GPSOLO
SOLO, SMALL FIRM AND GENERAL PRACTICE DIVISION
A PUBLICATION OF THE AMERICAN BAR ASSOCIATION
family
law
a dvising Same-Sex
Couples after
OBERGEFELL
Yo
ur First Meeting
with a Family Law
Client
GPSOLO, AMERICAN BAR ASSOCIATION, 321 N. CLARK STREET, CHICAGO, IL 60654-7598
NONPROFIT
Organization
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AMERICAN BAR
ASSOCIATION
july/august 2015VOLUME 32, NUMBER 4
Software and Apps
for Family Lawyers
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Work Hard.
Enjoy Your Success.
Connect with other members
while doing what you love.
More communities coming soon! What’s your leisure?
abaleisure.org
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
GPSOLO
Contents
Volume 32, Number 4 • July/August 2015
14
26
18
FEATURES
14
The Beginning of the End: Your First
Meeting with a Family Law Client
Your goal from the start is to have a satisfied, paying
client who is a good fit with your practice.
26
By Marianne Rebel Brown
Tips for Providing Limited-Scope
Representation in Family Law Cases
Start small so you can refine office policies, procedures,
and documents for assisting self-represented parties on
a limited-scope basis.
By Anne C. Adams
18
Technology to Revitalize Your Family Law
Practice
In an insightful interview, Mark A. Chinn reveals how
technology can assist lawyers in marketing, delivering
legal services, and administering their law practices.
30
By Wells H. Anderson
22
The Ethical Traps a Family Law
Practitioner Must Avoid
Taking these steps can help you avoid disciplinary
complaints in custody and child support cases.
By Sara Rittman
Divorce and Domestic Violence: When
Family Law Meets Criminal Law
What are the interconnections between these two types
of law in cases involving domestic violence?
By Aimee Pingenot Key
34
Advising Same-Sex Couples after
Obergefell and Windsor
How to advise same-sex couples about marriage, estate
planning, and adoption in a changing legal landscape.
By Arlene Zarembka
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Contents
38
38
So You Want to Pack Up the Kid and Go:
A Guide to Post-Divorce Relocation
Many issues arise when determining a child’s best
interests in a relocation.
42
60
BEST OF ABA SECTIONS
66
By Elise F. Buie and Alexis Young
Preparing a Client for Settlement
Clients must feel confident that settlement is the best
approach given the circumstances of their case.
By Jennifer A. Brandt
42
How to Divide Retirement Assets in a
Divorce
This article provides an overview of retirement asset
distribution, including issue spotting, caveats, and
perhaps a few landmines to avoid.
68
By Andrea Ciobanu and Chris Hirschfeld
Custody Disputes by Unmarried Gay or
Lesbian Parents
In custody disputes involving unmarried same-sex
couples, courts should use a simple, efficient test to
determine standing.
By Kendra Huard Fershee
46
’Til Debt Do Us Part: The Interplay
Between Bankruptcy and Divorce
It’s important not only to determine whether a family law
client should file for bankruptcy, but also when to file.
70
By Eric Y. Drogin and Richard Rogers
By Laura S. Mann
52
Administrative and Judicial Processes
in Child Support Cases: What’s the
Difference?
The choice between using a court or an administrative
agency depends on the circumstances confronting counsel.
By Dan Pingelton
56
Hazards of an Online Life: How to Use
Social Media Safely
Embrace the revolution. Market yourself effectively, but
stay within the rules and protect your clients.
Juveniles and Miranda
The way that children are advised of their rights against
self-incrimination requires nationwide reform.
72
Think Before You Click: Ordering a
Genetic Test Online
Direct-to-consumer genetic testing companies need to
improve their contracts and privacy policies.
By Andelka M. Phillips
74
Poverty, Employment, and Disability
Promising efforts are underway to help eliminate the
poverty and dependence that ensnare many with
disabilities.
By Alexander Wohl
By Julie Tolek and Justin L. Kelsey
60
The Best Software and Apps for Family
Lawyers
Technology can help compute alimony and child support,
streamline communication, and coordinate visitations.
