Why proper due diligence matters when selecting a family law attorney – breaking up is often hard to do

On occasion, I am contacted by people who are not happy with another attorney they hired, or how their family law matter is progressing.  Often, they are trying to change family law counsel, midstream. Trying to change your attorney in the middle of a family law matter is often rooted in two problem issues; lack of the client doing proper due diligence when initially selecting their current family law attorney, and / or lack of good two-way communication between the client and their counsel. Excellent two-way attorney-client communication is often essential for obtaining the best possible result in family law matters.

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Make sure that you and your family law attorney are headed in the same direction. Your attorney must understand the specific facts of your case, your goals, and what issues are important to you.

CHOOSE YOUR FAMILY LAW ATTORNEY WISELY

I cannot overemphasize the importance of wisely choosing your attorney before hiring him or her. Taking the time to properly investigate and interview more than one family law attorney is one of the best things you can do to help yourself. Ask questions. Attend your initial consultation prepared. You should never feel pressured or obligated to hire an attorney until you are ready, and you have done your homework. In my opinion, many excellent family law attorneys know this, and they will never have a problem if you want an opinion from another family law attorney prior to making a decision regarding who you want to hire.

Once you choose a family law attorney, sign a letter of engagement, and begin working with that attorney, breaking up can be both hard to do and expensive. Discharging your attorney and hiring new counsel, prior to successfully concluding the original professional engagement, is neither good for the client, nor good for the attorney. That is why performing proper due diligence, and ensuring a good overall fit, prior to actually hiring an attorney is critical.

The initial face-to-face meeting with an attorney is very important. Mutual trust and understanding carry the day. Trust your instincts. Search vigorously, select wisely. Your future may depend on it.

Here below, is one of the short videos I posted on YouTube, regarding choosing counsel in family law matters. If you are seeking legal counsel, I hope you find it helpful. I wish you much luck and success.

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“What state law will be used to interpret and enforce my prenup?”

by Jonathan C. Noble, Esq.

No, this isn’t a bar exam question. It is real life. How many adults do you know who have lived in the same state their entire life? Probably not too many. People are more mobile today than ever. A properly drafted and properly executed prenuptial agreement will help answer what state law will control in the event the prenup needs to be enforced. Since we live in a mobile society, and state laws vary widely, this issue could “make-or-break” the enforceability of your document.

Prenuptial Agreements are carefully crafted documents, tailored to suit your specific situation and your specific needs and goals.

I love when people inquire about prenuptial agreements. It shows they are taking a cautiously optimistic, yet pragmatic view regarding how life can and does change. People change over time. Circumstances change. Laws change. In the unfortunate event of divorce (or death), a properly drafted and executed prenuptial agreement can make the divorce process easier, more efficient, and help ensure you do not lose all that you have amassed. Properly drafted, and executed, a prenup is one very useful document.

Jonathan C. Noble, Esq.
Jonathan C. Noble, Esq.

Prenups make sense. When properly written and executed, prenups save time and money. They can help you exit from a non-functioning marriage without paying a king’s ransom to your lawyer and/or being potentially victimized by a non-cooperative, or unrealistic, soon-to-be ex-spouse. Prenups can help protect assets that you have earmarked for your children from a prior marriage. Prenups can help protect your assets from being depleted by the well meaning, but often slow churning, and over-burdened court system. As a very general rule, the less time you spend in court fighting over divorce related issues, the better off you will be at the end of the divorce process.

I believe the best legal advice is forward thinking, with the aim to keep you out of court as much as possible. A well drafted and properly executed prenup should be part of a pragmatic, forward thinking strategy.

Prenuptial agreements are never standard or “boilerplate” agreements. 

No two prenuptial agreements are exactly alike. Everyone has different assets, different goals, different financial histories and different family histories. While most prenuptial agreements are put in place in the event of divorce or death, no two marriages share an identical set of facts and circumstances.  You should never take a prenuptial agreement written for someone else and simply substitute your own information.

Like all contracts, the parties must enter into a prenuptial agreement voluntarily. Prenups require full disclosure. No surprises. 

If you are thinking about springing a prenuptial agreement on your significant other during the rehearsal dinner the night before the wedding, you can forget it. In most, if not all jurisdictions, a prenuptial agreement will not be enforced if the party seeking to have the prenup set aside can prove they were not given adequate time and a reasonable opportunity to review the document with independent counsel of their own choosing. Presenting a prenup for the first time and demanding it be signed a few days prior to a wedding is inviting trouble down the road. Some jurisdictions require a minimum amount of time for the parties to retain separate counsel,  to examine, and to sign a prenup. The earlier you handle discussing and putting a prenup in place, normally the better. Getting a prenuptial agreement properly wrapped up before the wedding invitations are mailed is one suggestion that deserves serious consideration.

