Divorce And Mediation Blog

A Pennsylvania man has been indicted for sending an e-mail to Kentucky Senator Jim Bunning as a result of his efforts to stop a vote on extending unemployment benefits last February.

His crime may have been filling out a contact form on the Senator's website, incorrectly identifying himself as "Bruce from Louisville" in an effort to appear to be one of the Senator's constituents. He claims he didn't directly identify the Senator as crazy, but allegedly said ""ARE you'all insane," even though Bunning probably qualifies personally for that term. It is impossible to determine from the indictment what the man did, since the U.S. Attorney only quoted the vague language of the statute in the indictment.

There are two problems here: One is the basic due process right to be given knowledge of the charges against you, which we can't determine from the indictment. The other is the Constitutional right to "petition the government for redress of grievances", one of the rights granted by the First Amendment. It would be nice if the public could look at the indictment and actually determine what defendant is alleged to have done.

It will be interesting to see what the e-mails actually said. As for calling "Bunning" crazy, truth should be his defense. Age age 79, with an approval rating under 30%, he decided not to run again in 2010 because he couldn't raise enough money to fund his campaign.

40 years ago, California became the first state to allow people to get divorced simply because they no longer wanted to be married to their partners. In 1969, the California Legislature decided that the then-existing concept of "fault" created more problems that it solved; it felt that making the parties lie to rid themselves of a mate made little sense - no marriage was better than open hostilities, and, besides, court rooms are pretty poor places to decide which spouse was worse, or whether bad conduct had happened at all. Since then, 48 other states have followed suit, leaving only New York without a similar option. That may soon change.

This recent op-ed piece in the New York Times summarizes the arguments for and against no fault divorce now being debated in the New York Legislature. These are issues that create substantial debate, but eventually the result always seems to favor allowing people to divorce more freely; I presume that, ultimately, the majority of politicians want to keep their own options open.

Whether you agree or disagree with the concept, you or your spouse can obtain a divorce simply "because...." In California, the standard is that there be "irreconcilable difference." It is sufficient that one wants a divorce and the other doesn't - such a difference is probably "irreconcilable." California also permits divorce because of "incurable insanity," but in 35 years of practicing family law in San Diego, I've never seen anyone bring such a case. It is too easy to prove that at least one of the parties in the marriage is unhappy and wants out.

There's a story everyone should read in the New York Times. It is about a young woman, paralyzed from the waist down, as a result of e. coli tainted hamburger.

This is a rare, but violent case, in an industry under-regulated, and heavily protected by the wealth of the industry that cares more about providing us cheap beef than safety. A few years ago, a best seller [Fast Food Nation] detailed the problems in the beef industry, but illustrates what happens when an industry provides its own regulation, and government inspection isn't adequately funded.

This shouldn't be a liberal/conservative issue. This is our health - how much of a guaranty do you have that in a restaurant, or even in your own home, that the cook has killed the bacteria in cooking? What price do we pay when we don't adequately regulate business?

Do we prohibit litigation ["tort reform" as always proposed by business] so that industry does not pay the full price for its conduct - if you listen to the business community, the free market should control everything, except penalties for the damage it causes - sort of like corporate bailouts for the consequences of their gambling.

As noted below on this blog, I provide health insurance for my staff because i care about their health, about them as people, and their productivity. I am concerned about the growing cost of health care, in part for that reason. I am also concerned because my health care and that of my spouse keep going up.

Last year, we changed our office policy to Costco, because it cut our rates substantially, even though the insurance comes from the same company I had before - apparently there is enough profit in health insurance that Costco can make something, yet the health insurance carrier [the same one we'd been using] makes a profit, and can still cut my costs. Anyway, last year, by changing policies, slightly increasing the co-pay by another $5, and our cost went up slightly - otherwise, it was scheduled to go up about 15% .

One year later, on our policy anniversary date, our rates will go up about 25% from that. Of all the wackadoodles who complain that a government policy or health coverage will raise their taxes or the deficit, I wonder how many have considered the rapid increase in insurance costs - from the looks of many of the loudest protesters, they are covered by Medicare, a government program they'd fight to the death to keep.

At 15% per year, health care costs will double every 5 years. At 25% [this year's increase], it will double every 3 years. The average is somewhere in between, we hope. The cost of health care and insurance is rising at least 5 times as fast as wages and earnings.

Total health insurance funded by my family will cost about about $26,000 this year, covering 6 people, aged 12 to 66, one of whom is covered by Medicare, so prior years' taxes cover part of the cost. Part of that is paid by my wife's employer, but it ultimately comes out of the money available to pay her a higher salary, just as more the cost of insurance for my employees limits what I can afford to pay them.

