Author Archive

A Legal Definition for Emojis?

In yet another example of society outpacing the law, the courts are being asked to interpret what emojis mean, legally.  

As a person who has experienced some emoji confusion myself, I can see this being yet another giant question mark in divorce and family law cases (yet another question that has to be answered with “it depends”).  (Sadly, I thought the steam emoji meant anger until I read this article.  Don’t tell my wife or kids how lame I am). 

As the article points out, each emoji has a cultural significance, and even subcultures within subcultures can interpret them differently. 

This is a morass for judges (and therefore lawyers) of every age, but as mentioned in the article, especially for the older judges that did not grow up using emojis (or cell phones or text messages for that matter).  

As a half joking, half serious question, are we going to need interpreters for emojis at some point? 

Some other questions that come to mind: Am I going to have to buy a new Black’s Law Dictionary for the first time ever because they define emojis?  Will the emojis go at the beginning of the dictionary or the end?  In an appendix?  Are lawyers going to be allowed or banned from communicating with each via emojis?  

The issue can have serious repercussions in family cases, especially domestic violence and child custody cases where issues of threats, insults, degradation, and tone of communication can make all of the difference in a judge’s eyes.  How many judges are prepared to read that tone accurately?

I’m not aware of any North Carolina cases that have tackled emojis in general, or specific emojis and their meaning.  But, at some point, it is going to happen.  And the ramifications will be fascinating.

 

The Downside of Marriage?

As a society and culture, most of us view marriage as an unqualified positive.  A hard thing.  But a positive and beneficial thing.

This article from The Atlantic explores what people may be giving up when they get married.  These losses can include extended support networks and opportunities to grow your other relationships and resources.  These are not a necessary result of marriage, but as the article argues, they are frequent results.

The article touches on several points that I find fascinating, from the impact of same-sex marriage on the couples’ activity level in the LGBTQ community, to the pressure put on marriage by the loss of external support systems, to the potential benefits of marriage alternatives, to the question of whether marriage or stability is best for kids (and are they the same thing?).  

I read a fair number of articles on family, culture, and society and this is one of the most thought-provoking I’ve read in a long while.  I hope you find it useful as well. 

Are Your Rights the Right Perspective?

One of the first things that come to mind for anyone when they realize that they are going to be divorced is “What are my rights?”.

Typically what people mean is “What laws can I use to impose my will on the outcome?”  That is a smart and reasonable question.

However, it is seldom the most important question.  Rights are essentially laws that you can seek to utilize to help achieve your desired outcome.  But, they are just one tool that can be used to achieve an outcome, and they frequently come with unintended and unwanted consequences.

For example, each parent has the right to file a custody action and ask for sole primary and physical custody of a child.  The problem with that is that in most North Carolina cases neither parent is going to be given sole legal or physical custody of a child.  And, the government has now been invited into your family and will assume control of key aspects of how you parent your child. Another common example:  You have the right to refuse to take your kids to activities that interfere with your time.  But, that may have negative consequences for your child. 

In a similar vein, you may have the right to own half of a business, but if that change of ownership leads to the destruction of the business, you may lose the benefit of the income that business provides.

The point is that the outcomes that result from exercising every right you have may not be your best outcomes.

Instead, the more productive focus is what’s in your best interest?  It may be that exercising some of your rights and choosing to not exercise others actually leads to a better outcome for you. If you are so focused on “your rights” that you lose sight of other options, then you lose out on outcomes that may serve you better. 

Knowing your legal rights is certainly a necessary part of making an educated decision in divorce.  But, making those rights the sole focus of your efforts is not necessarily going to produce your best outcome. 

Great Expectations

Clients frequently ask me in a first consult how long a collaborative divorce process takes. And I spend a lot of time thinking about what makes cases so different and why some move faster than others. One of the biggest variables I’ve found is the set of expectations that clients bring into a case. Some clients bring in very few expectations about the end result. Some bring in great expectations about the ultimate outcome. In my experience, clients have more efficient, faster, and less expensive processes when neither party brings unrealistic or rigid expectations to a divorce process. The reason is that an attorney has to spend a lot of time managing these expectations and working to create the flexibility and open-mindedness that produce the best and most efficient results.  I can’t tell you how many times I’ve heard the phrase “managing client expectations” in seminars for family law attorneys. The truth is that in all but the most extreme cases neither party can impose results or outcomes on the other, even (and maybe especially) in court. The vast majority of divorce and family law matters are resolved by mutual agreement. And mutual agreement obviously does not involve imposing outcomes on one another. To be clear, expectations are different than hopes, concerns, and goals. Hopes, concerns, and goals are helpful and necessary for identifying what is important to a client. Rigid expectations are counterproductive because they reduce the ability to think creatively, brainstorm possible solutions, and work collaboratively to find the best solutions. Expectations often cause people to “anchor” on a particular strategy or outcome and develop tunnel vision. That causes people to miss important, beneficial, and helpful alternatives. So, if you are seeking the most efficient, productive, and beneficial divorce negotiation process, then challenge yourself to avoid overly rigid or unrealistic expectations in the beginning. It will save you time, money, and stress in finding your family’s new path.

