The Old School Lawyer

As a thoroughly modern divorce lawyer, I am at my computer, marking up a Marriage Settlement Agreement and emailing it first to my client and then to opposing counsel to get their comments (in different colors) on my draft. It was not always thus. I used to be an old school lawyer.

My First Word Processor

My first word processor was a spiral notebook and a point pen in law school before every student had an apple laptop, tablet, and cellphone connecting them to the world wide web. I learned how to take shorthand and how to type, first on a manual, and then on an electric typewriter.

The keys went “clickity-clack” and a bell rang “ding” when you got to the end of the line. Old school lawyers remember that rhythmic music that got faster and faster when you pounded out that motion to strike evidence as “fruit of the poisonous tree” at a break in the middle of the trial.

Carbon Paper and White Out

Every old school lawyer had a box of carbon paper. You put a piece of carbon paper that left black smudges on your hands; your white-cotton, button-down shirt; your white seer-sucker suit in the summer time; and your fancy tie that your Aunt gave you last Christmas. You put the carbon, smudgy side down, between two pieces of typing paper and rolled them into the typewriter.  The carbon made a copy on the bottom sheet.

When you made a mistake, you had a little bottle of liquid white out which was like a white paint that came with a little brush on the cap so you could paint over and then type over your mistakes. You also had to lift the carbon paper and correct the copy without getting smudges all over it.

Big Leaps Forward

Thankfully we made big leaps forward in word processing. We thought it was a miracle when someone invented an electric typewriter that could remember what you typed. Talk about artificial intelligence!

The genius of this machine was that you could write your firm letter to opposing counsel on it, then retype only the words that needed correction or revision, then push a button and the machine would type out a perfect letter automatically. All you had to do was reload the paper.

Even better, it could type out as many perfect copies as you needed automatically — one for your client and one for the file. No more carbon paper.  No more smudges on your red power ties.  But sadly, no more “clickity-clack ding”.

Next we got copiers and a nifty word processor from Xerox. Old school lawyers thought the Xerox word processor was the cat’s meow because it had a little screen on it about four or five words long on which you could correct your mistakes. How short-sighted we were.

[TO BE CONTINUED…]

Does it seem to you like people have shorter fuses these days?  Have you noticed people are losing their tempers more quickly, frequently and over smaller things?  A lawyer hung up on me the other day. That’s certainly not the first time, and won’t be the last, but I was only halfway through my second sentence when she hung up.  And they weren’t long sentences.

Divorce in The Crazy Years

Divorce is always stressful, and divorce litigation is a form of civilized combat. But I’ve noticed recently that people are forgetting the the civilized part. People are losing it. They are short-tempered, impatient, disrespectful, and rude. What is going on?

I believe the stress of current events is driving people bonkers. This is the beginning of what science fiction writer Robert A. Heinlein calls The Crazy Years in his future histories.

The Headlines Are Driving Us Crazy

I’ll tick off the news headlines this morning while you check your blood pressure:

  • Covid changed our lives, sent us home, killed 750,000 of us, shut down our businesses, schools, events, social life, travel and the economy, and left us arguing about masks, vaccines, unproven “cures”, and social distancing.
  • Epic floods, fires, earthquakes. droughts, hurricanes, mudslides, cyclone bombs, melting ice caps, and other extreme  climate catastrophes as a result of global warming.
  • Wealth inequality, soul-crushing student debt, Inadequate child care and elder care, crumbling infrastructure, rising prices for food, shelter, and transportation.
  • Fights over women’s rights, gun rights, voting rights, critical race theory, increasing violence in our cities, and hostile, angry encounters on airplanes, and school board meetings and our capital., and a gridlocked congress.
  • A former, and possibly future, president who has legitimized and popularized the big lie, insults, name-calling. boorish and immoral behavior, revenge, avarice, disrespect for our constitution, laws, traditions, system of checks and balances, the free press, our nation’s heroes, and who promotes lawlessness, violence and insurrection.

You can see why people are feeling stretched to the breaking point.