Health cost is in crisis because of these rapid increases that seem to be accelerating. Between 1/7th and 1/6th of the nation's economy goes to health care - and we don't have the best health care in the world despite the unsupported assertions of the opponents of reform. It is time to wake up people, and fix a broken system.

Tax breaks, or buying insurance from "out of state" companies that aren't regulated, isn't the answer. We need to get out from under the hundreds of billions of dollars spent by the health care industry [drug makers, health insurance, etc.] on things that aren't necessary [advertising, manipulating doctors, profits, huge bonuses, etc.], and vote for substantial changes. When we here that Medicare is rife with fraud, what we don't consider is that the fraud is perpetrated by capitalists [doctors, pharmacists, insurance companies] who are bilking the government system - it isn't the system that is corrupt, its the private sector.

Proposed reform isn't socialism, it's self-preservation. Our auto industry can't compete with the Japanese, in large part because it provides health insurance. Our small businesses are being eaten alive by health insurance costs. Nothing is working but the system of lobbyists bribing our elected representatives. We are being scared by fears of a socialist government, but if you ask people they think that means Communism, as in the USSR - they don't realize that the postal service, police, schools, Medicare, and national parks are all government owned businesses. We, as a society, are so far from socialism that the risk that our government will own most aspects of our economy is merely a myth, designed to scare us into submission.

The "socialism" we are lead to fear is a communist system, where everyone [in theory] earns the same no matter how hard they work, how much they save, how they sacrifice, and how much they create. A tax rate of 50% doesn't stifle competition, hard work, or imagination. In the 1950's, the top Federal tax bracket was 90%. We lowered it to 70%, yet that plus state and local taxes, didn't keep us from making us the most inventive country in the world, or the most economically successful.

Yes, we have taxes that are unfair - all taxes are unfair. The goal is to find a mix between paying for government and not eliminating our desires to improve our economic positions and be more successful than those around us, or our parents. The cost of health care really can't enter into the discussion - it is a problem that needs to be solved and none of the solutions offered by the right are designed to solve that problem. Using tax policy [deductions, credits, etc.] makes taxation more complex and doesn't directly attack the problem - it just ties into the idea that any tax is bad if it hits people with the money to pay it.

Yes, I don't like high taxes, but I also don't like health care costs out of control - does it matter where my money goes? Not really. If the government can get the rapidly rising costs under control, I'm for it - maybe that requires government health care, or maybe it only requires government competition. One way or the other, the problem needs to be fixed.

I am celebrating my 45 year as a registered Republican, but the party is trying my patience. I survived the Bush years, although in some financial disarray to my retirement accounts, but I expect Republicans to be reasonable - I'm about to publically recognize their drive for power makes reasonable thought impossible.

Capitalistic theory operates on the assumption that society advances economically when we are allowed to be rewarded for hard work and inventiveness. The Chinese seem to understand that lesson. What Teddy Roosevelt understood more than 100 years ago, however, is that unregulated capitalism leads to boom and bust cycles, aggressive monopolies, and periodic economic and social disruption. He tried to fight this battle with William Howard Taft, but lost to party politics and big money when he tried to start a 3rd party to do so.

Throughout the 19th Century [the 1800's for some of you], and into the first 30 years of the 20th, we largely had unregulated capitalism, banking, and investing. Every 10 to 15 years there were huge recessions or depressions. The Great Depression started regulation started by Teddy Roosevelt, and the lessons learned sustained those regulations for the next 70 years. The next 75 years, we have had recessions, but nothing like what lack of regulation had produced before. The current recession was headed to Depression until the government realized we need to solve the banking crisis and prime the pump - even George Bush recognized this need, and started the process.

Somewhere, there has to be a mix: Government intervention and control to permit capitalism to flourish without the havoc it is prone to create when it isn't controlled.

The Bush Administration taught us several good lessons: Don't appoint your friends to make decisions just because they are your friends, don't appoint people to positions governing who believe there should be no government, and open government so what it does is transparent - oh, and don't let the regulated draft the regulations.

Now if that sounds like the ravings of a liberal, I'm sorry, but I don't think I've changed that much since I supported Barry Goldwater 45 years ago - the arguments of the conservatives then aren't recognizable to conservatives today. That wing of society has gone over the edge.

