Family Law

 

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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.

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.

How Nature Affects Us

August 3, 2017 by pgd1

Fredrick Law Olmstead designed Central Park, one of the most famous parks in the world, and went on to design city parks all over the U.S.  What he did that was different and significant was that he recognized that people needed nature in order to get along with one another, in order to be their best selves, that it was a place where people could let off steam, especially the working classes, who normally didn’t have access to green spaces.

Something researchers in Japan recognized about urban life is that when we are indoors we rely mostly on our eyes and ears, but our other senses are underutilized.  They think this is partly related to why outdoor environments make our stress levels go down.  We can hear the sound of a creek gurgling, feel the wind blowing on our cheeks or smell the aroma of the woods, especially in Japan where there are lots of wondrous cypress trees.

Our sensory system evolved in the natural world and when we’re in those spaces, our brains become relaxed because these are things that we were designed to look at, hear and to smell.  For instance, our immune cells, or “natural killer cells,” which fight cancer, increase in forests.  As a result, Japan now has 48 therapy trails.

In Finland, public health officials now recommend that citizens get 5 hours a month, minimum, in the woods, in order to stave off depression.  This is evidence-based.  They found that people need this time in order to preserve their mental health.

The nature pyramid is the idea that nature is something we have every day.  One of the things we’re recognizing is that, like other medicines, nature follows a dose curve.  A little bit of nature is helpful; a little more nature is even more helpful.

We are fortunate in America.  We have these incredible wilderness spaces and national parks, and science is showing that when we spend time in those spaces, it can be tremendously helpful for our sense of self, for problem solving, social bonding, and rites of passage.1

As a practitioner of family law, I am always looking for reasonable and healthy ways to relieve stress.  As research reveals, a walk in nature is very good medicine for stress relief.

by Patrick Gaffney

by Patrick Gaffney


1 This blog was taken in part from:  http://news.nationalgeographic.com/2017/02/nature-fix-brain-happy-florence-williams/, and influenced by “The Nature Fix: Why Nature Makes us Happier, Healthier and More Creative” by Florence Williams.  W. W. Norton & Company; 1 Edition (February 7, 2017.)

Black Swan Theory

July 6, 2017 by pgd1

The phrase “black swan” was coined when the black swan was presumed not to exist.  The Old World presumption was that all swans must be white because all historical records of swans reported that they had white feathers.  In that context, a black swan was impossible or at least nonexistent.

However, in 1697, Dutch explorers led by Willem de Vlamingh became the first Europeans to see black swans, in Western Australia.  The term subsequently metamorphosed to connote the idea that a perceived impossibility might later be disproven.

Black swan events were discussed by Nassim Nicholas Taleb in his 2001 book Fooled By Randomness, which concerned financial events.  His 2007 book The Black Swan extended the metaphor to events outside of financial markets. Taleb regards almost all major scientific discoveries, historical events, and artistic accomplishments as “black swans”—undirected and unpredicted.  He gives the rise of the Internet, the personal computer, World War I, dissolution of the Soviet Union, and the September 2001 attacks as examples of black swan events.   Taleb asserts:

What we call here a Black Swan … is an event with the following three attributes. First, it is an outlier, as it lies outside the realm of regular expectations, because nothing in the past can convincingly point to its possibility. Second, it carries an extreme ‘impact’. Third, in spite of its outlier status, human nature makes us concoct explanations for its occurrence after the fact, making it explainable and predictable.

As a family lawyer, I have found that for some persons divorce is particularly difficult, because, for them, it is a black swan.  For these folks, they presumed their life was stable, that divorce wouldn’t happen as there were no facts that would suggest this was possible.

The practical aim of Taleb’s books are not to attempt to predict events which are unpredictable, but to build robustness against negative events while still exploiting positive events.

I process this by contending that we should not take our relationships for granted.  We never know when a black swan will appear to challenge our expectations.1

by Patrick Gaffney

by Patrick Gaffney


1 Much of this blog was taken from Wikipedia:  Black Swan Theory.

Humor Combats Grief

June 29, 2017 by pgd1

David Grossman’s novel, A Horse Walks into a Bar is about a standup comic’s rambling and confessional routine in an Israeli comedy club.  The book has won the Man Booker international prize for the year’s best fiction in translation.

Set in small Israeli town, the novel is focused entirely on the act of comedian Dovaleh Greenstein.  Taking to the stage to needle his audience with vulgar and aggressive jokes, Greenstein’s repellent performance begins to crumble as he reveals a fateful and gruesome decision he once made, which has haunted him ever since.  The book is a meditation on the opposite forces shaping our lives:  humor and sorrow, loss and hope, cruelty and compassion, and how even in the darkest hours we find courage to carry on.1

The author, David Grossman, knows something about grief.  Ten years ago in the final hours of what Israelis call the second Lebanon war, Grossman heard that his son, Uri, a staff sergeant serving in a tank unit, had been killed in action.  Uri was 20.  Grossman had this to say:

. . . in order to do almost anything, you have to act against the gravity of grief.  It is heavy, it pulls you down, and you have to make a deliberate effort to overcome it.  You have to decide that you won’t fall.

 He relates that it required a conscious decision on his part not to immerse himself in grief.2

As a family law attorney, grief accompanies my clients in various circumstances.  Coping with losing a loved one is one of life’s great difficulties.  Divorcing couples and non-married partners that break up also experience grief.  It is important to note that not everyone grieves the same way; we have individual patterns and outlets for grief.3

For David Grossman, his art is an outlet for his grief.  As his book portrays, humor can be a way of coping with grief.

by Patrick Gaffney

by Patrick Gaffney


1 Cain, Sian.  “The Guardian”.  June 14, 2017.  Retrieved from:  https://www.theguardian.com/books.

2 Freedland, Jonathan.  “The Guardian”.  November 26, 2016.  Retrieved from: https://www.theguardian.com/books.

3 Grief.  Psychology Today.  Retrieved from:   https://www.psychologytoday.com/.

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