Zachary Zugg help

Helping

by Shel Silverstein

Agatha Fry, she made a pie
And Christopher John helped bake it
Christopher John, he mowed the lawn
And Agatha Fry helped rake it
Now, Zachary Zugg took out the rug
And Jennifer Joy helped shake it
Then Jennifer Joy, she made a toy
And Zachary Zugg helped break it
And some kind of help is the kind of help
That helping’s all about
And some kind of help is the kind of help
We all can do without

When my kids were small and trying to be helpful but unintentionally not quite getting it right, we used to call their attempts “Zachary Zugg help”.  In the world of Divorce, I see a lot of Zachary Zugg help.  For instance, I recently saw advertised a Valentine’s Day contest for a free divorce.  Perhaps the Missouri attorney running that advertisement thought it was great PR.  It certainly was eye catching.  The small print indicated that only uncontested divorces with no or minimal custody issues could qualify for the contest so in other words, nothing legally complex.  It seems to me the attorney failed to grasp that even in divorces where the legal issues are uncomplicated, the emotional issues can be enormously complex.  Not attending to those issues seems to me to be Zachary Zugg help.

Divorce Corp., a recent nationwide movie release, is an exposé purportedly about the abuses amongst divorce lawyers and judges which alludes to a complicity between lawyers and judges that has created a self serving divorce industry, thus the allusion to a Divorce Corporation as opposed to Divorce Courts.  The film was not nuanced and it seemed to only address extreme cases of divorces gone terribly wrong.  It was sort of like looking at the extreme end of a bell curve.  Again, the kind of help we all can do without.

Guiding divorcing people toward personal growth and helping them optimize their family life is productive, creative and positive. Consilium’s psychologically and legally integrated approach helps individuals control their initial crisis, consider the content of the law and how it will impact their unique circumstances and then create context by becoming educated about the processes available to them.  People can then move from paralysis to empowerment, and choose wisely how best to move forward be that through mediation, arbitration, collaborative law or the traditional divorce process.  Now that’s the kind of Agatha Fry, Christopher John, Jennifer Joy help we all can do with.

Consilium Divorce Consultations and Mt. Kilimanjaro

Last August, when my daughter was about to leave to spend a semester of her junior year in Uganda, she challenged me to meet her in Tanzania at the end of her semester and climb Mt. Kilimanjaro.

I am not a hiker.  I am not a camper.  I do not relish the cold.  I do not like shots.

My twenty-year old had just asked me to spend nine days with her to tackle an enormous challenge, and the adventure of a lifetime.   And I thought—if not now, when?

I began a fitness training program. I trained every day, whether I felt energized or not so much. Friends and family rallied and took early-morning and weekend hikes with me.  I got those dreaded shots (which weren’t so bad).  I became a regular at EMS and REI.  The only new clothes I bought were WARM ones.

It didn’t occur to me, as I began down the path of conquering my fears and attempting a challenge I wasn’t at all certain I could surmount, that my journey would mirror what my clients experience as they explore the landscape of divorce and the restructuring of their families.

In order to safely navigate ourselves to the roof of Africa, I sought out an experienced adventure travel company- thomsonsafaris.com.

However, it wasn’t until I was on the mountain that I truly began to appreciate having the support of a veteran guide (who had summited Kili over 200 times).  On day five at 3 o’clock in the morning, I awoke shaking with hypothermia and altitude sickness and asked my daughter to go and get Onest, our guide. His steady calm was reassuring and made me feel safe as he tested my oxygen (67 -not so good), took my temperature (41 Celsius, also not so good), wrapped me like a turkey in aluminum foil, and surrounded me with hot water bottles.  I was fine by morning.

It was when I approached the rock scramble of Barranco Wall that my fear of heights kicked in. My daughter said “Don’t look down”; my guide held my hand as I negotiated the terrain, and I felt grateful to be in skilled hands.  I was grateful for the strong arms that held me as I hopped over rocks and trudged through running waters.  Even when I saw the glaciers rising ahead of us I still could not imagine that the summit was within my reach.  The thin air and cold air made every step seem eternal.

It was hearing the comforting reassurances of someone who had travelled this journey so many times that “You are strong!” and “You can do this!” that helped get me to the summit.  I knew that others had turned back because they weren’t able to sustain the journey. I felt confident that my guide could gauge my ability and therefore I could surrender the decision-making to him, even when my own instinct was to give up.