Gone are the Republicans like Dwight D. Eisenhower, Teddy Roosevelt, Nelson Rockefeller, Jacob Javits, Everett Dirksen, and others, who didn't want government controlling our daily lives, but understood it served a purpose - in part to protect us from foreign enemies, and in part to provide services it could provide more effectively, more fairly, or more economically, than private industry driven by the profit motive or the need to create economic empires, irrespective of the impact on society.

General Motors has long known it couldn't continue to pay for health care for its employees and retirees, still build cars here and still complete against cars made in strange foreign cultures, like Canada. Part of the imbalance causing our present health crisis is that General Motors shouldn't be in the health care industry, competing against companies like Toyota that aren't. As an employer, I shouldn't be in that industry either.

If Republicans care about their country, as we claim, we need to participate in a process to effectively bring health care costs under control. At present, it looks like we are just trying to repeat our rhetoric [government bad, tax cuts good, pure capitalism perfect], and seeking to regain power. How much more effective could our elected representatives appear if they seemed to be part of the solution, rather than the problem? Trying to take advantage of those simpletons who think Obama isn't an American, or that Congress will pass legislation to kill old people, is a way of gaining power, but not of fixing the problems of society.

What the Conservatives are forcing on us is a 51% majority in Congress cramming a health system down our throats that we will be stuck with forever - wake up, quit trying to scare us all, and solve the problem. It's time for both sides to get together to solve the problem, and quit telling us we are going to be killing grandma. Otherwise, you won't like the solution.

The recent story of Prof. Gates and the Cambridge cop has been blown all out of proportion by the media, trying to make it a racial issue to further divide Democrats from Republicans. I agree with the President that the cop did something stupid - it's not a racial issue, just an overreaction to a fairly minor incident, and the President didn't assert it was anything else. [Perhaps the stupidity was in the mouth of the "journalist" who asked his opinion in the first place, during a press conference on health insurance.] The professor probably acted stupidly as well, but we'll never know what really happened.

A similar problem occurred in Cardiff [coastal San Diego County] a few weeks ago where a woman about 67 was wrestled to the ground and handcuffed, after apparently refusing to tell a cop her date of birth - he'd come to her house with a helicopter and about 7 squad cars on a noise complaint about 9:00 p.m. in the evening - the noise was an amplified speech by a female candidate for Congress, speaking at a fund raiser in a residential neighborhood.

The woman was offended by the cop's attitude, and attempted to shoo him off by saying "you know where I live and my name, why do you need my date of birth." From there, the problem escalated into a stupid act by the cop - both immature participants were white. [There were some political overtones, such as the name calling by the reporting neighbor who had allegedly been yelling from the bushes.]

Maureen Dowd's column in the New York Times fairly summarizes my views of the Gates situation. Although the races were different, the attitudes were about the same. This type of thing seems to happen a lot, and it's not racial, although in that case the anger came out in racial tones - we all have our hot buttons.

A few years ago, I was stopped by a CHP officer for using the shoulder to go around a truck that was stuck trying to access a freeway where all the traffic was stopped for construction. I had seen the officer in my rear view mirror as I avoided the truck and knew I was doing nothing wrong.

He was angry that I had gone around the truck, and argumentative - I tried to suggest he had discretion not to issue the ticket, rather than trying to argue the law, but that seemed to make him more determined: "I use those shoulders", he responded, as though what I had done could have endangered him had he been giving a ticket. I sucked it up, politely accepted the ticket, and set the case for trial.

At trial, the same jackbooted officer [a motorcycle cop] arrived loaded for bear. I presented the judge the statute that allowed what I had done. The officer was rabid in his defense of his action, and amateurish in his rejection of the statute - adamant that it couldn't mean what it said - perhaps a part-time night school law student. He couldn't allow me to have the last word, acting as a bad prosecutor over and over again, firmly committed to the idea that he was right. I was acquitted, and was he angry. I fear running into him again. Maybe he had a friend killed during a traffic stop on a shoulder, and that was a hot ticket item for him - from my standpoint, he merely looked foolish and wasted a fair amount of my time.

I've known a number of police officers well, and the overwhelming majority would never have acted as he did, never have wrestled a middle aged white woman to the ground in her own home, or handcuffed a middle aged professor with a limp simply because he was angry and yelling at them. Let's not make this a national issue, when we have a health insurance crisis, two major wars, and an economic catastrophe to occupy our minds. It's just two testosterone driven people who pushed one another's buttons.

Last week, I bemoaned the hit piece by a local TV station's amateur reporter, Lauren Reynolds of KGTV, the San Diego ABC-TV affiliate.