By Terri A. Lastovka
www.americanbar.org/gpsolo
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
COLUMNS
04
Road Warrior
Using Technology for Travel
By Jeffrey Allen
08
The Chairs’ Corner
R.O.I. Realized By Amy Lin Meyerson
The Year Ahead By Stephen B. Rosales
12
Solo, Small Firm and General Practice
Division News
Cover: Veer
Strategies for Success
64
Ready Resources
Ready Resources in Family Law
Editor-In-Chief
Jeffrey Allen • [email protected]
76
Roˉnin Reports
Issue Editors
Alan E. DeWoskin (primary issue editor) • Rinky S. Parwani •
Benjamin K. Sanchez • James Schwartz
By Benjamin K. Sanchez
Assistant Editor
Joshua Paulin
Have Faith and Act Accordingly
Technology Editors
Jeffrey Allen • Nerino J. Petro Jr.
78Site-ations
Entertaining Sites for Lawyers
best of aba sections Editor
Christine M. Meadows
By William L. Wilson
80
GP Mentor
Five Things I Wish I Knew When I Started Practicing
Family Law
By Joan E. Loos
76
Editorial Board
Wells Anderson • Cedric Ashley • Andrew C. Clark •
Alan E. DeWoskin • Bernice B. Donald • James M. Durant III •
Joan M. Durocher • Ashley Hallene • Kathleen Balthrop Havener •
Kathleen J. Hopkins • Barbara J. Howard • Alan Klevan •
Aastha Madaan • Raymond L. Ocampo Jr. • Rinky S. Parwani •
Vincent I. Polley • Alice E. Richmond • Benjamin K. Sanchez •
James Schwartz • J. Anthony Vittal
Ex-Officio: Angela Morrison • Judy Toyer
ABA Publishing
Director of publishing Bryan Kay
Editorial Director Claire L. Parins
Editor Robert M. Salkin
Design and Production Director Nick Panos
Senior Art Director Tamara Kowalski
Manager of Digital Development Kevin Bailey
Production Services Manager Marisa L’Heureux
Production Coordinator Karrie Dowling
Reprint Permission
Copyrights and Licensing
312/988-5561 • americanbar.org/reprint
GPSolo (ISSN-1520-331X) is published six times a year (January/February, March/April,
May/June, July/August, September/October, and November/December) by the ABA Solo,
Small Firm and General Practice Division, 321 N. Clark St., Chicago, IL 60654-7598.
The magazine is committed to fulfilling the special needs of solo, small firm, and general
practitioners. The contents of GPSolo do not necessarily represent the views of the
Solo, Small Firm and General Practice Division or the American Bar Association but
are the views of respected members of the profession. Any member of the Association
becomes a member of the Solo, Small Firm and General Practice Division by sending
an application and annual dues of $45 ($10 of which funds GPSolo) to the Division of
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is a prerequisite to Division membership. Institutions and individuals not eligible for ABA
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U.S. and its possessions. Per copy price for members and nonmembers is $30. Requests for
subscriptions and back issues should be sent to ABA Service Center, service@americanbar.
org or 321 N. Clark St., Chicago, IL 60654-7598. Copyright © 2015 American Bar
Association.
Contact Us: To write for GPSolo, contact Jeffrey Allen ([email protected]). For more
information about the magazine and the Division, visit our website at americanbar.org/
gpsolo or call 312/988-5648.
Although articles in this issue of GPSolo refer to numerous products and manufacturers by
name, neither the ABA nor ABA Divisions endorse non-ABA products or services; reference to
such products or services should not be so construed.
Advertising
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BUDGET OFFICER Stephen J. Curley
REVENUE DIRECTOR Alan O. Olson
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Direct inquiries to:
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Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
ROAD WARRIOR
Using Technology for Travel
By Jeffrey Allen
L
awyers often travel both for
professional and personal reasons. As this is the time of year
when families often take vacations, as this issue deals with
family law, and as I am about to take one
of my own trips, this seems like an opportune time to talk to you about using
technology for travel. I will endeavor to
provide you with some tips that may save
you time, money, and aggravation when
you travel, whether for professional or
personal reasons.
