Kids and Messy Divorces - Not a Requirement

The NYT article (linked below) discussed the decrease in the number of divorces for this generation of Americans - that correct I said "decrease".  It gives some very interesting theories.  The one I like the best suggests that we represent the first generation of children for whom divorce was not stigmatized.  Even in the Catholic School I attended, there were many - students and teachers, who were at some level involved in a divorce and therefore we, children of the 70's and 80's, would not get end up in that situation and re-live their parent's "sloppy divorces."

The thing that really drove me to post and discuss this article is dealing with custody matters.  As someone who does a reasonable amount of divorce, there is nothing more difficult than dealing with a contentious custody issue.  The article quotes Joanna Roth, a Harvard-educated lawyer who aptly states “since the 1990s, we’ve been trying to come up with a process that is more emotionally humane and accounts for the interests of children…” She continues by acknowledging that most parents have their children foremost in their minds.  I sadly have my doubts. 

I think most parents’ intentions are aimed at good when it comes to the children; but often their actions go astray.  If you fight over every second of the child’s time, I believe it isn’t fair to the children or to you.  Sure, in many instances one parent is more suited to deal with the day to day child rearing.  (Sorry dads, but traditional roles suggest that it is mom.)  However as people get their “sea legs”  the roles will change and parents should look to as close to equal time as possible when possible.

The fighting will stop – it always does.  When it does, let’s not leave a field of casualties behind.

How Divorce Lost its Cachet

Reaction to Divorce Case Raises More Than the Obvious Questions

A recent divorce case involving a prominent New York lawyer, his ex-wife and the Bernie Madoff ponzi scheme has sparked much debate among legal scholars, the judges deciding the case, and the public.  An article by Peter Lattman of the New York Times (http://dealbook.nytimes.com/2011/05/30/madoff-victim-seeks-do-over-in-divorce-deal/) discussing the case indicates that Steven Simkin has filed suit to set aside a two year old divorce settlement agreement with his ex-wife Laura Blank.  Mr. Simkin’s justification for attempting to set aside the seemingly final divorce agreement is the fact that he fell victim to Bernie Madoff’s ponzi scheme.  A significant portion of the couple’s assets were maintained in a Madoff account which was valued at roughly $5.4 million at the time the parties entered into the divorce agreement.  Fortunately for Ms. Blank, a portion of the Madoff account was liquidated to pay her portion of the settlement and she chose not to reinvest the funds with Madoff.  Mr. Simkin was not so fortunate and the value of his investment with Madoff proved to be worthless once the Madoff fraud was revealed.  Mr. Simkin now seeks to set aside his divorce agreement and recover millions from his ex-wife claiming there was a mutual mistake among the parties when they entered into their agreement.  The mutual mistake being that they owned a valuable account with Madoff worth $5.4 million which turned out to be worthless, or as Mr. Simkin argues non-existent.  Mr. Simkin’s case was dismissed by a trial court judge, but the New York appellate court overturned the dismissal in a 3 to 2 decision.  Barring a settlement, the case will go to trial and the results will not be know for some time.

                                                       

            While some of the on-line comments on the article focus on the legal merits of Mr. Simkin’s case, i.e. whether this case constitutes mutual mistake as defined by the law, a large number of commentors took the opportunity express their opinion of Mr. Simkin as just another “greedy, shameless attorney” who is abusing his position as a partner in a high profile law firm to run his ex-wife through the ringer with free representation from his cronies.  The number and tenor of these comments brought to mind what seems to be a universal truth…a large portion of the public dislikes, distrusts, and in some instances despises lawyers.  While this is nothing new, it does raise an interesting question about the seemingly majority opinion on the Simkin case.  Would the sentiment about the case be so one-sided if the shoe were on the other foot?  What if Mr. Simkin had turned over his interest in the Madoff account to Ms. Blank and it was Ms. Blank attempting to overturn the divorce agreement?  Would the on-line community label Ms. Blank as just another greedy, shameless, former-spouse trying to undo an agreement because she overestimated the value of an investment account?  More likely they would espouse her courage as she battled the high-powered lawyer and his pals to recoup what is rightfully hers after her greedy, shameless attorney ex-husband sold her a bill of goods in the divorce settlement.  Of course, their opinions may change yet again once they found out that Ms. Blank is also an attorney.

Power of Attorney - A Question of Trust

Lawyers do lots of things that people think are "boiler plate" and simple.  From the client perspective these activities are easy and should remain easy – “Don’t over lawyer it.”  One of these so called “easy” things is the Power of Attorney and if ever there was an instrument that should lawyered to death it’s the Power of Attorney.

A Power of Attorney is a document that is signed by a person, called the "principal" which grants another person, called the "agent" or "attorney in fact" the authority to conduct business on behalf of the principal.

Most commonly POAs are drafted for older people who may not as mobile as they once were.  Depending on the POA, the agent can be allowed to do anything from borrowing money to selling property to writing checks.    Over the past several years, as a result of a great deal of fraud, Maryland and many other states have revisited their POA laws. Not only states but many banks have their own specila requirements.

In Saturdays' Wall Street Journal, the link is posted below, the Journal examined the various laws regarding powers of attorney and provided its readers with important do’s and don’ts relating to the POA.  I strongly urge you to read the article and make sure you heed its recommendations.  But mostly make sure that your lawyer really takes time to meet your needs when drafting this important and dangerous document.  This is not a “do it yourself” legal document and you should get a lawyer to advise you.

What happens when a principal abuses his or her power? Is the victim, or in many cases, the victims heirs up the proverbial river?  The answer is never easy and always based on the facts of each case.

So for example:  A mother grants her nurse a POA to conduct her business; simple things like banking and paying bills.  But the POA is a broad POA and has language that reads “the agent may transact any and all financial business including borrowing money,…”  Nurse goes out and buys a new Rolls Royce titled to nurse on mom’s credit, making the payments from mom’s bank account.

Mom dies and her children discover what nurse did.  Do the heirs have any recourse?  Should they?  What happens to nurse and the new Rolls?  Some answers after your thoughts. 
WSJ Power of Attorney

Divorce and Built In Settlement Opportunities

In most Circuit Courts throughout Maryland, the divorce process is replete with opportunities to settle your case.  For example, in Baltimore County the parties meet with a retired judge who will discuss the various issues with the lawyers and then the parties. In a divorce you should be prepared for these opportunities. You and your lawyer should have a detailed conversation and set real attainable settlement goals. Do this and the settlement judge will help bring this chapter in your life to a close.