REPORT ON ABA ANNUAL MEETING IN ATLANTA

Atlanta was the site of the American Bar Association's Annual Meeting early this August. The convention was headquartered downtown, and the city's hotels were so full that the Family Law Section's convention was held nine miles out of town in the suburb of Buckhead.

Buckhead is kind of like Tysons Corner, except it has sidewalks and there's art all over the place. It, and for that matter almost the whole city, seems to be proud and prosperous, but also friendly. The city seemed full of young people working very long hours doing important stuff with money. All the restaurants were very good, and had 90-minute lines, and all the parking was valet.

Atlanta is expansive and assertive, brimming over with culture, architecture and development. It seems to be an exciting place to be young, to be Black, to be whatever you are. Driving though the ambitiously named "Virginia Highlands," just north of the Rev. Martin Luther King's old neighborhood, we came upon a billboard advertising something called "The Gay Yellow Pages." In the next block was a yard sale sign with a large American flag proclaiming "Celebrate Capitalism! Buy Stuff!"

Speaking of people who have capitalism issues, the ABA was scheduled to give the Margaret Brent Award to Jane Fonda, but she canceled at the last minute and was replaced by Attorney General Reno. The award has previously been conferred on Justice Ginsburg, Professor Anita Hill, and possibly all the most accomplished female lawyers except for Justice O'Connor. President Clinton was added as a speaker at the last minute, and I'm told that his former aide Webster Hubbell gave a speech about ethics. However, I didn't go to any of those, confining myself to Family Law Section and Probate and Trust Division programs.

International Law Committee News

The high point of ABA meetings for me is always the International Committee meeting. This time was no exception.

The Committee quickly conducted a review of the latest case law pertaining to international issues. One member thereupon remarked that every Hague Convention petition should pray for immunity from process service while the petitioner is in this country attempting to get a child returned elsewhere.

Members also discussed the issue of how to prove, in a Hague Convention case, what the custody laws of a foreign country are. There was discussion of possibly starting some kind of federal repository of official translations of foreign custody laws, and of where it should it be kept.

Former Chair Gloria DeHart reported that the State Department has officially recommended that Secretary Albright sign the Hague Convention on the Protection of Children, which this publication has likened to a "UCCJA For the Whole World." (16 FLN No. 1, p. 16 (Spring 1996)) Whether it will ever be ratified is unknown, but implementing legislation is already being drafted.

The Committee, and the Section as a whole, succeeded in getting the ABA House of Delegates to call on the U.S. Government to do what it can to get international organizations to cooperate with support orders, pension division and discovery.

Hague Convention on Inter-Country Adoption
Another hot topic was the Hague Convention on Inter-Country Adoption. Since China, Russia and other countries are unwilling to have their children adopted by homosexuals in the U.S. and other first-world nations, the ABA and most adoption-related groups are supporting the treaty, which bans gay international adoption. The treaty may be held up by Senate Foreign Relations Committee chairman Jesse Helms, who would like it to also say that adoption has to be by married couples, not by single individuals or other miscellaneous groupings. However, this particular treaty does not allow countries to take any reservations to it, so it is not certain at this point that it will be ratified.

Congressional Relations Committee News

The Section's Congressional Relations Committee is tracking several different bills in Congress, including:

A bill for funding and training for lawyers and clerks to set up and use computerized case tracking systems for abuse cases and "permanency planning." Some members had reservations about how this would operate, because, as they pointed out, it would mean that when they are in court defending a juvenile or someone accused of some sort of abuse, the judge would be looking at a computer screen which included confidential data from CPS and from other states, including anonymous reports and accusations that the lawyers and even the parties may not even be allowed to be informed of.

