Why I Hate Dishonest Divorce Lawyers
In more than a decade of handling divorce and family law cases, I have found that most divorce lawyers are honest and skillful advocates for their clients. But, I have also found that there are a few dishonest ones. These dishonest lawyers aren't incompetent; to the contrary, these lawyers are often skilled and sought-after. What makes them dishonest is that these lawyers tell clients whatever clients want to hear so that these lawyers can make more money.
Let me give a concrete example:
A woman is getting divorced. She is upset that her husband has left her, she is concerned about her finances and the children, she has done some research and has a general knowledge of divorce, but she doesn't understand all of the technical details. She and her husband earn almost the same income. She hopes she can get spousal support.
She goes to a divorce lawyer and asks whether she could get spousal support. The lawyer confidently tells her "I will do everything I can for you to help you get spousal support." The woman asks "is it really possible I could get support?" "Absolutely", the lawyer responds. The woman asks "will the judge make my husband pay my attorney's fees?" The lawyer says "The judge can absolutely do that!" The woman is impressed by the lawyer's confidence and she is happy to pay the lawyer a large retainer. Over the course of the next six months, the lawyer files motion after aggressive motion, makes aggressive arguments to the judge, and aggressively cross-examines the woman's husband. The lawyer does all of this in an aggressive and very competent way. After six months, the woman has spent $25,000 on the lawyer, and is very pleased at all of the work her lawyer is doing for her. At trial, the judge rules that there will be no spousal support and that each spouse must pay his or her own attorney's fees. The lawyer tells the woman that the judge is bad, and that she should appeal the ruling because it was a gross miscarriage of justice. The woman is very angry at the judge, but not the lawyer. She feels like the lawyer was aggressive and tried everything he could. She tells all of her friends that her lawyer was a fighter, and did all he could to protect her interests.
Nothing could be further from the truth. An honest divorce lawyer would have told her: "It is possible for you to get spousal support, but very, very unlikely. I know this is hard to hear, but I've done hundreds of these cases and when one spouse makes almost as much as the other, like in your case, there is almost no chance you will be awarded support. I can't say that it is impossible for you to be awarded spousal support, because technically, almost anything is theoretically "possible". But, the chance of a judge awarding you spousal support is very low, and the chance of a judge awarding you a substantial amount of spousal support is close to zero. I know this is not good news, but, my job is to tell you the truth. If you want to try, I will use every trick, argument and tactic I know. But, a case like this could cost you as much as $25,000, and so it is an important decision for you to make. One last thing you should know, most judges order each spouse to pay his or her own attorney's fees. Only in rare cases will most judges order one spouse to pay all or even most of the other spouse's attorney's fees."
The sad news is that the dishonest divorce lawyer ripped off the client, and the client will probably think the lawyer did a great job. How can this be? There are three main reasons.
The first reason is psychological. A client feels good when a lawyer believes in the client's case, a client feels good when a lawyer confidently says that everything will be fine and that the client should get what he or she wants, and the client will like hearing certainty in an uncertain time. The dishonest lawyer knows the psychology of the situation, and takes full advantage of it. The dishonest lawyer will make sure to tell the client what the client wants to hear.
The honest lawyer, on the other hand, has the tough job of telling the client the whole truth - the good and the bad news. In the midst of a divorce, the last thing most folks want to hear is more bad news. Even though the honest lawyer is telling the truth, it is still hard for the client to hear.
The second reason is that dishonest lawyers are careful to not lie outright and so they rarely get in trouble. They will say things in a way that is "technically" true. In the example above, was it "technically" true that a judge might award spousal support or attorney's fees - yes, it was technically "true". Is it an "honest" or a complete answer? Absolutely not.
The third reason is that most clients never find out they got ripped off. Divorce law is complex - it takes years of study and experience to really know the law. There is no reason why a client would even suspect the lawyer had played word games or was being less than honest. The client has no reason to suspect the dishonest lawyer isn't telling her everything. Because the client doesn't know he or she was lied to, but did see the lawyer being aggressive and filing lots of motions, the dishonest lawyers ends up being well-liked by the client. If a client knew how the dishonest lawyer had lied to them from day one, and taken advantage of the client's desperate situation for the lawyer's own financial advantage, the client would rightfully feel betrayed.
