Childhood Truths Translated

I began my practice of law well after my children were able to care for themselves.  Although my children are now what I consider grown, I am realizing that I can still put to good use the advice I gave them (in some instances, they gave me) in my law practice.  Not that I treat my clients as children, but rather these simple words of wisdom can be adapted to any area in life; however, I am finding they are particularly useful in the legal realm. What follows are 10 truths, my children have heard, and now, my clients are hearing. 

 1. Hang on tight.  Always be prepared for a bumpy ride.  It won’t always be that way, there will be good and bad periods during your case, but be prepared and hang on tight.

 2. Ask why until you understand.  Always ask me questions, if you are confused or you believe I am confused.  We need to stay on the same page at all times. 

 3. If your room is messy, close the door.  If you mess up, keep it private.  Don’t text it, facebook it, tweet it, or email it!  My daughter, now home from college, still adheres to this philosophy – literally.

 4. It doesn’t matter who started it.  It matters more about how it is handled and who finishes it.

 5. Ask for whipped cream. Pay attention to details.  Details pay dividends, especially when it comes to settlements.  My son never fails to top of his favorite dessert with whipped cream, a detail he claims that makes a difference.

 6. If you want cow, ask for a herd.  There is a back story here.  My son wanted cow for his birthday, and he asked for cows. He was relentless in his requests.  He got “cow” everything.  He even got a visit from a cow.  (My father wore a cow costume at his party!)  If you want it, ask for it.  But if you really want it, ask for everything.

 7. Next week comes tomorrow.  Hearing day always comes before you feel fully ready.  All along the way, you should be preparing for the big day, even if you believe you are going to settle your case.  That’s right, even if you think everything is all worked out, you should be prepared to try your case. When you case is called, your time is up!

 8. You can’t start over just because you’re losing the game.  If the facts and the law are not on your side, you can’t ask for do-overs nor do you call it quits.  You still may have the ability to minimize the damages.  You may lose, but you may be able to control how badly you get beaten.  Starting over was a popular strategy of my son when he was young.  Anytime he wasn’t able to take Rainbow Trail or Gumdrop Pass, he wanted to start Candyland all over again.  

 9. Keep going door to door until someone opens the door.  Don’t give up, be persistent.  Whether that applies to calling your lawyer, fighting for your child, or defending your constitutional rights:  do not give up, ever!  You have permission to compromise, or consider different alternatives but don’t just give up.  My son followed this pearl of wisdom when he participated in school fundraisers.  He was a two-time champ for the most items sold.

 10.  You are just as special as the next person. Sadly and rarely, is your case unique.  Sure, every case is different, but the applicable law is generally the same. It’s how the facts fit into the law that will make the difference.  Clients sometimes believe they are alone in what they are facing or what they have experienced.  Knowing they are not “special” is actually helpful, if these same clients are in need of help.  My office is able to give resource information to obtain counseling for domestic violence, drug treatment, job training, mental health therapy and financial assistance.  If  you need these resources, find them – it will help you to cope with what is happening legally and it could be beneficial to your case.  (See advice # 2.)

Some of these “words of advice” may lead you to think that child services must have been called to my home, but let me say this: I have always been honest with my children and my clients.  Truthfulness works both ways in my house and in my office.

By the way, neither of my children is in therapy – yet.  The advice in numbers 2 & 3 came from my daughter. She gave it to my husband and me at a very early age, and we have followed it to this very day.  She is still inquisitive and remains a private person.  The advice in numbers 5 & 6 comes from my son.  Both of these gems follow the same logic and reflect his “dream big” personality and his enjoyment of life in general.

Settlement Agreements: Addressing “What If”

Generally, every client has a unique set of facts and circumstances.  Although ultimate goals and expectations can be somewhat similar, because each person is different, my advice is never the same…until recently.  Over the course of the past two weeks, I have addressed the same issue twice:  a vague divorce settlement agreement. 

When people divorce they can go one of two routes:  Contested or Uncontested.  Contested, means that the parties can’t agree and they need a  Judge to determine the rights and responsibilities of the parties.  When a couple, despite their inherent conflicts, can agree on the division of property, both real and personal, other assets and liabilities, and if applicable, they even agree on the custody of their children then the uncontested path is chosen.  This is of course is a preferable way to settle the divorce, because each party has a say and legal fees are kept to minimum.  A “Settlement Agreement” is crafted and signed by each party.  That agreement is then incorporated into the ultimate decree issued by the Court.

However, if the agreement is vague or incomplete; problems arise and this could force the parties back to court.  That is what has happened to two of my most recent clients.  In both cases, the original agreement looked perfect, covering what seemed like everything…property division, waivers of certain claims, and custody and support of their children.  The problem?  Both agreements failed to set forth provisions which I call the – “what if” provisions.

For example, if the parties are dividing their home and one party is to refinance or sell the home, what if the refinance doesn’t occur or the home doesn’t sell?  Specific provisions must set forth a remedy in the event one party is completely incapable of adhering to the terms and conditions of the agreement.  I call it avoiding the “do-loop”. A do-loop is a term used in a computer program called Basic.  A programmer uses a do-loop when he wants something to happen, an infinite amount of times.  Thus if there is a do-loop embedded in an agreement, there is no end or cut off.  For example, if your ex is to refinance the home, and she can’t, there needs to be a provision to propel the parties forward into another option, like selling the home or placing it in a public auction.  Without this provision, the parties are stuck in a do-loop without an exit plan.

Both clients stated to me, that they asked their previous lawyer what would happen if their soon-to-be former spouse was unable to refinance or sell.  Each lawyer gave them an answer which seemed to satisfy the client.  But now they are with me, asking the same questions.  And, because the agreement didn’t specifically address that “what if”, we are heading back to Court.

Long story short, if you have requested your lawyer draw up or review a Settlement Agreement and before you sign – you ask what happens if…then it’s vague and needs revision.  Despite counsel’s attempts to create a thorough and clear agreement, some of the provisions didn’t go far enough.  Certainly, lawyers do their best to account for all situations, as it’s just not possible see into the future and predict every single circumstance that could go wrong.  But, if the client must ask “what if” then I believe lawyers need to address that particular situation in the agreement.

Agreements must be clear and in no way, ambiguous or vague.  Sadly, each client told me that what they thought should happen, but, in reality, what will happen is up to a Court; unless, both sides can agree…again.