Divorcing Without Losing Your Communities

One of the saddest, but most common losses in divorce occurs when one or both spouses lose their communities as a result of the divorce (perhaps even sadder is when divorce causes children to lose their communities, but that is another story for another day).  

These communities are diverse and take many forms.  They are neighborhoods, social friendships, church families, extended families, work families, and in-laws among others.  These communities can even be clients, referral sources, and other networks that are foundational to your livelihood.

We are all familiar with this, having either been the divorcing spouse feeling shunned or anxious about how those communities will receive us. Or, as the community member unsure of what to say, whether to reach out or how to navigate the waters of someone else’s divorce. 

The question is how to prevent it.  The answer lies largely in how the spouses handle their divorce.

In general, the less conflict involved in a divorce, the fewer community relationships suffer. Just as children are highly sensitive to the conflict in their family, communities are highly sensitive to conflict among its members.

Every divorce has conflict.  For that matter, every happy marriage has conflict.  The difference is that in cases where communities are lost, the conflict has spilled over to community members. A spouse is sharing negative information about the other with the community.  Conflict erupts into arguments in front of friends or family.  In seeking support from their communities, spouses sometimes “poison the well” for the other spouse, intentionally or not.  

When conflict spills over to the community, the community rarely knows how to react appropriately.  Most communities are not trained to manage that conflict.  They don’t know how to support both spouses without shunning either of them. 

The best way that I know to get through a divorce without losing your communities is to adopt a divorce process that can contain the conflict so that it does not spill over into other areas of your life.  

While all divorce processes have pros and cons, some are designed to contain conflict, while others are designed (intentionally or not) to intensify conflict. For example, court processes are designed to contain conflict in the sense that it substitutes for vigilante justice. But an adversarial court process is not designed to avoid collateral damage to your communities.  In fact, your communities are often dragged into court as witnesses. Mediation is designed to contain conflict before it spills over to trial. But mediation is most often highly leveraged based on strong-arm tactics, increasing the odds that the conflict spills over into communities, even if it avoids more courtroom time. 

The best process for containing conflict, and preventing it from costing you your communities in divorce is the Collaborative Process.  There are many reasons, but they all come back to the fact that experienced collaborative attorneys are extensively trained and committed to handle conflict, even highly emotional conflict, productively, by de-escalating it and channeling that energy it into problem-solving without becoming adversarial with each other or the clients.

If you are facing a divorce, then give some thought to preserving your communities, and how to do that.  Give some thought to the collaborative process.

 

Real Life Recipe for Co-Parenting Success

Recipe BoxYears ago, we had a friend and neighbor that had the best co-parenting relationship with an ex-spouse that I’d ever seen.  Her husband frequently spent the night at her house to watch their daughter when she had to be out of town.  I never heard a cross word between them, and they had nothing but good things to say about each other in the presence of others.

After observing how well they co-parented for a year or so, I finally asked her how they did it.  How did they create such an incredible relationship to co-parent their daughter after a (not rainbows and unicorns) divorce?

Here is what she said:

There were actually a few rules we put into place early on that we both agreed to:

1) [Our daughter] comes first.  We came to realize eventually that it wasn’t about us anymore, it was about her.  Our feelings about each other were irrelevant; her feelings about us and herself were the most important thing.

2) Don’t talk about the other to [our daughter] and don’t allow family members to do so either.  We didn’t want her to have to figure out whether it was OK for her to love one of us if we hated each other.

3) We talked to each other almost every day after the separation and subsequent divorce because one of us would call [our daughter] to say goodnight.  I actually believe we worked through a great deal of the anger and the emotions by talking every day.  Even if it mainly consisted of conversations like ‘[our daughter] was sick today and stayed home from school.  When you pick her up later, she may need Motrin.’ We actually inadvertently worked through our own issues by focusing on [our daughter’s] well being.

