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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

The Importance of “Grit”

December 15, 2016 by pgd1

Ned Pepper: “I call that bold talk for a one-eyed fat man.”
Rooster Cogburn: “Fill your hands you sonofabitch.”

                                                                    Charles Portis, True Grit

True Grit is a 1968 novel by Charles Portis.  It is told from the perspective of Mattie Ross, who recalls the time when she was fourteen and sought retribution for the murder of her father.

The novel was adapted to film in 1969.  It starred John Wayne, who won an Academy Award for his portrayal of Rooster Cogburn.  In the story, Mattie is convinced that Rooster Cogburn has “grit” and is best suited for the job of hunting down her father’s murderer.

Both the movie and the book are excellent.  The quote above, and other great dialogue was lifted directly from the book and placed in the screenplay.

Angela Duckworth is a professor of psychology at the University of Pennsylvania.  She is an expert on the subject of Grit.  In fact, she thinks talent is overrated.  More important, she suggests, is a blend of persistence and passion—grit.  She believes that grit involves finding and fostering a purpose.

“Talent counts, [but] effort counts twice” says Duckworth.1

I have found that a certain measure of grit is a virtue.  People who persevere against the odds have an advantage.  I think of the great Winston Churchill, who stated, “Success is not final, failure is not fatal: it is the courage to continue that counts.”

We all encounter challenges in life.  These can take different forms.  The form I deal with as a professional is the challenge of divorce.  For most, divorce is a major life event.  It can bring inordinate amounts of stress.  With the stress, some are afflicted with self-doubt.  They wonder how they are going to make it through the process, and what life is going to be like on the other side.  For these folks and for everyone else, I suggest the importance of “grit”.

by Patrick Gaffney

by Patrick Gaffney


1 Duckworth, Angela.  “Grit:  The Power and Passion of Perseverance”.  Scribner, 2016.

The Importance of Words

November 3, 2016 by pgd1

Before you speak, let your words
Pass through three gates.
At the first gate, ask yourself,
‘Is it true?’
At the second ask,
‘Is it necessary?’
At the third gate ask
‘Is it kind?’

-Sufi saying

As human beings, we are all a work in progress. What would happen if a person made a resolution never to hurt the feelings of another?  That person would fail.

He would fail because it is one thing to have an intention.  It is something else to carry an intention out successfully.  This is true in many aspects of life.  It is particularly true for people going through divorce or who are in the post-divorce period.

When I sit and talk with clients, I find myself asking the question: “What part of this problem can we control?”  It is a good question.  Many times the answer is that we can only control what we say.

In the work I do, what is said and how it is said is very important.  I’ve come to observe that careful language is necessary to live a life unburdened by conflict.

by Patrick Gaffney

by Patrick Gaffney

What We Can Learn From Chickens

October 27, 2016 by pgd1

William Muir of Purdue University has studied the behavior of chickens.  He was interested in productivity.  It is easy to measure in chickens because you just count the eggs.  He wanted to know what could make his chickens more productive, so he devised an experiment. Chickens live in groups, so first of all, he selected an average flock, and he let it alone for six generations.

Then he created a second group of the individually most productive chickens — you could call them superchickens — and he put them together in a superflock, and each generation, he selected only the most productive for breeding.

After six generations had passed, what did he find?  The first group, the average group, was doing just fine.  They were all plump and fully feathered and egg production had increased dramatically.  What about the second group?  Well, all but three were dead.  They’d pecked the rest to death.  The individually productive chickens had only achieved their success by suppressing the productivity of the rest. 1

According to Margaret Heffernan, for the past 50 years, we’ve run most organizations and some societies along the superchicken model.  We’ve thought that success is achieved by picking the superstars, the brightest people in the room, and giving them all the resources and all the power.  The result has been just the same as in William Muir’s experiment:  aggression, dysfunction and waste. If the only way the most productive can be successful is by suppressing the productivity of the rest, then we badly need to find a better way to work and a richer way to live.

The legal profession is another example of the superchicken model, especially when we view the activity of lawyers engaged in litigation. We have an adversarial legal system. Litigation leads clients to choose superlawyers. These lawyers create value for their client’s in a very inefficient way—by defeating, suppressing their opponent.

I’ve had the privilege to talk to persons who have been through nasty, expensive divorces.  No matter the outcome, it is difficult to label either party the “winner” in such a case. The clients are spent emotionally and financially.

I have found that there is a better way.  When lawyers engage in problem solving with an emphasis on cooperation, they create social capital for their clients. Social capital is a form of economic and cultural capital in which social networks are central, transactions are marked by reciprocity, trust, and cooperation, and services are rendered for a common good. 2  After a divorce, it remains a high priority for many clients to retain a respectful, even friendly relationship with their ex-spouse; the existence of common interests, such as children and grandchildren, call for this.

