If the Buddha Practiced Law

In a controversy, the instant we feel anger we have already ceased striving for the truth, and have begun striving for ourselves. – Buddha

I found this quote while randomly surfing the internet.  At first glance, I realized how well it applied to my personal life and to my practice of law.  I thought about times when my husband and I have been in disagreement.  At the point I became angry, I had really become selfish.  I was focusing on myself instead of our relationship.  I can also apply the statement to my own lawyering skills.  There are times when I do become angry about my cases.  Now, thinking back and remembering the details, I realize that my anger usually stemmed from the lack of control over a situation; and I can admit that lack of control has more to do with me, than the case itself.  I think what this statement truly means is when you put yourself first; anger creeps in, clouding the issues.  However, I believe there are times when putting yourself first, and allowing anger in is a good thing.  If the Buddha were a divorce lawyer, I think he would have put a disclaimer on his statement, and here’s why.

More often than not, I meet with clients who are hesitant about putting themselves first.  They are usually women seeking advice about divorce.  (Sometimes this is true of men, but men seem to get angry faster).  Most of these women have been the caretakers during the marriage.  They are so accustomed to taking care of their husbands and family, that they feel guilt and sadness about contemplating divorce.  Moreover, these women are usually victims of physical or emotional abuse perpetrated by their husbands.  The most common victimization occurs when the husband has committed adultery.

When considering divorce, people need to set aside guilt and sadness.  Divorce is much like a death.  Grieving over the loss of a loved one generally occurs in five stages.  The first stage is shock and denial, the second stage is pain and guilt, and the third stage is anger.  The final two stages define a “recovery” process.

I need my clients to be stage three clients; I want them to be angry.  Now, I do not want vindictive or spiteful clients and I realize that’s a fine line; still, I need clients who are angry enough to put themselves first.  Clients who have too much guilt or sadness have difficulty making decisions.  They also tend to struggle with trying to protect themselves during the divorce process.  I know they aren’t angry enough when I hear things like, “he won’t like it if I ask him to split the visa bill”, or “that’s okay, I’ll just let him keep the $15K in the home equity”.  Now, there are times when I tell clients to cut their losses and run, which is very different from just rolling over because you don’t want to hurt their feelings!

If you are seeking a divorce, my advice to you would be to forget the otherwise profound wisdom of the Buddha, and get angry.  It’s justified, it’s healthy and it’s helpful.  It will motivate you to put yourself first, your children first, and it will most likely speed up your emotional healing…as you will be at stage 3, more than half way to full recovery!

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.

Sleepless Nights: Curse or Cure?

In the past two months, my office has been deluged with clients who are experiencing difficulties which some may consider as controversial.  The more I encounter these types of issues, the more I find what I thought I believed, supported, or had an opinion about, changes with the presentation of my client’s set of circumstances.  So before I continue on with this rambling post, I would like to thank these clients for allowing me to grow and learn through our relationship.

But as these same clients challenge me, they also leave me facing a sleepless night.  Everyone has skeletons – things that we don’t want others to know about ourselves.  Sometimes we can handle those issues privately, but there are times when legal advice is not only needed but absolutely necessary, and thus, these sensitive topics must become public.  By public, I mean these clients must come to an absolute stranger, me, and discuss issues that are uncomfortable and almost always embarrassing.

Back to the clients and my battle with insomnia:  I have been told repeatedly by a fellow attorney that I shouldn’t take my client’s issues personally, but that’s easier said than done.  When people come to me for help and advice on these issues, I am humbled by their trust, but am always surprised when they ask me to “judge” them.  I can’t tell you how many clients here recently have asked me my personal opinion on their situation.  I get questions like, “Do you think I am a bad person?”  or “Do you think I am wrong for coming to you?”  I don’t kid myself by thinking “wow they came to me.”  But rather, I tell myself they came to me and they need someone so why not me.

Here’s the deal – I am the last one to pass judgment.  I strive to be the one who passes solid legal advice, openly and honestly.  The sleepless nights come when I begin to worry that these folks somehow believe that they are wrong for exercising their legal rights;  rights given to them fully and freely by the United State Constitution, the Alabama Constitution and by the sole, but most important fact, they are people.

I worry about the little ones, the people who are without resources to fight to the finish – perhaps against an abuser who hires a “big gun” or “heavy hitter”.  Sadly, resources – code for money – sometimes wins.  Not always – but sometimes.  It’s the “sometimes” that keeps me awake until the wee hours of the night.  I worry that these people seeking an affirmation will give up the fight, if they mistakenly believe they don’t deserve to exercise their rights on these sensitive subjects, or that the other side who has a bigger purse will just win anyway.  (Said many times by clients).

I won’t recommend action through the filing of unnecessary lawsuits or drafting meaningless agreements, if it isn’t going to solve the problem.  But I will never recommend inaction to protect a right – ever.

So, no, you are not a bad person, nor are you wrong to come to me for advice.  In fact, I admire you, because it takes a lot of guts to spill them.  You have finally put trust into someone else. That’s a huge step and a responsibility that I don’t take lightly. 

Now about those sleepless nights…I believe when they stop, so does my passion and creativity.  So, I am choosing to sleep later…maybe tomorrow night, or the night after.  But I promise I will get some sleep before we go to battle!

“Everyone has a right to peaceful coexistence, the basic personal freedoms, the alleviation of suffering, and the opportunity to lead a productive life…”– Jimmy Carter

And Words Can Never Hurt Me.

Everyone knows the childhood rhyme, “Sticks and Stones” which ends with “and words can never hurt me.” I disagree. Whether the words are true or not, words in and of themselves can be quite hurtful. When people come to me with the desire to obtain a divorce, my first piece of advice is to watch their words. Words can be spoken or written and must always be carefully chosen. I am finding that most people don’t think about this. They can produce pages and pages of emails between themselves and their soon to be ex-spouse. They can produce hundreds of text messages exchanged in the heat of a moment. And, lastly, they are certain that there are issues, disagreements and even arguments that need to be re-hashed word for word. All of this works both ways. Just as they are handing me stacks of papers memorializing the bad times of their marriage, the soon to be ex is across town delivering the same messages to their attorney.

Emails and text messages are unique mediums. They are void of emotion and context. Sarcasm is often lost in written form as well as humor. Although, I believe that using these forms of communication can be extremely valuable for its ease of use and instant contact, electronic communication can also be very dangerous. I encourage my clients to use email when communicating with their soon to be exs or even their former spouse, but with a caveat: say what you mean, be concise and to the point. Emails and texts are great when two people can’t seem to get along yet must still communicate about issues outstanding between them, like children.

Many times people express themselves through email when they would never speak those words aloud. It’s as though once the window opens, people feel comfortable spewing words and phrases that are completely out of character. But what is written is preserved. The words never disappear. Unlike their spoken counterpart, words don’t float into memory to become foggy, they are seared onto a hard drive to be remembered just when you need them forgotten.

I tell my clients not write anything that they wouldn’t want their grandmother seeing, because ultimately, in a divorce situation, the world will see, including your grandmother, your children, and the family law judge.