I hated talking to him every day, oh by the way, that was one of the hardest things I did that first year, but [our daughter] was [young] and she needed us both, just like she does now.

I could talk about how impressive and healthy this is forever.  But, to me, the most important thing was that she hated talking to her ex, but did it every day for the benefit of her daughter.  She and her ex made it about their child, not because they didn’t have hard feelings, but despite those hard feelings.

Surely, their journey was more complex and more challenging that can be reflected in her few paragraphs of wisdom. But, hopefully, their blueprint helps you in your efforts to co-parent your children through a separation and divorce.

Why You Shouldn’t Let Your Attorney Take Over Your Divorce

“I hear and I forget.  I see and I remember.  I do and I understand.” – Confucius Divorce is often a confusing, anxious time.  People often report feeling as if they are the mercy of “the system”,  the law, their spouse, the attorneys, or the courts in their divorce.  This feeling of helplessness and loss of control only exacerbates the already difficult feelings of loss, grief, and worry that come with any divorce. Ironically, people frequently respond to these feelings by relinquishing more control and letting their attorneys and the courts take over their divorce process.  They are consulted periodically, but the attorneys handle the financial analysis, the negotiation, the strategic decision making and the other important parts of a divorce case.  The courts dictate the what, when and where. In my view, this is counterproductive because it only adds to the feelings of anxiety and loss of control.  It provides a short-term feeling of relief because it takes some things off of your plate in the short term. But, long-term, it leads to less satisfactory outcomes for clients.  First, when you are not involved in the details of your divorce process, then you are far less likely to like your outcome over time.  You will not remember the decision-making process that led you to your outcome.  That may cause you to look back on your process and your outcome with confusion and doubt.  Second, when you are intimately involved in your divorce process, you will have far more understanding of the financial, legal and personal dynamics at play in your divorce.  You will not have to take your attorney’s word for what is going on and the possible solutions.  Instead, you will be processing it as it happens and be involved in generating the solutions to the issues.  That typically means that you will have a fuller understanding of how and why you reached the solutions that will shape your post-divorce life.  In my experience that leads to clients feeling more in control, more satisfied, and less victimized after their divorce. Third, many clients grow frustrated because so much of the work an attorney does is outside of the presence of the client.  A client will get a bill, but not have actually seen the work performed because they are largely detached from the work itself. In a collaborative process, the client is sitting beside their attorney for much of the time and has immediate knowledge of what their attorney is doing and how they are doing it.  There is much less “mystery time” involved in your legal fees when you are an active participant in your case. Certainly, some cases require you to involve the courts and litigation attorneys.  And no one gets to dictate the terms of their divorce just as they would like. But, there are enormous benefits to being an active participant in, and having a thorough understanding of the decisions and the decision-making process of your divorce.  The only way that I know to do that is to participate in a divorce process that involves you not delegating the analysis, problem-solving and decision making, but rather taking an active role with your attorney in those facets.  You do, and you understand.  

Being Divorced, But Not Broken

I received a message from a former client recently that reinforced and clarified for me why I focus my practice on helping people handle their divorce outside of an adversarial model. She indicated that now a year after their divorce her ex-husband comes to her home and brings dinner and sits down with her and their son to have dinner on a weekly basis.  (For context, this was not a couple that was trying to destroy each other, but there was plenty of difficult issues, hard feelings, hurt, and disagreements to make this a difficult case.) Hearing that struck a very important chord for me. That got me to thinking about why that outcome meant so much to me.  I realized that what meant the most to me in these outcomes is that people are not broken as a result of their divorce.  It is hard to define what broken is, but we’ve all seen it.  Some people are never the same after a divorce, they never get past it, they never find peace or love or satisfaction in life again.  They cannot fully commit to their new life or next relationship because their thoughts are dominated by ruminations on their divorce.  They cannot relate to their children (including adult children and even grandchildren) without mentioning their divorce.  Their divorce becomes the central event in their life and they never get past it.  It is that brokenness that I and my brethren work so hard to avoid. This is not to blame these people.  No one can blame someone for being devastated by a difficult event in their life. But, a difficult life event does not have to be traumatic.  Divorce is without question one of life’s most difficult events.  But what I seek to do, and what others who are truly committed to collaborative divorce and non-adversarial divorce processes seek to do, is to prevent a difficult divorce from becoming a traumatic divorce. Anyone who has litigated divorces for any real period of time knows that even the “winners” in court are often traumatized and broken by the experience.  “Winning” takes its own toll.  So, winning a divorce war is no protection from the trauma of the war.  There are plenty of broken winners walking out of family courts. And, importantly, my client’s son was not broken by his parents’ divorce.  His life changed, but it was not broken. The point is that is that while divorce will always be difficult, the reason that I do what I do, and the reason that you should look into handling your divorce in a non-adversarial process, is that you can be divorced without being broken.      

