Work Email and The Attorney-Client Privilege

Email that you receive at your work email address may not be confidential.

Many people do not realize that email in your work email account may well belong to your employer, not you.  That is because your employer owns the system and provides the service to you.  And, you may well have signed something in your employee handbook by which you agreed to this fact.

This matters because under some situations, having an attorney send you emails at your work email address may waive the attorney-client privilege. 

That in turn means that there is some chance that an opposing attorney could force your employer to turn over the emails between you and your attorney that went to your work email account. 

The bottom line:  If you have an attorney, get a personal email account and have all emails from your attorney sent there.  And, as a broader rule, do not use your work email account for any personal business.  

Psycho Ex-Spouses

There is one big reason why I choose to represent divorce clients in collaborative divorce, mediation and other non-litigation processes:  Avoiding this

The story of The Psycho Ex Wife blog is awful.  It is the story of a couple with two children who were divorced but could not stop fighting.

Eventually, Anthony Morelli started the blog to essentially derogate his wife and say all of the nasty things about her that he could imagine.  And, to spread the love, he got his new wife involved in the fun.

I’m not sure how he thought this blog was in the best interests of his children.  As the judge in his case correctly pointed out, it seems unlikely that Morelli can adequately focus on both the best interests of his children and destroying their mother on the internet. 

In fact, child psychologists will tell you that one parent’s out of control anger towards the other will almost always have seriously negative implications for the children. After all, what kind of anger management is he modeling for his kids?  And, who really comes off as psycho?

However, based on the 200,000 visitors a month, and the number of visitors sharing their anger about an ex-spouse, it seems that this kind of nightmare divorce scenario is all too common these days. 

The good news is that there are good ways to get divorced without generating so much anger and hatred.  Is anger a natural emotion in a divorce?  Absolutely.   But, through collaborative divorce and mediation, the anger is processed and managed so that both parents and children can move on without having to live in the anger of the divorce for years down the road.

After all, what is the point of getting divorced if you are going to spend the rest of your life letting your ex-spouse still control so much of your time and energy?

Can you imagine what Anthony Morelli and his new wife could accomplish if they spent less time focusing on how angry they are, and invested that time into something more productive?   How much more time could they devote to their kids, their marriage, their careers, or, here’s a crazy thought, doing something constructive in the world?  And, how must the new wife feel about her husband being so wrapped up in his ex-wife? 

Bottom Line:  If you want to spend your days blogging about how crazy your ex is, then by all means, choose an adversarial process for your divorce.  Court rooms and hostile attorneys are the perfect recipe for that kind of post-divorce misery.

But, if you would actually like to move on from your divorce in some sort of healthy way so that you can focus on something other than how much you hate your ex, then collaborative divorce or mediation may be your answer.  

Divorce: The Danger of Learning From Others

Learning from the experience of others is a double-edged sword.  You can avoid a lot of mistakes by watching others make them first.  But, you can also fall into a lot of mistakes by assuming that your experiences will be like someone else’s. 

Case in point:  I know someone whose mother had a heart attack decades ago.  While hospitalized for the heart attack, her mother developed a serious complication.  The doctors caught it pretty late and some extensive tissue removal was required.  It was traumatic for my friend and the mother. 

My friend learned a lot from that experience.  Unfortunately, what she “learned” was that doctors cannot be trusted to take care of her.  What she took away from her mother’s experience was that she was better off staying away from doctors because she would probably end up worse off for trusting them.

This has, in turn, led to her to avoid doctors for decades.  She is now suffering from serious medical conditions that could perhaps have been avoided with regular care from a doctor.  Her quality of life has been seriously impacted.

She made the mistake of watching her mother’s experience and assuming that her experiences with doctors would be the same.

This same dynamic is endemic to divorce.  Many, if not most people going through a divorce will reach out to friends and family who have been through a divorce.  In many ways, this is a great thing.  It can provide support and succor in a very tough time.

Unfortunately, it usually comes with being given the gory details of the friends’ divorces.  And that can lead to the same unhealthy learning that affects my friend.

Many clients “learn” from their friends that divorce is a war.  They have learned that if you don’t strike first, then you will somehow suffer.  They learn that lawyers and ex-spouses are dangerous, ill intentioned creatures that must be combated at every turn.  They learn a false dichotomy of “fight or die”. 

They then assume that their divorce experience has to be like their friends’.   This causes more distress, worry, anxiety, fear, unnecessary aggression, cost and destruction than is warranted. 

Just like my friend, a divorcing spouse can find himself or herself suffering the affects of this assumption for a long time.

While some divorces certainly become very ugly and destructive affairs, typically that happens because the parties have unwittingly chosen that kind of divorce.  They may not have expressly agreed to have an ugly divorce.  But, the indelicate handling of their divorce has made the decision for them.

In my friend’s situation, the unseen reality has always been that doctors, in fact, provide a great deal of help to people.  Her mother’s experience was an anomaly. 