In real estate we say that value is a function of three things: “location, location,
and location.” When it comes to travel,
timing is almost everything in terms of
getting good value. Choosing the “off
season” to go to your destination will
generally get you better rates than high
season. Off-season travel will often
save you considerable money in terms
of what you pay and will also save you
a fair amount of the inconvenience of the
crowds of high season, making it easier
to get into hotels, restaurants, and various attractions you may wish to visit.
Another benefit of traveling other than
in peak times (which include holidays
as well as the tourist season) is that you
can often save a substantial amount of
money on the cost of your transportation. Expect to pay premium prices for
holiday travel (transportation and hotels), particularly Thanksgiving (in the
United States), Christmas, and the New
Year. You will also pay a premium to
travel to special-event venues (such as the
World Series, the NBA Championship,
J e f f re y A l l e n ( j a l l e n l a w t e k @ a o l . c o m ,
jallenlawtekblog.com) is the principal in the law
firm of Graves & Allen in Oakland, California,
Editor-in-Chief of GPSolo magazine and GPSolo
eReport, and a member of the Board of Editors
of Experience magazine.
4
iStockphoto
Timing
Carnival in Rio, etc.) around the time of
those events. Just to give you an example,
I went to New York City for a meeting
when New Jersey hosted the Super Bowl
and found that many (most) of the hotels
in Manhattan had substantially increased
(read: doubled or more) their rates for
the week before the Super Bowl.
Using Consolidators
Technology can come to your assistance
in selecting your transportation and
accommodations. In the old days, we
would just call our travel agent, tell the
agent what we wanted, and wait for the
agent to make the required arrangements
for us. After the decline of the travel
agent industry, we often used a personal
assistant or a secretary to make the arrangements for us, or we ended up simply doing it ourselves. That is the point at
which technology becomes your friend
and your travel buddy.
The consolidator industry arose to
fill the gap created by the decline of the
travel agent business. Consolidators
gather travel arrangement opportunities
and make them available to us, usually
from their websites. Consolidators can
help us find the right hotel and travel
arrangements for our needs, giving us
choices by destination, location, price,
and services. They can often provide
accommodations and transportation at
substantially reduced prices. Don’t assume that because a consolidator offers
an arrangement, you get it at the best
possible price. Comparing rates offered
by different consolidators may give you
a wide disparity of rates for the same
transportation or hotel accommodations.
I have also found that, if you are willing
to do the work, you can often duplicate
or improve on the consolidator’s rate
from the same hotel.
When it comes to consolidators, you
have many choices—Expedia (expedia.
com), Orbitz (orbitz.com), and Priceline
(priceline.com) represent some of the
best-known examples. As not all consolidators are created equal, you might
want to keep a few things in mind:
„„ Check out the consolidator with
the Better Business Bureau, and
look for online reviews.
„„ See if the consolidator belongs
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
to established trade organizations, such as the United States
Air Consolidators Association
(USACA), American Society of
Travel Agents (ASTA), International Air Transport Association
(IATA), or United States Tour
Operators Association (USTOA).
„„ Check out several consolidators
and compare their rates and what
they have available. They do not
all offer the same deals.
„„ Make sure that any price quoted
to you includes applicable taxes
and fees.
„„ Tickets purchased from consolidators may not qualify for frequent
flier mileage. If this is important to
you, check before you buy.
„„ Use a major credit card to purchase, as this gives you some protection if problems arise.
„„ Confirm your reservations.
„„ Find out what happens if you
miss your plane or your flight is
canceled, or you need to make a
change. Get clear and accurate
information regarding policies
and fees for ticket cancellations,
changes, refunds, re-ticketing, and
expiration dates.
Get on the Government’s
Good Side
The Global Online Enrollment System
(GOES) lets you clear customs when returning to the United States from international travel more quickly as a “known
traveler.” You use an automated kiosk to
complete your customs declaration and
go through an expedited re-entry process. As of December 2014, 42 airports
have offered GOES.
Unless you are a known or suspected
terrorist or a convicted felon, getting a
GOES card is relatively easy. Procedurally, you go online (https://goes-app.
cbp.dhs.gov/main/goes), pay a $100
GPSOLO | ambar.org/gpsolomag
application fee, complete the application, and wait for U.S. Customs and
Border Protection (CBP) to notify you
whether you received preliminary approval or not. If you get preliminary approval, you need to schedule a personal
interview so that they can see you are
who you claim to be.
