Missouri Family Law Blog

A couple of years ago, I took “the training”, such as it was, in “collaborative divorce law”. I haven’t taken more than the first couple of hours. I have never found anyone interested in having me “do” pure collaborative law, which requires that the parties (a) agree that if they can’t work things out, they dismiss their attorneys and hire new ones to proceed with litigation; and (b) meet in 4-way sessions to discuss how their affairs will be “settled” and (c) do all this before filing the divorce action, which is filed after & with the agreement, or by one or the other party if the process breaks down, using a new attorney other than the “collaborative” lawyer.

I am against these ideas. A lawyer who “taught” at the Collaborative Law seminar that I attended gave me the Clue to Understanding What This is All About when I asked her “how much money did you save your clients by doing their case collaboratively”. Her answer: None, it cost about the same. Oh yeah? Then the client still has to hire another lawyer if the costs-about-the-same process breaks down and results in no agreement? Oh, I see. So you get to collect the same fee (it’s hourly) whether or not the case is successful? Wow, nice work if you can get it!

Ooookay, then, why not just do the case the regular way and settle it? Any case that can be settled, can be settled, without the need for (a) switching lawyers; and (b) emotionally draining, typically nonproductive 4-way meetings. If these folks could sit in a room and discuss things reasonably, they can do so without previously agreeing to dump their trusted attorneys if things breakdown. Also, if they could sit in a room and discuss things reasonably, they could probably do so without paying a couple of lawyers a couple hundred bucks an hour to orchestrate the process.

Hang me for a fool, but I haven’t heard anything about collaborative law since that first session, even from diehard “converts” (mostly highly-paid attorneys), since my first, unfavorable impression of it.

Here’s a novel approach: Hire an attorney, establish your goals, work towards them reasonably, and be prepared to compromise. If you take that approach, your divorce will be much easier to navigate in most “typical” circumtances, and you’ll get through the process without having to sit in 4-way sessions. Lawyers are not mental health professionals and are not trained or qualified to orchestrate the emotionally charged atmosphere that even reasonable divorcing parties can engender when they are in the same room together. Time heals all wounds, but the healing process for most humans doesn’t start until the surgery takes place — that is, until they are divorced.

I do not promote discord in divorces. I encourage settlement. I don’t promote 4-way sessions because tempers inevitably flare and one or both parties inevitably is raw and wounded. I do promote settlement conferences. I put one party in one room, usually my client in my office, and the other party in another room, usually the other party in the conference room with their attorney. Then I go back and forth, inviting the other attorney into the office with my client to explain their client’s positions if I feel it is appropriate, or doing that myself in the other room if appropriate and the other attorney concurs. This approach works. I promote it. Is that “collaborative”? Maybe it is “small c collaborative”. A rose by any other name. . . but the process I describe requires no special contract, no agreement to engage in it pre-filing, and no agreement to fire your attorney if it doesn’t work.

And while we are on the subject, working out the settlement pre-filing is okay, I guess, as long as you have a crystal ball that guarantees success. However, if the collaborative process breaks down, then there is no judicial control or legislative roadmap to keep one party or the other from cleaning out the bank accounts or moving with the child. These often-retaliatory devices are prohibited if the divorce is pending, absent agreement or court order, and, even though they might still be done, the party employing these devices (whether as an attempt to be retaliatory or in an attempt to protect one’s self) can still be held accountable in the final analysis.

I believe in settling divorces when and if possible. I have heard nothing to suggest to me anything other than my initial conclusion that “Collaborative Law” is nothing but a marketing ploy.

Now I’ll stand back, behind the First Amendment, while any “collaborative lawyers” who might read this blog fling rotten fruit at me!

You’ve heard the expression, “Shut up and sing!” and the newer version, “Hang up and drive!” This week, I’m touting a newer still version: “Hang up and Parent!”

I thought I had seen everything when I saw several parents walking into my son’s school talking on cell phones, and returning, child in tow or toddling ahead — these were elementary kids, at my son’s K - 12 school — while the parent still yakked on that little square of technology held hand-to-ear or wrapped around ear Borg-like. While I have been guilty of talking on the cell phone while driving, even I found it disturbing that these parents couldn’t stop talking long enough to chat with their child on the way to the car.

But now I’ve seen worse.

Yesterday, I saw a man walking down our street, talking on his cell phone. He was carrying a pink scooter with streamers dangling from the handles. Ahead of him, a girl about age 4, wearing a helmet, struggled down the crooked squares of the sidewalk. She appeared to have worn out trying to “scoot” uphill and they were now on the home, Dad (presumably) providing assist by carrying her wheels.

And talking on the phone. I watched as one little grubby fist raised to one little tired eye visible under the helmet pushed back on her sweet little head. Oh, sure; he might have just answered the phone and it was his boss, his wife, his mother, calling for a quick update on the last project of the day, their whereabouts, whether he was going to come fix her toilet. And maybe he never, ever, under any circumstances, talks on the cell phone instead of helping his child. But that image haunts me.

Hang up the phone. Put down the Bluetooth. Close the laptop. And parent your children.