For divorcing couples, the reality is that dignified, respectful and even transformative divorces are common.  They are free to choose to not have an ugly, destructive divorce.  But, it requires a choice.

The bottom line is this:  Don’t assume that your divorce has to be like someone else’s.  You have options.  Your family and your marriage are unique.  Therefore, your divorce should be unique as well.  

Divorce Party: Honoring the Marriage in a Divorce

I just recently heard about divorce parties.  While I don’t know anybody that has thrown one, I think that the idea behind them has some wisdom and merit. 

This article about Jack White and Karen Elson’s divorce party points out that a divorce party can be a good thing.

White and Elson threw their party to “honor our time shared.”  

While it is admittedly idealistic, the idea of honoring the time that a married couple spent together, even after a divorce, seems like a valuable exercise.

After all, even in the case of divorce, the time during the marriage has value.  Often that time produces at least some good times for the couple.  It has often led to valued relationships with in-laws and friends.  And, given that many marriages produce children, that time cannot be simply discarded as wasted. 

I may well help the healing process of divorce for a couple to honor the marriage, even though it is ending.  After all, that time cannot be forgotten, cannot be recaptured and cannot be changed.  Choosing to view it in solely a negative light is often both unrealistic and unhealthy. 

While that doesn’t need to involve a divorce party in every case, it is worth acknowledging the value of the time spent together to help both people move forward in health.

Divorce Insurance, Pre-Nups and Co-habitation Agreements in North Carolina

As this recent New York Times article points out, some people are choosing to begin their marriage with the (potential) end in mind.

Pre-nuptial (a/k/a pre-marital) agreements have been around for a long time.  The new trend is that couples that cannot, or do not want to get married are choosing to put their understanding about how their relationship will work and how it will end in writing up front. 

 In North Carolina, same sex couples cannot be legally married.  So, a pre-marital agreement is not an option. Given that the number of same sex couples in North Carolina has risen 68% since 2000, cohabitation agreements may become far more popular.

For heterosexual couples that want to live together but choose not to marry, a pre-marital agreement is likewise useless.

But, both kinds of couples have the option of executing a co-habitation agreement. 

This kind of agreement can set forth the understanding of how the relationship will operate.  For instance, the terms can state that one partner will stay at home to raise children, while the other is expected to earn the family funds at work.  Or, it can state that both parties will work outside of the home. The agreement can state how many children each party expects to have or adopt, how many vacations the couple will take and even whether one of the partners is expected to cook meals (I have actually seen that).

More commonly, these co-habitation agreements pre-arrange how (but not if) the relationship will end.  The terms often set forth how assets and debts of the relationship will be handled in the event of a break-up.  They can dictate what process the parties will use to determine these issues in the event of the break-up (Collaborative Law, mediation, etc…). 

Some see these agreements as cold or anathema to romance. But many couples are comforted to know that they have agreed not to drag each other through a nasty court battle if things don’t work out.  And, having a discussion about big important issues and expectations before entering a long-term relationship is a good idea, even if it does not lead to an agreement. 

As for divorce insurance, one company (in North Carolina of all places) thinks it’s a great idea. 

From my point of view, the best insurance for your marriage is to discuss the big issues before you get married, and then commit to really truly communicating during the relationship.  Discussing the terms of a pre-nuptial agreement encourages that conversation far more than simply buying an insurance policy.  

Does Making Divorce Easier Protect Marriage?

I recently had a conversation with a Collaborative Divorce attorney in Rome, Italy (the internet is an amazing thing).  He told me that in Italy, a couple has to wait 5 years before a court will grant a divorce. 

 

I was stunned, as even the longest “cooling off” periods in the United States are not that long. 

 

He indicated that this lengthy waiting period might be having an interesting effect on marriage rates in Italy.  He felt strongly that the lengthy waiting period was actually driving the marriage rate down.  He observed that young people in Italy were more reluctant to get married because it was so hard to get out of the marriage if it went poorly.  He even indicated that this was a factor in a falling birth rate in Italy (apparently Italians are less inclined towards single parenthood than Americans).

 

In the Southern United States, and North Carolina particularly, laws are designed to protect and promote marriage.  North Carolina requires a one-year separation period before either party can even ask a court for a divorce.  Ostensibly, this is to prevent people from making hasty decisions about divorce.  The thinking is this: “If we make it hard to get divorced, then less people will get divorced.”

 

The Italian situation presents an interesting question though:  At what point do the lawmakers’ efforts to protect marriage actually start backfiring?  Is it possible that people in this country or this state are less inclined to marry because divorce is so hard?  Is it possible that our divorce laws are actually driving down the marriage rate, instead of driving down the divorce rate? 

 

I am not aware of any scientific research on this topic.  But, it presents an interesting policy debate.  Perhaps marriage as an institution is best served by making divorce easier, instead of harder.

Divorcing? Learn From LeBron

In emotionally charged situation, its not so much what you do, but how you do it.