Saving Your Communities in Divorce

In a previous post I discussed that while there is loss in a divorce, many of the best things in your life can be saved in divorce if it is handled well. One of the most common, but unnecessary, losses that I see resulting from divorce is the loss of community.  Communities can be many things, church communities, neighborhood communities, co-worker communities, extended family communities, social group communities, etc… These communities serve one of our most fundamental needs, the need to belong.  As a result, they are crucial to our well being. Therefore, the loss of these communities can sometimes be the hardest losses to endure in divorce.  The good news is that losing these communities is almost always unnecessary. Sometimes a community is highly judgmental of divorcing couples, or one of the spouses in particular, and the community chooses to end a relationship on its own.  There is very little that a person can do about that. After all, we can only control our own behavior, not others’ reactions to our behavior. But, frequently these communities are lost due to the perceived level of conflict between the spouses and the group member’s discomfort with that conflict.  People often feel like they have to “choose sides” because they don’t think that they can manage a relationship with both spouses due to the conflict.  The discomfort of being around seething or embittered former spouses who are insulting each other or making ugly comments cause people to just avoid one or both spouses. While we as people who make up these communities can stand to find ways to be more comfortable with conflict, the reality is that saving your communities in divorce is largely up to the spouses. The best way that I know to save these community ties is to reduce the animosity and emotional behaviors in divorce.  While no process can eliminate all of the difficult emotions and social awkwardness of divorce, some divorce processes are designed to manage and reduce these dynamics while others either intentionally or unintentionally increase the animosity. The less conflict and anger you and your spouse display the less discomfort your social communities will experience around you.  And the more comfortable these communities are around you and your spouse, the less likely you are to lose these communities and the relationships that mean so much in your life and even the lives of your children. While no divorce process is perfect, give some thought to how important your communities are to you and your family and how you can preserve them as you move through your divorce.

Getting Your Divorce Ship to Shore

I am sometimes asked by prospective clients “Why do we need lawyers when we basically agree on everything already?”  It is a fair, logical and reasonable question. One analogy that I use (with some poetic license) to explain this is that divorce is akin to a sea voyage.  You have to get from where you are, which is knowing that you are separating, to where you want to be (want is a relative term here), which is having the legal and other issues of your divorce resolved so everyone can begin healing and building new futures.  And you have to do that while protecting the precious cargo of your children, your life savings, and your mental health. Like a voyage, the divorce process often feels long, difficult, dangerous, and harrowing.  It frequently feels like you are subject to forces outside your control and you wonder how and whether the experience will ever end. You know your ship and cargo, but you don’t know the waters.  You know yourself, your spouse, your children, your finances, your goals, and your worries.  But, you don’t know divorce law, you’re not a trained expert at negotiation, and you’ve never sailed into this particular port. The real value of a divorce attorney is that they know what you don’t know.  They know the waters, currents, shoals, and the shifting sandbars of the law and tax code.  They are your harbor pilot.  They get you the last but hardest bit of the way to your resolution. If you are lucky, then you and your spouse can safely sail the ship a good bit of the way yourselves, agreeing to the basic terms of how you will co-parent your children, provide for their financial support, divide your property and debts, and meet the financial needs of two households. But even in that case, you will need good harbor pilots to get the ship safely to the dock and avoid the unknown, unforeseen, and hidden dangers that lurk beneath the surface of this unfamiliar harbor.  There are many hidden details to be sorted out in any divorce, traps that can wreck your agreements, and channels that you may not have seen that may better suit your case. In truth, in most cases, divorce attorneys are needed for the entire voyage.  But even in cases where you can handle most of the journey yourself, you will need a good harbor pilot to get you safely to the dock.  Most lawyers who have practiced long enough have seen a case break apart on a rock that the parties never saw coming.  A good lawyer can help you avoid that rock and safely reach the end of your divorce journey.