A great week

Posted Saturday, June 16th, 2012 by Gregory Forman
Filed under Attorney-Client Relations, Not South Carolina Specific, Of Interest to Family Law Attorneys, Of Interest to General Public

I spent Thursday evening at Susan Synter’s going-away party.  It was attended by a bunch of newly licensed attorneys practicing family law, many of whom I am formally or informally mentoring and one of whom just announced she was taking a break from the law and heading to Paris.  We discussed how their careers and practices were developing (our profession should be doing much more to insure that this generation of new attorneys does not become disillusioned by the horrible job market and the burden of student loan debt) and I could see great skepticism in my evangelical belief that practicing family law is an intellectually, emotionally and financially satisfying career.  However my past week provides ample evidence for this view.

This week my focus was on five court proceedings–three temporary hearings, one motion to reconsider, and one domestic abuse trial–and an alimony modification mediation.  Each of these six events presented intellectual challenges or emotional satisfactions.  Many did both.  However, unless one is mindful, these challenges and satisfactions may remain unnoticed.

From my perspective, the domestic abuse case was an angry estranged wife’s attempt to gain an early strategic advantage as a prelude the inevitable marital dissolution action.  My client’s goal was to defeat her claim to gain (and avoid losing) significant leverage in negotiations.  Wife’s allegations appeared specious: she claimed they were an emergency but waited a month to bring them; she had made even more horrific allegations against my client in the past but then entered into agreements with my client that would be inexplicable if they were true.  I was able to get her complaint dismissed, resulting in a visibly relieved client.  Immediately thereafter wife’s negotiating posture became substantially more humble.  After a month of his wife interfering in his relationship with the children, my client has them this weekend.

The three temporary hearings all dealt with interesting social issues.  In one case my client was trying to require supervised visitation for an admitted alcoholic father who was continuing to drink.  This dispute involved a basic and common concern: are alcoholics who drink during part of the week but refrain from drinking around their children still dangerous to those children?  This judge, in this particular circumstance, felt not.

I imagine it was not an easy decision for him to make.  Family court judges are most frequently subject to public criticism when their decisions fail to protect children and the children end up injured or dead. To grant my client’s request was to basically remove the father’s right to consume alcohol.  However in denying my client’s request he keeps open the possibility that something horrible might happen to this child if father’s alcohol use leads to inadequate or improper care.  There is no definitive way to balance these concerns and the debate over how to do so is endlessly engaging.

Another temporary hearing concerned whether my client should be required to support his adult child who had mental health problems during his childhood that become more debilitating during adulthood.  This case raises numerous interesting social issues. Who should be responsible for providing for adults who become disabled: those adults themselves, their parents, or society as a whole?  How much responsibility does a disabled adult have for meeting his or her own needs and how much does that disability excuse responsibility?  These are questions that South Carolina law does not clearly answer and they are fundamentally political questions.  However when the legislature won’t answer political questions it often falls to the courts to answer them.  Courts, including family courts, can often be tools to effectuate political change.

The third temporary hearing was a bit less novel: how much temporary alimony an at-fault primary wage earner spouse should pay a gainfully-but-perhaps-not-fully employed spouse.  Again this case involved interesting but not explicit social issues. There are thirteen statutory factors the court is directed to utilize in setting alimony but a hidden subtext within some of these factors is notions of individual responsibility.  How much should alimony be used to “punish” an at-fault spouse? (the case law says it shouldn’t but at the trial court level it often is).  What is the supported spouse’s obligation to take care of her own needs in setting alimony?  A disengaged attorney might simply look to the statutory factors in arguing an alimony case but a passionate attorney revels in these philosophical issues.

The motion to reconsider involved representation for a client in which I was not the trial attorney.  Such representation always has an inherent frustration level as the client and I notice issues or evidence we wish trial counsel had presented that might have affected the outcome but that the rules of procedure prevent from now being brought forward (I am certain that attorneys who take over after I was trial counsel have that same frustration with my work, though hopefully on a less extreme level).  This motion involved a fascinating technical issue: how should the court value and apportion a couple-run business which is dependant upon customer goodwill for its revenue when that couple can no longer work together.  I could not convince the trial judge his analysis was misguided but everyone expects the appellate courts to have the final word on this matter.

The mediation involved an elderly divorced couple in which my client was seeking to reduce his alimony obligation based on his recent retirement.  As folks often live 20 or more years beyond their retirement, the issue of how to revise alimony upon the supporting spouse’s retirement is becoming increasingly common and the appellate courts have provided no practical guidance.  In every such case one is balancing the fear of the supporting spouse that he will outlive his savings if his alimony obligation isn’t abated against the supported spouse’s fear that she will have insufficient funds to live comfortably if her alimony is reduced (or reduced too much).  Working with a mediator and opposing counsel I greatly respect we were able to fashion a resolution that will allow my client to pay alimony without significantly depleting savings but allow his ex-wife a sufficient level of support to maintain her lifestyle.  Not knowing if or how this issue would be resolved had been a great mental burden on both parties.  My client is greatly relieved by this resolution and I suspect his ex-wife feels the same.  If one chooses to find satisfaction in helping people travel from a place of fear to a psychologically comfortable state, the practice of family law can provide that satisfaction.

The final scorecard for the week’s contested hearings: two clear wins; two clear losses and one partial victory/partial defeat (plus I learned of a victory from a hearing two weeks prior).  Attorneys expecting to win every contested hearing will quickly lose enthusiasm for family court, as one has little control over how a judge will wrestle with and decide what are basically debates about social and political issues.  However merely by engaging in these debates, in the guise of representing clients in contested family court hearings, one can develop a career of constant diversity (no two days for a family law attorney are ever alike and the days rarely unfold as expected) and intellectual satisfaction.  And the week was pretty good financially too. An established family law practice will never make one venture-capitalist rich but it will allow one many comforts.

If one chooses to see family law as an endless parade of miserable people complaining about their picayune problems one will find this practice soul destroying (of course if one sees family law that way one is insane to continuing practicing in this field).  However for those who chose to focus on the social and philosophical concerns that underlie even the most mundane family court issues, this practice can be an intellectual feast.  Mindfulness that our work also helps psychologically stressed people achieve peace can provide tremendous emotional satisfaction.

Intellectually fascinating, emotionally satisfying, and financially remunerative: family law can be an excellent career choice.

3 thoughts on A great week

  1. George Sink says:

    Excellent work (as always) beautifully presented, Greg.

  2. Stanley Feldman says:

    Greg, What relevance, if any, would a disability finding (Social Security) or lack thereof, have in a case like this?

  3. “However when the legislature won’t answer political questions it often falls to the courts to answer them. Courts, including family courts, can often be tools to effectuate political change.”

    You’re kidding of course?

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