Just ask LeBron James.

One of my colleagues is a Cleveland native.  I never understood why the people in Cleveland hated James so much after he left.  After all, he had created a lot of money and good will for Cleveland for years (about $300 million per year according to one estimate). Then I talked to my colleague.  He explained that it wasn’t the fact that LeBron left.  Rather it was how he left that caused the hard feelings.  James’ timing, and the show he made of his signing with Miami kind of rubbed it in Cleveland’s face.  Clevelanders feel that James hurt his old team as much as he could on the way out.  At the very least, they feel that he was coldly disrespectful in his departure process.

As a result, James is a pariah in Cleveland, and even in Ohio at large.  In case you didn’t know, James is a Cleveland native.  But, now he can’t even go home without hearing it from local fans.  He literally went from hometown hero to public enemy number one.  And only recently has he acknowledged this mistake.

James could easily have preserved his name and reputation in Cleveland if he had handled things in a more effective manner.

What does this have to do with divorce?

I don’t know of a much more emotionally charged situation than divorce. 

Like the James situation, divorcing couples are facing changes.  However, divorcing couples are facing a much more personal and emotionally charged situation than the melodramatic James debacle. 

The repercussions of a divorcing couples’ divorce process will have far more serious consequences for their children, families and financial lives than a sports story.

Therefore, the “how” of a divorce typically has a far greater impact than the actual decision to divorce.  Couples can choose to resolve their differences in the co-parenting and financial aspects of a divorce without losing their dignity or the respect of their spouse.  Or, they can choose to go about things in a deceitful, combative, and positional fashion. 

Couples can choose to work together in a collaborative divorce or even mediation.  Or, they can choose to go after each other in court. 

Child specialists will tell you that the way a couple divorces typically has more impact on a child than the fact that the parents are divorced.  Mental health experts will tell you that this is true for parents as well.

If you are considering a separation or divorce, then give some serious thought to how you handle that divorce

After all, as LeBron James learned, it’s not necessarily what you do, but how you do it.

 

Randolph (Tré) Morgan III is an avid sports fan and an experienced family law and collaborative divorce attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.  

 

The Divorce High Road

Historically, few people travelled the high road of divorce.  This has been true in the past because the adversarial nature of the American justice system creates a “me versus you” structure to divorce. 

However, as new “non-court” legal processes like mediation and collaborative divorce have developed, lawyers have been able to offer clients a chance to take the high road in resolving their child custody, alimony, property division, and child support issues (while usually saving untold amounts of time, money and destruction).  These processes reject the “me versus you” approach of the courts with a joint problem solving approach borrowed from psychology, business and politics.  

As highlighted by this Huffington Post article on taking the high road in divorce, most people’s greatest concern in their divorce is their children.  The article highlights how taking the high road actually protects children from the negative impacts of divorce. 

This divorcee’s story is an example of the changing face of divorce:  From fear based mudslinging to respectful and dignified discussions.   As the author’s personal story reveals, taking the high road is not the easiest road, but it is usually the best road.

 

Randolph (Tré) Morgan III is an experienced family law attorney catering his practice to clients who want to walk the high road of divorce in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.  

The Best Video on Collaborative Divorce

The International Academy of Collaborative Professionals has released a video that follows a real couple through their collaborative divorce.  These people are not actors.  

It provides the best idea of what the collaborative practice looks and feels like of any resources that I have seen.

If you or someone you know is contemplating a separation or divorce, please share this video with them.  It could literally have an impact on their families and children for years to come.  

It may be the biggest favor that you ever do for them.  

Horror Story: Estate Planning and Divorce

I got a call last week that serves as a cautionary tale for divorcing couples. 

I tell all clients that they need to review and revise their estate plan and the documents involved in that plan when they get divorced.  These documents include Wills, trust instruments, general powers of attorney, health care powers of attorney and beneficiary designations, among others.

However, understandably, many clients do not get around to following this advice.  Many people are emotionally spent during the divorce process.  The last thing they want to do is to go see an estate planning attorney to review documents that remind them of their ex and the life they used to have. 

So, if you are in that boat, let this tale motivate you to call an estate planning attorney today. 

The caller told me that her fiancé had been married in 2004 and divorced in 2010.  During the marriage, her fiancé had executed a durable power of attorney in favor of his then wife.  (Durable means that it survives the incapacitation of the person who executes the Power of Attorney).  Her fiancé recently suffered a medical condition that prevents him from rescinding the Power of Attorney.  So, this man’s ex-wife is exercising the broad authority granted under the Power of Attorney, including managing her ex-husband’s bank accounts and other finances.  And, his fiancé is powerless for now.

You might imagine the unpleasantness that this has caused.  And, it all could have been avoided by reviewing this man’s estate plan after his divorce.  

If you want to avoid your ex having a hand in your finances and other business after your divorce, take the time to review your estate plan as a part of your divorce.