If you are planning to marry and would like to learn more about how a prenuptial agreement can help protect you, please feel free to contact me via email at jonathancnobleesq@gmail.com or call my office at 610 256 4843 to set up an initial consultation.

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Social media can create marital problems

by Jonathan C. Noble, Esq.

More than one-third of divorce complaints in the United States include some form of social media as factor in divorce. According to a recent survey, the word “Facebook” appears in over one-quarter of divorce actions. It seems that the digital age has created a vehicle for marital unrest to creep into the sanctity of holy matrimony. Recently, one woman filed for divorce because she alleged that her husband of two months refused to change his Facebook relationship status from “single” to “married”. Hopefully, she lives in a “no-fault” state.

Jonathan C. Noble, Esquire
Jonathan C. Noble, Esquire

The rules of evidence are important.

The rules of evidence play a vital role in the admissibility of certain documentary evidence. E-mails, text messages, tweets, snap-chats, Linked In messages, What’s App communications, Facebook postings, Tweets on Twitter, and the like provide some of the best evidence in family law matters. However, all documents introduced at trial are governed by the various rules of evidence. Simply put, the probative value of any piece of evidence must outweigh the danger of unfair prejudice, confusion, or misleading the fact finder. All potential documents you want introduced in evidence must also be relevant and authentic. Courts are given wide latitude when making rulings on the admissibility of evidence. A skilled lawyer can navigate the rules of evidence and put your case in the best possible light.

Authenticating documents in family law cases – a potential trap for the unwary. 

Before documents can be admitted in evidence and considered by the trier of fact, they must be properly authenticated. There are several methods to authenticate documents in a legal proceeding. This is another area where skilled legal counsel can employ a pretrial strategy to greatly improve the chances that relevant evidence is admitted in evidence and properly considered.

Custody cases and Social Media – think twice, then think again before acting. Do not be your own worst enemy. 

There have been many reported custody cases where one parent does things to undermine their position. Some people do things without thinking. Some people cannot control their urge to disparage their former spouse on social media sites or in written communications. Other people cannot resist the urge to post photos of themselves doing things that undermine their credibility or that potentially damage the court’s view of their fitness for parenting their minor children.  Simply put, it is always better to refrain from doing anything that can be documented, authenticated and admitted in evidence and work against you in any legal matter. I recommend taking the mindset that you should expect that the finder of fact will be reading anything you put into the cyber world. Once your document, photograph or other electronic communication is out there, it is not always possible to retrieve. Think twice, then think again before acting on social media or before sending any electronic communication. Using common sense and focusing on the best interests of your child usually works well in custody matters. You can help yourself a great deal simply by not being your own worst enemy. Think about it.

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Gordon Gekko and the Art of Family Law

In 1987 Michael Douglas won the Academy Award for Best Actor for his role as Gordon Gekko, a wealthy, unscrupulous corporate raider in the movie Wall Street. In one memorable scene from the film, Gekko quotes a line from the ancient Chinese military treatise, Sun Tzu, The Art of War. In the film, Gekko tells a young stockbroker (played by Charlie Sheen) that:

“Every battle is won BEFORE it is fought”.   Sun Tzu Every Battle Quote

In the world of business, this famous quote often rings true. In the context of family law matters, especially contested family law matters, this quote also rings true. In any fight, or competitive contest, whether it is business, legal, sporting, or any other battle life throws our way, solid preparation and planning can often dictate the outcome.

Why am I writing about Sun Tzu  in a family law blog ?

Solid preparation is one key element to getting a good result in most family law matters. My goal is to prepare every matter as though it is going to trial. It is amazing how many family law issues can be settled without court intervention when the case is properly prepared. The need to engage in protracted litigation in family law matters can sometimes be avoided through meticulous preparation and having a sound legal strategy. Many of the battles in divorce and family law are won before they are fought. The key is to pick your battles, (and your counsel) wisely. I wrote about these issues in earlier posts on this blog.

