Monday, September 30, 2013

Welcome October?

I won't kid you.  I love birthdays.  I love making them at least a week-long celebration.  It's easy for me to make the entire month of October a birthday celebration, as daughter's birthday is exactly two weeks after mine. We just roll from one birthday to another.  This year, however, my birthday falls on the three month memorial of my dad's death.  Already I'm guessing that this birthday will be a bit bittersweet.  After all, how many people count a visit to their father's grave as part of the birthday celebration?  You may be asking how all of this relates to the Trenches, but you know I'll find a way.  You also know I've been there.  How many years will it take before you can pass your anniversary and your former spouse's birthday without it feeling weird that you're not celebrating?  How long before the new way you're celebrating Christmas, Thanksgiving,  Rosh Hashanah or Yom Kippur feels right instead of strange?  Quite a while.  Eventually though, you find your way to your new normal.  It will happen, trust me.  It just takes time.   Here in the Trenches.

Tuesday, September 24, 2013

Baby Veronica

As you all may have read in the news today, Baby Veronica was reunited with her adoptive parents and has left the state of Oklahoma (finally!) to head home to South Carolina.  The case is over and everyone can move on with their lives.  Swift justice indeed - it took only 3 or so years for the case to work its way from original adoption, to the U.S. Supreme Court  and back again to South Carolina, to an Oklahoma Court that stayed enforcement of the South Carolina order, to the birth father being charged criminally, and finally to the stay lifting and Veronica heading home. In the Trenches, that really is pretty fast.  Lots of lawyers (including some of my friends here in the Trenches) worked very hard to make that happen.  Good work!
When clients ask how long a case can take, I try to tell them that the only way you can predict the length of a case is to stay out of court.  When you mediate, collaborate or negotiate, you can control the pace of the settlement of the case, you can control how much time to spend on what, how much importance to give to facts and issues, and most importantly, when to compromise and move on.  Otherwise, the court determines how much time the case takes, at least initially. Someone is usually disappointed.  How disappointed they are determines whether they take an appeal.  If the judge did make a mistake, you come back to the trial court and do it again.  That's called a remand.  Maybe there's another appeal after a remand.  We can do this over and over again, and some people do.   Oh, and did I mention that you probably won't get that initial trial date until somewhere 6 to 7 months down the road, an appeal takes 9 months to a year,  and then you go down and start all over again.  Cases on remand from an appeal don't get to cut the line, so they get set in as if they were just filed.  And on it goes.  Which way would you like to spend years of your life - in court or moving on?  Here in the Trenches.

Thursday, September 19, 2013

Income and Child Support

I don't usually talk about substantive issues on this blog.  Today, I make one of my exceptions.  Let's talk income.  Not income for tax purposes.  Not income as in money you can spend.  I want to talk about income for child support purposes.  You see, what we consider income here in the Trenches isn't necessarily what clients consider income.  Hence, a short primer on income in the Trenches.  Income here in the Trenches is any money, services, or gifts received on a regular basis, or as a result of employment, which reduces the living expenses of the recipient.  That means if your business pays for your cell phone which you use for both personal and business purposes, your health insurance, your car expenses, or for your uniform, those amounts are considered income to you here in the Trenches.  If your parents give you money to live on every year, if you live with Mom and Dad for free, or if Mom and Dad let you live in a house they own and don't charge you for it, that can be considered income here in the Trenches.
If you have your own business, there are a lot of legitimate IRS deductions that the court can and will add back into your income.  Yes, I know depreciation is a legitimate expense, but it's only one on paper; we consider it income here in the Trenches.  If you have a home based business, unless it's a landscaping business, the IRS understands you need to make the grounds of your office look good to impress clients, but here in the Trenches, it's probably income.  Same thing for nice dishes to serve clients coffee and snacks, if you also use them to eat dinner.  Meals out?  Are they staff meals for your office of one, or are they for entertaining clients?  It makes a difference here in the Trenches whether we consider them income or a true business expense.  Remember, if it decreases your need to pay for your living expenses personally or it is only an expense on paper, we here in the Trenches don't care what the IRS says.  It's income.  But wait, there's more.  Did you loan your business money?  Is it a true loan or an infusion of equity?  We know there are legitimate reasons for both.  One, however, is a liability of the company and may have an effect on income; the other has little to no effect on income.  The difficulty is that legitimate business purposes and Trenches income sometimes work at cross purposes.  It's enough to give you heartburn.  Here in the Trenches.

