Divorce – Divorcing Gracefully

Op Ed in The Daily Record by Morgan Foster

By Morgan E. Foster

Op Ed in The Daily Record by Morgan Foster

Published August 28, 2020
By: Morgan Foster

Most of the women I know — black and white, northern and southern, democrat and republican — embraced the “Challenge Accepted” social media campaign. Many participants saw this as a simple statement of women-supporting-women (and an opportunity to post a flattering black-and-white photo), but may not have known that campaign started as a way to call out the injustices in the Turkish judicial system for failing to hold perpetrators of domestic violence accountable. The widespread success of this campaign demonstrates that even in these divisive times, it is uncontroversial to acknowledge that that problems exists there – halfway around the world – but I think it’s time to hold a mirror up to our own system – and to recognize how far we still have to go.

Amidst all of the glamorous photos, you probably missed the article this week about the Bucks County, PA Judge who publicly apologized after telling a domestic violence victim, on the record, in open court, in the United States of America: “Little blond honey, you’re too dumb to leave [your abuser].”

As an attorney and litigator, I wish I could say his comment surprised me – but it didn’t. Judges are, after all, human and our judicial system reflects the misogyny, sexism, racism and other biases that still afflict our society at large – biases that seem amplified in this divisive and politically-charged climate. When a judge brings these biases into the judicial process, the biases become “systemic” not just societal – and they affect our access to justice.

In more than 15 years of practicing law, I have seen desperate faces of litigants amidst a highly contested case ask me again and again to predict what “the Court” will do and how “the system will deal with their particular problem. I know that in asking this question, they believe there is an answer. A fixed answer. A predictable answer. A right answer.

But as any experienced litigator can tell you, the outcome of litigation is often impossible to predict. There are many reasons for this uncertainty, but the one we talk about least is that “the Court” is made of human beings – all of whom bring the biases and experiences of their own life with them to the bench. I could present the same set of facts in three different courtrooms, to three different judges, and get three different outcomes. Anyone who knows the system from the inside knows this is true.

In many cases, this uncertainty is not a bad thing. Our judicial system is comprised of humans by design. The flexibility and nuance of a system organized this way has many benefits – like imbuing our judicial system with human empathy, pragmatism and creativity – rather than strictly dogmatic application of black-and-white rules. But it is precisely the “humanity” of our judicial system that makes it vulnerable.

There is a rich history of prejudices and wrong decisions in our judicial system, such as the Loving v. Virginia case from 1967 where the supreme court struck down laws banning interracial marriage after lower courts upheld them. Most landmark supreme court decisions (including Loving, Brown v. Board of Education, and others that have ended up in the canons of legal history) were overturning decisions by the lower courts (often upholding laws codifying bigotry). The system is designed to make corrections for itself when judges get it wrong. It is the beauty of our legal system. It is living and breathing. It evolves.

We think of our judicial system as among the most rigorous and incorruptible of our institutions – and I think that remains true – but it is not entirely impervious to the influence of changing societal norms and shifts in what might be “acceptable” prejudices. While the judicial system evolves in a positive way with social progress, it can also devolve if there is a resurgence of bigotry in our nation. We must recognize that our own brand of justice is fragile. It is human. Our own systems are just as vulnerable to corruption as those halfway around the world.

If we accept a society where expressions of overt bias by our leaders is acceptable, one where we become numb to corruption, or brush it off as an unsavory but necessary part of politics – then even our American institutions – the ones we have held up as the “envy of the world” for generations – will begin to erode just like those we see in those far-off places like Turkey. As we witness the politicization of historically a-political institutions like the Centers for Disease Control, the Food and Drug Administration and the Post Office, let us remember that our justice system is not immune from such influence. We must not take our own brand of justice for granted. Like any living, breathing thing it can be injured, or even die.

Guest Article by Jennifer Chino: The Divorce Realtor

By Guest Author

By: Jennifer Chino

Your house is probably your biggest asset and can often times be one of the biggest points of contention when divorcing. Here is a survival guide.

First and foremost, when going about selling your home, it is not as grueling as you think if you have trustworthy professionals advising you. Experiencing difficulties in your marriage is challenging whether it is amenable or contentious. When meeting clients who have decided to separate there are several pieces of advice I give them.