Me, first.

One of the most satisfying roles that I play as an attorney is my role as guardian ad litem. While I much enjoy establishing and enforcing parenting rights for an avid and willing parent, I also enjoy protecting children from destructive situations and helping them transition to new families as an adoption guardian ad litem. One family that I met this year particularly invigorated my faith in humanity — a teacher and her husband who pursued guardianship of two boys who, though they lived with a grandmother who very much loved them, needed to be with a family who could give them help in areas that their birth family could not provide. They are thriving now, and I admire both the family who opened their hearts for these boys, and the family who allowed this to happen.

It is particularly painful to watch families in crisis because of the children in need; they tear at your heartstrings. The adults, presumably, made choices or could make choices; at least, it seems to me, that adults can always find some way to extricate themselves from a bad situation. But perhaps that is my middle-class bias; perhaps there are coping skills taught to me by my own strong mother, that others were not taught or did not learn.

When an adult driver does not buckle their seatbelts or require children to do so, the children are exposed without being capable of knowingly assuming the risk.

When an adult driver operates the motor vehicle under the influence of alcohol, the children are exposed without being capable of having knowingly assumed the risk.

When an adult doesn’t work to earn money to pay the rent, the children are exposed without being capable of having knowingly assumed the risk.

When an adult does drugs. . .
When an adult gambles. . .
When an adult steals . .

Parenting is an assume responsibility. Children in need in our society get that way because of poor choices by some adult, some where, some time. Either their parents, or their parents’ parents, or someone in the lives of their parents….certainly, children in need deserve to be rescued from the irresponsibility of adults.

We all should do what we can to effect that salvation.

As Mother’s Day approaches, I naturally think of my son, my mother, and all the mothers and children whose lives have touched mine in the wild long ride since September 1983 when I was first sworn into the Bar by my dear friend and then-boss Loren Rea. Naturally, I have a vested interest in Mother’s Day. I am a mother, after all, in addition to being a divorce lawyer. But as I represent both fathers and mothers, and also represent children as a guardian ad litem, what I mainly espouse is “parents” and “children”, making sure that each and all are honored. A good parent, of either gender; or a parent that is trying hard, which is, at the end of the day, the same thing, is vital to a child’s growth. And a good parent puts aside grievances that led to the break-up of the parents’ relationship as co-partners, and acknowledges that as long as the child is alive, they will be co-partners in the parenting of that child. And if they outlive the child, they will be co-partners in grieving. This gig lasts a life-time, and beyond.

A lawyer whom I admire told me today that her former spouse wanted to see the children this weekend. She was feeling guilty about planning to take the children out of town this weekend so that she could see her own mother and be with the children as well. “Go,” I told her. But, she said softly, “I feel guilty, because he doesn’t ask to see them often.” Still I, and others, urged her: Go.

The former spouse needs to be as accommodating as possible in scheduling, yes. But that is a two-way street. Being flexible does not mean surrendering your position with the child. Nor does it mean being the only parent to conduct oneself in an honorable way. Judge Christine Sill-Rogers once told a mother that she would not make a child drop her fork in the middle of pumpkin pie just so the parents could each have some time with the child on Thanksgiving Day. I like that: and I remember that every day can be celebrated, and Mother can be honored on any day.

So this is a give-and-take, this co-parenting outside of a marital or “together” relationship. But we must all give, just as we must all be allowed to take guilt-free. Sometimes, it is difficult to know what to do. But you must muddle through, for the children’s sake.

Life, you know, is not for the squeamish.

Happy Mother’s Day.

Whether it is nobler to fight, regardless of the cost; that is the question. I say, most times, it is not. Whether your case is divorce, paternity, modification, or support, in most cases, it is best to try to work things out. If you are, on the other hand, involved in an adult abuse case, a contested adoption, a juvenile case involving your children — these are cases that are trickier and might well just have to be tried.

For the most part, family law cases can and should settle. Absent abuse, neglect, or substance abuse, it is the rare case that is not susceptible of some solution. While I was trained in collaborative processes but do not espouse them, nonetheless I often do work with my client, opposing counsel and their client, to fashion a property agreement or parenting plan that can begin to put an end to discord.

Examine your case with care. Can it be settled? Is the only reason NOT to settle, because you want “your day in court”? Believe me, you know a whole lot more about your life than the judge; and can probably make a fairly decent decision about it. If you haul each other into court and let the judge decide, you might well find out that the judge picks the choice no one wants.

To settle, or not to settle? That’s a question you should ask yourself, upon informed consent — that is, after thorough discussion with your lawyer — and cool, calm reflection. Don’t fight for fight’s sake.

So sayeth a lawyer who is not afraid of a good fight, but won’t avoid a settlement just for the thrill of the battle, if settlement is in the client’s best interests.