When I felt entirely spent and still had three hours of scree skiing down to our campsite, after an exhausting ten hours to the summit, it was the steady hands of my daughter, my porter, and my guide that allowed me to release my tears of elation at the reality we had in fact summited.

I do not pretend to believe that I could have conquered my fears and faced the challenges before me without the support, knowledge and confidence of my guide, my daughter and my team.  I had nine days to contemplate many things.  On some days my feet would travel upward and my mind would turn to my work.

At some point in my travels it became clear to me that in order for anyone to believe in herself and her goals, whatever they may be, she needs to surround herself with knowledgeable guides who believe in her, have experience and compassion and understand the “big picture” to help her accomplish the task before her. Consilium Divorce SM is the process that allows us to help you summit the seemingly insurmountable.

Heidi R. Webb is the Founder of Divorce Consultations and the ConsiliumSM Divorce Process.

 

I’m a Gay Man Married to a Straight Woman

During the course of the past year a number of gay men have consulted with me about obtaining a divorce. These are not gay men married to other gay men.  These are gay men married to women.

I’ve practiced family law and been a divorce consultant for over twenty-five years.  Yet this pattern is new to me.  It makes me ponder whether the legalization of gay marriage in Massachusetts has allowed some men to see possibilities for themselves that they could not see before.  In the course of a discussion with one of those men, I asked him what he thought of my observation. He responded by telling me that he felt empowered in a way that he never had before and that yes, he thought the law had something to do with it.  For twenty years and three children he had been living the only life he believed he could live.  He had conformed.  He had been a professional and financial success.  He lived in a beautiful home in an exclusive Boston suburb.  However, in his gut he felt tortured, and described himself as a tapestry that was unraveling. He told me that he didn’t think he could continue living the lie that he’d fabricated for himself.  I know he’s not alone.

As a society we are transitioning and our social mores are adjusting. Only a generation ago divorces were only allowed “for cause”, and only between a man and a woman. “Irreconcilable differences” or “Irretrievable breakdown of a marriage” did not exist as grounds for divorce.  In all likelihood in less than a generation what feels foreign today will feel nothing more than usual.

 

Children are not Chattel

Children are not Chattel

Chattel, n. something (such as a slave, piece of furniture, tool, etc.)
that a person owns other than land or buildings

On September 11, 2013, the United States District Court for the State of New Hampshire published a decision based upon the international abduction of two children by their mother. After a Turkish Court granted sole custody of the children to their father, the mother fled from Turkey with the children and successfully hid them from their father and the law for several years until their discovery in New Hampshire. In accordance with the international child abduction laws agreed to by and between the United States and 85 other countries, New Hampshire complied with the laws of The Hague Convention and ruled that the children should remain in New Hampshire.

The case was convoluted and distressing and extreme. However, one of the essential elements in the Court’s analysis was its application of the “now settled” standard of The Hague Convention which looks at whether or not children have lived in their current location for a year or longer as opposed to the the “best interests of the child” standard applied in custody cases in New Hampshire (and Massachusetts and most of the other states). The Hague standard does not include an analysis of how the children got where they are or whether or not the circumstances are “fair”. The Hague laws are not intended to punish parents for wrongful removal nor do they seek to reward parents for loss of relationship or diligent searches. Instead, of paramount importance to the Court are the child’s attachments in the community in which he now resides regardless of how it came to be so.

In affirming the lower Court decision, the Appellate Court stated that “The district court expressed discomfort with rewarding the party “more at fault here,” remarking that “[i]f it were just about which of these people should be rewarded or punished, if the children were chattel,” it would award the children to Yaman (their father). But, the district court concluded, “children aren’t chattel” and the Convention does not treat them as such.

The New Hampshire case is instructive not only as to the law but to the deeper issues of parental attachment, disruption and its likely future ramifications. No matter how well intentioned the mother may or may not have been, there is no question that the parties’ children will spend years grappling with how to reconcile the conflicts of their custody and residence.

Walking Away From Marriage

When Henrik Ibsen wrote A Doll’s House in 1879, the original ending—where Nora walks away from her unhappy marriage, abandoning her husband and her children, to go find herself—outraged critics so much that he was forced to write a new ending for its premiere. The play questioned gender roles, the façade overlaying an unhappy marriage, and the rights of women in then-contemporary patriarchal European society.