None of this should be taken to mean that you shouldn't get an aggressive lawyer. You should, but you should get an honest aggressive lawyer. An honest aggressive lawyer will tell you at the very beginning of the case what the chances are and how much the effort is going to cost. If you choose to pursue the case after hearing your chances, then an honest aggressive lawyer will zealously represent you. It is not aggressive, however, to be dishonest to a client, to give a client false hope, and to waste a client's money pursuing something that the lawyer knows is close to impossible.
So, how do you know whether your lawyer is honest or dishonest? Ask lots of questions, and then ask even more questions. For example, in a case involving spousal support, these are some questions to ask a lawyer that will get to the bottom of things.
1. In your experience, with facts like those in my case, what are the most likely outcomes?
If the lawyer hems and haws, and says things like "well, it depends" or "it is hard to predict outcomes" or "I will aggressively fight for you" or anything other than a list of the most likely outcomes, keep pushing. All of the things the lawyer said are "technically" true. It is hard to predict outcomes, and outcomes do depend on any number of things. Even so, the lawyer can still give you an idea of the possible outcomes, and the likelihood of each. If the lawyer refuses to give you any idea of the possible outcomes, and the likelihood of each, you get another lawyer.
2. In your experience, with facts like those in my case, is it unlikely, somewhat likely, very likely, or certain that I will get spousal support?
3. In your experience, with facts like those in my case, what is an amount of support that I am likely to receive?
4. Is that amount unlikely, somewhat likely, very likely, or certain?
5. Would another lawyer tell me the same answer?
6. How much is it likely to cost me to get the support I am seeking?
7. How long will it take to get the support I am seeking?
8. If you were in my shoes, would you spend that much money given the likelihood of how much will likely be awarded?
9. Would you say I had a 50/50 chance, a 75/100 chance or a 90/100 chance of getting spousal support in the amount I am seeking?
10. What is the chance that I will lose?
These questions will drive a dishonest divorce lawyer crazy. He or she won't want to give clear answers because the dishonest divorce lawyer is only interested in making money. The dishonest divorce lawyer will know that a client who knows the whole truth might not be willing to pay the lawyer $25,000 chasing an unlikely outcome.
These questions won't bother an honest divorce lawyer at all. He or she would have told you all of this information anyway. The honest divorce lawyer is interested in recommending courses of action that will benefit the client, not the lawyer's pocketbook.
The bottom line: Before hiring a lawyer, especially one who only tells you good news, ask some tough questions and find out the whole truth.
Virginia's "Crimes Against Nature" Statute Found Unconstitutional
The fact that "crimes against nature" are illegal makes proving that they occurred very difficult. The reason is that under the Fifth Amendment a spouse and his/her partner can both refuse to testify about activity which could be prosecuted as a crime. Because "crimes against nature" can be prosecuted (even if they rarely are), the spouse and his/her partner are able to refuse to testify. As a result, it is very hard to prove that the "crime against nature" actually occurred. The Fourth Circuit Court of Appeals, in McDonald v. Commonwealth, has ruled that Va. Code Section 18.2-361 is unconstitutional. The Court's analysis is convoluted, but it basically says that the Supreme Court's 2003 decision in Lawrence v. Texas should be taken to mean that an earlier Supreme Court decision upholding a Georgia sodomy law was wrongly decided. In other words, because the Supreme Court may have indicated it should have struck down the Georgia law, it would likely strike down the Virginia law, and therefore the Virginia law is unconstitutional.
The decision of the Fourth Circuit Court of Appeals (a federal court) is not technically binding on Virginia trial courts. In other words, Virginia trial courts are not required to follow the ruling. But, the decision is very likely to be persuasive. As a result, I would not be surprised if in the near future a Virginia trial court ruled that 18.2-361 is unconstitutional.