GOES also offers a boarding benefit.
If you provide your GOES identification number when you purchase airline
tickets, you get “TSA Pre” approval on
your boarding passes in U.S. airports.
If you do not travel internationally, you
do not need the GOES card but you can
still apply directly to the Transportation
Security Administration for TSA Pre
status.
TSA Pre can save time during the
check-in process. Most airports provide
separate security lines for TSA Pre customers. Those in the TSE Pre line do not
have to get undressed, unpack suitcases,
and then repack them and get dressed
on the other side of the X-ray machine.
Unless the TSA agents see something
that makes them suspicious, you get to
leave everything in place, go through the
machines, and pick up your stuff and
leave. There are some exceptions. Metal
has to come out of your pockets or off
of your body. Heavy coats come off and
go through the machine separately; you
don’t have to take off light jackets, vests,
and sweaters. TSA Pre can save you 60
percent to 70 percent of the time it normally takes to get through security.
Smartphones and Apps
Today’s travelers have lots of technology available to make their trips better,
easier, more enjoyable, and often more
economical.
Most of you already have smartphones and probably a tablet as well.
These devices have many business and
personal uses beyond travel, but when
you travel, they morph into indispensable
travel companions. Aside from their
intrinsic communications capabilities,
these devices can provide entertainment,
education, and travel plan coordination
and can serve as a help map, tour guide,
concierge, and travel agent.
Do note that if you use cellular data
through a U.S. provider while roaming
abroad, you will pay premium (and I
consider the level ridiculous) prices.
To avoid that result, make it a point to
restrict your web surfing and media
streaming to times when you have WiFi
available to you or get a device that will
work with a local SIM card (one from
a provider in the country where you
are traveling). If you travel out of the
country a lot, you will want to acquire
an unlocked phone that uses SIM cards.
You can take that phone with you from
country to country and acquire a local
SIM card in each country as you travel.
Use that card/phone for calls and data
in the country where you are traveling.
Note that doing this will require that you
set up an account in each country where
you travel. This is a hassle, but it usually
does not take very long, particularly if
you opt for a prepaid account.
Before you leave, add a collection of
travel apps to your smartphone and/or
tablet. Both the Google Play Store (play.
google.com) and the iTunes App Store
(apple.com/itunes) have a pretty fair
selection, although I believe the iTunes
Store has a larger selection for you to
choose from. Many consolidators have
apps that will help you make hotel and
transportation arrangements. Expedia,
Orbitz, and Priceline represent a few of
the many available. In addition, almost
all major airlines have their own apps
to help you make reservations, check in
online, and, in some cases, to allow you
to carry an electronic boarding pass, letting you avoid the need to find a printer
when you travel or to remember where
you put the piece of paper you printed
5
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
ROAD WARRIOR
your pass on when you packed.
You might also look for travel guides,
maps, translators, currency converters,
and similar apps relating to your destination. I recommend that you set yourself
up with your banks to allow you to access your accounts online, in case you
need to do so while you travel. Most
major banks have their own apps to facilitate that process. If yours does not,
you can access its website through your
browser. If you will travel to a country
where English is not the primary language and you do not have fluency in the
local language, you probably also want to
add some apps to help you communicate
with the people you will encounter, who
may not speak English any better than
you speak their native tongue.
To save you some time, here are some
of my favorite travel apps (but there are
many more available to you, including
any number of travel guides that focus on
particular countries, regions, or cities):
TripIt. TripIt helps you organize
travel plans. It connects to computers
through your browser (tripit.com). It
also works with most iOS and Android
devices. It will keep records of your
travel and accommodations in a travel
calendar that you can display on your
mobile devices or computer or share with
others. The free version gives you all the
basics. The pro version costs $48 per year
and adds features including automatic
sharing, alternative flight location, and
mobile alerts about flight changes and
information about fare reductions.
FlightBoard. FlightBoard gives you
the equivalent of airport Arrival and Departure displays on your mobile device.
It won the 2012 Webby Award for “Best
Mobile Travel App.”
Flight Update Pro. Flight Update
comes in a standard and a pro version.
The standard version costs $4.99 at
the iTunes App Store. The pro version
($9.99) provides push notifications of
flight alerts and gate changes and lets
you transfer flight information directly
from a linked TripIt account.
