Meddling Friends No Help in Divorce

If you are going through a divorce you need all the support you can muster, particularly if you find yourself in the midst of the “affidavit” wars, a stage of divorce litigation where nasty allegations fly fast and furious, and usually turn out to be highly exaggerated and embellished.

It is not unusual for clients, particularly female clients, to visit their lawyer’s office with a sympathetic friend in tow, a practice that I do not discourage subscribing to the theory that friends make the burden lighter.

However, with the recent explosion of “grey” divorce, family law lawyers have noticed that the adult children of their clients are “interfering” in the process, making their jobs more difficult.

Sometimes the interference is the intentional undermining of the legal advice provided by the lawyer to their elderly parent, other times it is directed at the adult offspring’s concern about the loss of their future inheritance, or their desire to force the reconciliation of their parents, a goal that while laudable, may not be in their parent’s best interests, particularly where the marriage is marked by chronic family violence.

Whether the adult child is cajoling their parent to rewrite their will, or sending abusive missives to the parent they deem to be the “guilty” party, most of these tactics only serve to escalate the conflict between their parents.

Well-known British divorce lawyer and media commentator, Marilyn Stowe, remarks:

“A client should be able to rely upon their legal team 100 per cent. Friends (and family) play a completely different role, which is socially centred. It is free of the professional ethics, scruples, obligations, privilege and confidentiality that are the lawyer’s domain.”

Certainly, if you are paying a lawyer hundreds of dollars an hour, it is most unwise to discard their professional expertise in favour of a friend or family member, who “only wants to help”, but may have little real insight or knowledge of the process or the law.

Frankly, if you have so little confidence in your lawyer’s advice that you defer to your girlfriend, who has been through two divorces, or your son, who sees his “meal ticket” slipping away, you need to seriously consider hiring a lawyer that commands your respect.

Lawdiva aka Georgialee Lang

Aged New York Husband His Wife’s Prisoner?

GEO#1Eighty-four-year old Martin Cassidy spent his career creating dinosaurs for the American Museum of National History.

His career began in 1972 when the museum was offered the articulated skeleton of a dinosaur, an acquisition that would cost $200,000, plus as much as $500,000 to send a team into the field to find, collect, pack, ship, prepare, and reassemble the gigantic beast. Realizing how financially impractical that was, his new calling began.

Over the years Mr. Cassidy and his team built life-like dinosaur facsimiles for museums around the world. It was while working at the museum that he became acquainted with New York pulp and paper billionaire and philanthropist Ira Wallach, whose charitable foundation provided funding for the famous museum.

Eventually he met Ira Wallach’s daughter, Kate Wallach, and before their 1987 marriage he signed a pre-nuptial agreement. Kate allegedly told him it was necessary to “make her family more comfortable”. Her father died in 2007 at the age of 97, and left her $200 million dollars.

During their 28-year May-December marriage they had five children. In Mr. Cassidy’s recent divorce court filing he deposed that while his wife luxuriates in their lavish $20 million dollar Long Island estate, he is relegated to a dark, dank area above the garage outfitted with a small bed and two rickety folding chairs.

There is a toilet, but no bath or shower, and he uses a nail pounded into the wall to hang his meagre wardrobe. His daily menu consists of canned soup and he receives $2,500 a month to meet his expenses.

Martin Cassidy explains in his filed affidavit that he is “literally and figuratively a prisoner” of his wife who he says is waiting for him to die so that she doesn’t have to share any of her large estate with him.

Kate Wallach’s lawyer, Kenneth, Weinstein, says Mr. Cassidy lives in a “beautiful home with surroundings he has chosen” and that his client’s husband is suffering from dementia. She reportedly does not wish to divorce.

A court-appointed guardian who is overseeing the process to determine his mental status has remarked that his living accommodation is “far from luxurious”.

In a recent court application Mr. Cassidy sought an order that his wife pay him $30,000 a month so he can move to his own rental accommodation. The Court ruled that pending the mental evaluation he should remain in the family home. His lawyer, Bettina Hindin, is appealing the order. She remarked:

“Imagine, solely as the result of being a divorce litigant, a court can force you to live with the spouse you are trying to rid yourself of.”

