What Burt Has to Say to His (Divorce and Custody) Opponents

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By on November 20, 2011 4:21 pm Leave your thoughts

The WV Rules of Professional Responsibility for lawyers prohibit my communicating with a represented party. But, a lawyer must deal with unrepresented parties directly. Failure to do so in my opinion is malpractice. I am convinced that misconceptions about the divorce process and allocation of parental rights (formerly paternity actions) create a large percentage of the problems which interfere with the settlement of cases. I hope to use the form letter below with unrepresented parties and counsel to improve our communication and enhance our changes for amicable settlements.

Dear Adversary:

I would like us to start off on the right foot, so here is what I would like you to consider:

1. If you do not have a lawyer, you should retain one, or at least consult one. You are in a legal world of rules, statutes, and WV Supreme Court opinions that you cannot possibly master, and you probably do not have the time even to try.

2. I have done over 3000 cases, and my obligation is to my client. But that does not mean I am your enemy or have a personal vendetta against you.

3. That said; this may surprise you. I am fundamentally fair, have decided long ago never intentionally to mislead my opponents, and will focus as hard I can on the best interests of any minor children.

4. That does not mean that I never bluff or hide our “true bottom line”. There is a difference between serious negotiations, positions taken at trial, and dishonesty, and I believe I know the difference. A good lawyer can be tough, but also reasonable and honest, even “feisty but fair”.

5. Children should never be used as weapons, involved in the fight, hear obscenity, view violence, be interrogated, be made partisans, or be exposed to immoderate alcohol use, drugs, or sexual activity. Parents should support the other’s discipline, and require respect to the other parent.

6. The lawyers and judges who work in family law have worked with hundreds and thousands of cases. We are not in the emotional cauldron that you may be. Harsh words, infidelity, and heartache are things we deal with every day, and we may appear to have been somewhat hardened to them. Those of us who are good at what we do care about the parties and the children and want you to have a good outcome.

7. I oppose strongly:

a. Emotional abuse and efforts to control my client with threats or manipulation;

b. Your exposing your child to a “significant other” early in the case. You will learn at the court ordered “parenting class” that this is a selfish act, confusing to the child, irresponsible, and often an act of revenge against your estranged spouse. And, it makes you look bad to the Court.

c. Dangerous or crazy activities like abuse of alcohol, use of illegal drugs, threats of violence, or actual violence. These are the things that cause you to lose parental rights, go to jail, OR DIE!

d. If you are doing this stuff, when you sober up, take a few quiet moments to consider, “Why am I doing this stuff? Where is it leading? What impact am I having on people I love, or used to love? How am I going to come out the other end a whole person?” It is VERY hard to bring yourself under control, but some people can do it, often with the help of qualified professionals, starting with your doctor, minister, family, and close friends.

e. Stubborn refusal to accept the reasonable rules that govern your case. They include:

1. Equitable Distribution. We are not a community property state. Your spouse does not automatically own everything you own. But it is strongly presumed that any property, including “my retirement” accumulated during your marriage is owned 50%-50%. So, if you want your wife to be a stay at home wife or mother, realize and appreciate that she will raise the children, maintain your house, share in sex, and do all those things that keep our society, like volunteering at school or church, helping take care of your ailing Mom, and being there when you need a boost. A stay at home spouse usually has only the retirement the working spouse has been able to accumulate.

2. Alimony. Please do not say. “I will quit my job before paying her or him alimony!” That will get you in trouble with the Court. It also tends to ignore all the good things mentioned in Para. e. 1 above. Instead, WHY NOT JUST READ THE ALIMONY STATUTE. The court must consider 20 factors before deciding whether to order alimony, how much and for how long. These factors include the parties’ ages, work experience, employment status, length of marriage, health, intelligence, and event who was at fault in destroying the marriage. The court has to consider whether a party can complete some education or get some job training to become financially rehabilitated. It will also look at whether you or your spouse are receiving any income producing property, likelihood of future promotions, and where you will probably be in five or ten years. If you and your lawyer do the same thing, you can be much more realistic and less histrionic on this issue.

3. Discovery: Please simply accept that you must disclose to the other side your income, and, in divorces, your assets and debts. This disclosure includes assets purchased with only your pay check. And this disclosure includes property you consider to be separate, gifts from family, inheritance, and assets purchased at least partially with funds you had before you married. For people who have been married awhile or have significant income and properties, it takes a good lawyer and careful analysis to sort through issues of equitable distribution. If you don’t have a lawyer, for gosh sakes read the Family Court Rules, the Discovery Rules, and even the Rules of Evidence. It is silly to think you can become a “self-help lawyer”, but failing even to try to understand the basics is a prescription for disaster.

4. Custody. This word is supposed to be passé. Important revisions were made to the law several years ago. These revisions did not, as some people have heard, guarantee the father 50%-50% custody. Instead, the assumption for fit parents is a “shared parenting” plan, “time with the children” instead of “custody” and “visitation”, co-equal decision making, and co-equal access to children’s records. The apportionment of time is often determined by a look-back to what you and your spouse have done before the date of separation. If you worked 60 hours a week, and your spouse stayed at home and did not rely heavily on a third party care provider (baby sitter, day care, etc.), do not be surprised that you demand for 50% is not going to be granted.

5. Mediation. Would you rather have a major role in parenting, in how your property is to be divided, in which debts are paid by which party, and in whether you receive or pay alimony, or would you just like to pitch the judge in a one hour to eight hour trial and have him or her decide your fate, and your children’s? I don’t think so! I request that you and your lawyer do your homework, set aside emotion as best you can, study and learn the mediation process, truly put your children first, manage your own habits and behavior.

8. Finally, cases involving serious abuse are always problematical, but 80% of cases are susceptible to a negotiated settlement, usually with the help of the mediator. Try to be open to honest efforts to bridge the considerable distance between our stated positions. Cases are settled every day, to the benefit of the parties and their children.

Sincerely,

J. Burton Hunter III

This post was written by Burton Hunter

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