Here, you can see the end of the 1973 film adaptation of the play, starring Jane Fonda as Nora:

Today, divorce remains a painful and difficult process but with rates of 50% in the United States much of its social stigma has been removed.

http://www.cdc.gov/nchs/fastats/divorce.htm

Unlike in Ibsen’s time, when a woman’s opinion about her marriage was not usually considered relevant and it was simply assumed that her husband knew best about all things related to their family, today in most instances when adults enter into a marriage they hope for it to be an equal partnership.  However—people being people, in any era or society—power struggles and imbalances often ensue.  Although the struggles continue to exist, they are often times subtle and not based so obviously in gender roles and strict societal expectations.

During the high-stakes and emotionally charged process of divorce, the dynamics and power imbalances that already exist in a marriage become exaggerated.  Understanding those dynamics and how best to attend to each spouse goes a very long way when helping people to restructure their families.  When it is done well, divorcing spouses not only separate assets and share time with their children, they move forward to grow and thrive.

 

Give It Away or Put It Away or Throw It Away – by Taylor Mali (the poet)

At the end of the marriage,

whatever stuff is left—
like crutches or rustic tools
you rarely used, tight shoes,
dusty books, or even love—
whatever lies piled on the floor
you have to find a way to store
after the divorce. Unless
of course before that day
you took the time to give away

or sell (at tag sale or on eBay)
all that did not break apart
in the course of breaking up
your home and heart,
some of it, no doubt, cracked
from the start, or else
abandoned in the name
of moving on and living;
everything must be given away,
or in some other way forgiven.

What’s left must be stored somewhere,
be it in the flood-cursed basement
of a friend, or worse, the rented
metal room where love, like wine,
goes to improve but never does.
Or, at least, the body, let loose
in memory’s uncharted attic,
or left undressed in some empty
chamber, say, the 5 by 10 container
in the middle in your chest.

At least three roads diverged in the woods and I, I took the one less traveled by…

Divorce Consultation: A new paradigm

After practicing family law for over 25 years, I knew something was missing. The traditional legal process of divorce only deals with the legal issues. My clients not only needed legal advice, but life planning strategies, emotional support, and a basic financial overview. Those issues were not traditionally addressed in a lawyer’s office, leaving a gaping hole for the client not only through their divorce, but also once the divorce became final.

Ascribing to the theory that if we do things as we’ve always done them, we’ll get the results we’ve always got; I decided to deconstruct the process of how we approach divorce. Out of this came a new paradigm and my new service, Divorce Consultations.

Together we examine current family dynamics and a vision of your post divorce, restructured family. This process includes goal planning for before, during and after your divorce, as well as a pre-divorce financial review, and emotional support. For a more complete picture, the likely goals and visions of a client’s spouse are also reviewed. This process allows clients to understand both the strengths and weaknesses of their cases and ultimately, helps them to achieve their most favorable outcomes.

In order to help you understand how the Divorce Consultation process plays out, I’ll tell you about Holly. When she first came to see me she was paralyzed with fear at the thought of ending her marriage; sad because her dream marriage wasn’t at all what she’d hoped it would be; giddy at the prospect of creating a new and happy life; scared for her children’s happiness and financial future; petrified her husband’s rage and anger would be visited upon her and her children in a litany of ways.

I listened. I listened both as a lawyer, and as someone trained in counseling and consulting psychology. I listened with various hats; litigator, mediator, collaborative attorney, counselor. I observed. I tried to help her understand possibilities for herself, for her children, and yes, for her husband. Together we imagined where she wanted to be in a year, then three years, then five. I listened with the firm belief that if you first create a path, you’re much more likely to successfully navigate your journey.

I asked her how her kids doing? Not well. Was she happy? Not at all. Did she think her husband was happy? Certainly not. Had they together worked with a marriage therapist? He refused to go.

I educated her about Massachusetts law relative to a division of marital assets, alimony and child support. Two hours later she was better informed and better equipped to assess her options and evaluate her future realistically. She could allow herself the freedom to view her life through a different lens.

It was a number of months before she called me again. This time she had a different resolve. She was sure her marriage was over. She suspected her husband was having an affair. Her kids were in various states of psychological distress.

When she came to see me this time it was to discuss and process how she would proceed toward a divorce. What path should she take? Mediation? Litigation? Collaborative Law? What lawyer or law firm should she hire? How could she determine if her husband was having an affair? Did she really want to know? How would she tell her husband she wanted to divorce him? How would she tell her children their parents would be getting a divorce? And lastly, did I think it was odd that before she did any of this she wanted to take one last family trip to the south of France. She wanted to create a positive lasting family memory for her children. She was confident she had the strength to do it now that she had the clarity of mind and structure to move forward. I didn’t think it was odd. In fact, I thought with the right planning and foresight it had the potential as they moved into the divorce, to give their children confidence that their parents could work together for their benefit.

