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Amy Kennedy - Family Lawyer

Children and Divorce: Reflections, Resources, and a Book Review

           I am a little late to the game in reading the Neapolitan Novels by Elena Ferrante.  Last night (more correctly early this morning), I was finishing the third book in the series of four, Those Who Leave and Those Who Stay.  The stories and characters are captivating and all the accolades Ferrante has received for these novels are well deserved.  If you have not yet, go read them.  Now.

              Spoiler Alert:  Near the end of book three, the marriage of the narrator is breaking up.   The heartbreak, confusion, and anger of the spouse leaving the marriage are honestly portrayed by Ferrante.  What was also realistically depicted are the reactions of the spouse who did not initiate the separation, from the understandable anguish and unforgivable behavior stemming from it to the other’s spouse’s escalating and emotional reaction to it.  

              Without giving too much away, let’s just say that neither character handled the situation well and they placed their children right in the center of their conflict.   A hallmark of a good book, I am still angry at these fictional characters for acting this way and for how they treated their children.  I cannot wait to dive into the final book not only to see how the series ends but also to find out how the children are doing.

              Sadly, this was art imitating life and is something I see in the families of many of my clients who are divorcing.   Anger is understandable and likely unavoidable but how you deal with it makes all the difference.   A good therapist is an excellent resource to navigate the emotions of separation and divorce, especially where children are concerned.  The American Academy of Matrimonial Lawyers has two great resources I like to share with my clients:

• Stepping Back From Anger:  Protecting Children During Divorce, and

• What Should We Tell the Children:  A Parent’s Guide for Talking About Separation and Divorce.

        I will write later to share my impressions on the final book, The Story of the Lost Child.   In the meantime, feel free to share what helped you or someone you know to make the divorce process easier for the children involved.

A Few Words on the Practice of Family Law

       The weekly newsletter of the American Academy ofMatrimonial Lawyers (AAML) contains a professionalism tip and here is this week’s offering:

Before you speak, let your words pass through three gates:"Is it true?" "Is it necessary?" "Is it kind?"

          This tip could well be the mantra of my practice style.  I learned early on in my legal career that someone has to hear what you say in court or read what you write in correspondence or a legal brief.  That someone will likely be a person with whom my client will have some sort of ongoing relationship.

          Over 20 years later, I still vividly remember my first trial.  I was only a year out of law school and second-chairing a custody trial.  My work was mostly behind the scenes and I learned valuable trial preparation skills, but the lasting lesson came in the courtroom.  All witnesses had testified and closing statements had been made as the noon hour approached.  The judge took an hour and a half recess and we came back expecting to address any lingering issues and be told the judge would be taking the matter under advisement (legalese for taking a few days to further consider the case and rule).  Instead, as we entered the courtroom the clerk asked if we wanted to order the video now – court reporters were mostly a thing of the past in Utah by the late 1990’s – because the judge would be ruling from the bench.

   
          The judge’s findings of fact were detailed and specific as he laid out the legal basis for why he was changing custody.  The lawyers had quickly figured out where the judge was going with his findings.  As soon as it dawned on our client he would prevail, he grabbed my hand and squeezed it hard.  While the crushing grip smarted, what pained me most were the sobs coming from the other parent as she, too, began to realize what was happening.  The court’s ruling served the best interests of the children and the facts as the judge bluntly recounted them were correct but I knew this was a blow for the other parent to hear.   I still wonder what impact those harsh words directed at one only parent had on the entire family.

       The lasting lesson for me has been to treat opponents with kindness and respect and, to borrow from my friends in the medical profession, to do no harm.  Words have the power to persuade but also the power to wound; they are to be used with care and caution.  The reality is that sometimes, as in my first trial, harsh or unflattering facts are relevant and need be brought up.   Before going down that road, I ask, "Is it true?" "Is it relevant?" "Is it helpful?"  You do not win cases by embarrassing your opponent.

     Prospective clients will sometimes ask my assistant or me if I am “aggressive.”   Our response is that I am effective.  I may be nice but I get the job done.  I have never been one for courtroom theatrics: it is not my style, it is ineffective, and judges hate it.  There are the attorneys out there who confuse putting on an insult-filled show with advocacy, but I am not one of them.  My clients hire me to help solve problems, not to make them worse; they see the value of going high when others go low.  If someone wants a “paid hater” or someone who views civility as a weakness, there are plenty of attorneys out there happy to take the job.  Just not me.  

A Place for Your Stuff

     Proving they were way more awesome than I appreciated at the time or quite possibly because since I was the youngest by 11 years they were beyond giving a hoot, my parents introduced me to George Carlin at a very young age.  To their credit, the Seven Words You Can Never Say on Television were not introduced until well into my teen years.  Finding the cassette tape of the A Place for My Stuff album in my stocking was one of the highlights of Christmas 1982 for me.  I was not your typical 11-year old.