Well, one of my colleagues tried to set the record straight. Last week she sent the vice president of the station a lengthy rebuttal to the biased report, including readily available public information, copies of publications, and written statements from witnesses.

An apology? A retraction? Nope! Seems the station acknowledges there is a difference of opinion, is sticking by its report, and not telling the other side of the story. Since I now know what they claim is journalism lacks integrity, I won't be watching the news there any longer. Sorry Charley [Gibson], but you're off my list of favorites, along with your cohorts.

Currently in San Diego, there has been a flurry of stories, e-mails, telephone calls, and gossip, relating to a well-known and well-respected psychotherapist who has been sued by a person who apparently didn't look too good in the doctor's evaluation in a custody case. In general, lawyers and therapists in the family law community are outraged that the doctor, who on advice of counsel is saying nothing, has been tarred by a member of the media based on the ravings of a losing litigant in a custody dispute [like you'd expect the loser to be rational on the subject].

The reporter for KGTV in San Diego never bothered to discuss the case with well respected experts in the field before doing a hit piece on television, or at least didn't quote them - to compound the problem, a local "dog trainer" ran a similar story containing massive amounts of misrepresentations because its "reporter" only listened to one side of the case. They obviously didn't care how experts are chosen and what is important - I can attest to the fact their resumes are largely irrelevant.

I have never used this particular therapist to do evaluations in any of my cases, although I believe he had been appointed to treat some of the children over the years. I have known him only by reputation and an occasional brief conversation at one Bar function or another over the last 25 years - I doubt I have had a total of an hour of discussion with him in that period - we have no personal relationship, but I have a great deal of empathy for him and his position at this stage of an illustrious career. I can add my 3 decades of experience to help non-lawyers understand the situation.

Allegedly, there are several minor misstatements claimed in his 5 page resume - I checked several of the claims against a 3 year old resume of the doctor I received at a seminar where he spoke - I couldn't find that he'd made the claims I checked, let alone that he was wrong, or lying. He has no need to pad out the resume. The "investigation" shows he is not a member of a couple of organizations with names similar to those he has listed, but obviously not the same.

Some local TV reporter [a field populated by those whose primary qualifications relate to which makeup counter at Nordstrom they frequent, and I've know quite a few] has chosen to listen to a few disgruntled litigants, rather than the lawyers and judges who rely on his reports year after year to ferret out the ferrets in our cases, hopefully so that children will be protected, or even just grow up happier. Neither reporter bothered to speak to legitimate sources for their opinions of the dispute, just a handful of the parents he has examined and treated. Typical slash and burn, leaving wreckage in their wake.

I have a few stories that come to mind as a result of this story. In one, a friend was sued after being appointed by the court as the children's attorney - the lawyer recommended more time to one parent - the other sued "on behalf of the children" claiming the lawyer had committed legal malpractice in reaching the conclusion - that parent tried to be in charge of their case, although they lived with the other. The case went nowhere, but the lawyer had to pay an insurance deductible and sit back and worry for months until the case was dismissed - this lawyer had been a valuable resource to the courts for years, but as a result decided there was no upside to continuing to be paid to act as minor's counsel [often at $60 per hour by the court, which doesn't cover overhead], and hasn't done it since. Novel legal theory, but really just the ravings of a dissatisfied parent.

A second friend was a therapist for young children whose parents were trapped in a custody battle. During therapy, the children asked that the therapist to do something to protect them from their father - a declaration was written to be used to gain some protection while the court sorted out the issue. Probably at the instigation of his lawyer [affectionately known by some as "The Dick", and described by others as "soulless"] the father, after losing the custody dispute, tried to have the therapist's license to practice suspended. After thousands of dollars in defense, the therapist was vindicated, but remains gun shy whenever the thought of being involved in the court process comes up. When we try to find therapists for children in custody cases, the vast majority refuse if there is any chance they may be required to testify - a huge loss to the public, and the courts.

The third case is the other side of the coin. A client came to see me on referral from a friend/lawyer who felt the case was too hotly contested and that the client needed someone stronger than she wanted to be. The first thing I did was tell the client he didn't present well [a euphemism for a bad personality] - at my direction, he sought counseling with a therapist I recommended. Over a period of several months, he changed when he realized how others saw him. He went from a 20% time share to primary care - not by suing the prior therapist in the case, but by recognizing that he had some impact on how he was perceived. When the case ended, I got a note from him that I had changed his life - I was shocked, as I had done so little - he had changed his own life, I just confronted him on his conduct.