One More Turn

It reminds me of those balsa-wood model airplanes we used to play with as children. We turned that red plastic propeller to wind  the rubber-band motor as tight as we could so it would fly high and long. So here we stand with nerves and spines as tense and twisted as that rubber band.  We are ready to soar high and long.  But if one more person turns our propeller even a little bit, we may snap and go spiraling onto the the roof.

[Author’s Note:  Our law firm philosophy is that a constructive approach to cases, and a respectful approach to clients, lawyers, and opposing spouses in divorce cases best serves our clients.  We fight fire with water.]

One of these days, you too will get “The Call”. It will be opportunity calling. Expect miracles.

My son is off to Boston University for his final year of college. He is majoring in journalism and political science. I wrote this to give him some fatherly advice. When I finished it, I thought you might also find it interesting or inspiring. Feel free to pass it on to your sons and daughters or anyone you think might benefit from it.

A Letter to My Son

It won’t be long now until you’ll be starting your career.  Congratulations on making it to your Senior Year.   I am very proud of you.

Be sure to collect contact info from your friends and classmates. They will be of help to you in the future if  you keep in touch.  And its so easy to do these days.  You have iPhones, the Internet, the cloud, LinkedIn, Facebook, and email. Use them. All we had were our Rolodex our a Little Black Book both of which were analogue, not digital. Our Internet was the radio.

I am pleased to see from your Linked-In profile that you are following in my footsteps with a varied and interesting work history. You already have enough experience to write about sports, law, birds, and politics – and you’re just beginning.

In Your Father’s Footsteps

As I look back at my life, I might be richer if I had stayed with P&G or the FCC or Whiteford, or if I taken that job from the IRS, instead of starting my own law firm. But I would have been totally bored, I probably would have never had met your mother and then you wouldn’t even exist.

Your work as a journalist brings back memories of my start as a news reporter in my dad’s radio station. As the new kid I was given the assignments that no one else wanted — city hall council meetings, county fairs, spotting for the sports announcer at high school football and basketball games, calling the hospital emergency rooms every morning for accidents, and visiting the police station to see who got arrested last night.

It was very exciting for me. I loved getting the news before anyone else and typing it up at 100 miles an hour to meet the 6:00 am deadline for the first morning newscast. Sometimes, the news director had to rip it out of my typewriter.

The Night I Got “The Call”

Then one night I got “The Call”. Three little kids didn’t come home for dinner. They were last seen playing near the caves that the Mississippi River cut out of the limestone and mud. The assistant news director told me to “Get the station’s remote broadcas6t equipment and go down to the caves for a live report on the radio.”

“Wait a minute,” I said. ”You want me to go on the air? What do I say?”

“Just tell us what you see,” he answered.

Probably the best journalism tip I ever received.

The remote was the size of my gym bag and ten times as heavy. It was neon yellow. I slipped the yellow strap over my left shoulder so I could walk around and key the mike in my right hand. I could her the station announcer give me the countdown – five four three two (they don’t say the one so it doesn’t get picked up when they throw the switch from the radio station to remote control.

I took a deep breath and did the one count in my head.

“I am on the banks of the Mississippi River in Hannibal, Missouri. And this is what I see.”

“In front of me there is a flat area of ground where three children were playing this afternoon. They did not come home for dinner.”

“Past flat place the ground rises and in the hillside I see an entrance — an entrance to the vast cave system that the river has cut out of the soft limestone that forms its banks. The caves are unmapped and go for miles. They are honey-comb mazes with several different levels. These are the same caves that Mark Twain wrote about Tom and Huck exploring. Only in the fictional account, they used string to find their way out again.”

“It is dark along the river tonight except for this surreal site. It is lit up like a movie set by a dozen flood lights. There is a red generator powering them. A lot of cars and trucks parked every which way. There is a hole in the side of a cliff that is the entrance to the caves.

A lot activity. Men with ropes and flashlights are going in and out of the cave. They have enlarged the entrance for easier access and I see a big mound of dirt in front of the cave. I see grim determination on the faces of these men, who are risking their own lives to search for these lost boys.”

The next day I went into the cave with those brave searchers (many of whom are FB friends 55 years later).  Eventually there would be about 200 searchers in was tlo become the largest cave search ever.    But the lost boys were never found.