Dumler Could Face Civil Suit
As most everyone in the Charlottesville area knows, Albemarle County Supervisor Christopher Dumler pled guilty to a criminal charge of misdemeanor sexual battery in Albemarle County General District Court. A criminal conviction does not have to be the end of the story, however, because Mr. Dumler's victims can pursue a civil lawsuit against him. Criminal charges and civil claims are entirely separate things. Remember O.J. Simpson? He was found not guilty for the criminal charges but was ordered to pay huge sums in a subsequent civil lawsuit. In Virginia, a victim of sexual abuse may be able to bring a civil suit for, among other things, sexual battery, sexual assault, negligent infliction of emotional distress, and intentional infliction of emotional distress. It would not matter that Mr. Dumler only pled guilty to the lesser charge of sexual battery, in a civil suit a victim could introduce other evidence to support her claim, including other acts committed by Mr. Dumler. In addition, Mr. Dumler's gulity plea would likely be admissible against him in a subsequent civil action. The statute of limitations in Virginia for most torts (the legal name for personal injury claims) is two years.
Grab Those Assets Before Your Spouse Does
To understand why this case is important, let me first give a brief overview of how property is classified and distributed in a Virginia divorce. Assets acquired during the marriage (with some exceptions) are marital property. Each spouse can be awarded a share of those assets in a divorce. If an asset doesn't exist any longer by the time the divorce trial finally rolls around, however, there won't be anything left for the court to award.
In Wright, the couple had accumulated over a million dollars in several accounts during the marriage, and so those accounts were marital property. The wife had a very good chance of being awarded a share of those accounts in the divorce.
At the beginning of the divorce case, the court had ordered the husband to pay the wife spousal support. Instead of using his own salary to pay support, the husband spent the money in he marital accounts to pay the support. As a result, by the time the trial rolled around, the husband had used over a million dollars from the accounts, and those dollars no longer existed to be awarded by the court.
Ron Tweel, the lawyer for the wife, argued that it was not fair that the husband should be allowed to stockpile his salary and use up marital property, and that the husband's use of the accounts to pay support was "waste". The Supreme Court pointed out that Mr. Tweel had provided no legal authority for his position and did not accept his arguments. Instead, the Court held that the husband's use of the marital accounts to pay support was not waste.
This case makes it very clear that if a spouse hopes to receive a share of an item of property or the funds in an account, he or she must act immediately to preserve the property or funds. For bank and other accounts, a spouse can move the funds to an account in his or her own name. For certain types of retirement funds, the administrator of the plan may freeze the account upon being notified that a divorce is likely. Once a divorce case is filed with the court, the judge has the authority to order that neither spouse sell marital property or use funds in marital accounts. However, it often takes months to get before a judge, and so taking matter into one's own hands may be the only practical option.
Living in Sin May Soon be Legal
Under current Virginia law, unmarried couples living together are committing a misdemeanor. Virginia is one of only four states that has such a law on the books. Even though state and federal courts have held that this and similar laws are unconstitutional, the law remains on the books. If a bill currently pending before the Virginia Legislature passes, unmarried couples in Virginia can begin living together legally. Although the law is not usually enforced, the threat of criminal prosecution gives each of the unmarried cohabitants the right to invoke the Fifth Amendment to the Constitution and refuse to answer certain questions.
Professionals Make Custody Recommendations at their Peril!
Hera McLeod of Gaithersburg, Md., filed a $20 million suit in Fairfax County, Va., against Ashburn Psychological Services and psychologist Margaret Wong, alleging professional negligence resulting in the wrongful death of her son, Prince McLeod Rams.
