TAKE "NO' FOR AN ANSWER!

I was sitting around with my kids the other day having a nice chat and my daughter, Marianne, took that as an opportunity to say to me, "The one thing I really like about you is that you are so smart and you never take "no" for an answer!"  


Of course, the smart thing goes without saying, ah hemm, but the other thing about never taking "no" for an answer
-- that delighted me.  If there is one thing I would like to be known for it is for never giving up, never shutting up, and never putting up.  And if that is the one quality that my daughter takes away from having known me as a mother, well, I'd be so proud of that.  It's the one great skill you need in life in order to survive.  If someone asked me, what is the one skill you'd like to have if you were stuck on a desert island, it would be that one.  


And, by the way, this is the one skill that lawyers learn in the course of acquiring their professional capabilities.  They learn that when you fail, you just fall back, recoup, and try again.  When you miss out on one angle, just try another, and another and another.  Never give up, never admit defeat, just keep on trying.  Keep on asking those questions and challenging the procedures until you get your way, no matter how bad the situation looks, or how impossible.  


And where does this philosophy arise from?  It arises from the fact that every time I pick up the phone to get something done, 80% of the time people tell me "no".  Why?  Because "no" is more fun to say than yes.  Because it shuts you up.  Because ha ha I can get in your way and stop you I'm so powerful and there is nothing you can do about it!
But if I keep on reviewing the procedures, and asking questions about how those procedures are carried out, 80% of the time I am able to change a "no" to a "yes" sometimes just by mere persistence.  


For example, today I called and made an objection to a document a clerk had written up for my case.  As I went point by point through the document and called into question specific parts I disliked, the clerk insisted there was nothing I could do about it.  Refusing to take no as an answer I asked, where are the guidelines to writing this document?  What protocol are you using to deny my request?  He told me that it was a special internal protocol they use in his department to prepare the document.  I answered, you know I don't want to hear that.  Even he, just listening to himself, knew how ridiculous his answer was.  Finally, he acknowledged that some of the protocol came from the 2010 Practice Book, and then he provided me with an alternative approach I could use in order to give him an additional opportunity to reconsider my objections, and then he gave me even more information on what kind of motion I could use to officially protest if he turned me down.  I hung up the phone and immediately followed his advice.  And it was all very amicable.  I think, in fact, he kind of enjoyed a challenging conversation.  


Also, sometimes the "no" is solely in my own head and not in the other person's head.  For example, in a particular situation I might have read that there was some rule that had to be followed or a deadline had to be met at a particular agency, but when I actually asked the person responsible, that person immediately cancelled the rule and/or broke the deadline requirement just because I asked or because he or she decided I was a really nice person and why not and had the power to make the change.  


I can recall I had a situation where I had a court document due on a particular day and I worked on it all day until just before five to get it in.  Then I made a panicked phone call to the clerk and asked if I could fax the document in.  He said no they don't accept faxed documents, but after I became totally upset and expressed how absolutely appalled I was by that, he shifted gears and said he would be delighted to extend my deadline for a few days.  All of a sudden a no became a yes, and I didn't even do anything spectacular to get it!  


The bottom line is most people say "no" because they are bored, they are having a bad day, it's easier, why the heck not, please leave me alone and let me obstruct you, for any number of reasons.  Your job is to pester them into changing their minds.  Pester is the operative word and it works.  Yes, you may fail, but it won't be for lack of trying, and not trying, that is the worst sin of all.

Monday, December 27, 2010

THE RIGHT TO BE PRESENT

Some of you who have been out there doing a divorce will immediately understand what I am talking about here.  



Have you ever been in court for a motion or for a pretrial and your lawyer goes off for a while with a bunch of papers and then comes back and says, "Ok, well, the deal is this.  They have agreed to do fill in the blank, if you do fill in the blank, then you will have the advantage of fill in the blank and they will have fill in the blank, so just sign here on this document and we can all go home."  



Hey, wait a minute!   



How did that happen?  Weren't we supposed to go before the judge and present our case?  Didn't we come in today with substantial evidence to support our position?  Then you want to ask, "Did you mention this important point?  Did you mention that important point?"  



Of course, you will never know the answers to these last questions because, guess what!!!!! You weren't there in the meeting!  The lawyers decided all this without you being present!  



Pay attention to what is going on around you.  As you stand in line waiting to go through security, have you ever seen two lawyers quietly arguing over their legal positions?  Well, that was when your lawyer and the other lawyer decided how to pursue their actions in your case, and all without you to chime in with your ideas.  And have you seen two lawyers standing together in the corridor chatting while their clients' haven't yet arrived because they are still driving to the courthouse because were told to come an hour later than their lawyers.  Why did that happen?  Because the lawyers wanted to make up their minds how to handle matters before their clients' showed up so that they could hammer out an agreement and be on the same page so they could present a united front.  



"No fair?" you say!  Well, sorry about that.  The lawyers sat and listened to you in a kind of therapy session the day before, and now they have decided what is best for you for your own good.  So You're done.  You can argue and argue and argue with them, but they have made up their minds and too bad for you.  



Where this becomes particularly crucial is in The Status Conference.  Periodically during the time when your case remains before the court, the clerk will schedule a Status Conference, which is a meeting held before a judge to update him or her regarding the status of your case.  



When you go to your lawyer and say, "Oh, I see there is a status conference on such and such a date.  How do I need to prepare for it?" your lawyer will say to you, "Oh, you don't need to be there."  Oh, baloney!  Of course, you need to be there.  Baby, baby, baby, listen to me, believe me, believe me before you believe your nincompoop attorney, you need to be present at each and every status conference held in your case.  