Of course, human emotions can also play a role in family court. Some people insist on “scorching the earth” in search of what they perceive as justice. Some people insist on “making their spouse pay”, despite not having a sound legal reason not to settle, mediate, arbitrate, or collaborate and simply move on. Some people want their “day in court”, despite the unpredictable nature of litigation and the associated costs involved. Some people insist that the law is broken and that their sense of fairness should dictate the outcome of their family law matter.  This is not a recipe for success.

Don’t be like Gordon Gekko. Protect what could become your achilles heel. In family law matters, you should protect your legal rights, however greed is usually counterproductive in divorce proceedings. 

In the original 1987 film Wall Street, Gordon Gekko provides us with a memorable declaration that “greed is good”.  In the end, this mantra becomes his achilles heel, and he pays dearly for it. “Greed is good” is not usually a good mindset in family law matters. Clear thinking coupled with a sound legal strategy usually carries the day during a contentious divorce.

In many divorce and family law matters, greed is often bad. Greed by one (or both) parties can sometimes grind the divorce process to a slow crawl.  This is rarely, if ever, a good thing for the parties involved. You should be thinking about preserving your assets. When counsel fees and litigation costs start to approach the real value of the issue at stake, you need to take a step back and take an assessing view. Hopefully your counsel, therapist, coach and/or family member is helping you put things in perspective.

For example, some people mistakenly believe that upon divorce, they are entitled to much more of the marital estate than the facts of their case and the law will reasonably allow. Their expectations are wildly out of sync with statutory and decisional law. This is where getting assistance to start thinking in a logical manner along with hiring and working closely with the the right counsel becomes critical. Think about it.

 

 

Bad-mouthing your ex in front of your children – don’t do it

Divorce and custody litigation can bring out the worst in many people. Emotions run high. Some people cannot resist the temptation to say something nasty or inappropriate to their kids about the other parent. Some parents even try to poison their children against the other parent. When a parent acts in a vindictive manner towards the other parent, this wreaks havoc with the child.

Jonathan C. Noble, Esq.Some parents make the same mistakes over and over, by continually bad-mouthing their former spouse. This can negatively impact your children as they grow up into young adulthood and beyond. Whenever a child hears one parent bash the other parent, the child can suffer. Continual bad-mouthing by either parent can slowly damage a child’s sense of self-esteem. Some people call continual bad-mouthing in the presence of a child “death by a thousand cuts”.

I have seen custody cases where one spouse simply cannot control their own contemptuous, bad-mouthing-of-the-ex-spouse. Remarkably, for some reason, after sharing a life with the targeted spouse and having children with the targeted spouse, the bad-mouthing spouse cannot stop speaking in derogatory terms about the other spouse in the presence of the children. In one recent case, not even a court order could subdue ongoing ad hominem attacks by a mother about her ex, in front of her young children.

Why am I writing about this issue?

First, under the Pennsylvania Child Custody Statute, bad-mouthing your ex could be considered an attempt to turn a child against the other parent. This must be taken into consideration when a court is being asked to modify custody of a minor child. Bad-mouthing conduct may be difficult to prove in court, but it is not impossible to prove. Talk to a family law attorney with experience in this area. For some reason, some parents just cannot seem to stop themselves from bad-mouthing their ex, even though they know bad-mouthing their ex is hurting their children. This may seem counter-intuitive, but it is true.

Second, a few years ago I read Divorce Poison – How to Protect Your Family from Bad-Mouthing and Brainwashing by Dr. Richard A. Warshak. I consider it a must-read for any parent involved in a high-conflict divorce. It is available on Amazon for about $10.00. Read the reviews on Amazon. (You will thank me later).

If you, or someone you know, feel you can’t control the temptation of bad-mouthing your ex in front of your children, I urge you to read the book and seek professional help, before you hurt your children. If you are the targeted parent, the book is full of useful suggestions to protect yourself and your relationship with your children.  You will be doing your children a great service by understanding how much it hurts a child when they hear a parent speak negatively about the other parent.

If you are the targeted parent, I also recommend you refuse to “fight fire with fire”. Always take the high road, despite the path your ex may choose. Do the next “right” thing. Your kids will be grateful.

Kids are defenseless against the ill-advised actions of a bad-mouthing or brainwashing parent. Think twice before saying anything that could be perceived by a child as being negative or bad-mouthing. Kids are smarter than some adults realize. The negative things you say in front of your children today, may come back to hurt you as they grow up. Think about it.

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Writing a $974,790,317.77 check and moving on in divorce

Sometimes keeping things in perspective is half of the battle.

