ABA Family Law Section Goes To New Orleans For Some Real Hot Tips

The latest stop in the travels of the ABA Family Law Section was New Orleans, where they had their Spring CLE meeting April 5-8. This time the Virginia State Bar Family Law Section did not send a delegate as such, but I considered it my civic duty to join them there nonetheless, in hopes of keeping them out of trouble.

One of my most cherished memories will be cruising down a bayou and seeing the Indian burial mound where Hank Williams sat one night and wrote "Jambalya" and "I'm So Lonesome I Could Cry." I also saw the House of the Rising Sun, but my wife wouldn't let me go inside.

Headings:
Hot Tips from the Experts
Pension Prophet of the Ponchartrain
Time Management Tips
Alimony Surprise (Concerning tax treatment of alimony in ambiguous situations)
Express your feelings, destroy the enemy
Keeping Chronic-Litigant Couples Out of Court (Custody Case Management)
International Committee is All Over the Map
Global Elitists Let Spouses and Children Go Hungry (International Organizations)
VAWA Hits Home for Immigrants
Big Old Gators Don't Make Themselves Available

Hot Tips from the Experts

For the first time in living memory there was NOT a program called "Hot Tips From the Experts." But nonetheless, I managed to pick up a few:

Perhaps the hottest tip, and certainly from by far the biggest expert, concerned the "Cajun Martini." It is to be found at "K-Paul's," Chef Paul Prudhomme's restaurant. It arrived totally colorless, with nothing in it but a square chunk of locally-harvested heart-of-palm, and it was indubitably the hottest thing I have ever ingested. The recipe is surprisingly simple. Take the gin or the vodka and soak habañero and jalapeño peppers in it for two weeks. That's all there is to it. Then you remove the peppers before serving it to your unsuspecting guests. Oh, I suppose you have to know some exact percentages and go through some complex multi-factor balancing test in order to get it exactly right, as Chef Paul would, but I think that I at least garnered enough information to do some serious damage.

Pension Prophet of the Ponchartrain

I also had the good luck to run into Edmund F. Wegener, Jr., who introduced himself as the reputed military pension division guru of Louisiana. He hails from Slidell, across Lake Ponchartrain from New Orleans. We discussed how the Uniformed Services Former Spouses Protection Act, at 10 U.S.C. §1408(c)(4), only allows pensions to be divided by courts whose personal jurisdiction is based on their being the retired servicemember's actual domicile, or the legal residence not due to military orders, or by the veteran's consent to that court's jurisdiction. This is quite different from the way we usually deal with personal jurisdiction, getting it from the long arm statute, personal service within the Commonwealth, or general appearances.

Wegener gave a real-life example: wife filed in Maine, which ordinarily would be the most proper state to exercise jurisdiction over support and property, but it was not be where the ex-servicemember currently lived. Husband filed in his new home of Louisiana, asking the court to divide his property and pension and rule on support. Wife's lawyer got Louisiana to find that it had no personal jurisdiction over the wife - but now the wife is stuck with no state that can divide the pension. Woe unto ye who fall prey to this "walking malpractice," Wegener warned.

Wegener also asked, what about a retiree who goes to live in Germany? Possibly a German court would have jurisdiction to divide the pension, but that's about it. He also pointed out that there is one place in the U.S. that treats military retirement as separate property: Puerto Rico.

Rally Behind the Virginians

Virginia took center stage at a program called "Graphics Magic: Charts, Graphs and Presentations for the Meeting Room and the Court Room." Our own Genie Rich of Roanoke made a presentation on spreadsheets, showing how to use Fairfax practitioner Richard Byrd's VADER program for support and for several facets of the property division process, but also giving some background on spreadsheets in general, and before putting her magic back in the bottle, showed how to use the advanced features of the Microsoft Excel program underlying Byrd's products.

Charlottesville's Laura Morgan, who has become quite a fixture in the Section since getting involved in it a few years ago, introduced an extensive program on "The Second Divorce," dealing with pre-nuptials, second wives or husbands claiming custody of or visitation with their stepchildren, the child support effects of supporting children of other marriages, and what happens to pensions that have already been divided with one spouse.

Also in attendance at the meeting were Kathleen O'Brien and Frances Fite of McLean, and Charlottesville attorney Michael Morgan, formerly with the Michie Company and now in the business of doing web sites for lawyers. I looked at some of the web sites he had brought with him on his laptop, and saw that he did a really great job of avoiding the twin pitfalls I've seen on most lawyers' web sites: lawyers who don't know how to write for non-lawyers, and web designers who don't know about the law but write about it anyway.

Time Management Tips

Another very popular CLE program dealt with how family lawyers can manage their time better. I didn't have time to go to most of it, but those speakers I was able to hear were great. VSB member Linda Ravdin, whose office is in D.C., had this advice: Use e-mail for communications whenever possible. Never mail and fax the same material. Go to plenty of out-of-town ABA meetings and other CLEs and vacations. See, if you're like Linda and "can't live with yourself unless you leave town with your desk clean" and all client work taken care of, you'll get an incredible amount of work done in the few days before you leave. And just as you did back in college, spend an hour every morning in a coffee shop, taking work with you.