First off, without you present, such a status conference will be held off the record and so at a crucial meeting where the judge, the opposing attorney, and your attorney are present together discussing your case, all of it will be done off the record.  You never want to have any aspect of your case discussed off the record.  The reason why the status conference is off the record when you are not present is that such conferences are ordinarily held in the judge's chambers, i.e. office.  However, if you insist upon being present, they will conduct the status conference in the court room with a clerk present to write up a transcript. 



 Second, a status conference is an informal reporting in conference.  It is the forum at which you can talk about what kind of case this is, what are the barriers to resolution in the case, what still needs to be done in the case in regard to discovery and any other matters.  Is there a problem with the ex husband not paying child support, is the mother at risk of losing her apartment?  



In this less structured conversation with the judge about what is going on with the case, many of the themes of your case will emerge, themes that will dominate the case.  You want to play a hands on role in terms of shaping those themes.  Otherwise, you will become their victim, particularly in regard to how the judge perceives your character and the motivations behind your actions in the case.  



Being there.  Being present.  Nothing is more vital.  



So, never allow your lawyer to josh you and say, you don't have to go, you don't have to be present.  You have to be present at all meetings, at all negotiations, at all court hearings, at all mediation sessions, at everything.  



And don't let anyone tell you no you can't go.  You have the legal right to be present at all meetings regarding your case and at all court conferences relating to your case that are held with judges and attorneys and you have the right to bring a family member or a friend to all court proceedings, unless a judge orders otherwise. 



Take advantage of that right.

Saturday, December 18, 2010

THE RIGHT TO DUE PROCESS

This may be a surprise to those of of you who are caught in the jaws of a high conflict divorce against an abuser where you face injustice daily, but you actually have a constitutional  right to "due process" when you are in court. 

According to the free dictionary dot com, this means that you have "A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property." 

It also includes "a constitutional guarantee that a law not be unreasonable, arbitrary, or capricious." 

The right to due process has its basis in the due process clause of the 5th Amendment (ratified in 1791) which asserts that "no person shall be deprived of life, liberty or property without due process of law" and applies to the actions of the Federal Government.  The due process clause of the 14th Amendment (ratified in 1868) limits the actions of State Government declaring "Nor shall any State deprive any person of life, liberty, or property, without due process of law."   

Apparently, according to the free dictionary dot com, the concept of due process originated in English Common Law with the rule that "individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves." 

This concept reappeared in The Magna Charter signed in 1215 by the infamous King John and stated "No free man shall be seized, or imprisoned...except by the lawful judgment of his peers, or by the law of the land." The phrase "law of the land" was eventually replaced by the phrase "due process of law" and, by the 17th century, the American Colonies were incorporating the phrase "due process of law" into their legal statutes.  

From there the concept of Due Process is then divided into categories:  1. substantive due process and 2. procedural due process.  Substantive due process has to do with creating, defining, and regulating the right to due process, whereas procedural due process has to do with enforcing those rights or seeking redress when they are violated. 

So, why am I bringing this up? 

Well, I am bringing this up because due process is violated all the time when you are in Connecticut Family Court and I want you all to know what it is so you can protest when a violation of due process occurs in any of your cases.  If you do, you may get some very successful results.  Because, after all, let's be reasonable, the judge knows all about due process too.  It's just he was hoping you wouldn't know anything about it.  Once you show that you are familiar with the concept, my best guess is he or she will at least try to behave a little bit better.

Like many of you, I was so ignorant when I started out in family court that it went right over my head when I was denied due process, and it only occurred to me that my right to due process was being consistently violated after a couple of years had gone by in my case. Once I started to speak up and point out that my due process rights were being violated by such behavior, that's when the incidents were, not totally stopped, but at least reduced substantially.

Just so you don't have to wait a few years like me before you figure out what due process is, here are some situations where you can find your right to due process violated and you need to protest. 

How about, you walk into Court for a hearing on child support and the opposing attorney hands you a Motion to Reconsider Alimony (or something like that) within minutes before the hearing and then demands that the Judge discuss the motion, even though you haven't ever had a chance to see it before. 

How about, you are actually in the middle of a hearing, and the opposing attorney starts to hand out a Motion on a totally different issue, sometimes even accompanied by a Memorandum of Law and you have never seen either before.  Wait a minute!  You have the right to due process, which means that if you haven't seen a motion or memorandum of law prior to the hearing, you have the right to request a continuance so that you can prepare your response. 

Absolutely. 

How about, you are in the middle of a hearing and the witness on the stand begins to make accusations against you and you have never heard these accusations against you before.  Again, you have the right to have the opportunity to prepare your response to any new accusations and so you can request that the hearing be discontinued until you have the opportunity to prepare a response to the new accusations that you haven't heard before. 




In other words, in the State of Connecticut, according to Costello v. Costello, 186 Conn. 773, 776-777, 443 A.2d (1982) "It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved."

Litigants, supposedly--I mean this is Connecticut Family Court, after all, where junk happens all the time--can't bypass the rules, they can't jump ahead of the procedural line in order to railroad their opponents so that they end up losing life, liberty or property.  That is what is meant by fairness. 

Every time you go to court, think about fairness, think about what the regulations state about how matters are to be handled.  Is what is happening unreasonable?  Is it arbitrary? Is it capricious? Do you feel that you are being bullied and pushed around?  If so, speak up!  Consider using the right to due process as a means to fight back!  Say, "Your honor, what is going on here is a violation of my right to due process because..."  Hey, it never hurts to try.  Trying is what it is all about!