Wednesday, September 18, 2013

All Dressed Up and Nowhere to Go

There is one aspect of life here in the Trenches that is hard for us to explain and for clients to understand.  How do you explain that the judge doesn't want to hear your case?  That the prosecutor doesn't want to move forward with the charges?  It doesn't feel fair.  It's their jobs, right?  We pay them to hear the evidence and make a decision, and to prosecute the accused.  They're hired and appointed to make decisions and to keep us safe.  So why isn't that happening?  Here in the Trenches, we've been on both the attorney and the client side of that conundrum.  As attorneys, we tell our clients that we understand that it doesn't feel fair, we know this is not how the process is supposed to work, but that's what happens sometimes.  It's all part of the judicial system.   Sometimes, there are good reasons why a prosecutor doesn't want to try a case, and why a judge doesn't want to hold a trial.  It really doesn't matter to the client.  They feel scared, betrayed, frustrated, and disappointed.  I don't blame them.  Here in the Trenches.

Monday, September 16, 2013

Some of you may remember the trials and tribulations of my backyard.  That's a picture of it, finally finished up above.   Now, my front yard, that little postage stamp with the apple tree that bears bushels of fruit each year, needs to be redone.  I agonized over it.  I had in mind something different than the backyard, perhaps a cottage feel.  I poured over books and websites.  I sat across the street and stared at it.  I could not make a decision.  I thought it was because I was tired, not in the mood, unmotivated.  Then, this morning, I started thinking about the apple tree.  What did it need under and around it?  Should I do something special to take care of it?  Turns out that apple trees have special needs.  There are a lot of plants you shouldn't grow under them, and some you should.  I looked up those plants.  I sat down with pencil, paper and the internet.  In an hour, I had the garden planned and the plants ordered.
Life in the Trenches is kind of like planning a garden.  Usually, you have a plan for how a case should progress, and clients have an idea of how their case should go and how the issues should resolve.  Many times, those plans work out and the case concludes satisfactorily.  Sometimes, however, the case just doesn't progress the way it should.  No matter what you try, you can't mesh the other side's needs with those of your client.  Your strategy isn't one with which your client is completely comfortable.  The case feels more difficult than it needs to be.  What's called for in that situation is a step back.  Both the lawyer and the client need to review the client's story and reassess the facts.  Usually, one or the other can find another way to look at the facts, another way to approach the case, another way to move forward with their life.  Suddenly, everything in the case seems easier, a resolution presents itself, compromise is possible and the case resolves.  Here in the Trenches.

Wednesday, September 11, 2013

Act in Haste; Repent at Leisure.

Hitting "send" or "post" takes a second, but what is posted or sent lasts forever.  How many times have I written about Facebook, Linked In, My Space, Twitter and the like?  Not enough, obviously, as here I am, needing to write it again.  Just because you can post something, doesn't mean you should.  Can you please think before you put it out on the internet?  Think about the repercussions of what you're putting out there.  If you're in the middle of a child support modification case, don't post pictures of yourself on expensive vacations, going to exclusive clubs, sending your doggie to daycare, and the like.  If you're in the middle of a child custody case, pictures of yourself partying, drinking, in skimpy clothes, hanging on a different member of the opposite sex every day, are not good to post.  If you're claiming you're disabled, pictures of yourself running around town, exercising and talking about how busy you are is generally not smart either.  The sad part of all this is that under normal circumstances, any of these postings is not damaging, but under the circumstances of a particular case, they're crushing.  The truly tragic part of all this is that at the time each of these things were posted, there was no child support modification, no custody case and no claim of disability.  It is only later, when each of those legal issues raised their ugly heads, that the posts became important.  The point is to be careful as to what put out in the public domain; even though it may not seem harmful at the time, the more the world knows about you, the more it can be used against you.  Plus, it never goes away but exists forever.  Here in the Trenches.