Collaborative law is an increasingly popular way for people to handle the problem of marriage dissolution. This approach starts with the premise that the parties will not litigate.

When a divorce is necessary, discernment is required to avoid the wrong result.  In other words, when you set out to retain your superlawyer, make sure he or she is not a superchicken.

by Patrick Gaffney

by Patrick Gaffney


1 Heffernan, Margaret.  “Forget the Pecking Order at Work”.  Retrieved from:  www.Ted.com.  June 2015.

2 Wikipedia.  Social Capital.

Managing Expectations

September 15, 2016 by pgd1

An aspect of my role as an attorney representing persons in the process of divorce is to manage their expectations.  This is not always a simple task.

Life is a journey.  In one’s youth, it is many times a journey of light.  That is, one experiences the positive aspects of life. This includes good health, pursuing education and attaining goals.  Marriage and starting a family can be an aspect of this.

The wedding day is a good marker of how life can be a joyous occasion.  However, the wedding day often does not give a good forecast of the trials that marriage and family can bring.

To set appropriate expectations, it is important to recognize that the journey of life involves a passage through darkness as well as through light.  That is, life does not always treat us as we expect.  The unfolding of realty is something separate and different from our plans.

When this occurs, interesting possibilities emerge.  When life doesn’t turn out as planned, it may take a space of time to come to acceptance of this new reality. Likewise, when a relationship ends, a grieving period is recognized.

In maturity, we can come to a sense that it is the dark times in our lives that are the most meaningful.  When seen in this way, we recognize that these dark passages are a cause to be grateful.  No divorce is easy for the person going through it.  Divorce is painful for the parties.

The dark night of a divorce is to be seen in the context of a passage.  The difficulty and pain does not last forever.  All things pass.  There is a light on the horizon.

by Patrick Gaffney

by Patrick Gaffney

THE LAW PRACTICE OF ABRAHAM LINCOLN

August 11, 2016 by pgd1

Before he ever became President, Abraham Lincoln was a successful attorney.  Summaries of his cases can be found here.  These summaries make for interesting reading. When I reflect upon the practice of family law, an overriding sentiment is that truth is truly stranger than fiction.  This was true in Lincoln’s time.  What follows is a summary of one of Lincoln’s divorce cases, Cowls vs. Cowls.  It is a great privilege to practice in the same area of the law as Lincoln.

Ann Cowls obtained a divorce from her husband, Thomas Cowls, but the court made no provisions for the two children, who remained with their father.  Later, Ann Cowls sued Thomas Cowls to gain custody of the children and to obtain an increase in alimony for the children’s maintenance.  Ann Cowls claimed that Thomas Cowls was living with a prostitute, whom he married two weeks before the custody suit began, that he fought with his new wife and swore in front of the children, and that he was habitually intoxicated.  The court granted Ann Cowls custody of the children, and maintenance of $60 per year for five years.  Thomas Cowls retained Lincoln and appealed to the Illinois Supreme Court, which affirmed the decree.  Thomas Cowls argued that the circuit court refused to allow him to take depositions, but the Supreme Court ruled that the lower court had allowed him to present any evidence and that the case did not warrant a continuance for depositions after the court had sufficient evidence for a ruling.  The Supreme Court confirmed that a chancery court had an ancient right to interfere and control the estates, persons, and custody of all minors.  The court also implemented the “best-interest-of-the-child” doctrine, which recognized that it was the special duty of a republican government to oversee the care and education of children so that they might become useful citizens.  Lincoln and Herndon received $20 for their legal services.

by Patrick Gaffney

by Patrick Gaffney

STRESS CAN HAVE AN UPSIDE

July 28, 2016 by pgd1

The Oxford English Dictionary defines stress as “a state of mental or emotional strain or tension resulting from adverse or demanding circumstances”.  In the 1930s, Hans Selye began researching stress by experimenting with rats.1

Now, a new body of research suggests that what matters is not just the level of stress or even its type, but how it is thought about.  The same stress, perceived differently, can trigger different physical responses, with differing consequences for both performance and health.

According to an article in The Economist magazine, recognizing that stress can be beneficial seems to help in two ways.  First, people who have a more positive view of stress are more likely to behave in a positive way.  Second, seeing stressors as challenges rather than threats invites physiological responses that improve thinking.

Scientists have shown that recognizing the benefits of stress can cause measurable improvements in performance.  The cost of stress is staggering.  In America, it is estimated that work related stress accounted for between $125 billion and $190 billion in healthcare costs annually.  France recently passed a law giving workers the “right to disconnect”.

For people going through divorce, stress is a common occurrence.  This recent research confirms an intuitive belief I have held:  we must find a positive way to perceive the stress we experience.

by Patrick Gaffney

by Patrick Gaffney


1 “What makes us stronger.”  The Economist.  July 23rd-29th 2016.

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