Epilogue:  One Call Leads to Another

In my last year of law school at the University of Missouri, the  telephone roused me from the deep sleep of afternoon nap.  “Hello?” I answered, not yet fully awake.

The voice on other end sounded wide awake, “James?’

”Yes?”

“This is the recruiter for the Federal Communications Commission in Washington, DC. We’d like you to join our legal department.”

And the rest, as they say, is history.

Or, in your case, the future.

Love, Dad

Want to buy some divorce insurance?  Jennifer Saranow Schultz reports in the New York Times that SafeGuard Corp. of North Carolina is offering the world’s first divorce insurance called WedLock.  For each $15.99 per month you pay, you can buy $1,250 in coverage.   The benefit covers the costs of divorce such as lawyer fees or setting up a new home.

Then, if you get divorced, you send Wedlock proof, and they’ll send you a check for the amount of insurance you purchased.  You have to be married at least four years, however, before the payout.  You can buy riders to shorten that to three years or get your premiums back if you don’t make it that long.  Every year the company automatically adds another $250 to the coverage for each unit you buy.

The company helpfully provides calculators on its site for Divorce Probability and Divorce Costs to help you figure out much insurance you need.

When Harry Truman got mad and fired off a letter, he would put it in a drawer in his desk and let it cool off for a day.  Most of those letters were never sent.  What would he have done with email?

Now there is a new product called ToneCheck, reports the ABA Journal, that will scan your outgoing email before you send it and point out phrases that have unintended emotional charge.  Tone Check then suggest alternative language.  For example, if you write something is “annoying or troubling” you will be prompted to substitute “It has been concerning me for some time”.

Of course if it completely edits tone, some of the emails I get from opposing counsel will be totally blank.

“Just found out divorce mediation is Tuesday afternoon!!!

Help! I’m nervous

What do I do?!

What do I say?

How do I dress?

How do I act?

What questions should/shouldn’t I ask?

Give me all tips/advice you all have please! ”

— Nicole’s post on Facebook

Advice for Handling Divorce Mediation

Nicole:

Everybody is nervous in a divorce. In fact I’d be nervous if you weren’t nervous. But here’s a tip that will help you calm down and give you more confidence during the mediation.

Write the main categories to be decided down the left side of a piece of paper. These will be your rows. The main categories are child custody, child visitation, child support, alimony, property division, and legal fees. You can expand on this by adding subcategories.

For example, under visitation, you might have subcategories of weekly schedule, holidays and summer vacations. Under property division, you would have the big ones, like house and pensions, as well as bank accounts, automobiles, and furniture.

Next, make three columns labeled best, middle, and showstopper. Fill out your objective in each row and column. This will make you think about what you really want, what you can live with or without, and what will make you walk out of the room if you don’t get. It also help you know what to say.

It doesn’t matter so much how you dress but I would suggest business or business casual will make you feel comfortable. Act firmly but politely. Remember you are there to problem solve, not to blame or assess fault. You can ask any question you want. Let the mediator take the lead.

You don’t have to reach an agreement if you don’t think it is fair. But as the mediator will probably tell you, you will save a lot of time and money if you do.

 

Divorces are full of tripfalls and traps and pensions are the quicksand of divorces.  Dividing military pensions adds another level of difficulty altogether.

Howell v. Howell

When John and Sandra Howell got divorced  in Arizona the state court awarded Sandra 50% of John’s military retirement pay.  She began receiving payments a year later when John retired.  About 13 years later, the Department of Veterans Affairs found John to be partially disabled due to a service connected injury.

The Uniformed Services Former Spouses’ Protection Act authorizes states to treat veterans’ “disposable retired pay” as community property.  10 U.S.C. 1408.  However, if a veteran receives disability pay, her or she is required by law to waive the same amount from pension benefits and the definition of “disposable retired pay” specifically excludes amounts waived for disability payments.  10 U.S.C.  5305.  In the Howell case this reduced Sandra’s payments, and increased John’s payments, by about $250 a month.

