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Aspects of Same-Sex Marriage

October 12, 2017 by pgd1

In the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the issue before the Supreme Court is whether a Christian baker has the right to refuse to create a wedding cake for two men.

Since the Supreme Court of the United States has recognized same-sex marriage, the nuances of this new constitutional protection need to be worked out.  As a family law attorney in Clearwater, Florida, dealing with all types of divorces, including same-sex marriage divorces, I welcome the Supreme Court’s clarification.

In the case before the Court, the couple says Colorado Civil Rights Laws requires businesses to serve gays and straights alike, while Jack Phillips, the baker, complains that this rule forces him to endorse what he believes to be sinful behavior and to express a message he reviles.

If the Court finds for Mr. Phillips, calligraphers, florists, photographers, and tailors who reject gay marriage, may earn a license to discriminate as well.1

In an opinion written in 2015 extending constitutional protections to same-sex marriage, Justice Anthony Kennedy wrote that “Those who adhere to religious doctrines, may continue to advocate with upmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” and they are protected in this mission by the first amendment.

by Patrick Gaffney

by Patrick Gaffney


1 This blog was taken from “Anthony Kennedy’s Camelot”.  The Economist.  September 30th, 2017.

The Art of Drafting

October 5, 2017 by pgd1

One of the aspects of the practice of family law that gets little attention is the drafting of legal documents. We know that most family law disputes are resolved by agreement.

Some of the most important work that lawyers do comes in the form of drafting.  It often happens that parties reach an agreement in principal. However, during the drafting phase, details emerge that were never discussed.  As the saying goes, the devil is in the details.

Given the importance of words, it is not unusual for lawyers to disagree about the wording of an agreement.  A recent case out of the state of Maine turned on how the court would interpret a statute.  The interpretation turned on the placement of a comma.  The case is illustrative of the type of problems that can arise from writings drafted lawyers—whether it is a statute or an agreement.

It all came down to a missing comma, and not just any one.  And it’s reignited a longstanding debate over whether the punctuation is necessary.  A federal appeals court decided to keep alive a lawsuit by dairy drivers seeking more than $10 million in an overtime pay dispute.

It concerned Maine’s overtime law, which doesn’t apply to the “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” foods.

There’s no Oxford, or serial, comma in the “packing for shipment or distribution” part. The drivers said the words referred to the single activity of packing, which the drivers don’t do. The defendant, Oakhurst Dairy, said the words referenced two different activities and drivers fall within the exemption.

Circuit Judge David Barron wrote: “For want of a comma, we have this case.” The court sided with the drivers.

The Associated Press Stylebook advises against the use of the Oxford comma, except when it’s needed for clarity.  In this case, someone following AP’s guidance would include a comma if the packing and distribution were intended to be separate activities.

Other authorities are more enthusiastic about the serial comma — notably Oxford University Press, from which the mark draws its popular name.  The Oxford style guide, published as New Hart’s Rules, states that it is Oxford style “to retain or impose this last comma consistently.”1

Thus, the placement of a comma made a ten million dollar difference in result.  This case emphasizes the importance of the correct use of language and grammar.

by Patrick Gaffney

by Patrick Gaffney


1 Portions of this blog were taken from Whittle, Patrick.  Associated Press.  March 17, 2017.  Retrieved from:  https://www.usnews.com/news/best-states/maine/articles/2017-03-17/court-ruling-hinging-on-comma-ignites-grammarian-style-war

When Family Law Intersects with Bankruptcy

September 28, 2017 by pgd1

From a family law perspective, it is important to realize that certain types of debt are not dischargeable in Bankruptcy.  These include certain tax obligations, obligations incurred as a result of fraud or criminal activity, alimony, child support and certain property settlement obligations.  Importantly, student loan obligations are nondischargeable in bankruptcy court.

It is also worth noting that some assets are considered exempt in bankruptcy court.  These are assets that cannot be taken from the debtor.  These include one’s homestead and pension benefits.