A bankruptcy reform bill which essentially means-tests Chapter 7 bankruptcy, making people elect Chapter 13 instead if they are able to pay off 20% of their debts each year. So far, it sounds good for divorce lawyers since people will have to pay their creditors eventually. However, since current law already makes support nondischargeable, the effect of this bill would be to put support recipients on the same playing field with all the other nondischarged creditors, forcing them to share pro rata with the other creditors in whatever the debtor is able to come up with. Cleveland divorce lawyer Marshall Wolf noted that while this sounds good for creditors in general, it should be remembered that most Chapter 13 reorganizations fail. If a support exception can at least be carved out, he said, that would be helpful not only to recipients of support, but to support payors, who after all will still be in trouble with state courts if they don't fully meet their support obligations, bankrupt or not.

The ABA as a whole, although not the Family Law Section in particular, is lobbying on a wide variety of issues including legal aid funding, teenagers' access to guns, the Violence Against Women Act and child care funding.

CLE Presentations

Another thing the ABA's committees do is plan CLE for future meetings. There's two things you shouldn't watch being made, as was often pointed out during this annual meeting: (1) ABA CLE, and (2) any other product of an incestuous orgy consisting of a bewildering sequence of random and ephemeral ad hoc groupings having something to do with obscure, decades-old sibling rivalries. But seriously, this process produces some great CLE shows.

"Hot Tips From The Experts" is a program where dozens of practitioners present one idea each, each speaking for no more than five minutes. Here are some of the hottest:

Easy Pension Valuation
Justice Howard Lipsey of Rhode Island presented an easy way to value a pension without an expert. Just take the age and birthdays of the pension owner and spouse, the earliest possible date that the owner could begin getting benefits, what the amount of benefits in that case would be, and what the survivor benefits are. Then call the insurance agent or an insurance company and ask what an annuity would cost if it provided those same benefits to those particular people on the same timetable.

Using Credit Card Authorizations to Secure Payment of Legal Fees
Joel Tenenbaum, a Wilmington, Delaware lawyer noted for his work in international adoptions, among other things, presented a "Pre-Authorized Legal Fee Form" which his client signs at the same time as the retainer agreement. It authorizes his firm "to keep my signature on file and to charge my [name of credit card] account the balance of any outstanding charges not paid on my behalf within 30 days of a monthly statement." The client also agrees that he understands that the authorization is valid and cannot be canceled while any money is owed, and agrees to provide the firm with any new account numbers and expiration dates when a replacement card is received.

Remote Access Tips
Dallas divorce lawyer Ken Raggio gave an update on the latest in working by remote access to your office's computers. One tip: your office's modems should be set up so that they don't answer until after 8 rings or so because "most hacker's 'war dialers' usually give up after 4 or 5 rings," because they then assume that what's on the other end is a telephone, not a modem. He also reported that you can now set up a network between computers in your home simply using the existing extensions of your home phone line, so that several people at once can use the internet in a house or office without expensive rewiring. (For more information see http://www.homepna.org/documents/wp1.html.) If you can install any software on a computer, you can install remote access software as long as you follow the directions, he said. His complete outline is available, and regularly updated, at http://www.raggiolaw.com/remote.html.

Social Security Retirement Age Increased
Kathleen Vetrano of King of Prussia, Pennsylvania, who chairs the Section's Elder Law Committee, delivered some tips on Social Security. The Social Security system itself will reach retirement age next year, having been launched in 1935. Did you know that people born after 1937 will not be able to retire on their 65th birthday? The retirement age rises an additional two months for each year after 1937, up to 1942 babies who will be retiring at 65 years and 10 months. The retirement age is 66 for those born 1943-1954 and then the two month escalation system kicks in from 1955-1960, after which retirement age is 67. This is something to keep in mind when drafting agreements or orders where alimony changes at the time of retirement. And did you know that widows can lose their benefits from their first spouse if they remarry before age 60 (or 50 if disabled), but are not penalized for marrying after 60?

Paying for College in a Divorce
D.C. lawyer Linda Ravdin, who also practices in Virginia, reported on the latest trends in negotiating payment of college expenses. She noted that state pre-paid college tuition plans have been getting a lot better in recent years and are often an attractive option. However, anyone drafting agreements about college costs should consider what the effect of either party's buying into such a plan would be, and provide for it explicitly. She also noted that while it is common to cap college expense obligations at the amount charged by state schools, there are actually a lot of fairly good students nowadays who cannot get into state universities and have to go to private ones instead if they do not want to go to a community college. Ravdin also reported on a Maryland case which said a father could not use funds from the child's UTMA account, of which he was the custodian, to meet his college expense obligations under a separation agreement. She presented agreement language which she has drafted specifically to avoid such an unfair, unexpected and malpractice-trapping result so long as the funds are in fact used for college.