When away from the office, resist the temptation to call in, said Mississippi lawyer Mark Chinn. You should have competent enough staff and associates so that they can deal with almost anything that comes up by themselves, and not come crying to you to do something about it.

Columbia, Md. lawyer Janine Rice had some advice that our readers in congested Northern Virginia will appreciate: "Live as close to the office as possible." I liked that, as one who has gained some local notoriety for following Samuel Johnson's advice that "a man should stay close to his burrow."

Rice also pointed out that if you're one of the lucky few who have been able to set up a system for scanning everything that comes in so that it can all be stored on computers, you don't necessarily have to run it through an Optical Character Recognition (OCR) program. Unless you're going to edit it, a picture will do.

Connecticut lawyer Sam Schoonmaker IV had some very original tips on time management:

1. The best computer system is one that your secretaries can understand easily.

2. While waiting at the court house, give your client the choice of paying you to wait and chat with him or her, or not paying you to go off and work on something else until the case is called.

3. If you already have ways of doing legal research with books that work well for you, don't waste your time looking for the same information on the Internet. And this from an aspiring Internet lawyer guru. Also, paid services like Westlaw usually give better information than free web sites.

4. When you give young associates or paralegals an assignment, have them report back within two hours to make sure they're not going way off track on it.

5. Under the new welfare reform laws, you can use state child support agency-gathered information to "let the federal government and the states do your work for you" in discovery. There is apparently an "integrated federal and state system" with information on payors' assets and earnings. See 42 U.S.C.§§ 653(c) & 663(d).

Alimony Surprise

A program called "Alimony Surprise" contained some hot, albeit unpleasant, tips on the tax treatment of alimony payments. San Francisco lawyer Donald Read mentioned a few strange twists on the tests the IRS requires alimony payments to conform with in order to be treated as income to the payee, not the payor.

1. Alimony payments must be made under a divorce or separation "instrument", which must be in writing, although it can be an unsigned memorialization of an oral agreement.

2. Read cited a 1999 Tax Court case, Estate Of Goldman, where alimony that otherwise qualified was treated as non-deductible simply because it had been stuck in the "Property Division" section of a separation agreement.

3. Alimony not only cannot be reduced upon any "contingencies related to a child", it cannot be reduced at a "time which can be clearly associated with a contingency" related to a child. There are even regulations characterizing payments that happen to end when the children are 21 or 24 as child support, even if the children were adults at the time of the divorce. You may have to prove that your state's law presumes alimony continues for a certain time, such as half the length of the marriage, and it's just a coincidence that your child had a birthday that year.

4. Husband's mortgage payment for the home the wife lives in is not excludable alimony as long as the husband is a co-owner. He can still exclude half of the mortgage tax and homeowner's insurance payments as alimony, if they're tenants in common, but the other half isn't excludable, and he can't even get the mortgage interest deduction on it unless the house somehow qualifies as his residence.

Read also offered useful language to put in an agreement or order making clear what the tax treatment of alimony is, and penalizing either party who later attempts to treat the income differently at tax time.

Read mentioned a "non-alimony surprise" - "non qualified" stock options are income, not property, so transfers of them upon divorce are not tax-free transfers under I.R.C. §1041. Since they are income, the employee is taxed on their value when they're received, even though he isn't actually getting any money.

Express your feelings, destroy the enemy

Over half a day was devoted to back-to-back programs having to do with talking about your feelings, and how to tackle what you know will be "difficult conversations." I was not able to catch most of these programs, but did come away with a few valuable bits of information. One good reason to talk about your feelings, the presenters said, is to irritate and frustrate your adversaries: they probably won't have a good argument to counter your feelings with, whereas they'll have all kinds of answers to fact-based arguments you may make. But the presenters also maintained that since we often express our feelings without wanting to, we should describe our feelings professionally, efficiently and forthrightly, instead of demonstrating all those feelings while trying to ignore them. They cited a study revealing that when you lie about the facts people can tell about 50% of the time, but when you lie about your feelings, people see through you 90% of the time.

Keeping Chronic-Litigant Couples Out of Court

One of the most popular sessions was on "managing the high-conflict custody case." One of the panelists was not a divorce lawyer, but rather a college-aged child of a very high-conflict divorce. The program concerned those couples whose conflict is not only extreme, but chronic, the ones who nickel and dime each other to death in court over obscure interpretative disputes about every weekend's visitation.

These are the kinds of cases that lawyers and judges wish the parties would take elsewhere for ongoing refereeing, and several states have started programs to make them do just that. Other states are starting to do it ad hoc. Lawyers, child psychologists and others are appointed to resolve visitation disputes that come up. Sometimes their powers have been so undefined that they think can make orders drastically reducing visitation or even switching custody without any sort of trial following the usual procedures, taking of evidence, due process and all that negative kind of stuff. Panelists called for more rules to limit this kind of overreaching, but generally were enthusiastic about the potential of these programs.

There were also presentations from a San Diego County program to which high-conflict parents are referred for extensive training in how, if they cannot resolve their differences, they can at least avoid communicating about them in inflammatory ways. The materials included some handouts that would be useful for some of our clients, one of which tells them to put everything in writing instead of calling, and to not talk about their feelings or anything else with their exes.

