The nature of family court is that judges rarely see ex-spouses who get along.  Family courts judges spend most of their time and energy resolving disputes.  Ex-spouses who co-parent children without conflict tend to appear in family court just once–and that’s to approve an agreement in which there’s no apparent animosity.  It’s the co-parenting ex-spouses who are perpetually fighting that the family court tends to see frequently and it’s these couples who tend to be memorable (conflict being more dramatic than cooperation).  Observing a skewed slice of humanity, family court judges become inured to seeing most ex-spouses as constitutionally incapable of getting along.

Thus, when a parent’s ex-spouse, especially an ex-spouse with whom that parent has co-raised a child, is willing to come to court and say what a wonderful and cooperative co-parent he or she has, it makes for very powerful testimony.  Ex-boyfriends or ex-girlfriends, especially those who have a child with the parent, can provide similar testimony, and such testimony is helpful.  But it is not as strong as similar testimony from an ex-spouse, because only an ex-spouse demonstrably loved the parent, at some point, enough to marry him or her.

The mere presence of the ex-spouse on behalf of one’s custody client communicates: 1) I loved this parent enough to marry him or her; 2) our love went bad to such an extent that we ended our marriage; 3) I still think enough of his or her parenting to come to court and support the custody claim.  Especially in the context of a family court that typically observes nothing but hatred and contempt between ex-spouses, that’s incredibly powerful.

In preparing custody cases one should always determine whether one’s client has an ex-spouse (or ex-boyfriend/girlfriend) who has raised children with one’s client, and consider whether that person might be willing to testify on the client’s behalf.

Most of my child support and alimony-paying clients hate paying through the courts.  This hatred is completely justified.  The 5% fee associated with paying support through the South Carolina clerks of court is a significant and often unjustified “tax.”  While ostensibly designed to compensate county governments for the labor of child support collection, the fee isn’t per support check processed but on a percentage basis.  I am aware of folks paying over $3,500 per year in “fees” because they pay support through the court.  Meanwhile support payments made through the court cannot be made by personal check so it requires obligors to either obtain certified funds or come to the courthouse to pay cash.

Thus, my clients rarely want to pay support through the family court.  Instead they prefer to pay the obligee directly.  In South Carolina, when the family courts allow direct pay, they typically put in a provision authorizing the obligee to file an ex-parte affidavit and order to have support be paid through the court if the obligor is ever more than five days late.  In the past year I have handled four disputes in which my client alleges his or her support payments have been made timely while the other party claims otherwise.  Often the other party uses this claim of late payment to force support to be paid through the court.

If an obligor has routinely paid support within 5-10 days of its due date, paying through the court is not going to result in quicker delivery of support to the obligee.  The family courts rarely seek enforcement until support is weeks, even months, behind.  Further, the family courts take a few days to turn support deposits into support payments.  Forcing the obligor to pay through the court makes sense when the obligor simply isn’t paying or is routinely months late–as the family court will bring collection proceedings that won’t require the obligee to obtain an attorney.  However having support go through the court when an obligor is 5-15 days late rarely results in payments arriving quicker.

Yet, when the obligee dislikes the obligor, the obligee will often try to have support go through the court merely to impose the 5% fee on the obligor as a form of “punishment.”  This desire to punish the obligor leads to disputes over when support has been mailed and when its been received.  The easiest way to resolve these disputes is to have support paid via direct deposit into the obligee’s account but some obligees balk at allowing this (whether it’s from a desire to cause unnecessary conflict or an unwarranted fear that such direct deposits allow the obligor access to the obligee’s account is impossible to determine).  Thus, the recurring disputes as to when support was actually paid.

Last year I litigated a situation in which my client was served with an ex-parte order to pay his support through the court after his ex-wife filed an ex-parte affidavit claiming he had been more than five days late on two occasions.  He hired me to overturn the order.  This was one of those cases in which when support was mailed and received was disputed by the parties.  However, my client had done something that was then unique in my experience: he had paid his support by having his bank debit his account and mail the support checks directly to his ex-wife.  Thus he had a perfect record of when the support was mailed.  And it was routinely mailed five days before the due date (which would be ten days before it triggered the ex-parte provision).