Tuesday, September 10, 2013

I Don't Wanna

Your children did not ask you to divorce.  They did not cause the divorce.  They don't want it.  They are.....children.  I know - shocking.  Children will always want you and your spouse to be married.  They always want to have their family intact.  If you had your druthers, you would want that too.  The things that make you either no longer love your spouse or no longer be able to live with your spouse are generally (and there are exceptions) not things that make your children not want to live with their other parent.  For your children, the separation is an unwelcome shock.  They do not have the life experience to deal with the emotions and the changes that divorce brings.  That means that it takes them longer to get used to their divided family and the permanence of the situation.  You may have moved on 3 or 6 months after you separated, but your children have not.  They need time, and they need you to understand that.  Sure, to you looking at a new home is exciting and represents a new beginning; to your children it represents confirmation that their lives will never be the same.  Most parents are aghast if you ask them to nest in the marital home, where the parents and not the children rotate in and out of residence, for the next 10-15 years. Yet, that is exactly what they ask their children to do, and to be happy and excited about it.  They aren't; and they will never be.  Resigned to it, used to it?  Yes.  Happy about it? No.  Understand that and slow down, even if it inconveniences you; your children will thank you for it.  Here in the Trenches.

Monday, September 9, 2013

Sometimes, People Surprise You

Nothing really surprises me anymore.  I know, you expect that from folks who work here in the Trenches.  Today, however, I was bowled over, rendered speechless, and had my faith in human nature renewed.  Once upon a time, 4 or so years ago, I had a client.  She was a good client.  She didn't earn a lot of money, but we came to an arrangement of how much she could pay me and when. She kept her part of the bargain.  When things were tough and she couldn't pay for a few months, she called me to let me know and to tell me when she could pay again.  She always kept her word.  Then she got cancer.  She called me.  She told me.  I cried; she's a young woman with a young child and such a nice person.  But I digress from my story.  She, obviously, wasn't working and couldn't pay.  She told me.  She kept me up to date.  We here in the Trenches talked and decided to write off her balance.  It wasn't an insubstantial amount, but it wasn't a lot.  I told her what we decided and why.  We told her not to worry about it, that it was our gift to her.  That was in 2011.  She called today and paid her bill in full.  That's right - paid her bill in full.  We told her she didn't have to, that it was our gift to her.  She insisted.  She said we were there for her when she needed us, we understood when she was sick.  She's still not well, but she's back to work and her finances are in good shape, so she wanted to pay her debts.  Wow.   I wish I could say this rarely happens, but I wouldn't be telling the truth.  This has never happened before.  I have no words - except "Thank you."  Here in the Trenches.

Thursday, September 5, 2013

Hoorah for Diana Nyad!

Little known fact:  Diana Nyad went to my high school.  Sure, she graduated when I was but a wee tyke (stop laughing), but we do share an alma mater.  One hopes that a little piece of her rubbed off on me just by walking the same halls.  Truly, she is incredible, and a role model for so many in the Trenches.  For those of you who have been away from the media, or who have somehow managed to miss the news this week, Ms. Nyad became the first person to swim from Cuba to the United States without a shark cage.  If that isn't incredible enough, she swam 110 miles without leaving the water.  The swim took 53 hours, that's right, 53 hours.  I'm already in awe at this point, but we haven't gotten to the most amazing part of her swim.  It was her fifth attempt since 1978, she took 30 years off in the middle, and she is 64 years old.  Yes, I said 64.  Think about it.  Not only is she at an age where most people think she should be slowing down, but she also managed to convince 30 people to be part of her team for the swim, and convince sponsors to put up their cold hard cash so she could afford the training, the crew and the equipment necessary for such a feat.  That cannot have been easy for a 64 year old woman to do.  Yet she did it.
Sorry to tell all of you in the Trenches, but Ms. Nyad has really hurt many of you in the Trenches.  We ask our clients constantly what they want to do in the next chapter of their lives (post divorce).  Many have a plan.  So many do not, and they tell us how they can't imagine going back into the work force after so long in the home.  They tell me they are too old to learn anything new.  I get it.  These people never expected to divorce and never expected their lives to change.  That it has is difficult to wrap their minds around.  But folks, if Diana Nyad can take 30 years "off" of swimming and still come back at age 64 to swim from Cuba, if she can place mind over matter and power through what sounds like a miserable swim, then you can remake your life as well.  Sure, it takes more than mind over matter; it takes hard work.  And, they do say that living well is the best in the Trenches.