Sandra petitioned the state court to enforce the divorce order and restore the original payments.  The court agreed and so did the Arizona Supreme Court when John appealed.  But that’s not the end of the case and John was determined to take it all the way to the U.S. Supreme Court.  That court, in 2017, held that the federal law pre-empted states from dividing waived military retirement pay as community property   State courts could not require the veteran to reimburse or indemnify a spouse for a loss of benefit due to the disability  waiver.

The Loopholes

  1. The U.S. Supreme Court said a state court could adjust alimony to take into account the possibility of a future reduction in disposable retired pay, or
  2. A state court could value the pension less because of the contingency that it might be reduced and divide or set off other community property to take that reduction in value into account.  (Equitable distribution states like MD, VA and DC could adjust the marital award to account for this contingency.

Weiser v. Weiser

What if the parties have an agreement on how they will divide military pension?  The parties can do lots of things that judges cannot do.  The courts will enforce agreements by the parties even if they provide for something the court does not have the power to order.    Andrew and Michelle Weiser married in 1992 and divorced in 2011.  Their marriage settlement agreement said:

“In the event the husband’s military retirement benefit shall be reduced or offset by disability pay, such a reduction shall not reduce the amount the wife is entitled to receive each month under the terms of this order.”

Andrew retired in 2010 after 20 years in the US Army.  In 2012, Andrew received a 30% disability rating and started receiving disability pay which reduced his retirement pay. He began paying Michelle one half of the remaining military retirement pay, rather than one half of the original military retirement pay.

Michelle sued to enforce the agreement and collect the reduction in payments.  Her lawyers argued that since there was no agreement in Howell it did not apply to the Weiser case. They also argued res judicata which means the dispute has already been decided in the case.

Even if it was decided wrongly, the court will not reopen the case to let the parties relitigate it.  The Washington Court of Appeals agreed with Michelle and awarded her attorney fees.

The Law Governing Military Pensions in a Divorce

Is this the last word on the subject? Another judge on another day could find the contractual provision void as against public policy and decline to enforce it.

It doesn’t seem right to let a veteran wiggle out of his agreement not to reduce pension payments to a former spouse just because the payments change from retirement pay to disability pay. But Congress passed the law to protect veteran’s disability pay from all creditors including former spouses.

We’ll have to wait and see if Congress or the U.S. Supreme Court clarifies the law. In the meantime, watch out for the  quicksand!

“I’ve never been divorced before,”said the thin man sitting across the desk from me. His dark narrow eyes darted back and forth as he nervously sipped the bottled water my receptionist had given him.  He sank into one of the two wing-back chairs in my office. “I don’t know anything about it.  I have a million questions.”

In my line of work as a divorce lawyer I meet all kinds of people. I tried to put the thin man at ease. I put my fingers together in a church steeple, closed my eyes halfway, and leaned back in my burgundy leather office chair in my best Perry Mason imitation. “Well I’ve been divorced twice, so ask me your questions.”  I then proceeded to give him the following answers to his questions one by one.

Question 1.  I had an affair.  Am I going to lose everything in the divorce? 

Adultery gives your spouse grounds for divorce, not the right to 100% of the house, cars, 401(K), and everything else.  Jointly owned properties are divided equally.  The judge can make a marital award to make sure the division is fair.  In determining the marital award, the judge considers several factors.  One of these is who was at fault in the termination of the marriage.  The judge can also make adjustments for any marital funds you have spent on the affair.

Question 2.  Will the court take the children away from me because I cheated?

Adultery may make you a bad spouse but it does not necessarily make you a bad parent.  In Davis v. Davis, 280 Md 119, 372 A.2d 231 (1977), the Maryland Court of Appeals said

Whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the children’s welfare.

The court looks at what is in the best interests of the children, not what is in the best interests of the parents.

Question 3.  Can My Spouse Get a Divorced if I Don’t Agree?

While it takes two people to get married, it only takes one to get divorced.   If you don’t want a divorce, you can slow down the process, but a spouse determined to get a divorce can get one.

Question 4. Do I Have to Have a Lawyer to File for Divorce?