It’s possible to prove when an obligee deposited a support check but it’s impossible to prove for an obligor to prove when the obligee received it.  Here the ex-wife claimed she received the support late but my client, through his bank records, was able to prove that he mailed the support five days before it was due.  The court found he wasn’t late making his support payments, rescinded the order requiring him to pay support through the court, and made the ex-wife reimburse him my fees and his court costs–including the 5% fees he paid before the order was rescinded.

Now when I encounter disputes regarding the timeliness of support payments, my advice to obligors whose obligees won’t let them pay support through direct deposit is to have the bank issue the support check.  One can’t control or prove when an opposing party receives support but if one can prove support was mailed five days before it was due, I doubt any court would find the obligor was late paying support.  Having the bank mail the check completely undermines a vindictive obligee’s ability to force support through the court based on false allegations of late payment.

Any time one is trying to prove “fault” in an uncontested divorce, there’s a tension between providing enough evidence to justify the fault divorce and inundating the judge with the other party’s misdeeds as a form of “piling on.”  There’s something profoundly, almost existentially, depressing about these types of hearings.  I wish the judges would simply interrupt me with a “that’s enough” but they don’t.   If other attorneys have suggestions on how to prove fault without appearing to revel in tragedy, I’m open to suggestion.

A newbie asked for advice in resolving a family law issue.  Her client, the estranged wife in a short-term marriage, didn’t work or file tax returns.  Her “dependency” was of no value to her but was of some considerable value to her husband who wanted to claim her on his tax return.  She wanted to know how she should handle this dispute and my answer digressed into a discussion of Pareto optimization.

Vilfredo Pareto was an early-20th Century Italian economist who analyzed social change in economic terms. In his view, any proposed change which could leave all actors better off was a change worth making. Such change is labeled “Pareto optimal.” Often changes which make some actors much better off and some slightly worse off can be made Pareto optimal by transferring some of the benefits from the better off to the worse off.

Rather than fighting over whether husband should be entitled to claim her client as a dependent for tax purposes, I suggested she search for a Pareto optimal solution.  For tax purposes, the value of wife’s dependency was worth $0.00 to her.  However, her dependency had some value to husband as it would increase his tax refund.  For math purposes, we can call the value of the increased refund husband would receive from claiming wife as a dependent “x.”  Any agreement that allowed husband to claim wife as a dependent for tax purposes in return for husband paying wife some amount between $1.00 and x-minus-one dollars is Pareto optimal in that it leaves both parties better off.  An obvious solution is to have husband pay wife ½ x dollars but that solution isn’t required to make the transfer of wife’s dependency to husband Pareto optimal.

By thinking legalistically rather than mathematically, this Newbie prevented resolution of the dispute.  The disagreement wasn’t whether wife had the “right” to claim herself as a dependent for tax purposes; it was really about how to allocate the benefits from that right.  Analyzed from that perspective, resolution is much easier.

Pareto optimization explains all agreements, including legal settlements.  In any area of the law parties only settle a case–as opposed to letting a judge or jury render their verdict–because they have achieved a Pareto optimal result: a result in which each party–balancing the risks, expected rewards and costs of trial–determines that they are better off accepting the settlement then letting a judge or jury decide.  Most attorneys spent little actual time trying cases.  Rather, the bulk of our time is litigating, which, in mathematical terms, is merely working on convincing the other side that the benefits of proceeding to verdict are lower than the benefits of accepting a settlement.  This can be done by “sweetening” the settlement offer or convincing the other side that its expected benefits are lower or its expected risks are greater than previously thought.  Attorneys who understand that settlement can only be achieved through Pareto optimization are much more likely to achieve beneficial results for their clients than attorneys who lose sight of this requirement in the pursuit of “justice.”