GateGuru. GateGuru helps you to
get around many major airports and find
6
facilities and services there. It is a free
download. CNN rated this a “Top 5 Air
Travel App.”
Duolingo. This free app does a
very good job of translating for you.
It is almost like traveling with your
own personal translator. It was named
Apple’s 2013 “App of the Year” and
Google Play’s “Best of the Best” in 2013
and 2014.
When you
travel, you
place data at
inherently
greater risk.
One other tip for your smartphone
and tablet: Load up your devices with
movies, music, books, audiobooks, television shows, educational programs, and
whatever other media you enjoy using
for entertainment. You may or may not
use them, depending on the trip and the
circumstances, but you will probably be
happy that you have them to help you
fill in downtime, travel time, and sittingin-the-airport-and-waiting-for-yourplane time.
A Few Words to the Wise about
Security
Lawyers have obligations to protect client
confidentiality. They also have self-interest
in protecting their own privacy. When you
travel, you place your data at inherently
greater risk than when you stay home.
This requires some additional diligence
to protect your data’s security. These suggestions will help keep your data safe:
„„ Password-protect all of your mobile devices.
„„ Encrypt and password-protect
your data files.
„„ Use strong passwords for devices,
encrypted files, and all of your online accounts containing private
information (such as your bank
account).
„„ Do not leave any of your mobile
devices out and unattended (I always try to lock mine in a safe if I
am not going to carry it with me).
„„ Do not ask a stranger to watch
your mobile device while you
go to the bathroom, get a refill
on your coffee, or attend to any
other matter.
„„ Do not use public computers to
access your e-mail or data.
„„ Do not use unsecured public WiFi
to access your e-mail or data.
„„ Disable Bluetooth and WiFi on
your devices, except when you
need to use it; this makes your
devices effectively undiscoverable.
„„ Try to avoid working in public
environments (restaurants, public
facilities, etc.). If you do work in
public environments, try to limit
exposure and reduce the likelihood
of someone seeing or hearing your
activities. Sit with your back to a
wall, use privacy screens (polarizing filters that make it hard for
anyone to read a screen from any
angle other than straight on), and
try to avoid accessing confidential
data in public environments.
If you travel overseas, you may want
to use a local WiFi connection to save
money, as data from a U.S. provider or
through roaming can be quite expensive. If you go that route, be sure to use
a VPN (virtual private network) to protect yourself. Even if you are just streaming a movie, being on a public network
exposes your data. A better approach,
particularly if you will be in a country
for a substantial time period, is to set
up a cellular data account with a local
provider.
Enjoy your travels! 
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
We’ve spent the past 50 years
planning for retirement.
When did you start planning?
Planning for retirement requires forethought, perception, and a
little patience. That’s why the American Bar Association created
the aba retirement funds program – (“the Program”)
a comprehensive and affordable retirement plan built exclusively
to address the unique needs of the legal community.
Call an ABA Retirement Funds Program Regional Representative today!
866.812.1510 I www.abaretirement.com I [email protected]
please visit the aba retirement funds booth at the upcoming gpsolo fall meeting and
national solo & small firm Conference for a free cost comparison and plan evaluation.
September 24-26, 2015 • InterContinental Boston, Boston, MA
This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, and is not a recommendation of any security.
Securities offered through Voya Financial Partners, LLC (Member SIPC).
ThePublished
ABA Retirement
FundsVolume
Program32,
andNumber
Voya Financial
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CN0311-8585-0415
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by the
Americancompanies
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Reproduced
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This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The Chairs’ Corner
R.O.I. Realized
By Amy Lin Meyerson
Amy Lin Meyerson ([email protected]) is 2014–
2015 Chair of the Solo, Small Firm and General
Practice Division. She is a sole practitioner in
Weston, Connecticut, practicing business and
general corporate law.
8
Kimberly Kocian
A
s my year as Chair comes
to a close, I am pleased to
report that the GPSolo Division made great strides this
year in serving our members, serving the public, and helping to
shape a better legal profession, thanks
to all of you, our Division directors,
council members, and board and committee chairs, vice chairs, other members and volunteers, and our partnering
entities and our phenomenal staff at the
ABA Headquarters in Chicago, Illinois.