Recently, a couple from the midwest (Harold and Sue Ann) were going through a divorce. Harold is a billionaire, but his fortune is largely tied to the price of oil. Jonathan C. Noble, Esq.The price of oil can and does fluctuate . Therefore the value of their marital assets can and do fluctuate.

 

The court valued Harold and Sue Ann’s marital estate at a little over two billion dollars. The Oklahoma divorce court awarded Sue Ann almost half. In an effort to end the divorce proceedings, Harold decided to write a check to Sue Ann for $974,790,317.77. You may have already seen a copy of the widely publicized check.

Here is a link from Reuters with the story and an image of Harold’s handwritten check to Sue Ann:

http://www.reuters.com/article/2015/01/09/us-hamm-divorce-wife-idUSKBN0KH2BK20150109

Sue Ann allegedly vowed to appeal the award, claiming Harold’s company was worth much more. A few days later, she cashed the check, pretty much ending her rights on appeal regarding the valuation and distribution of marital assets.

Why is this story important? 

This story is important because this couple could have spent more money on lawyers fighting over millions (or billions) of dollars, with absolutely no guarantee of a positive outcome for either party. I imagine Harold is a very smart guy. Instead of fighting for an indeterminate amount of time with no guarantee that either party would achieve a better outcome, he simply wrote a check that “got the deal done”.  Harold simply wrote a check to Sue Ann for $974,790,317.77. She deposited the check a few days later. Here below is a link to the story from CBS news:

http://www.cbsnews.com/news/harold-hamms-ex-wife-cashes-billion-dollar-divorce-check/

Harold appeared on CNBC soon after Sue Ann cashed the check. Here is the link to his very short interview:

http://www.cnbc.com/id/102462914

Notice Harold’s mindset. During the CNBC interview, he said his divorce is “in the rearview mirror, movin’ on”.

While the case may still be pending on appeal, many legal analysts believe that Sue Ann faces an uphill battle to overturn the award on appeal.

For some going through divorce, the story of Harold and Sue Ann should act as a reminder that setting smart goals (i.e. putting the divorce in the rearview and movin’ on) is often an important part of a good overall strategy.

 

Beware of using standard legal forms – a trap for the unwary

Some legal transactions may be accomplished using standard forms, containing boilerplate language. For example, in many cases, selling your car, in a private transaction, is fairly straightforward. You may be able to use a standard bill of sale outlining the key terms of the transaction such as the sales price of the car, payment terms, the actual odometer reading, whether the car is being sold “as is” or with a warranty, and the names of the buyer and seller. Standard agreements for selling a car are available from a number of sources, both online and offline. The process for transferring the title of the car to the new owner is also available online and offline.

Jonathan C. Noble, Esquire
Jonathan C. Noble, Esquire

Conversely, nearly all family law matters are more complex than selling a car. The facts are almost never identical in any two family law matters. Many standard forms in the context of a family law matter must either be significantly edited and/or redrafted in order to properly address your specific situation, as well as comply with the current law in your jurisdiction. Preparing the documents needed to sell your car and preparing a marital settlement agreement are like night and day. The bottom line: Boilerplate family law documents should be viewed with caution.

Marital Settlement Agreements – a Potential Trap for the Unwary

Any agreement is only as good as it is enforceable. A marital settlement agreement (also referred to as a property settlement agreement) is one document that should clearly spell out the rights and the responsibilities of the parties. One main goal should be to have the agreement be written in clear terms, with definite timelines. Many boilerplate or standard legal documents are not clearly written. Some boilerplate forms were written many years ago and the laws have since changed. Some were written by attorneys (or even non-attorneys), who are not familiar with the laws in your particular state. Boilerplate or standard family law agreements are not designed to be, and simply cannot be familiar with the facts of your specific family law matter.

Why this is important to know

Using a “standard” or “boilerplate” marital settlement agreement can lead to problems months or even years later, especially if you need to try to enforce the terms of your marital settlement agreement. A well written and drafted agreement can be thought of as a small investment in protecting your rights based on the circumstances of your particular situation. You do not want to be in a position of being forced to litigate the interpretation of a poorly written, or boilerplate marital settlement agreement that was merged or incorporated into your divorce decree. One main goal is to be able to move on from divorce. You do not want to get mired in revisiting economic issues from the past that should have been resolved in your marital settlement agreement.

Every legal matter is unique, especially in the area of family law. Nothing can replace consulting with an attorney who is familiar with all of the specific facts of your family law case, and who is familiar with the current law in your jurisdiction.

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