My major past objections to arbitration have been the limited appeal rights from an arbitration ruling (covered in S.C. Code § 15-48-130) and the lack of a requirement that the arbitrator make factual findings or legal conclusions to justify the award (compare S.C. Code § 15-48-90(a), “The award shall be in writing and signed by the arbitrators joining in the award” with SCFCR 26(a), “An order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court’s decision”).  A further objection is that the parties don’t have to pay a judge but they have to pay the arbitrator.

However with budget cuts, limited court time and the failure to increase the number of family court judgeships as the number of docketed cases increases [there are studies showing that South Carolina family court judges have more docketed cases per judge than family court judges from any other state], the family court dockets have become increasingly unpredictable.

Having to prepare for multiple standby dates or waiting for trial to start because a judge has emergencies to handle adds to clients’ legal bills without increasing the effectiveness of my advocacy.  Due to reduced docket times and the necessity to have DSS merits cases heard within a particular time frame, I am increasingly having my trials cancelled within weeks of trial, and often not getting rescheduled until months later.  Further the family courts are generally requiring mediation before trial.  Mediation is useful in most cases but it is an added expense.  One can skip mediation before arbitrating. For arbitration cases where mediation might be useful, the parties can employ what is called “blended mediation/arbitration,” in which the third-party neutral acts initially as the mediator to see if the parties can reach an agreement on many disputes and then acts as the arbitrator, deciding the disputes the parties cannot agree upon.

Further clients are often inconvenienced by having to be ready for multiple standby dates or having trial dates cancelled.  Since arbitration is less formal, typically it takes less time to arbitrate a case than try a case.  Often the savings of knowing the precise date and time of an arbitration, and knowing that this date and time is very unlikely to be cancelled by the arbitrator, overcomes the added expense of a paid arbitrator.

As for the appeal issue, most of the disputes I am agreeing to arbitrate need resolution but aren’t worth appealing if my client loses.  I am agreeing to arbitration to resolve rules to show cause in which the alleged violations are numerous but minor (with our agreeing that the arbitrator can decide compliance issues and the remedies for non compliance without authorizing contempt findings or sanctions) or for small visitation or personal property disputes.  These are the type of disputes in which the parties need resolution but the stakes are too small to merit appealing.

The biggest advantage of arbitration–and the reason I sometimes find it preferable to a judicial resolution–is that one can chose the arbitrator and limit, by agreement, the arbitrator’s authority.  For example, one can arbitrate alimony with a high-low agreement in which the parties’ agree that alimony will be within a range of amount or duration and with the arbitrator to decide the amount and duration within those limitations.  It is unclear whether parties can limit a family court judge’s discretion in the same manner.  Being able to select the decision maker is a strong advantage over the random assignment of family court judges to trials.  Often this ability to select the decision maker outweighs the requirements that a family court judge make factual findings and legal conclusions to justify the result (especially when some family court judges issue memo instructions directing the prevailing party’s attorney to make “appropriate” factual findings and legal conclusions to justify the ruling).

There are a few family court arbitrators–Barry W. Knobel being an obvious example–who have more family law experience than many family court judges.  The longer I practice family law, the more the “ability” to select the decision maker appeals to me.  I suspect family court arbitration will become an increasing part of South Carolina family law practice.

This feeling typically occurs when opposing counsel makes some horrific allegation about my client–he’s a pedophile; she’s a crackhead–and expects my client to dance to dodge (disprove) these bullets (claims).

Now sometimes I have good reason to suspect my client is, indeed, the crackhead or the pedophile.  In those circumstances I will sometimes have my client undergo the appropriate diagnostic testing in order to determine whether my client has problems that need resolution for me to move the case forward.  I’ve gladly represented addicts, the mental ill, and the sexually deviant in family court but, until my client and I know exactly what the problem is, it’s hard to set client goals or develop a strategy to achieve these goals.

However, often, these allegations are merely some claim the other party has come up with in order to throw stones in my client’s passway, with the goal of having my client expend his or her limited resources clearing his or her name so there aren’t resources for my client to achieve his or her goals.  In those circumstances, I typically agree to such diagnostic testing only upon two conditions: 1) the other party initially pays the costs of such testing and; 2) the other party provides me an affidavit stating the allegations that merit such testing.