There are generally speaking two types of bankruptcy proceedings:  Chapter 7 and Chapter 13.  In a Chapter 7 case, the trustee collects any non-exempt assets of the debtor and converts those assets to cash, and distributes that cash to the creditors.  The debtor gives up all of the non-exempt assets he or she owns in order to obtain a discharge.

In a Chapter 13 case, the creditors look to the future earnings of the debtor, not the property of the debtor, to satisfy their claims.  The debtor retains his or her assets and makes payments to creditors, from money earned after the bankruptcy is filed.  There is a plan of repayment developed in this type of proceeding.  A plan can last as long as five years.  Within this time period, arrearages for child support and alimony must be paid.  A foreclosure of a home can be stopped as long as the arrearage is paid within the five-year repayment period.

One important aspect of a bankruptcy proceeding is the automatic stay provision.  With this provision, all state court actions, including divorce proceedings are halted.  In order to proceed with a dissolution of marriage action once a bankruptcy proceeding has begun, where money or property are involved, it is necessary to apply to the bankruptcy court for an order lifting the stay.

There is no stay of a proceeding that involves the following:  paternity, parenting issues including visitation or domestic violence issues.

As previously mentioned, alimony and child support obligations are not dischargeable in bankruptcy.  However, the bankruptcy court will look to the intent of the parties and make its own evaluation of whether an item is truly a support obligation.  Drafters of documents cannot simply label an obligation as support when this is not the true nature of the obligation.

Also, one spouse in a family law matter may be ordered to pay the other spouse’s attorney’s fee.  If that fee was to effectuate a support obligation, it is not dischargeable in the payor spouse’s bankruptcy proceeding.  In other words, such fees need to be intertwined with the support obligation as to be in the nature of non-dischargeable support.

The intersection of family law and bankruptcy law is a very fertile and interesting place for the legal practitioner.1

bancruptcy and family law

by Patrick Gaffney


1 This blog is based upon a talk recently given by Attorney Steven Fishman.

Disaster Planning

September 21, 2017 by pgd1

We are like a tree during a storm.  If you look at the top of a tree, you may have the impression that the tree can be blown away or that the branches can be broken anytime, but if you direct your attention to the trunk of the tree and become aware that the tree is deeply rooted in the soil, then you see the solidity of the tree.  The mind is the top of the tree, so don’t dwell there; bring your mind down to the trunk.  The abdomen is the trunk, so stick to it, practice mindful, deep breathing, and after that the emotion will pass.  When you have survived one emotion, you know that next time a strong emotion arises, you will survive again.  But don’t wait for the next strong emotion to practice.  It is important that you practice deep, mindful breathing every day.                             - Thich Nhat Hanh

Like a Hurricane, there is never a good time for an unfortunate event to happen.  Divorce, the diagnosis of an illness or the death of a loved one are all unpleasant, but not unprecedented occasions to human kind.  These occasions can invoke our emotions.

Fear was a prevalent emotion in the lead up to Hurricane Irma.  The storm was a force of nature that could not be avoided.  You either hunker down and wait for the most powerful storm ever to pass, or you run.  And all things pass.

There are some positive aspects to this event.  We learned that there are times when we are not in control.  We are not able to redirect a hurricane.  At these times, we need to be aware that we are more than our emotions.  Also, it helps to remember that we are rooted to family and community.

When you realize that the home you inhabit could be destroyed or compromised, you also realize that material things are not on the same plane as humans or pets.

Many of us were disrupted from our routine and taken out of our comfort zone.  From this disrupted and disjointed place, we gain a different, often revitalized perspective.

Mindfulness is a skill that can help us cope with the most difficult aspects of life.  But don’t wait for the next Hurricane to practice.  That way when one of life’s disasters happen, you will be ready.

by Patrick Gaffney

by Patrick Gaffney

Mindful Lawyering

September 14, 2017 by pgd1

An important skill that develops through mindfulness practice is learning to discern between thoughts that are useful and warrant our attention, and those that are unhelpful, yet absorb our attention.