My observations? If the tables were turned and Kate Wallach was the victim of the circumstances described, a spousal support order would have been granted tout-suite, and probably for a lot more than $30,000 a month.

After 28-years of marriage and five children it is hard to imagine that a Court will not set aside the prenuptial agreement. In British Columbia these types of agreements are effective in short-term marriages with no children. Add years and children to the equation and they become less sustainable.

Lawdiva aka Georgialee Lang

Final Chapter in LA Dodgers Divorce?

BarristerJamie and Frank McCourt are now more famous for their over-the-top divorce than for their eight-year run as the owners of the Los Angeles Dodgers.

The twists and turns of their lengthy litigation could fill a book, and no doubt will!

For those of you who followed their case, you may remember the fight over their marriage agreement, made more complex and confusing because two different versions of the agreement surfaced. One agreement said that Frank McCourt would keep the ball team if the parties separated, while the second divided it equally as community property. Judge Scott Gordon threw out both agreements to the disappointment of Mr. McCourt who hoped he would prevail.

That then led to professional embarrassment and perhaps worse, for Boston lawyer, Larry Silverstein, who drafted the agreement. He testified that after both parties signed the agreement he “tinkered” with it: he changed it to say that Frank McCourt would retain the LA Dodgers. The trouble was he had six copies, three he changed and three he did not, and he didn’t tell Jamie or Frank what he had done.

He also broke two other cardinal rules: he had never practiced in the area of family law, and he acted for both Jamie and Frank McCourt, ignoring a potential conflict of interest.

But that was the least of the McCourts’ problems. Unable to meet the Dodger’s payroll, the team filed for bankruptcy and the league appointed a trustee to run the franchise.

Later in 2011 a settlement was finally achieved that saw Frank McCourt retain the ball club in exchange for a payment of $131 million to his wife, together with a portfolio of multi-million dollar homes.

Mr. McCourt eventually found a buyer for the team who agreed to pay him $2 billion dollars. Can you imagine Jamie McCourt’s wrath? She immediately filed a lawsuit seeking to overturn the settlement agreement, alleging her husband had misled her with regards to the value of the team and television broadcast rights.

The trial judge tossed out her court action reasoning that her evidence that she was not provided with sufficient financial information was not credible. The Court noted that Mr. McCourt had disclosed 220,000 pages of financial documentation. He also found that as a director of the ball club she had seen documents estimating the value of the Dodgers at $2.3 billion. The trial decision was affirmed this week by the California Court of Appeal who said:

“Jamie simply chose the security of a guaranteed $131 million payment, plus more than $50 million in real and personal property, over the uncertainty and risk presented by the valuation and sale of the Dodger assets.”

It is reported that the McCourts’ legal fees up to the settlement exceeded $19 million dollars.

Mrs. McCourt must now also pay her former husband $1.9 million for her failed attempt to overturn their deal.

Is this the final chapter? Given the McCourt’s track record I would bet it is not!

Lawdiva aka Georgialee Lang

The Curse of the In-Person Litigant

GEO_edited-1I guess I’ve been lucky because I have never had to do a trial where the opposing party acted in person, “pro se”, as they call it in the United States.

Why lucky? Because some of the worst trial horror stories involve litigants acting for themselves while their spouse has to pay a lawyer hundreds of dollars an hour to respond to often marginally relevant or unreasonable litigation tactics.

A good example is the case of G.T. v A.T. 2014 NY Slip Op 24035 where Mr. T., a well-educated engineer, just short a few credits for his doctorate degree, turned what should have been a three-day trial into a 12-day debacle.

Judge H. Patrick Leis III of the New York Supreme Court described Mr. T.’s behaviour in the opening paragraph of his Reasons:

“This case highlights the difficulties that arise when one party uses their self-represented status as both a sword and a shield in an attempt to gain undue advantage and behaves in a manner that the court would never tolerate from an attorney. The manner in which the defendant presented his minimal evidence, fueled by his own emotional agenda, lacked direction, reason and oftentimes was totally devoid of probative value.”

In many family law cases a case management judge is assigned to deal with all pretrial matters and preside over the trial. Such was the case in G.T. v. A.T., where Mr. T. and his wife brought their procedural issues to Judge Leis for resolution.