Meet those two conditions and there are few hoops I won’t advise my client to jump through.  However, in my requiring those two conditions, I achieve two goals. First, I require the opposing party, as opposed to my client, to expend resources.  Second, if the diagnostic testing clears my client, I not only have evidence that benefits my client, I can show the other party has made inaccurate and derogatory claims against my client, under oath.

Attorneys who merely have their client dance to the tune the other party calls are failing to get the full benefit they could achieve from clearing their client.

Even when warned of these risks, clients tend to minimize them.  For a state in which most of its residents profess to be Christians, few family law litigants seem to have internalized many of the lessons from Jesus’ Sermon on the Mount.  From Matthew 7:3-5:

Why do you look at the speck of sawdust in your brother’s eye and pay no attention to the plank in your own eye?  How can you say to your brother, ‘Let me take the speck out of your eye,’ when all the time there is a plank in your own eye? You hypocrite, first take the plank out of your own eye, and then you will see clearly to remove the speck from your brother’s eye.

Many filings in family court highlight the speck in the opposing party’s eye while ignoring the plank in one’s own client’s eye.  A client may complain about the opposing party’s conduct but if the client’s conduct is even worse that client is unlikely to achieve success in family court.  The opposing party, upon responding to the aggressive filing, will certainly note the even greater defects, if they exist, in one’s own client.  The likely end result: the client incurs attorney’s fees without achieving successful results; the client may be ordered to pay the opposing party’s fees; and the client may even lose some of the rights he or she previously had.

Before focusing on the speck in an opposing party’s eye, it is useful to discuss with a domestic client whether there might be a plank in his or her eye.  If there is, the blowback from bringing that speck to the court’s attention will likely outweigh the benefits of doing so.  Instead such clients should be counseled to work on removing their plank before they worry about the other party’s speck.

South Carolina Appellate Court Rule 268(d)(2) states, “Memorandum opinions and unpublished orders have no precedential value and should not be cited except in proceedings in which they are directly involved.”  These rules are promulgated by the South Carolina Supreme Court and when my Supreme Court tells me I “should not” do something, I am inclined to listen.

Who are these attorneys brazenly ignoring the directives of our Supreme Court?  They’re much braver attorneys than I. While I’ve been critical of these sorts of unpublished opinions, I still don’t cite them as authority in other cases.  M.J. wonders what she should do when she encounters such attorneys improperly citing unpublished opinions as authority. Perhaps contempt?

As family law attorneys we are so used to prosecuting constructive contempt–contempt that takes place outside of the court’s presences–that we forget that for most of Anglo-American jurisprudence’s history the bulk of contempt has been direct contempt: contempt taking place in the court’s presence.  It’s only been with the development of courts with vast equitable powers, like family court, that constructive contempt has become an important part of litigation.

The Appellate Court Rules are in the nature of orders from our South Carolina Supreme Court.  Deliberately violating them is a form of contempt against the court.  So M.J., if you’re so fed up with opposing attorneys citing unpublished opinions from other cases as authority, ask the judge to hold opposing counsel in contempt.  Just let me know before you do this so that I can travel to Anderson to see how it all plays out.

That didn’t stop many parents from agreeing to court-ordered college support, sometimes for children who were a decade or more away from matriculation.  Even in this post-Webb era parents continue to agree to court-ordered college support.  One can understand the impulse: who wants to be the bad guy (the bad girl?) refusing to help one’s child attend college?  Still it’s an impulse that should be resisted.

There are typically three reasons parents refuse to provide financial support for their children’s college.  First are the parents whose relationship with their child is so tenuous that they don’t care if their child attends college or not.  Often these parents are partially (or largely) to blame but sometimes the other parent or the adult child has been so obnoxious that the parent is driven away.  Second are the parents who simply disapprove of the lifestyle choices their young-adult child is making.  Sometimes we might find the parents to be unduly judgmental but other times these parents are cutting off their children for perfectly legitimate reasons.  Often the only control parents have over their young adult children is the power of the purse (the wallet?).  Court-ordered college support takes away that power.