THANK YOU ALL!
We invited each of you to Reexamine
your practice; Outfit yourself with skills
and tools; and Initiate something new in
your practice and life. This year’s theme,
ROI, reinforced GPSolo’s commitment
to ensuring that our members, partnering
entities, sponsors, and other stakeholders
receive a sizable return on their investment through their GPSolo membership
and involvement in the Division. Personally, I have received a huge return on my
investment in the thousands of volunteer
hours I dedicated this year to growing
and further developing our GPSolo family. I thank you for the opportunity to
serve you through the Division.
We surpassed our budgeted revenue
numbers in several categories including advertising for GPSolo eReport by
217 percent and advertising for GPSolo
magazine by 351 percent. Kudos to
GPSolo Editor-in-Chief, Jeffrey Allen,
and his teams on the eReport and GPSolo
magazine boards. The GPSolo eReport
article, “What I Learned Sitting on a
Jury,” received the Pick of the Week
Amy Lin Meyerson and Stephen B. Rosales
award presented by LitigationWorld, a
popular e-mail newsletter for litigators,
litigation support professionals, and
corporate counsel who manage litigation. For each issue, their editorial team
reviews hundreds of articles published
each week to determine the winner of
the coveted LitigationWorld Pick of the
Week award.
On September 1, 2014, the GPSolo
Division took on the oversight of the
ABA Solo and Small Firm Resource
Center. Twenty-seven state-specific
resources were added to the Center to
complete the interactive map that assists
solo and small firm lawyers to quickly
identify pertinent information to help
them with their practice. Revamped
and launched on March 1, 2015, the
Solo and Small Firm Resource Center
(ambar.org/soloandsmallfirms) is where
you will find our Virtual Green Room
and Law & Tech Blog with technical reviews, how-to’s, and even a place
to submit technology questions directly to members of our Technology
Committee for their response.
The inaugural session of GPSolo’s
Hot Off the Press, a new quarterly series featuring recently released book
publications, was held in January. It is
another free GPSolo member benefit
and an extension of GPSolo’s monthly
virtual Brown Bag sessions, which are
short, informal educational events on
timely topics organized by committees
and held entirely by teleconference. The
inaugural Hot Off the Press session
was “The Lawyer’s Guide to Financial
Planning.” Thank you, Programs Board
Chair Lynn A. Howell, for all your
words of wisdom and the phenomenal
job you and the Board continue to do
in providing quality CLE and programs
for the Division.
Under the leadership of Melanie D.
Bragg, our Book Publications Board
Chair, our publication production and
revenues continue to grow. GPSolo’s
Book Publications Board posted a
video on the “FUNdamentals of Being
(Contined on page 10)
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The Year Ahead
By Stephen B. Rosales
B
y way of reintroduction, I am
Steve Rosales from Belmont,
Massachusetts, the 2015–2016
Chair of the Solo, Small Firm
and General Practice Division
of your American Bar Association.
We are busily planning an exciting
year for you . . . complete with valuable CLE, both in person and virtually,
our first-rate GPSolo magazine and
GPSolo eReport to keep you informed
and up to date on the latest topics and
practice methods, a regular, free Brown
Bag luncheon series, the online Solo and
Small Firm Resource Center (ambar.
org/soloandsmallfirms), the GPSolo
LinkedIn referral group (tinyurl.com/
n24dlqt), our vibrant “virtual water
cooler” SoloSez (solosez.org), and two
exciting Division conferences in desirable, fun locales offering opportunities to
learn, network, and socialize with fellow
attorneys and guests.
In the upcoming year and in keeping
with my year’s theme, I can promise you
three things: We will “Work Hard” . . . we
will “Do Good” . . . and we will “Have
Fun”! This theme is to remind and encourage all of us that hard work toward
positive goals, whether those goals be
aspirational, personal, or professional,
does not need to be tedious and uninspiring. Hard work and doing good can
indeed be fun.
As attorneys, we are blessed with
the opportunities, tools, and analytical
skills to give back and to use our skills
to “do good” in whatever large or small
way we desire. “Doing good,” no matter the scale, be it “pro bono” services,
Stephen B. Rosales is 2015–2016 Chair of the
Solo, Small Firm and General Practice Division.