It is not a requirement that you hire a lawyer for your divorce.  The Maryland courts have published divorce forms on the Internet and there is a self-help desk at the Montgomery County, Maryland, Courthouse.  We have do-it-yourself divorce help on this website and we have published self-help divorce books.  However, divorce cases can get complicated quickly.  If your case involves child custody, alimony, real estate, retirement funds or other assets, we recommend you hire a lawyer.

Question 5.  Does the Mother Always Win Custody?

In the old days many judges followed the Tender Years Doctrine which presumed that mothers were the better care taker for young children.  Today, however, the standard is best interests of the children.  Many jurisdictions, like The District of Columbia presume that joint custody is in the best interests of the children.

Question 6.  Can a Husband Get Alimony?

Today, there are many cases where the wife makes more money than the husband.  In those cases, husbands are entitled to the same rights as wives including the right seek alimony.

Question 7.  How Much Is All This Going to Cost?

In most cases of a long marriage, the judges in Maryland, Virginia and DC will divide marital assets equally, but they are not required to.  If you make a lot more than your spouse, or your spouse is ill or requires some training to get back in the workforce, you will probably have to pay alimony.  The judge decides the duration and amount.   Once custody and alimony are determined, you can use online calculators to determine child support.  You may have to pay all or a portion of your spouse’s attorney fees as well as your own.

 *  *  * 

The thin man sighed and said, “Thank you.  It’s not what I wanted to hear but I feel better knowing than not knowing.  I want you to be my lawyer.  What’s the first step?”

“Sign my retainer agreement and pay my retainer,” I replied as I pushed the document across the desk and held out my Mont Blanc fountain pen.  “I’ll start working on your case immediately.

 

It’s graduation time!  Caps will soon be flying as a new crop of graduates join the work-a-day world. My youngest graduates from high school this year. Time for commencement speakers to encourage and offer advice for new graduates.

I remember a lawyer spoke at my graduation from law school. He told us that while we fantasized about the luxurious life of a lawyer, the truth is that we didn’t know how good we had it as students. We would soon be longing for those bygone days when we had no court deadlines, client demands, irritating opposing counsel, and judges overruling our objections.

My first day of starting work as a lawyer, a seasoned attorney expressed a similar sentiment. He said, “You guys have it made. This is the richest  you’ll ever be in your life. No mortgages, no wives, and no children.”

I haven’t been asked to speak to a graduating class, but if I ever am, I would try to pass along some tips for their first job, like this:

 1.  Ask questions.

Your boss will give you assignments and tasks. The instructions will not be clear.  My niece interned in my office. Her first day in the office, I was meeting with a client. I called my niece on the intercom and asked her to bring two coffees to my office. She told me later that she had never made coffee before and didn’t know how to work the coffee machine. Now she has a PhD.

When I clerked for the Public Defender in law school, I was sitting next to him at counsel’s table taking notes, when turned to me abruptly and whispered urgently in the middle of a trial and said, “Run back to the office and draft a motion to suppress evidence.” That was my first motion and I had no clue how to draft it. That’s something they don’t teach you in law school. I was saved by Marjorie, the long-time secretary, who calmly pulled up an old one on her word processor and changed the names. Find the “Marjorie” in your organization and make friends with them.

Tom was the draftsman assigned to me when I worked as a chemical engineer at P&G. I designed, on paper, a tank to hold Toluene, which is a flammable liquid chemical used in making soap. I used pressure, volume, humidity, and temperature in my equations to calculated the size of the tank needed. But it was Tom who told me about the quick-connect flanges that would help the truck drivers load the tank so they wouldn’t be cursing the engineers who designed it. They didn’t teach that in engineering school.

The guys at the P&G plant in Hamilton, Ontario, wanted an air pressure line to deliver a soap making slurry to them so they would not have to move it across the plant in wheelbarrows. I designed a system that would do the job theoretically according to my equations. But again, it was Tom, who pulled out the blueprints for the plant to make sure there was room for me to run the pipes.

2.  Make a To Do List Each Morning.

I had a great boss at P&G. He was a quintessential engineer. When he assigned a job to me, he would pull out a little blue-green sticky pad, and in a very log key, calm manner, make a neat numbered list of the tasks that needed to be completed.