Guest Article by Elizabeth Pfenson: Your Digital Life During a Divorce (or Custody Case)

By Elizabeth A. Pfenson

Think about where your phone is most of the time. Your pocket? Think about how frequently you use your phone to text your partner or your friends, or your childcare provider. Constantly? Think about the pictures you share on Facebook or Instagram of your children and your outings. All of them? Privacy rights advocates have been telling us for years that we should be more careful about the information we post about ourselves online, and at the same time technology companies tempt us with secure and encrypted devices and programs, suggesting that we can keep our digital lives private.

Guest Article by Jane DeLashmutt O’Mara, CFP®: Retirement Planning (with Tips Specific to Women)

By Guest Author

Our clients often work with a CERTIFIED FINANCIAL PLANNER™ through divorce. This professional can help you determine what you need going forward based on your earning potential, age, spending habits, etc. This information is key in determining what you need (or can pay) from/to your spouse in the context of divorce. Below is a guest article by Jane O’Mara (see biographical information below) on the topic of Retirement Planning (with some Tips specific to Women). Whether you are a woman (or you are married to a woman) – this article provides an important snapshot of some items to consider in any divorce.

Guest Article by Susan M. Wyckoff: Can I Date before my Divorce is Finalized?

By Guest Author

By: Susan M. Wyckoff, Esquire

You are meeting with your divorce attorney who has answered your questions about adultery. You have discussed the legal definition of adultery, that adultery is one of the grounds for divorce in Maryland and whether you and/or your spouse have committed/condoned the same. You also discussed the fact that adultery is a misdemeanor in Maryland, which leads to a discussion of the grounds rules of asserting your privilege not to incriminate yourself. Armed with the law, at the end of the conversation, you sheepishly ask that awkward question. “When can I date?” Your attorney may want to say “when you are divorced.” Not satisfied with your attorney’s answer, you rephrase your question. “What I really want to know is, if my soon-to-be ex finds out that I’m dating during the separation/divorce process, will it negatively impact my case?”

As to how having sexual relations with someone other than your spouse will affect your divorce is fact driven. It should be evaluated by your attorney after they have had the opportunity to ask you detailed questions. Some issues that it might affect are alimony, custody, monetary award, and counsel fees. However, there are several other issues that arise when dating while married that merit discussion.

Know that if your case goes to litigation, you more than likely will be asked the following question either in the form of what is called an Interrogatory, during a deposition or at trial:

State whether you have had sexual relations with anyone other than your spouse at any time during your marriage and, if your answer is in the affirmative, identify each person with whom you have had sexual relations,[1] and the date and place of each such act of sexual relations.

You can see where a reasonable person would consider this question to be highly invasive and to answer it, particularly knowing other people may read/hear your answer, is embarrassing, harassing, and humiliating. However, the above question is standard in a family law case involving divorce. Very little, if anything can be done about past behavior, but when you are going through divorce and your life is under the proverbial microscope, it does give you pause to stop and think about how your actions will be viewed in the public eye of the litigation process.

You may be asked to produce your calendar, e-mails, texts, diary, photographs, social media sites, bank statements, cancelled checks, credit card statements, and numerous financial documents, as well as contracts or receipts reflecting trips that may provide details of your spending marital funds on a romantic partner. Members of your family, friends, and/or co-workers with knowledge of your dating and romantic relationship may be deposed and/or be called to testify at trial.

Your spouse may hire a private investigator to conduct surveillance on you and/or your paramour. Private investigators have been known to photograph and/or film parties having sexual relations with someone other than their spouse in public area, cars, etc. Private Investigators may then be called into Court to testify as to what they witnessed first-hand, along with presenting any photographs or videos to the Court.

One final thought when considering whether to begin dating while going through a divorce, is that the individual with whom you may have a very innocent dinner date may end up being dragged into your divorce litigation. That is not exactly the best beginning to a new romance, in my opinion.

[1] For purposes of this Interrogatory, “sexual relations” includes sexual intercourse, “sexual act” or “sexual contact” as defined in Maryland Criminal Law article §3-301.

Top 10 Surprises in Divorce

By Morgan E. Foster

(10) You will learn how much you DON’T know (don’t be an Ostrich!).