Scott Rogers, M.S., J.D., is a nationally recognized leader in the area of mindfulness in law and founded and directs the University of Miami School of Law’s Mindfulness in Law Program where he teaches mindful ethics, mindful leadership, and mindfulness in law.  In a recent article, he quoted Attorney Douglas Chermak, a longtime mindfulness practitioner, as follows:

In practicing mindfulness, we work on cultivating the capacity to be simply aware of our thoughts and mental activity — just knowing that the thoughts are happening, without getting fixated on their content or needing to figure them out.  By practicing sitting, breathing, and watching our thoughts, we begin to see that at some level we don’t really have any control over them.  They just come and go, on their own.  By spending time observing this process, we develop greater mastery over momentary activity of the mind and are less likely to feel hostage to our thoughts.

. . . Through mindfulness practice, you become aware that thoughts are arising and continuing to surface, but instead of tackling them, you maintain awareness on the breath and notice the thoughts, and other mental activity, as they come and go.

I recommend setting aside some time each day to practice the kind of breath awareness exercise I mentioned above.  In time, you’ll more fully appreciate that you are in charge, rather than the problem being in charge of you.1

The practice of mindfulness can be a great help to anyone, especially members of the legal profession.

by Patrick Gaffney

by Patrick Gaffney


1 Portions of this blog were taken from: Rogers, Scott.  “The Mindful Lawyer”.  The Florida Bar News. Sept 1, 2017.  Retrieved from:  https://www.floridabar.org/news/tfb-news/

Lawyer Well-Being

September 7, 2017 by pgd1

If you really want to be a good lawyer, you must be a healthy lawyer – and that includes mental health.  An already struggling legal profession is at a tipping point, and steps need to be taken now to address lawyers’ well-being.

A 72-page report released August 14 – initiated by the ABA Commission on Lawyer Assistance Programs, the National Organization of Bar Counsel, and the Association of Professional Responsibility Lawyers – outlines recommendations for taking action.1

Using data from 2016 research, here’s a snapshot of the lives of too many lawyers:

  • Between 21 and 36 percent of practicing lawyers qualify as problem drinkers.
  • Approximately 28 percent, 19 percent, and 23 percent are struggling with some level of depression, anxiety, and stress, respectively.
  • Difficulties for lawyers include suicide, social alienation, work addiction, sleep deprivation, job dissatisfaction, complaints of work-life conflict, and incivility.
  • There’s a documented “narrowing of values so that profit predominates,” accompanied   by a negative public perception.

The studies reflect that the majority of lawyers and law students do not have a mental health or substance use disorder.  But that does not mean that they’re thriving.  Many lawyers experience a ‘profound ambivalence’ about their work, and different sectors of the profession vary in their levels of satisfaction and well-being.

Acting for the benefit of lawyers who are functioning below their ability and for those suffering due to substance use and mental-health disorders, the National Task Force on Lawyer Well-Being urges our profession’s leaders to act.

It is a great privilege to practice law.  However, problems in the profession exist.  I see the issuance of this report as a move in the right direction.  Awareness of the problems lawyers encounter will lead to solutions.  As in most of life, transparency assists the process of problem solving.

by Patrick Gaffney

by Patrick Gaffney


1 This blog was taken from:  Pudlow, Jan.  “Report:  Lawyer’s wellness falls short.”  The Florida Bar News.  September 1, 2017.  Retrieved from:  https://www.floridabar.org/news/tfb-news/?durl=%2Fdivcom%2Fjn%2Fjnnews01.nsf%2F8c9f13012b96736985256aa900624829%2F154b2861a7fb7e8185258183004439a9

The Importance of Intuition: Going with Your Gut

August 31, 2017 by pgd1

Intuition can make you a much more effective decision maker.

The main alternative to the intuition-based approach is rational thinking.  The rational decision making process relies mostly on logic and quantitative analysis.

Nearly every individual can recall a time when he or she felt propelled by an inner sense of knowing, an unabating sense of intuition which leads us in the right direction in times of uncertainty.