If you’re good, you will soon find yourself overwhelmed with too much to do. I had a paralegal who was very good at her job. But she suffered because she always wanted to give everything 100%. Perfection became the enemy of results.

Don’t lose sight of the 80/20 rule. That is 80% of the value lies in 20% of the things. So if you have a list of 10 things to do today, and you accomplish the two most important tasks, you have finished 80% of your work. The rest is out-plant. Out-plant means try to delegate it to someone else.

3.  Attack Your Work. 

You can learn things from bad bosses. One of the meanest bosses I ever had taught me this. He would call me at home about a contract of tax issue I was working on. He didn’t just work, he attacked his work, with a vengeance until it was completely defeated. We all have those projects that we just don’t want to do.

Try this. I take the case file and put it in the center of my desk. I clean everything else off my desk. Then I sit on my hands and do nothing else for 20 minutes. At the end of the 20 minutes, I attack the file. It works for me.

4.  Get Your Points on the Scoreboard. 

I recommend you keep a log of the projects you work on and the completion dates. You can  turn the log into a memo at the end of each month to give to your boss as a “progress report.”  Your boss is usually not aware of everything you are doing. It is important that you not only score points, but that your points get on the scoreboard so everyone sees them.

5.  One Word.

My high school commencement speaker was Scott Zimmerman, a local disk jockey on the radio. Scott started his speech by saying he was going to give the graduates one word that would be the secret to success in whatever they wanted to accomplish. At the conclusion of the speech he said he would now reveal that one word. At his signal, two students unfurled a huge banner that had one word written across it.  That one word was “UGOTTAWANA”.

 

When you negotiate or mediate divorce settlements for a living like I do, sooner or later you get to a closed door. We call that an impasse.  Both parties grit their teeth, cross their arms, and dig in their heels. Further progress seems impossible.

I don’t have dynamite or a magic wand to open that door to get past a divorce settlement impasse. But I do have a couple of tricks I learned from Alice.

“Alice: I simply must get through!
Doorknob: Sorry, you’re much too big. Simply impassible.

Alice: You mean impossible?

Doorknob: No, impassible. Nothing’s impossible.”

— Alice in Wonderland by Lewis Carroll

Shrink the Divorce Case Impasse Down to Size

I just finished a divorce case that was too big.  There were too many issues to keep track of.  The disputes included temporary and permanent alimony, the country club membership, the house, utilities, the trust account, the IRAs, the 401(k)s, the bank accounts, the paramour, and the incomes and businesses owned by each party.  Moreover, everything was interrelated. Once you thought you had nailed down one dispute that caused an issue in another item.

How did Alice get through the impassable door that was too small for her?  She drank a potion and grew smaller.  She shrank her problem down to size.

When there are too many issues in a case, I think of Alice drinking that potion to grow smaller. I try to reduce a ten foot stack of issues to one number  — with a dollar sign in front of it.

I put everything we can agree on in the first paragraphs of the agreement. Then I put everything else in one paragraph as one number with a dollar sign in front of it. Reducing everything to one number sometimes works wonders. The parties are better able to bargain to a number they both can live with, and roll their many grievances into that one number, instead of squabbling about every slight during their marriage.

Break the Case Into Separate Pieces

Sometimes opening the door to break a divorce settlement impasse requires a different approach. My client wants custody of his children. His ex-wife wants to keep custody.  Tensions are high and this seems like an impossible impasse.

But nothing is impossible. You can eat an elephant if the pieces are small enough. I prefer the image of emptying the ocean one teaspoon at a time.

Let’s ask Alice. She finds a key on a table near the door, shrinks down to the right size, and finds that she has left the key on the table and is too small to reach it. Then she finds a cake that she eats and that causes her to grow inordinately tall.  She grabs the key and then drinks the liquid to become small again.

She has broken her problem into smaller pieces.

In the custody case, we started breaking the custody down into separate pieces like school, work, medical care, religion, homework, discipline, baby sitters, tv and video game schedules. Then we broke down the time-sharing schedule into weeks, days, hours, summers, holidays and vacations. It took a lot of time, but we were able to settle this case one piece at a time.

The next time you find yourself at an impossible door remember to ask Alice.