     A Place for My Stuff was one of my favorite Carlin bits and still is.  It has withstood the test of time.  It’s still hilarious and it remains an insightful commentary on our possessions - our stuff – and our relationship to it.  It’s hard to part with stuff.  It’s our stuff.  We like our stuff, but other people’s stuff?  Mr. Carlin addresses that best.  At some point, we are all going to have to deal with our stuff and a lot of other people’s stuff, too.

     Raised in the last years of the Great Depression and in post-war Europe, my dear in-laws could never quite embrace the concept of downsizing.  They held on to most of the stuff acquired over their lifetimes and were quite content with it. Likely, the tumult of the times they lived through as children was soothed by the certainty they created in their adult lives with a home and possessions that remained constant.  Their stuff provided comfort.  Hip as they were to exposing young children to cutting edge comedy, my parents who are of the same generation as my in-laws, were not early adopters of downsizing.  When they retired they same-sized: they moved to a new house of the same size as the one I grew up in.  While they did clear out quite a bit in the moving process, they acquired more things and still had a house full of things they loved; theirs was a new house with more, but slightly different stuff. 

     Like many people my age, as our parents are aging and passing away, the prospect of sorting through their stuff - a lifetime of personal effects and a house (and an attic, and a garage, and a basement) full of items no one else may want or need - is daunting.   And it makes you think about your own pile of stuff and who will be left to deal with it.  Recognizing that in life there are equal and opposite overreactions, I am taking a hard look at my own stuff.  I find myself asking if an item sparks joy or if it will fit in a shoebox when I am dead.  I’m purging.  My husband is afraid.

     Mind you, I like my stuff.  I will keep the stuff I truly love and use and I will surely acquire more stuff.  My estate plan – with a 100% haunting guarantee to my nieces and nephews if they do not comply - comes with strict instructions for them to keep only what they love, what reminds them of me, or what brings them joy.  They are to donate what is useful, sell what they can, and pitch the rest.  Bonfires are welcomed and encouraged.  Ultimately, the place for a lot my stuff may be the proverbial trash heap and that’s okay.  I was only the temporary owner of my stuff anyway.

My advice: get advice and do things right the first time.

I shared my article on LinkedIn a while back. It's worth repeating.

     A growing trend in family law is to represent oneself. Recent statistics in Utah reveal that the vast majority of domestic relations cases filed are those where one or both parties are not represented by counsel (“pro se” is the legalese we use in Utah). I caution against going it alone, but not for the reasons you may think.

Penny Wise and Pound Foolish?

I had a client many years ago who had done her own divorce with the fill-in-the-blank packet of forms provided by our courts at the time. The divorce itself was amicable and the parties wanted to save money. When things took a turn for the worse a few years later, the parties wound up dealing with additional problems because of how the divorce documents were drafted. My client was fond of quipping that the original divorce cost her $40 and the fix was $40,000. While the numbers weren’t that extreme, the point remains valid that in the end way more money was spent than saved.

Better Safe Than Sorry

     Court rules can be complex and confusing and even services designed for the self-represented are not the most user-friendly. Our court system can be unforgiving and once mistakes are made they may be extremely difficult or impossible to fix, not to mention the cost involved. I get it: attorneys can be expensive and when money is tight hiring a lawyer may seem like a luxury one cannot afford. The example above should be a cautionary tale to anyone who thinks they shouldn’t at least consult with a qualified attorney. My advice: get advice and do things right the first time.

     As an alternative to traditional representation, I consult with self-represented people on an hourly basis to advise on legal procedure, to review documents they have drafted with our Online Court Assistance Program (OCAP), or to draft court documents after a successful mediation. This option is affordable for many and can avoid costly mistakes.

The Fine Print.

As you may figure out from some of my posts, yes, I am a lawyer.  And yes, I probably have already heard the joke you are about to tell.

My musings in this blog are not legal advice to any man, woman or child in any way, shape or form. The same goes for animals, holograms, and imaginary friends. If you want legal advice, contact a lawyer. If you are interested in my legal advice on an estate planning or family matter in Utah, contact me here to arrange a consultation; this is the only way to become a client and/or receive legal advice from me.

If you want my advice on whether those pants make your butt look too big/too small/too whatever, I’m happy to weigh in on that issue.

No specific clients or case facts are discussed here – ever – not even Dragnet style. My comments, personal opinions, and observations on law-related issues are based solely on my 20 years at this game.

Disclaimer (aka Legalese): This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney-client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Copyright:  © Amy Hayes Kennedy and Ducks in Rows, 2018. Unauthorized use and/or duplication of any material in this site without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Amy Hayes Kennedy and Ducks in Rows with appropriate and specific direction to the original content.