Sophy Burnham, author of the bestselling book “Art of Intuition”, articulately describes this phenomenon as “a knowing without knowing,” separate from thinking, logic or analysis.

Scientists have spent endless decades attempting to decode the secrets of the intuitive mind.  Their findings?  When it comes to decision-making, going with your gut often leads to more favorable outcomes than protracted, logical reasoning does.

Researchers have identified two diametric “operating systems” that invariably influence human functioning.  The first system is defined by a “quick, instinctual and often subconscious way of operating.”  This process of reasoning is controlled by our right brain and other areas of the cerebellum, referred to as the limbic and reptilian aspects of the brain.

The second system, however, is defined by a “slower, more analytical and conscious way of operating.”  Intuition is an innate part of System 1, which explains why these rapid sensations arise so suddenly from our instincts.  Nobel laureate, Princeton University professor of psychology and acclaimed author Daniel Kahneman explores the nature of insight derived from this interaction even further in his bestselling book “Thinking Fast and Slow”.

According to the results acquired from countless studies, researchers have realized that decisions prompted by System 1 reactions often result in more favorable outcomes than those ascertained by System 2.1

Also, according to Arianna Huffington, author of the seminal self-improvement book “Thrive”, mindfulness can be a great mode of strengthening one’s intuition.  When we are mindful, we can tap into the signals our body is sending us in any given moment.

As a person who works professionally to help people solve their problems, I have found that intuition and the practice of mindfulness are powerful tools.

by Patrick Gaffney

by Patrick Gaffney


1 Portions of this blog were taken from:  Williams, Alexa, “The Importance of going with your gut: why intuition trumps logic”.  Collegiate Times. April 30, 2017.  Retrieved from:  http://www.collegiatetimes.com/opinion/the-importance-of-going-with-your-gut-why-intuition-trumps/article_ee6e442c-2ddf-11e7-b03a-3fd63198affb.html.

Thin Places

August 24, 2017 by pgd1

Thin places are locales where the distance between heaven and earth collapses and we’re able to catch glimpses of the divine, or the transcendent.1

The ancient pagan Celts, and later, Christians, used the term to describe mesmerizing places like the wind-swept isle of Iona (now part of Scotland) or the rocky peaks of Croagh Patrick.  Heaven and earth, the Celtic saying goes, are only three feet apart, but in thin places that distance is even shorter.

A thin place is not necessarily a tranquil place, or a fun one, or even a beautiful one, though it may be all of those things too. Disney World is not a thin place. Nor is Cancún. Thin places relax us, yes, but they also transform us – or, more accurately, unmask us. In thin places, we become our more essential selves.

A park or even a city square can be a thin place.  So can an airport.  A bar can be a thin place, too.

Many thin places are wild, untamed, but cities can also be surprisingly thin.  The world’s first urban centers, in Mesopotamia, were erected not as places of commerce or empire but, rather, so inhabitants could consort with the gods.

As we journey through this life, it is well to be open to the possibility of stumbling upon a thin place.  Some that I have found locally include sections of the Pinellas Trail and The Dunedin Causeway, including Caladesi Island State Park.  The recently observed solar eclipse was observed from many thin places and created a “thin” experience.

I’ve also been involved professionally in mediations and collaborative meetings where the atmosphere seemed especially thin.  You never know, where the air is thin, divine intervention is not far away.

To the extent possible, in the practice of family law, I like to find a thin place.

by Patrick Gaffney

by Patrick Gaffney


1 Portions of this blog were taken from, Weiner, Eric, Where Heaven and Earth Come Closer, The New York Times, March 9, 2012.  Retrieved from http://www.nytimes.com/2012/03/11/travel/thin-places-where-we-are-jolted-out-of-old-ways-of-seeing-the-world.html

The Line Dividing Good and Evil

August 17, 2017 by pgd1

“If only there were evil people somewhere insidiously committing evil deeds, and it were necessary only to separate them from the rest of us and destroy them. But the line dividing good and evil cuts through the heart of every human being. And who is willing to destroy a piece of his own heart?”                                                                                    - The Gulag Archipelago (1973)

Alexander Solzhenitsyn was a Russian novelist, historian, and short story writer.  He was an outspoken critic of the Soviet Union and communism and helped to raise global awareness of its Gulag forced labor camp system.