Federal Parent Locator Service for Support, Custody, Visitation Enforcement
There was a brief presentation about the Federal Parent Locator Service, which will be explored in greater depth in CLE programs in the near future. The locator service database, under the 1996 welfare reform law, is supposed to include state and national directories of new hires and of support, custody and visitation cases and orders. Information in the database will indicate, among other things, whether there is a "family violence indicator" or not. The locator service may only be used by "authorized persons" for "authorized purposes." "Authorized purposes" include support establishment, enforcement and modification, paternity, parental kidnapping, custody and visitation. So far, that sounds useful, fair and evenhanded. However, "authorized persons" only include the "resident parent" or the child's legal guardian, attorney or agent. Non-custodial parents can only get information from the service by requesting it through the courts and through the state locator service. For more information see 45 CFR 303.70.

I missed the program on "Court Appointed Experts in Family Law Proceedings," but the materials are titled, interestingly, "Therapeutic Jurisprudence and Jurisprudent Therapy." The rest of the materials consist of a bunch of tables with unexplained mathematical symbols.

Death And Divorce

The Section cosponsored the Probate and Trust Division's program on "Estate Planning and Divorce."

The first panel of the program dealt with pre-nuptial agreements. Every prenup should have divorce lawyers and estate planning lawyers involved in drafting or reviewing it, according to Jeffrey Baskins, a Florida lawyer who works with "rich Yankee immigrants on their third, fourth or fifth marriages." He warned that family lawyers drafting prenups tend to disinherit the spouses to a far more extreme degree than they actually should. In most cases involving blended families, he argued, QTIP trusts are far more desirable than total disinheritance.

It was also pointed out that prenups and separation agreements should specifically waive "rights under ERISA-qualified plans" not just have a general waiver of rights to anything on death. The prenuptially-contracted waiver of rights in a 401(k), of course, also has to be signed after the wedding.

Several lawyers spoke up in favor of having one's will changed as soon as a separation happens, since, as we all learned in law school, anyone could go at any time. Baskins argued that a family lawyer has a duty to advise every divorcing client to consider revising his or her will.

It was also noted that good gift planning devices such as family limited partnerships can make assets less attractive to the divorcing spouses of either the donor or the donee. But Texas estate planning lawyer Thomas Featherstone complained that in his state, divorce lawyers who don't understand family limited partnerships have been suing estate planning lawyers for fraud for creating them. He proceeded to describe some Texan divorce lawyers who are beginning to behave like the state's fabled personal injury lawyers. Texas has also got something bubbling up through its court system called "marital opportunity theory." It goes something like this: if any kind of money-making opportunity comes along during the marriage, the husband has a fiduciary duty to the wife, during the marriage, to maximize the value of all opportunities and assets. The courts there haven't ruled definitively on this one way or another ­p; so don't try this at home, kids.

Covenant Marriage Debated

Only four Family Law Section regulars attended a Section-sponsored debate on covenant marriage, entitled "Will the Reemergence of Fault-Based Divorce Prove To Be A Nightmare Revisited or a Panacea Of Marital Bliss?" Nonetheless, the room was packed with divorced lawyers and other interested members of other ABA Sections.

Panelists on both sides attacked the title of the program, pointing out that "We already have fault ­p; it's called custody battles," as covenant marriage opponent Randy Fuerst, a Louisiana divorce lawyer, put it. We should stop calling it "no fault", because it simply isn't, he added. No-fault laws merely pushed fault into custody, LSU Law Professor Katherine Spaht agreed. She said the "nuclear weapon" of divorce is child sex abuse charges, which make children have to undergo genital and rectal examinations. A fault hearing is better than one of those any day, in her view.