During this 18-month period Mr. T. expressed his satisfaction to the Court with the way these preliminary matters were handled.

Nothing Mr. T. said pretrial could have foretold the application he brought when the trial commenced.

With almost no notice to his wife’s lawyer, Mr. T. argued that Judge Leis should recuse (remove) himself as the trial judge because he had been “disrespectful of the parties’ culture and faith, repeatedly pressuring Mr. T. to retain counsel with coercion and threats”.

Mr. T.’s complaints of judicial threats were held to be without foundation, Judge Leis pointing out that he was in receipt of five letters from Mr. T., all glowing with praise of the judge’s pretrial rulings. Remarkably it was Mr. T. who was disrespectful, advising the judge that if he did not recuse himself he would report him to the Commission on Judicial Conduct.

But that was just Day 1. Mr. T. wasted additional court time with a rambling, unfocused, and mainly irrelevant opening statement, the gist of which was his desire to reconcile with his wife.

He then cross-examined his long-suffering wife for four days, ignoring the Court’s direction that he should ask questions of her, not deliver time-consuming, self-serving statements.

He also disregarded the Judge’s evidentiary rulings and even after admonishment carried on with lines of questioning that were beyond the scope of the trial. He refused to abandon his recusal argument and raised issues about orders pronounced by the court months before. Worst of all, he was rude and nasty, shouting aggressively at his wife and her lawyer.

Of course, the main victim of his flagrant abuse of the court system was his wife, who had to take an additional nine days of holiday from her workplace to complete what should have been a three-day trial, and was now subject to ever-increasing legal fees.

Interestingly, Mr. T. had quit his job shortly after the couple separated, a tactic that was futile, since Judge Leis imputed $120,000 income to him, despite his refusal to work.

Unfortunately, short of finding a belligerent litigant in contempt of court, all a judge can do is award costs. That’s just what Judge Leis did, saying:

“Simple justice dictates that the defendant who chooses to function from a position of anger and resentment, not be allowed to purposely drive up the plaintiff’s counsel fees and act in such an inappropriate manner, without being made responsible for all of the trial fees. Therefore, in an exercise of this court’s discretion, the defendant is responsible for all of the plaintiff’s counsel fees for trial.”

You think Mr. T. is done with court proceedings? Think again…there’s always the appeal court.

Lawdiva aka Georgialee Lang

Are Jurors Biased Against Fat Women?

10950859361151CDPResearchers at Yale University recently conducted a study with 471 mock jurors. Each of them was given a hypothetical criminal case of cheque fraud, together with photographs of four fake defendants.

The four accused consisted of a portly man, a slender man, a svelte woman and an overweight woman. The jurors then assessed each accused’s guilt on a scale of five, based on their appearance.

The study results showed that male jurors consistently found the fat woman to be guilty, and the bias against overweight women was even greater if the male juror was a thin man. Curiously, this weight bias did not apply to male jurors assessing the guilt of overweight men and female jurors displayed no discrimination against fat people.

Natasha Schevey, who led the research, concluded that weight-based stigmatization is now on par with rates of racial discrimination. In other words, overweight people are vulnerable to bias and discrimination similar to racial prejudice, based on stereotyping that depicts overweight people as “greedy, lazy, unmotivated, and lacking in self-discipline and will power”.

The results of this study are no surprise to researchers who specialize in obesity. Similar studies at Yale have shown that the medical community holds disdain for fat people under their care, even in cases where the physicians themselves specialize in obesity.

Other studies have shown that young people choosing partners would prefer a disabled partner rather than an obese one, and employment research indicates that overweight people are 37 times more likely to suffer employment discrimination.

Statistics Canada says that almost one-third of Canadians aged five to 17 are overweight or obese.

Using World Health Organization standards of measurement, 31.5 per cent of five- to 17-year-olds — an estimated 1.6 million Canadians — were classified as overweight (19.8 per cent) or obese (11.7 per cent) from 2009 to 2011.

Among children aged five to 11, the percentage of obese boys (19.5 per cent) was more than three times that of obese girls (6.3 per cent), the agency said.