Wednesday, September 4, 2013

Sure, You Can Have It, But Is It Really What You Want?

I've spent a couple of weeks being the reality check for clients.  I take that back.  I have not been a reality check as much as I've been the interpreter between the real world and the judiciary.  I've settled 3 cases in the last two weeks.  I wish I could say my clients were wonderfully thrilled with the results at the time, but it's human nature to think that if they had gone to court, a judge would see things their way.  It so rarely happens.  At any rate, all of this started me thinking about what it is we do here in the Trenches, and what it means to represent our client's interests.
As I've said time and again, the first thing we try to do is distill what our clients tell us about where they've been and where they want to go into specific needs and wants.  Sometimes they want the house, and sometimes what they want is stability for themselves and their families.  Sometimes they want the pension, and sometimes they want to know they won't be eating Alpo in their twilight years.  At times, it's easy to decipher their wants and needs from what they say, and other times, we only get it partially right.  We keep trying.
In order to advise our clients best, we gather information.  Lots of information.  Some of it seems redundant.  Some of it feels less than useful.  We need it, and not just to cover our rear sides.  We need to see where this family has been in the past, what kinds of choices they made.  We need to learn the bargains the spouses had with each other, whether they felt like choices or dictates.  Did they live beyond their means or within them?  Have their fortune always been the way they are, or did something happen along the way to change them?  Are they risk takers?  We find all that and more from the information we gather.  We also find out the same about their spouses.
Then, we distill the information in order to advise our clients about their best course of action.  This is where the real art of the Trenches comes into play.  We have to assess whether what they tell us they want is reasonable and realistic.  Can it happen, and if so, what will it take to effectuate?  Does what we've learned about their spouse make us believe these folks can agree on that course of action?  We need to use our knowledge of the particular court in which we would be appearing would decide the case.  Do these facts play well in Peoria?  Will strict application of the law give our client what they want (the answer, by the way, is usually "no")?  Will our client come across well on the witness stand?  Can they express themselves in a way that feels genuine and sympathetic?  Will they hold up under the other side's questioning?  Can they sit in a courtroom and hear testimony that is not favorable to them?   Throughout the time our client is in the Trenches, we are assessing these factors and advising the client.  Unfortunately, because of the emotionality of the Trenches, sometimes our clients are not able to hear us.  They become entrenched, so to speak, in their story and their position.  They become convinced that despite what we've told them, the court will see the rightness of their cause and decide to give them everything they want.  Certainly, the court may decide in their favor, but rarely will they get everything they want.  Isn't it better to get most of what a client wants or what is most important to them, rather than win the case but not get the thing that matters most?  That last piece is the rub - here in the Trenches.

Monday, September 2, 2013

They Paved Paradise....

I swim all summer in the outdoor pool in my neighborhood.  Usually, it's just me, the lifeguards and a few other people.  This past weekend was the last weekend of the outdoor pool season.  I showed up at the pool to swim, and the manager told me it would be a "challenge" to swim my laps.  He wasn't kidding.  I've never seen so many people at the pool.  It seemed like everyone who lived in the neighborhood was there.  Now that the pool was about to close, everyone was afraid it was going to be gone and they would have missed it.  Too bad, they didn't miss it the rest of the season.  Bt now that it was about to be gone....
Oh my, isn't this so like the Trenches?  On so many levels, it is.  How many clients out there don't want their spouse until their spouse moves on and finds someone else?  Then, they worry about what they let go.  Then there are the clients who want a different life, until they find out that the new life means a fresh start with half the assets.  Then, they want the old one back.  We're always afraid we're missing something; it's just human nature.  That's why advertising is so effective - we always want the next best thing.  What we have isn't good enough.  Wouldn't it be nice, though, if we appreciated what we had while it was still in front of us?  It was good enough when we first acquired it, whatever "it" is.  What if we actually explored why it isn't good enough now?  It would cut down on our business, but it's too much work for most people.   Here in the Trenches.