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Gregg's Blog

Happy holidays for the children

by Gregg Herman on 12/02/14

My friend, Jennifer Brandt, a divorce lawyer in Philadelphia, published a blog on "Making The Holidays Happy For Kids During A Divorce."

Of course, telling parents to "try to set aside their bad feelings toward each other." and to "think about the holidays from the perspective of the kids (rather than themselves)" is easier said than done.  But, that is exactly the point.  This is not difficult in theory.  When clients ask me how to behave, I sometimes suggest that they simply read the rules in "Everything I Really Need to Know I learned in Kindergarten."  by Robert Fulghum.  Those rules include, as I recall, "keep your hands to yourself" and "if you don't have anything nice to say, don't say anything."

All of this is common sense, but emotions often override common sense.  On a short term basis, it really doesn't matter much - all parents make mistakes and yet, not all kids have life long problems as a result.

What is important is that parents remember the long term.  One holiday season is just that - one season.  There is (hopefully) a lifetime of holidays ahead.  Divorcing parents need to be reminded of that and thanks to Jennifer for doing so.

Equal Placement and Parenting Plans

by Gregg Herman on 11/17/14

My friend and web site guru (and FLU manager) Pat McKenna forwarded a link to me on an article in the Washington Post entitled "No, children should not spend equal time with their divorced parents."

According to the article, the legal system should be less concerned with equalizing placement time than with encouraging parties to developing parenting plans to deal with the ongoing issues of raising children.

In an artificial world, this would make a lot of sense.  In a real world, not so much.

If there has been any huge change in the thirty years I've been a divorce lawyer (if you're counting, I started at age 4), it has been the shift to equal placement time.  When I started, it was still routine for mothers to get custody (the "tender years doctrine" still applied) and fathers typically would get alternate weekends and one evening during the week.

Fast forward to today.  While equal time is not mandatory, it might as well be.  Absent extreme circumstances (e.g., abuse allegations, DV, geography problems or trouble children) equal time is almost guaranteed.

Is this good or bad?  If you look at my past articles on my office website, I have continually argued that, for most children, it is more important that their parents not fight than for any particular placement schedule.  In most cases, the difference between a 9/5, 8/6 or 7/7 schedule (on a two week basis) is less important to a child than the absence of conflict.

Parenting plans came into being a number of years ago as a means of forcing parents to consider various issues, present and future, and suggest means of resolution.  While still in Wisconsin statutes, I can't think of the last time I had a client prepare one - or saw one from the other side.

In an intact marriage, discussing many issues regarding children can easily create conflict.  Now, add in the trauma of the divorce, new spouses or S.O.s and the stress of two families with different schedules and is it really a good idea to force parties to discuss these issues?  Sometimes, avoidance is a good strategy.

Of course, not everyone agrees with, including the author of this article.  And, certainly there are some cases where the parties could benefit from parenting plans.  But, in my experience, in the real world, sometimes it is preferable to just leave bad enough alone and not make it worse.

Lawyers in legislature

by Gregg Herman on 11/10/14

Frequently, I hear people criticize lawyers for the some of the existing laws in this state.  While lawyers can certainly be blamed for many things, statutes are not one of them.

According to a story in today's Wisconsin Law Journal, there will be a record low number of lawyers in the new legislature:  17.  That is out of 133 representatives and senators.  The story does not reveal how many (if any) have ever practiced law.

Here is an amazing quote from the article:  "...others said attorneys should be represented, much in the same fashion farmers, business people and doctors serve in the Legislature."

Really?  Yes, if the legislature is making butter.  But they are passing laws.  Maybe having a law school education would be helpful!

A number of years ago, I developed an idea for a statute in Wisconsin for an automatic stay provision in divorce (today's Wis. Stats. ยง767.117).  After getting the necessary approvals from the State Bar of Wisconsin Family Law Section, I met, along with the State Bar lobbyist, with the chair of the Assembly Judiciary Committee.  After carefully explaining to him how the proposed bill would improve the divorce process, I was told by the state bar lobbyist that the legislator had not understood anything which I explained to him.

"But he is chair of the Judiciary Committee,"  I said.  To which she responded "So what.  He is not a lawyer."

Having testified on a number of occasions on family law related proposed legislation, I can vouch for the importance of lawyers.  I have been continually amazed by the lack of probative questions from legislators. 

So while people can be angry at lawyers for a number of things (see my posts of lawyer discipline), state statutes are not in that category.   It is not uncommon for laws which are poorly thought out (e.g., WUMPA) or even counter productive (once again, in many respects, e.g., WUMPA).  No wonder.

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