I saw a headline today — “death sentence for child abusers” was the gist of it. This got me to thinking — is there a crime so heinous that I would vote for the death penalty? I replied to the person who shared that headline, that child abuse could fit into that category. This prompted me to feel the need to write that everything I have to say about shared parenting stops at the door of abusers. Do all abusers need to have their parental rights terminated? I cannot say that. Is there hope for any abuser? Yes, some abusers can stop abusing. But when a child is rescued from an abuser, where the abuser is a parent, a very different situation exists than the situation in which I advocate shared parenting. Physical abuse, alcohol abuse or drug abuse, emotional abuse — these elements change the dynamic and fall within the parameters of cases that often are best resolved with the nonabusive parent having sole custody.

I sat in my office yesterday going over a proposed parenting plan with a Dad who wants to be sure he is fully vested in his child’s life. Was he thinking about how his pension plan would be divided? No. Did he ask for a child support chart to be run? No. Did he worry about whether the sum of child support he offered to pay was too high? No. All he wanted to know was about the time he was going to be with his children. As I showed him the child support chart and explained that he had offered to pay a couple hundred bucks more than the chart would dictate, and reminded him that the fairly short term marriage shouldn’t warrant letting his soon-to-be-ex-wife have a share of his not-yet-vested pension once he vests and retires in 15 years, he smiled, shook his head, said, “Yeah, okay, good,” and went back to talking about his time with his kids. Warms the heart of this divorce lawyer, let me tell you!!!! Yes, I represent Moms, too. Somehow, in this era when many folks complain about “Deadbeat Dads”, it is always heart-warming to meet one that is the exact opposite of the stereotype uninvolved father. Lots of my clients defy the stereotype, and I say, “Keep ‘em coming!” I’ll represent any parent, of either gender, who cares that much about children! So if you know a Dad who is going through Divorce, and you hear them talking about their children, give him a great big High Five, or an “atta boy”, or whatever suits your fancy — just tell them you’re proud of them for being the kind of parent that their kids need.

While on the subject of Missouri divorce do’s and don’ts, here are a few more:
* DO become active in your child’s life, whether the child “lives” with you or “lives” with the other parent.
* DO remember that children need “parents” not “visitors”. In Missouri, if parents have joint legal / joint physical custody, or sole legal in one but joint physical custody, each parent’s time with the child is called PARENTING TIME. Only in the increasingly rare case where one parent has sole physical custody is the other parent’s time called “visitation”. In this instance, it is not a distinction-without-a-difference. If everyone, each parent and the child, references EACH parent’s time as “parenting time” or, in the case of children, more likely, DOESN’T reference that time as “visitation” but as “my time with Mom” or “my time with Dad”, then you are all less likely to think of one parent as “the parent” and the other parent as “the visitor”.
*DON’T put the child in the middle of discussions, messages or arguments. You’re the adult — act like one — adult-to-adult communication is ALWAYS best. If there is some reason you don’t want to, or can’t, communicate with the other parent face-to-face or over the telephone, send them an e-mail.
*DON’T use angry words to the other parent, whether or not in front of the child, even in writing. “Just the facts, ma’am”. It’s time to bury the hatchet — and not in the child’s or each other’s head. Even if the other parent was abusive, at some point, you can find a way to communicate with them. A situation involing an abusive parent, an alcohol abuser or a drug abuser can be difficult to navigate — find a way. Through a family member or counselor, or through very business-like e-mails. If there is a way to keep a parent at least aware of what is happening in your shared child’s life, if not involved, you should do it.

Lawyers in Missouri are working on creating new rules of ethics that will remove any lingering question as to whether a lawyer can, within the rules of ethics, provide what is called “unbundled” legal services. This would simply mean that a lawyer could, if he or she chose, handle “part” of a client’s case for an agreed fee or hourly rate, without fearing that they are violating their ethics by doing so. Lawyers in Missouri are also working on the issue of how much help court clerks should provide, if any, to persons who choose to represent themselves. This raises many issues, including “why should I hire a lawyer?” Truth be told, perhaps we would be better off if our lives and our laws were not so complicated that we need to hire a lawyer to help us navigate through them from time to time. However, they are; and unless we strip society of this complexity, it is often better to hire a lawyer. This is particularly true in divorce, where property rights are determined, parenting rights are defined, and debts are allocated. The determinations made by a divorce court can, if not properly handled post-judgment, cause complications for your future ownership of property, credit-history, and so forth. Can you “get divorced” without a lawyer? You can, yes. Should you? That answer must be made by the person seeking a divorce, but in general, I would say, if you have no property, no debt, no children, and no future rights to property, you probably could do a divorce “pro se” — representing yourself. But if you have any property or debt, or if you have children, you could fail to do something, or improperly do something, that could lurk around the edges of your life and come back to haunt you later. This is just my opinion, not advice; and every person has to reach their own determination in this regard.

A Dad came into my office yesterday — a “Dad”, not just a “father”. A “Dad” is someone who wants to be active in his children’s lives, to see them, teach them, love them, support them in all ways, not just money. It is gratifying to meet a parent — “Mom” or “Dad” who wants to BE a parent. Our system still favors the mothers in many ways, but when I meet a “Dad”, I am eager to be his lawyer and to get parenting rights for him. As Mother’s Day approaches, we celebrate the mothers that we know — but let’s remember the Moms and the Dads, all year round, and let’s help them appreciate each other.