We went to work. I reviewed the parties’ finances. Together, we created a timeframe for when she would talk to her husband. I referred her to a therapist for herself and her oldest child who was in the most distress. We planned when she and her husband would together tell their children he would be moving out of their home, and that they would be getting a divorce. In fact, we wrote a script for her husband and her to review and agree on before talking to their children.

After evaluating the likely psychological and financial dynamics that would play themselves out during the course of their divorce, Holly and I discussed the processes of mediation, collaborative law and the more traditional litigation based model of divorce. As the trust she had once had in her husband had been eroded by a variety of deceits he’d visited upon her, Holly had no confidence in his ability or desire to be honest and forthcoming in their divorce. She could not imagine sitting in a room with him, even with the support of legal counsel, to discuss and resolve the dissolution of their marriage. In light of our conversation and her needs, I created a short list of attorneys for her to interview. I armed her with questions to ask relative to the handling of her case. She talked with the attorneys without any initial consultation fees and by her agreement with me, I provided the attorneys with a legal synopsis of her case. She was not financially beholden to anyone. We talked again after her meetings and my objectivity around the strengths and weaknesses of her case allowed her to make a better hire. The emotion of hiring a lawyer was taken away, since she was equipped with the knowledge and confidence that she was heading down the right path.

The lawyer she hired is savvy in the world of taxes and high finance and his expertise was necessary since her case involved a number of creative compensation schemes. She was confident the lawyer she hired was a man whom her husband would respect and see as a peer, and we had determined those were necessary factors for both her husband’s psyche and the case’s smooth progress. She believed he was the best “fit” for her and for her gaining a favorable settlement with her husband, but she didn’t believe his style was appropriate for their custody and parenting plan needs. With the agreement of her attorney, I agreed to remain available to work on custody and parenting issues as needed.

She started the journey down her path. Seeing her clarity and confidence, her husband looked at her and said, “Alright, now who do I hire?” She called to see if I could help. Although I could not ethically meet with him since she was my client, I gave him a list of attorneys to interview whom I thought would work well with her attorney. He hired one of the attorneys from that list.

Kid gloves and steel hands were called for to handle this case. It involved psychological abuse, an affair, many millions of dollars, young children with years of therapy, private education and college ahead of them, large personalities, shattered dreams, two homes, antiques and an art collection to divide, reputations to keep intact, and futures to envision. It was accomplished peacefully, not entirely without angst, and not without some bumps along the way but with clarity, resolve, and support.

She got a fair and just settlement. She stayed in the parties’ marital home with the children. He kept the parties’ vacation home. She had enough money from the settlement to purchase another vacation retreat, a result that at the outset of their divorce, she couldn’t imagine. Custody and child support were negotiated, and both parents were satisfied with the outcome. They were ready to move on to the next stage of their journeys.

I had the pleasure of seeing her recently. She exuded peace and relaxation. She was a far cry from the paralyzed, sad, and scared woman I had met only a few years ago. Her former husband and she are effectively parenting together. Her children seem to be thriving in school with the support of both of their parents. I think it is fair to say that having successfully navigated her journey, she can now look forward to new destinations. Divorce Consultations is a proven and effective model to help clients prioritize their goals and maintain stability for themselves and their families at a most vulnerable time in their lives.

The Key elements for a successful divorce are:

  • Starting the process with a framework: legal, financial, emotional, and personal goal planning.
  • Hiring the right counsel that is not based simply on reputation or word of mouth, but rather who is truly a match for your personal situation and the process or processes you decide to pursue.
  • Pre-planning what aspects of your divorce might be best suited to which process (perhaps litigating one portion and mediating or arbitrating another) and “custom fitting” your case accordingly.
  • Knowing the intricacies of finances not only for today, but also for three, five, or fifteen years from now.
  • Creating an atmosphere where you and your children are well cared for emotionally throughout the process.
  • Establishing attainable goals for your new life.
  • Heidi R. Webb © 2013

 

Yours, Mine and Ours: Non-Compete Clauses in Divorce

 

In a recent Massachusetts divorce matter, the Appellate Court remanded back to the lower court the portion of a decision in which the lower court judge had found that he lacked the authority to create a non-compete clause between the parties, who owned a feed and grain store together during their marriage.  The former husband was buying out his spouse’s interest in the business and wanted to ensure that she in turn would not open her own competing store vying for the same customers.  Although the Appellate Court stressed the limited nature of its ruling, and took no position as to whether a non-compete order should be granted, and if so, how broad it should be, it was clear in granting the probate judge the authority to permit such an order.  This ruling allows the probate court to apply the contract law concept of non-competition to divorcing spouses, giving them broad and flexible powers extending to any actions necessary to afford any relief in the best interest of a person in their jurisdiction.  The Court went on to caution that the measure should be reasonable and no broader than necessary to protect the valuation in transfer.  In this case, the judge must go back and decide whether or not a non-compete order against the former wife is necessary to protect the value of the feed and grain store granted to the former husband.