Fathers in custody cases generally fare more poorly than mothers. It's not that they are bad parents, it's primarily that they were less involved when the family was intact - the courts generally end up preserving the status quo, which means that the mother generally ends up with more time. Some fathers resent that outcome, but it is predictable based on their role during the marriage. Some are just bad parents [there are a lot of mothers who are just as bad]. Some lawyers exploit the fathers' resentment, without trying to explain why there appears to be prejudice, and what can be done to overcome it [which may take a few years of changed conduct].

We need to understand that the courts have insufficient resources to resolve complicated custody disputes. As a long time judge has said "I don't get paid to make the right decision, I just get paid for making decisions." They need therapists and lawyers willing to take on these cases to give them guidance, without fear that the media will listen to the disgruntled loser and fail to present a balanced view of the issue.

In the case in the news, the court didn't help: It's response was that judges don't check out the resumes or credentials, they rely on the lawyers to do so.

I regularly pick experts for custody evaluations, therapists, appraisers, income analyzers, etc. - I rarely even see their resume, and generally don't care what is on it - I rely on the advice of friends and colleagues, and my own experience using or watching them. Are they pretty consistent in their opinions? Can they support their positions if they are called to the witness stand without folding up under cross examination? How much do they charge? Do they prepare reports in a timely fashion? Do they consistently view the world from a biased perspective [such as routinely siding with mothers or fathers, for example]? Are they well respected by other lawyers and judges, so their reports help settle cases?

The resume? I only care about it if the expert is on my side and I need to qualify him or her as an expert at trial. Do I care whether someone listed himself as a "Fellow" of an organization, when in reality he was a "Diplomat" because that is the label it puts on its members, or that he says he was a member of an organization 10 years ago, but isn't paying dues any longer or otherwise lost interest? Do I care whether an organization to which he belongs has any standards? NOPE! I just want him to do a good job. And, I have no way of checking out the organizations to know whether they exists or have any requirements of membership.

I acknowledge that about 10 years ago a "therapist" was exposed for lacking an important certification and degree when someone pinned her down during cross-examination, and everyone was shocked. The person had started out providing a service, and somewhere along the line a few lawyers started asking for reports - although not qualified to write them, they were written until a diligent lawyer tried to determine whether she was even licensed to do the work she had taken on. That is hardly the case here - the therapist in the news has been well tested on the witness stand by the best, many times, and always comes out unscathed.

We need a free press, but it needs to be responsible or it is useless. Here, it has done some real damage to the future of child custody litigation. KGTV owes an apology to the public, the courts, and the therapist for shoddy reporting, yet its reporter is sticking by the story she told solely through the mouths of troubled people, while doing an inadequate job of confirming the allegations she reported.

As we form our political and social views we are, of necessity, influenced by our personal experience. Those of us with money or jobs tend to have had health insurance all of our lives - in the family in which I grew up, not having coverage was unthinkable. In business, health insurance was historically a way of rewarding employees, keeping employees, ensuring a healthy, productive, and secure work force, and helping them keep their minds on work rather than the health of them and their family members. I can't imaging not having coverage, and not offering it to my employees.

I provide health insurance for my staff for all these reasons - on the one hand, it gives me an advantage over my competitors who don't offer the benefit - of greater importance to me is that people I care about don't feel they cannot go to the doctor when they have some minor problem [like a chest pain] out of fear of the cost of an office visit.

And, I don't want them to worry that their children might get sick, and they can't afford to care for them. But more than health care affecting me as an employer, as a Family Law lawyer it affects my clients every day and creates problems for many with which we must deal.

Each week, in one case or another, this is an issue we face. Sometimes it is as "simple" as trying to convince a client he or she needs to make insurance a higher priority, or guiding the client in a job search to a profession where it is routinely provided by employers [large companies, public agencies, etc.] Of greater difficulty is explaining to the soon-to-be ex-spouse that health insurance will soon run out, or may be extended for a number of months at a high rate. Lately, the job choice doesn't exist.

Commonly known as COBRA rights, many larger employers are required by state or Federal law to extend benefits to former employees or their former spouses as an extension of their prior policy. The COBRA cost is supposedly approximately equal to the regular cost of coverage [without subsidies, plus a small handling charge]. Sounds like a good deal? Last month I saw my first quote that caused me pause: My client's ex-wife would be paying more than $750 per month to keep her existing coverage after the divorce - she is in her 40's - that sum is not within her budget, but pre-existing conditions also keep her out of the market for a policy on her own.

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