Whether a stay-at-home Dad or a jet-setting executive, we all work hard, have stress and are busy. One way we deal with this is to “divide and conquer” at home. Maybe in your household – your husband manages the bills and finances, while you organizes the children’s schedule… Maybe you convert all paper to electronic files and manage the family records, while your wife handles groceries and cooking… we do this because it is a survival mechanism… because “no one can do it all,” right?… well, if you are contemplating divorce, you will start to need to “do it all!”

“I Want a Shark” – How to Hire an Attorney

By Morgan E. Foster

You are contemplating divorce (or another family law issue), which means you are already experiencing conflict with someone close to you. You may feel betrayed and vulnerable – like you are being bullied and don’t know who to trust. Your first instinct may be to hire the strongest, most aggressive “shark” of a lawyer… but think before you jump head-first into those shark-infested waters. Your lawyer will be your team-mate (and your voice) throughout this process, so it is important to understand who will be the most effective advocate for you.

There are many articles about why “aggressive” lawyers are not always effective lawyers. Mark Baer, a California Family Law Attorney and Mediator, describes three reasons why aggressive attorneys are less effective at obtaining the desired results for their clients:

Aggressive Lawyers Are On The ‘Short-List’ – Judges do not care for ‘aggressive’ lawyers. Ask any judge, and they will tell you that they are worn out from baby-sitting lawyers who cannot get along with one another, who quibble over the most mundane aspects of their case, who accuse other lawyers of misdeeds, who complain about imagined slights, who hold hard-and-fast to deadlines without accommodation or courtesy, and the list goes on. Lawyers who place themselves on a judge’s ‘short list’ of intolerable lawyers are doing a great disservice to their clients. Regrettably, many of the lawyers who place themselves on the ‘short-list’ are either oblivious to (or ‘willfully dense’ to) how their attitude negatively impacts upon the court’s scheduling of matters, the court’s receptiveness to the lawyer’s concerns (‘Cry Wolf Syndrome’) or even, at times, the court’s rulings.
Aggressive Lawyers Get As Good As They Give– During my career, I have let other lawyers out of default or extended firm deadlines as a professional courtesy. I can hear the aggressive lawyers’ comment now – ‘You gave up your client’s advantage in exchange for courtesy!’ Not so. I can unequivocally state that in those cases, the outcome was positive for the clients and, in some cases, made more positive by acting professionally. Of course, there will always be those parties, or their lawyers, who precipitate a hard-line approach to the case. However, perhaps a better practice is to set a positive tone from the beginning before you come out swinging the day the client walks into your door. If you set a negative, aggressive tone from the outset, then do not be shocked when opposing counsel does not return your phone calls, does not grant you any extensions you request, does not work with you to complete discovery, etc. In all, what goes around does, indeed, come around. Hopefully, in all your years of practice, you will never miss a deadline or make a mistake. However, if that day should come, it would be best to have a reputation as being respected and a ‘lawyer’s lawyer’ than to be the attorney to whom everyone else is looking to dish out a little ‘payback.’
Good Lawyers Don’t Just ‘Try’ Cases; Good Lawyers Try to ‘Resolve’ Cases– Before I hop down off of my soapbox, there is one last point to be made. In the end, ‘scorched earth’ policies and aggressive behaviors do not benefit our clients (except in the movies). Family law attorneys can probably attest to this fact the most. Aggressive behaviors run up legal fees, destroy any real chance of cooperation between parents, and leave children as the victims of litigation. The same is true for civil litigation. Sparing with opposing counsel or writing threatening ‘paper tiger’ letters or emails is, in a word, useless. Whether you disagree with opposing counsel, or you just don’t like their politics, venting your frustrations, lobbing insults or threats, or engaging similar aggressive behaviors does not change the facts or the law of your case. Agree to disagree, spar like professionals, and kept your reputation as a ‘zealous’ and a ‘professional’ lawyer intact. In the end, you will earn the admiration of both the bench and the bar. Moreover, your clients will applaud you for your success and not your rancor. In the end, as we say here in the South, ‘you catch more flies with honey than with vinegar.’”