International Committee is All Over the Map

The Section's International Committee meeting brought together people working on litigation under the Hague Convention on child abduction, people working on new treaties affecting family law, international adoption experts, and people who are still working on trying to get international organizations to cooperate with divorce and support litigation like other employers do.

Committee Co-Chair Patricia Apy, who does international custody litigation throughout the country and sometimes even in foreign countries, gave what might be a valuable tip: in any support order where the payee is, or may one day be, living abroad, state in the order that the payee qualifies for IV-D services from state child support enforcement agencies.

Vice-Chair Harlan Tennenbaum, a Wilmington, Delaware adoption lawyer, reported that the Hague Convention on inter-country adoption is now finally headed for almost certain U.S. ratification and implementation. The Senate Foreign Relations Committee has voted for ratification and has passed implementing legislation, which has also been passed by a House committee.

Global Elitists Let Spouses and Children Go Hungry

On the perennial subject of getting support enforcement and discovery from international organizations, many of whose employees live in Northern Virginia, Co-Chair Janet Atkinson reported that the Executive Order revoking these organizations' immunity is still sitting on President Clinton's desk, where it doubtless has witnessed many historic events over the years. She also reported that the new voluntary compliance policies from the U.N., Inter-American Development Bank, IMF and World Bank and other organizations, which have been described in earlier issues of FLN, appear to be a dead letter. One of these organizations has only withheld support from two very low-level employees since instituting its policy, and one of the largest organizations has withheld no support. Apy pointed out that all these groups routinely waive their immunity and provide voluminous information in all other kinds of situations, such as for their employees' mortgage applications, but not for divorce (unless of course the employee wants them to).

People working on these issues have discerned additional problems with international organizations that they're hoping the ABA and eventually Congress will take action on. One of them is that ERISA does not apply to these organizations' pension plans, just as it does not apply to government or church pensions. If this were changed, all these organizations would have to comply with Qualified Domestic Relations Orders, and divide their employees' pensions. Also, while many of these organizations' employees are Americans, many of course are foreign, and under current immigration laws, international organization employees have complete control over their spouses' and children's visas. There have been many cases in which an employee sends his wife back to their home country on a vacation and unilaterally revokes her visa, so that she is stuck with no way to try to get custody, support or property division.

VAWA Hits Home for Immigrants

Apy also reported on some unintended consequences of VAWA and the forthcoming VAWA II, the federal Violence Against Women Acts. They have strong provisions making it easier for foreign domestic violence victims to stay here, and expediting deportation of aliens who are found by any governmental fact-finder to be abusers. These provisions have themselves been widely abused by litigants of both sexes. For one thing, there are battered spouses who hit back just once, and end up having to plead to a misdemeanor with no jail time, which for many of our clients in these situations is considered not too big a deal, considering how many worse things might have happened. However, when this is later combined with the provisions of VAWA, the alien ends up being deported and thus losing custody de facto, and being pretty much disabled from participating in the divorce litigation. Also, the INS has been declaring people to be batterers in brief ex parte administrative hearings, so that somebody can be in the middle of a custody case or Hague Convention case in state court and suddenly be presented with a federal agency finding of domestic violence, which one side will argue pre-empts any state action in these people's cases on that issue.

Big Old Gators Don't Make Themselves Available

The most assiduous seeker of knowledge still could not manage to attend all the wonderful programs. There was one on depositions, featuring Beverly Hills lawyer Steve Kolodny and David Sonnenschein of NITA, and an extensive program on family law negotiation.

However, I chose to follow the sage advice of sometime Richmond practitioner and statesman Saad El-Amin, having recently flipped through a back issue of FLN advertising a CLE in which he proposed to distill the litigation wisdom exhibited in the tactics and strategies of alligators. I explored this discipline not through CLE, but on a "swamp tour," which is something I'd recommend to anybody visiting New Orleans. (I also recommend the carriage tours, streetcar tours, steamboat tours, fan-boat tours, rickshaw tours and streetwalking tours.)

Our "Coonass" guide may not have been Paul Prudhomme, but he was able to get several alligators to literally sit up and beg for a piece of his Cajun chicken. (While "Coonass" might bear some slight resemblance to profanity among those uneducated in linguistic matters, it is actually a consummately polite French word, meaning Cajuns who don't speak French.) Alligators will swim right up to your boat if you just yell "Oop" in a French accent. Especially if they've previously had the privilege of eating chicken out of your hand.

These alligators were about up to six feet long or so. Our guide explained that there are much older, much longer alligators, but they do not make themselves as available as the ones we were dealing with, which is why they live to get that long. Those lucky few don't age the same way mammals do - an alligator can give birth when she's 100 years old.

While gators' mouth-shutting muscles are irresistibly strong, their mouth-opening muscles are so weak that you can hold a gator's mouth shut with your thumb and forefinger.

Finally, getting eaten alive by an alligator is really not all it's cracked up to be. Alligators will drown you before they actually eat you, because they like to stick you under a log somewhere to marinate for a few days so they can bite off little pieces more easily.