He is a member of Rosales & Rosales LLC in
Belmont, Massachusetts, and may be reached
at [email protected].
GPSOLO | ambar.org/gpsolomag
charitable or community service, or simple random acts of kindness or “paying it
forward,” makes us all better attorneys,
advances our collective and individual
image and reputation, and, moreover,
makes us better people.
This year
we are
going to
work hard,
do good,
and have fun.
The “Have Fun” component is to
keep us mindful that despite all our
daily challenges, we must leave room
for some quality-of-life activities . . . in
other words, some fun. No matter the
form and whatever our preferences,
we all need a break from our constant,
everyday pressures to relax, de-stress,
enjoy ourselves, and, yes, have some fun.
To paraphrase the old saying, “All work
and no play makes Jack (or Jill) a dull
boy (or girl).”
With this in mind, please join me
and hundreds of your colleagues this
fall for our Solo & Small Firm Summit
taking place Thursday, September 24,
2015, to Saturday, September 26, 2015,
in my hometown of Boston, Massachusetts. The conference will be held at the
InterContinental Boston Hotel located
on the waters of historic Boston Harbor.
The theme for this Solo and Small Firm
Summit is “Strategies for Success.” It
will offer exciting plenaries with highprofile national speakers on rainmaking,
marketing, converting leads into paying
clients, and using technology to streamline and boost your practice, as well as
fabulous social events, and will leave you
all with plenty of time to explore and
experience the great city of Boston.
Our GPSolo Spring Meeting will
be held in tropical Key West, Florida,
from Thursday, May 12, 2016, to Saturday, May 14, 2016, at the Marriott
Key West Beachside Resort. This exciting conference, held jointly with the
Group Legal Services Association,
will offer ample CLE, opportunities
for networking, and distinctive social
events, all in warm and sunny Key
West. So mark your calendars and join
us for some learning, some collegiality,
and plenty of fun in the sun.
This year as Chair I will make use of
my “bully pulpit” to raise your awareness of an exploding problem being faced
by the most vulnerable segments of our
society: the exploitation and abuse of
our elders. Abuse takes many forms, and
abusers come in all shapes and sizes. As
attorneys and as people, we must protect
those who cannot protect themselves.
During the 2015–2016 Bar Year, you will
learn the forms of elder abuse, its “red
flags” and signs, and what we can do
about it. Everyone has the right to grow
older with dignity and adequate care.
The abused need to be protected . . . the
abusers need to be prosecuted.
C’mon and join us. Let’s all “Work
Hard . . . Do Good . . . and Have Fun”
together! 
9
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The Chairs’ Corner {continued from page 8}
an ABA Author” to provide information on the ins and outs of publishing
a book through the ABA (tinyurl.com/
po9dogf). We thank the Book Publications Board for all their work.
GPSolo took the lead in coordinating
the ABA 2014–2015 Magna Carta Video
Competition, an initiative of ABA President William C. Hubbard to celebrate
the 800th anniversary of the sealing of
Magna Carta. The competition winners
were acknowledged during the ABA Law
Day Celebration and received an award at
a luncheon at the Supreme Court of the
United States in Washington, D.C. They
met with Justice Sonia Sotomayor and
then took a tour of the Supreme Court.
Special thanks to Kathleen J. Hopkins,
Alice E. Richmond, and Jaime Hawk for
their efforts and dedication to this project.
To further support the Division’s
multi-year pro bono project working
with Kids in Need of Defense (KIND),
GPSolo produced four additional online
training videos for KIND to enable volunteer attorneys to assist unaccompanied
children—ranging from as young as three
years old to 18 years old—who otherwise
would be forced to represent themselves
in immigration court proceedings (ambar.
org/gpsolokind). These in-person and online training sessions and other materials
in immigration law, which GPSolo has
provided since 2011, serve as a valuable
resource to the ABA Working Group on
Unaccompanied Immigrant Minors, created by President Hubbard in response
to the immigration crisis caused by the
influx of unaccompanied immigrant children seeking refuge in the United States
and the critical need for additional pro
bono lawyers to ensure children are provided legal representation in immigration proceedings. GPSolo Pro Bono and
Public Committee Co-Chairs Kathleen J.