In my own experience, I have often witnessed adverse results for clients that originate with an overly aggressive approach (driven by an overly-aggressive lawyer or client). These fall into three major categories:

Missed Settlement Opportunities. Often (particularly early in a case) there are opportunities to settle either some of all of the case. For example, you may not agree with your spouse on how the bank accounts should be divided (or you may need more information on this issue), but you may agree on a custody schedule for your son. Any good lawyer will look into opportunities to settle. Overly aggressive attorneys often take outlandish positions (or take a “just say no”) approach trying to drive the terms of a negotiated settlement in their client’s direction. Sometimes this works. Often, it does not. If this overly aggressive approach fails – you may end up litigating an issue (like custody) that you could have resolved in settlement. The more issues that remain disputed at the time of trial, the longer and more expensive the trial will be – and the more you risk an adverse or unpredictable outcome.

Huge Attorneys’ Fees. It stands to reason that the more issues you’re fighting about, the more costly the battle will be. Perhaps a trial on financial matters would take 3 days, but a trial on financial matters and custody may take 6 days. You may not understand in advance that this will DOUBLE the cost of your trial (because it will double the time it takes to prepare and try the case). If you are walking away from a settlement opportunity, make sure you understand what it will cost you. Often overly-aggressive lawyers take an approach that leads to large trials on a multitude of issues – this may serve the lawyer (who is charging by the hour) but it may not result in a favorable outcome for you.

Failed Cost/Benefit Analysis. I have seen lawyers incur $10,000 of fees for a $500 issue. Even if they end up “winning” on that issue, you (the client) have lost, because you spent $10,000 to get $500. Overly-aggressive lawyers can be so focused on winning every issue that they lose sight of whether it makes sense to battle in the first place. A good attorney will advise you to choose your battles wisely – not every issue is worth going to the mats for.

When you meet with lawyers, here are some things to look out for:

Beware of Any Lawyer who is willing to be a “Mouthpiece” – you may be angry and emotional… you may want to “crush” your spouse… you may want to expose her shady business dealings or cause him to get fired from his job… while this may feel satisfying in the short term, it can HUGELY damage your own interests long-term (if your spouse loses her job, you may owe her child support or alimony). A good lawyer is NOT a mouthpiece, simply hired to regurgitate your thoughts and opinions…. A good lawyer will bring a measured, rational voice to the dialog and help you think strategically about making choices that will benefit you long-term. Sometimes that means being the bearer of bad news or taking a contrary position to you. When your lawyer pushes pack – Listen. If your lawyer does everything you say, she is likely not doing her job!
Beware of the “Over-Promise” – Many overly-aggressive lawyers start by building unrealistic expectations in their clients. They promise a “slam-dunk” in Court on various issues (sometimes as early as the first meeting – when it is virtually impossible to have enough information to make that sort of promise). Any good lawyer should help you understand the risks and potential pitfalls along with the potential “win”… If what your potential lawyer is saying sounds too good to be true – it probably is!
Awards or Accolades Can be Misleading – Many attorneys these days tout numerous “awards” but these can be the result of an effective marketing team (more than a top-quality practice). Here is an article by the Better Business Bureau cautioning consumers about so-called “vanity awards” for lawyers.

Here are some tips about hiring a lawyer:

The kinds of referrals you are likely to get depend on the questions you ask. Don’t just ask for “the shark”… think about asking for someone who is a creative problem solver, someone smart, someone who has expertise in your particular subject-area (maybe there is a complex trust involved in your case).
Hire someone who you are compatible with. Family law cases are VERY personal… it’s important to find someone who listens to you, understands your priorities and is able to effectively voice your perspective.
Understand what your goals are and work with your Attorney to ensure those goals are reasonable and attainable. If your goal is to walk away with everything – any good lawyer should tell you that’s unlikely. Having your lawyer help you develop realistic goals will allow you to make the smartest and most strategic decisions.
Have an Open Dialog about Cost and Budget both up front and along the way. Cases are expensive and any responsible attorney will be willing to discuss this issue with you to develop a realistic plan and strategy.
Get a second opinion – any good lawyer will be open to you seeking a second opinion. I am always willing to get on the phone with another lawyer and talk through differing strategies or work together to develop the best plan. If you’re skeptical about whether you’re getting the best advice, talk to someone else. I even refer my clients to other lawyers I respect (or offer to bring another expert in) if we are facing a particularly challenging issue.