The Gulag Archipelago was composed from 1958 to 1967.  It was a three-volume, seven part work on the Soviet prison camp system.  The book was based upon Solzhenitsyn’s own experience as well as the testimony of 256 former prisoners and Solzhenitsyn’s own research into the history of the Russian penal system.1

Solzhenitsyn made his observations about the human condition from this unique vantage point.

From the point of view of a family law attorney, I appreciate his insights.  It is not difficult to see that people embroiled in a divorce tend to set up camp against each other. The divorcing spouse becomes the “other”, and as such, a type of adversary.  After all, our legal system is clearly adversarial in nature.

This adversarial context promotes a polarization.  There is a perception that the other party is wrong, and justice is invoked to seek what is right.

However, in the context of a family law dispute, this understanding presents a false dichotomy.  The truth is that a divorce contest often presents good people acting on their worse behavior.  In the throes of such behavior, parties rarely see how they are complicit in their own suffering.   Hence, they fail to recognize that they are tearing out a piece of their own heart.

Collaborative law should be examined.  With this process, dignity and respect accompany a team-based cooperative approach to problem solving. Professionals work with clients to develop options that are considered.  The parties make the choices that will govern their future as opposed to a judge (a stranger) making their decisions for them.

by Patrick Gaffney

by Patrick Gaffney


1 Parts of this blog involving biography were taken from:  Wikipedia:  Alexander Solzhenitsyn.

Two Hundred Years of Jane Austen

August 10, 2017 by pgd1

Jane Austen was born on December 16, 1775, one of eight children.  She briefly attended school, but this proved too expensive for her father.  So she educated herself in his library instead.

It is believed that she received a marriage proposal, yet chose the financially precarious option of remaining single.  She completed six novels – two of which were published posthumously—but they brought little income.  Austen died at 41, and was laid to rest in Winchester Cathedral.

But her uniqueness lay in combining realism with a new narrative style, one which moved deftly between the narrator’s voice and the characters’ innermost thoughts.  This “free indirect speech” allowed the reader to see, think and feel exactly as the character did while also maintaining a critical distance and the ability to move between various points of view.  It was radically inventive.

In the early 20th century the suffrage movement claimed her as one of its icons, marching with her name emblazoned upon its banners as proof of women’s intellectual prowess.

Austen’s novels were prescribed reading for shell-shocked soldiers who would not be reminded of their trauma by her gentle, seemingly insular narratives.  In the dark days of the Second World War, Winston Churchill found it comforting to reread “Pride and Prejudice”. Austen’s novels were held up as offering sanctuary, a refuge from reality; in her pages readers could find a portrait of England before the fall.

If Austen’s work is perceived as quintessentially British, it has found resonance across the world.  Bicentenary events are being hosted all over Europe.  The Jane Austen Society of North America boasts more than 5,000 members; reading groups exist across Latin America.

In “The Genius of Jane Austen” (Harper; William Collins), Paula Byrne writes that Austen is seen as having a particular affinity with Chinese culture, where “manners matter” as they did in Georgian England.  There have been more than 50 written versions of “Pride and Prejudice” in China alone.

Western readers may no longer empathize with the urgency that surrounds marriage or the idea that a relationship can be stopped in its tracks by monetary circumstance.  But everyone has encountered a flirty, shallow Isabella Thorpe or a suave but seedy Henry Crawford.  Two hundred years on, Austen’s sniping observations of human vanity and folly still hit the mark.1

by Patrick Gaffney

by Patrick Gaffney


1 This blog was taken from “Jane Austen, 200 years on”.  The Economist, July 17th 2017. Retrieved from: https://www.economist.com/news/books-and-arts/21724975-how-unremarkable-englishwoman-became-literary-juggernaut-jane-austen-200-years.

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