A third reason many parents don’t provide financial support for their children’s college is that they lack the means to do so.  Many parents of college-age children are left with the choice of saving for retirement or paying for their children’s college.  Sometimes these parents’ financial choices are even more stark.  No person should have to live in their car to pay for their kid’s college.  Court-ordered college obligations take these budgeting decisions out of a parent’s control.

I greatly support my daughters’ college educations–for the next four years private college will be the biggest item in the family budget–but there’s no way I’d ever agree to a court order requiring me to make these payments.  Disobeying child support orders is an easy way to end up incarcerated.  Civil contempt for non-support is Western civilization’s last debtor’s prison.  Given a choice between paying my mortgage or paying for my children’s college, my children would be on-their-own.  But add a court order to the mix and the choice now becomes foreclosure or jail.  Then foreclosure doesn’t look so bad.   Parents agree to court-ordered college support with the best intentions but when their budget is stretched, and they realize the court order removes budgeting flexibility, they frequently regret it.

Yet there is a limited factual circumstance in which it has made sense for a client to agree to court-ordered college support.  This occurs when the child is near college age or in college, and the client has the ability and willingness to pay 100% of the child’s need for college, but the client can get the other parent to commit to a certain amount or percentage of these expenses so long as the client agrees to pay the remainder.  In this circumstance, by committing to paying college support via court order, the client can obtain a court order requiring the other parent to pay a portion.  Since these clients would have committed to paying 100% of the child’s need if the other parent wasn’t under a court-ordered obligation to pay a portion of college support, obtaining this commitment from the other parent can be enough of a benefit to justify one’s client committing to this obligation.

However, absent this very limited circumstance, in eighteen years of family law practice, I’ve yet to see another circumstance when it make sense of a client to commit to court-ordered college expenses.

Perhaps the wisest of Christ’s counsel: Turn the Other Cheek.  Matthew 5:39.  It’s a lesson many family law litigants, most of whom proclaim themselves to be Christians, would be wise to keep in mind.

In my years of family law practice, I have developed a tremendous admiration for the power of this advice to end interminable conflicts.  Turning the other cheek is a wise course no matter how the other party reacts.

Sometimes the other party will respond to the cheek-turning by stepping back, reflecting, and seeking a way to end the conflict.  This is obviously the ideal.  Short of outright victory or defeat, few conflicts resolve without one party or the other taking the step of making peace.  Turning the other cheek is often the necessary step on this path.

However, there are certainly times when the other party responds to turning the other cheek by continuing the figurative slapping.  Here the benefits of continuing to turn the other cheek are subtle but no less valid.  First, most family court litigants want dignity and equipoise as much as they want victory.  Taking the moral high road by turning the other cheek and disengaging from the continued conflict allows one this dignity and peace even if it doesn’t resolve the conflict.

The second benefit is strategic.  Observe two people fighting and it’s hard to determine which one was the instigator or whose behavior is worse.  All that outsiders observe is two people fighting.  It’s no different for family court judges: let them see two people taking turns attacking the other and all they see is two people fighting.  It’s hard for a judge to know whether and how to intervene in such disputes.

But by turning the other cheek, one turns a fight into an unprovoked attack.  Outsiders, such as the family court judge, no long see two people fighting: they see one party attacking the other.  It’s much easier to know whether and how to intervene in such situations and it’s human nature to come to the aid of the party being attacked.  By continuously turning the other cheek one greatly increases the chance that the family court will come to one’s aid rather than throwing up its proverbial hands and saying “a pox on both your houses.”

When given the counsel to turn the other cheek, my clients often complain that they have already done so and then challenge me as to how many times they should be expected to do so in the face of the opposing party’s intransigence.   Jesus provides the answer to that demand too.  In Matthew 18:21 Peter asks Jesus “how many times shall I forgive my brother when he sins against me.” Jesus answers, “seven times seventy.”  Matthew 18:22.

Given the math skills of ancient Israelites–I assume few of his listeners could count to 490–I interpret this answer as meaning there is no reason to stop turning the other cheek.  This is wise counsel throughout life but especially in family court.