Practical questions to ask when you “interview” a lawyer:

What makes your approach unique compared with other lawyers?
How do they communicate – office phone, e-mail, cell phone, text?
Are there extra charges for contacting your lawyer outside of regular business hours?
What cost-saving measures can they recommend to manage fees in your case?
Are there opportunities for mediation or arbitration to explore settlement?
What happens if you have an emergency and can’t reach your lawyer?
Payment methods accepted (check, credit card?)
Billing frequency and method (monthly? By e-mail?) and due-date for payment?
Budget for the case and what will drive the expense?

Finally, remember this: the court views your side of the case as YOU … so the things your lawyer says and does will be attributable to YOU. If your lawyer advises you to do something that the court disapproves of, YOU are the one who will pay the price, not your lawyer… so if you feel the attorney you are meeting with is untrustworthy or does not share your philosophy or approach to your case, keep looking!

Guest Article by Susan M. Wyckoff: I Found my Husband on Tinder!

By Guest Author

By: Susan M. Wyckoff, Esquire

Imagine being out with your girlfriends…an innocent night of girl talk while enjoying a few tapas and some wine. One of your friends who has recently re-entered the single scene shows you the dating website she has been trying out. You have been happily married for several years, so you have been out of the dating scene, but of course, are naturally curious. What harm could possibly come from watching your single friend search for the new love of her life?

Your friend opens up her Tinder page, shows you her profile and explains how it works – various pictures of men will appear, most of which will have the man’s name and age in the lower left hand corner, some of which may have a brief profile, including his profession and workplace… swipe left if you are not interested or swipe right if you are interested. If she “swipes right,” and the man in the photo “swipes right” on her photo, there will be a match, and potentially an online conversation that will hopefully lead to a meetup. Riveting! While swiping through the photos, you see various pictures of men, some attractive, some not. You and your friends have an innocent laugh or two, until one photo suddenly makes your heart sink …the man in the photo IS YOUR HUSBAND! It takes your girlfriends a minute longer to recognize him, but suddenly everyone is silent in disbelief. What do you do?

Ask your friend to take a screen shot of every picture and every word of the profile.
Then ask your friend to text or e-mail the photos to another friend. Do not text or e-mail the photos to yourself yet, in the event that your spouse, or worse, your children, have access to your e-mail or text messages.
If your husband has never met your friend, ask her to swipe right to see if there is a match.
If there is a match let him initiate the conversation, and if, and when he does, have your girlfriend takes screen shots of all of the direct messaging.

At this point, you may be tempted to take matters into your own hands such as having your girlfriend set up a meeting with him where you appear with your other friends – very, very bad idea. It is highly unlikely that you will have any productive conversation with your spouse about his or her on-line dating presence. In addition, if you confront your spouse, you are not only putting yourself at a disadvantage as to discovering all of the facts, but you are also putting your spouse on notice to try to cover-up his or her behavior.

The next step is to contact an attorney who is experienced in the area of family law as it is now time for you understand what rights you have and do not have. In addition, the attorney may refer you to a private investigator for further investigation of your spouse’s conduct. Your attorney should also be familiar with companies that are able to legally and defensibly capture, preserve and analyze web content. Consulting with a family law attorney, does not always lead to a separation or divorce, but it should lead you to being educated on the law and access to the appropriate professional resources.

There are a number of internet search sites, such as Spokeo, that will assist you in finding out if your spouse has an internet dating profile by running a search of your spouse’s e-mail address. These sites costs money and may be a good start provided that your spouse is not very clever. If your spouse is clever, he or she may have taken the precaution of buying with cash a disposable smart phone with prepaid minutes and creating a new e-mail account with that unknown, hard to trace number. Once he or she has the new e-mail account, he or she will be able to open a Facebook page and use same to create a profile on Tinder, Bumble, Grinder, etc.

An initial consultation with a qualified family law attorney will more than likely cost you between $250 and $500 depending upon the attorney’s experience and the nature of the case; however, when you are considering that the well-being and financial future of you and your children, and that thousands to millions of dollars of marital assets are at issue, spending an initial consultation fee to get your ducks in a row is very wise.