McLeod said at a news conference announcing the suit that Wong’s report was instrumental in a judge’s decision to grant unsupervised visitation of Prince to his father, Joaquin Rams.
http://www.washingtontimes.com/news/2013/feb/19/mother-sues-psychologist-following-toddlers-death
Be Careful With Real Estate when Divorcing
In many cases spouses own their primary residence or other real property as tenants by the entirety. This is a special form of ownership available to married couples in Virginia. Property held as tenants by the entirety are often protected from a creditor of only one spouse. This protection, however, disappears upon the entry of a final order of divorce. At that moment, the spouses become tenants in common. If a creditor of one spouse has a judgment lien, that lien will immediately encumber the property. Moreover, from the time of divorce onward, creditors of just one spouse will be able to obtain a lien against the property.
Because of these issues, it is very important to determine before the divorce is finalized whether either spouse has any liens recorded. If so, transferring the property prior to the divorce or other options should be considered.
Because the protection offered by tenants by the entirety lapses upon divorce, it is often not recommended that former spouses continue to own property.
Big Changes to Pendente Lite Relief
A spouse can now ask the court to order the other spouse to pay debts in the months leading up to the divorce trial. Virginia Code 20-103 was modified recently to permit courts to “order that a party pay secured or unsecured debts incurred jointly or by either party“. Previously, the court was only permitted to order the payment of a mortgage.
The court is also permitted to award the following relief during the months before a trial:
1. spousal support
2. health insurance coverage
3. payment of secured or unsecured debts
4. attorney's fees and costs
5. an order preventing a spouse from imposing any restraint on the personal liberty of the other spouse
6. custody and visitation
7. health care coverage for minor children
8. child support
9. exclusive use and possession of the marital residence
10. an order preserving the estate of either spouse
Can Your Spouse Obtain Your Medical and Mental Health Records?
The short answer is yes, if the records are relevant in your case. If your case goes to court, and involves spousal support or child custody, Virginia law requires judges to consider each spouse's mental health in making a decision. Even so, unless a spouse can make a credible argument that the other spouse has a mental health issue, most judges will find that medical and mental health records are not relevant, and do not need to be obtained.
The most common method of obtaining medical and mental health records is through a subpoena duces tecum. If your spouse subpoenas your records, your attorney should get a copy of this subpoena. If you object to the records being released, your attorney or your doctor can file a motion to quash. Whether or not your records are released will then be decided by the judge.The relevant statute is Virginia Code 8.01-399 which deals with the "physician/patient privilege."
If you have further questions, please feel free to call our office at (434) 972-9600.
Division of Debts in Divorce Just Got Trickier
The Virginia Legislature has amended Section 20-107.3, which is the statute dealing with the division of property in divorce cases.
The amended version of 20-107.3 changes the rules on how debts are divided in a divorce. Specifically, the language below in bold has been added to the statute:
and (ii) shall determine the nature of all debts of the parties, or either of them, and shall consider which of such debts is separate debt and which is marital debt. . . . The court shall determine the amount of any such debt as of the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, and the extent to which such debt has increased or decreased from the date of separation until the date of the evidentiary hearing.
Separate debt is (i) all debt incurred by either party before the marriage, (ii) all debt incurred by either party after the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, and (iii) that part of any debt classified as separate pursuant to subdivision A 5. However, to the extent that a party can show by a preponderance of the evidence that the debt was incurred for the benefit of the marriage or family, the court may designate the debt as marital.
Marital debt is (i) all debt incurred in the joint names of the parties before the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, whether incurred before or after the date of the marriage, and (ii) all debt incurred in either party’s name after the date of the marriage and before the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent. However, to the extent that a party can show by a preponderance of the evidence that the debt, or a portion thereof, was incurred, or the proceeds secured by incurring the debt were used, in whole or in part, for a nonmarital purpose, the court may designate the entire debt as separate or a portion of the debt as marital and a portion of the debt as separate.
Except as provided in subsection G, the court shall have no authority to order the division or transfer of separate property or marital property, or separate or marital debt, which is not jointly owned or owed. The court may, based upon the factors listed in subsection E, divide or transfer or order the division or transfer, or both, of jointly owned marital property, jointly owed marital debt, or any part thereof.
As of the date of this post, no Virginia court has issued a ruling interpreting these changes. Unfortunately, the new language will likely lead to a great deal of litigation.