Fuerst argued that while high-conflict divorces are disastrous for children, covenant marriage would increase them. He even suggested that perhaps fault divorce should be only allowed for parties without children, but should not be allowed for those who do have children. He explained, "any plan [on custody and visitation] will work for children if you have two cooperative parties [at least after infancy]." He believed that if people have to raise fault issues in order to get a divorce, it will tend to discourage them from being amicable and cooperative in other areas of their relationship. He warned that if attorneys need to prove fault, little mutual "shoving matches" will get blown up by lawyers into "the worst domestic violence case you've ever seen."

Fuerst also argued that the two-year waiting period required by Louisiana's covenant marriage law would delay the "closure" that his clients feel when their divorce is finally granted and they can get on with their lives. When they do not yet have that closure many of them hang on to a "false thread of hope" that "keeps people stalking one another." He also claimed that in many court systems the dockets will stretch out to fill up the waiting period because judges will face no pressure to move cases through any more quickly. Spaht countered that the two-year waiting period gives the counseling a chance to work before a divorce becomes inevitable.

Therapist Constance Ahrons, author of The Good Divorce, warned that fault divorce would give rise to a "divorce industry" of lawyers, accountants and other vested interests. With fault, she warned, "divorce becomes a pitched battle between two adversaries."

All the panelists agreed that we need to prevent divorce by education and/or counseling, but they disagreed on the means. Ahrons attacked the pre-marital counseling required by covenant marriages as "too little, too late." Instead, marriage should be taught in elementary school. Not only do children need to learn how to act in a relationship, but we need to "demythologize marriage" in children's minds, replacing "the Hollywood version of marriage" with the real-life version. In fact, she added, we all need to do this, to "normalize divorce". One way we should do this, she recommended, is to make pre-nuptial agreements mandatory for everyone.

Spaht disagreed with Ahrons's re-education strategy. Trying to do "marriage education" in elementary and high schools is no substitute for pre-marital counseling, she said. A that point, "it's not in the context of anything that pertains to your daily life," so the children will retain little if any of what they're told. Also, since counseling in covenant marriage is "self-imposed", people should be a lot more receptive to the counseling than they would if it were totally state-imposed.

Fuerst agreed with Ahrons on "teaching interpersonal relationship skills," but unlike her, he also advocated "teaching the negative impact of divorce", "the heartache", and getting churches involved. He proposed that churches do more to set up pre-marital training programs, educate their members about how the divorce system works, and implement their own statewide systems for certifying pre-marital counselors.

One interesting fact that emerged from the debate was that Georgia uses juries in fault divorce cases. As a Virginian, I of course expressed horror, declaring that I would no more allow ordinary people to decide a divorce case than I would allow them to elect a judge to decide one. Fuerst held up Georgia's use of juries as a horrible example of how bad fault cases could get. Georgia practitioners, however, vigorously defended their institution. They countered that they would never trust a judge to make these decisions, and that from what they've seen, ordinary people seemed to care a lot more about justice, morality, and the duties of marriage. One of them told me about a recent case of his in which the husband's fault, though without any direct economic effects except for the usual ones, had nonetheless been punished severely in the property and support department.

Floor fights erupted over the tangential issue of whether states should allow fault to affect property and alimony. The Section's Harvey Golden, who practices in Columbia, South Carolina, former Tennessee Family Law Section Chair Mary Frances Lyle, and Memphis practitioner and prominent CLE lecturer Larry Rice were all very voluble on this issue.

While the panelists disagreed about whether or not covenant marriage would make divorce better or worse, both sides largely ignored the question of degree to which it would prevent divorce, or would at least encourage it to be by mutual consent rather than litigation. This was probably because, as Ahrons pointed out, divorce lawyers focus on the people they see, who are already at the end of the marriage and are in the process of marital struggle and breakdown. By the time the clients come to the divorce lawyer, she pointed out, one of them is already determined to get a divorce, and at that point it is too late for the law to try to discourage it. In contrast, little attention was paid to how the law might affect the decisions people make before they see divorce lawyers.