According to the Canadian Heart and Stroke Foundation 60% of Canadian adults are overweight or obese.

What is shocking is that gender, disability, sexual orientation, and racial bias is protected by law, but weight discrimination has no legal protection. The victims of weight bias suffer in silence.

Is it even possible to change public opinion?

Lawdiva aka Georgialee Lang

Judge’s Child Support Ruling Goes Viral

_DSC4179 - Version 2Life isn’t always fair, but Carnell Alexander expected that a judge in Michigan would right the wrong. As he described it:

“How can you start a case with a lie? The mom lied. The process server lied. Now I have to pay for it.”

In 1987 a young woman gave birth to a child. In order to get welfare funds from the government she was obliged to fill out a form indicating who the father of her child was. She named Carnell Alexander as her child’s father.

She then filed a court action alleging he was the father and sought child support.

A process server was hired to personally deliver the court documents to him, as was required by law.

A court hearing took place but Carnell Alexander wasn’t there. He was in jail serving time for a juvenile offence.

Later in the early 90’s Carnell was checked in a routine traffic stop and advised there was a warrant for his arrest. The police officer told him he was a “deadbeat dad”.

You can imagine his surprise…he had never received notice of the paternity hearing as he was behind bars at the time, and he swore he had no children.

He began searching for the woman who had named him as father so he could prove he was not, through DNA testing, but his efforts failed until 2013 when a paternity test was administered.

With his grade 8 education and no assets or income, he could not afford a lawyer, but each occasion he went to court he repeated the refrain that he was not the child’s father.

But the government wanted him to pay arrears of child support of $30,000, so he showed up in court on his own expecting that justice would prevail. Boy, was he wrong!

Judge Kathleen McCarthy said she was “outraged that Mr. Alexander for two and a half decades failed to take this matter seriously.”

She said that Mr. Alexander should have filed documents protesting paternity years ago and because he did not, he must pay the support.

Yes, even though he had no notice, was not the father, and the child’s biological father was in his life, he must pay.

Feeling helpless, Mr. Alexander went to Michigan radio station WXYZ who broadcast his story.

And yes, Judge McCarthy was outraged about that too saying:

“I am outraged at the media for the willful misrepresentations of the facts of this case. Casting this court in a negative light.”

Due to the media exposure Carnell Alexander now has a pro bono lawyer, Cherika Harris, who has vowed to continue the fight for him.

As for Judge McCarthy, it is not the radio station that has cast a negative light on her court. She did that all on her own.

Lawdiva aka Georgialee Lang

Court Takes Evidence of Parental Alienation Seriously

_DSC4851A Court in Belgium has ordered a 13-year old girl to check into a psychiatric facility so that experts can figure out why the young girl refuses to look at or speak to her father, after her parent’s high-conflict divorce.

Father’s lawyer said that both parents lashed out at each other during their tense separation and divorce, and ultimately, their daughter lived primarily with her mother and maternal grandparents.

But nobody can point to an incident that would cause a child, who otherwise had a loving relationship with her father, to turn against him. Even the mother’s lawyer agreed that he was a normal father, with no evidence of personality issues or sexual abuse.

Respected psychotherapist Lut Celie opined:

“The father and mother parted on bad terms during the divorce battle with each parent trying to blacken the other. This went so far as to affect the child whose character was not fully developed.”

The Court was told that during a four-year period father and daughter had over 100 visits and each and every time, she refused to interact with him.

During the girl’s first communion at church, she became upset that her father was present and made such a public scene, he was forced to leave the church.

Rather than suggesting that mother and grandparents try to persuade their daughter to engage in a normal father/daughter relationship, a judicial direction that is often futile, the judge removed the girl from her mother’s care and control and into treatment.

Mysteriously, the teenager refuses to explain her behaviour. Kudos to the judge for his determination to get to the bottom of her conduct.

Mom, of course, is furious with the judge’s decision, saying:

“My little girl is being taken from the warmth of her home and away from her school where she is happy and has many friends. This is so heartless… It’s just because her father is insisting. She’s 13 years old now and old enough to know her own mind.”

Sure sounds like parental alienation syndrome…and if it is…it’s despicable, but hopefully not too late.

Lawdiva aka Georgialee Lang