This ruling requires judges to become experts in areas of business where they may not have any experience or knowledge.  Expert testimony will become an integral part of the division of assets where parties own a business together.  Formally, probate judges were only concerned about the value of a business at the time of the divorce, and how each party should be compensated.  With this ruling, what happens to the business after the divorce comes into play.  The good will and reputation of these businesses may become open for dispute.

What is a family?

 

I have received passionate responses to the blogs I’ve written recently concerning non-traditional family issues (a father being ordered to pay child support for twin daughters born (via IVF through sperm not his and egg not his wife’s) to his wife while they were married but in the process of divorcing, and shared custody being ordered between a non-biological mother of a child born to her wife during the course of their marriage and the biological mother, her wife). 

The non-traditional parenting issues now more regularly coming before the Court are a result of very old laws running up against very new family structures.  In a sense, the Court is playing “catch up” with society and in doing so it is being asked to make rulings in the most intimate of scenarios.  In many ways to me these days hark back to the days of desegregation when by necessity, the Courts led the way through integration.  It was only through the Courts’ orders that legislatures realized (often reluctantly) that they needed to act in ways to ensure equality under the law.  Courts are once again being forced to reconcile and interpret the laws they are sworn to uphold with the social and technological changes we are making as a society.

The Courts’ interpretations of laws will always be controversial.  The nature of our Court process is such that at least two alternative opinions are always put forward.  Without disagreement there would be no need for an impartial party to make a judgment.  It is as it always has been.

Is Intention Definitive?

When I was a child and my parents did something I didn’t like and I complained, my father would often retort by saying “you should have picked your parents more carefully”.  His humor was not lost on me.  Although as I grew up I came to realize my parental good fortune, it wasn’t until much later that I came to appreciate and understand the legal obligations of being a parent.

Massachusetts law obligates parents to support their children.  On March 6, 2012, the Appellate Court responded to a father’s appeal in which he challenged his obligation to pay child support and in so doing they affirmed the lower court’s decision obligating the father to pay support. 

The facts of the case are not typical; in fact they evolve from the intersection between medical technology and human emotion.   The children in issue are twin daughters born to the father during the course of his marriage, albeit a marriage in the midst of dissolution.  They were born through in vitro fertilization (IVF) using donor sperm and donor eggs, and the father challenged his child support obligations claiming that his consent to his wife’s IVF procedure was consent to the procedure and not his consent to become a parent.  However the Court noted that for purposes of the Massachusetts artificial insemination statute, simple consent to the procedure is enough to confer parental status. The father argued that he had been coerced and had given his consent under duress and that when he gave his consent he did so contingent upon his wife’s agreement that she would “not at any time ask or sue for any other financial obligation” (e.g. child support).  As Massachusetts law does not allow parents to negotiate away their children’s right to be supported, the father’s position was hollow.

In support of its reasoning the Court cited a New York case in which that Court stated that ‘if an unmarried man who biologically causes conception through sexual relations without the premeditated intent of birth is legally obligated to support a child, then the equivalent resulting birth of a child caused by the deliberate conduct of artificial insemination should receive the same treatment in the eyes of the law’.  The Court went on to equate the volitional act of sexual intercourse with the volitional act of providing a signature to consent to the artificial insemination or embryo implantation.  In both instances, the intent of the putative father toward the parental status plays no role.  His volitional actions resulted in the creation of a child, and the law will attach parental responsibilities as a result.

As under Massachusetts law “Every person is responsible for the support of his child born out of wedlock…” and as artificial insemination or IVF has no purpose except to create a child, the intent of the husband that a child will be created strongly supports parental responsibility.

The Massachusetts Appellate Court has spoken and in doing so made it abundantly clear that although a male may have no belief at all that his actions will result in the creation of a child, in cases of unintentional pregnancy, whether through sexual intercourse or IVF, the male participant will be held responsible for child support.