Hopkins and Jaime Hawk are two of the
members lending their expertise to this
Working Group.
We hosted a KIND training session
during our Fall Meeting in San Antonio,
Texas, where we focused on “Building
a Texas-Sized Practice on a Lone Star
10
Budget” at GPSolo’s Ninth National Solo
& Small Firm Conference and collaborated with numerous entities both within and outside of the ABA. See the Fall
Meeting Wrap-Up in my January/February 2015 Chair’s Corner column (tinyurl.
com/psyprz2) for more about the exciting events and programs we hosted in San
Antonio. Many thanks for the hard work
of our planning committee: Co-Chairs
Stephen D. Beam and Noah C. Davis;
Vice Chair Peggy Gruenke; members
Stephen J. Curley, Vicki Levy Eskin,
Ashley Hallene, Lynn A. Howell, Alan
Klevan, Marc W. Matheny, and Derrick
H. Wilson; and Special Advisor Jennifer
R. Willner; along with our San Antonio
Meetings Host Committee Co-Chairs
Christine G. Albano and Gary Anderson.
Our Fall Meeting exceeded the budgeted
revenue number by 402 percent.
I am extremely
proud of
all we have
accomplished
during this bar
year.
Our Spring Meeting in Honolulu,
Hawaii, also was an extremely successful collaboration of member-based organizations, as you will read in the Spring
Meeting Wrap-Up, below.
Aptly, this edition of GPSolo magazine focuses on the practice of family
law, featuring articles addressing issues
such as “The Beginning of the End: Your
First Meeting with a Family Law Client”; “The Ethical Traps a Family Law
Practitioner Must Avoid”; “Tips for
Providing Limited-Scope Representation in Family Law Cases”; “Divorce and
Domestic Violence: When Family Law
Meets Criminal Law”; “Advising SameSex Couples after Obergefell and Windsor”; “So You Want to Pack Up the Kid
and Go: A Guide to Post-Divorce Relocation”; “How to Divide Retirement Assets in a Divorce”; “’Til Debt Do Us Part:
The Interplay Between Bankruptcy and
Divorce”; and “Administrative and Judicial Processes in Child Support Cases:
What’s the Difference?” Technology articles include “Technology to Revitalize
Your Family Law Practice”; “Hazards
of an Online Life: How to Use Social
Media Safely”; and “The Best Software
and Apps for Family Lawyers.”
I would like to take this time to express my sincere gratitude to members
of the GPSolo family who have contributed to our success for their guidance and friendship: my fellow officers,
2015–2016 Chair Stephen B. Rosales,
Vice Chair David H. Lefton, Secretary
Stephen D. Williams, and Immediate Past
Chair Jennifer A. Rymell. Budget Officer
Stephen J. Curley and Revenue Director
Alan O. Olson, in conjunction with the
Corporate Sponsors Committee, have
been fantastic stewards of the Division’s
finances and have made sure that we are
fiscally strong. Our Division Delegates
Dwight L. Smith, James M. Durant III,
and Jay E. Ray continue to keep us apprised of issues relevant to solo and small
firm practitioners in the ABA House of
Delegates and proactively advocate for us
in the House and with ABA leadership.
Our exceptional and efficient GPSolo
staff made sure that things ran smoothly
throughout this bar year: Division Director Kimberly Kocian, Program Specialist Dee C. Lee, Meeting Planner Kathlyn
Ferdinand, Membership and Marketing
Associate Susan Delhey-Thomas, Program Assistant Steve Wildi, Technology
Associate Stephen Falvo, GPSolo eReport
Staff Editor Tom Campbell, GPSolo
magazine Staff Editor Rob Salkin and
Senior Art Director Tamara Kowalski,
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
and Entity Book Publishing Director
Richard Paszkiet.
I am extremely proud of all we have accomplished during this fleeting bar year. As
you know, serving as a Division officer is a
five-year term. The love, support, patience,
and accommodation of my husband, Brandon, and my children, Garrett and Ashley, made it possible for me to volunteer
for GPSolo. I thank them very much and
am very thankful for each of them. Best
wishes to Stephen B. Rosales, our incoming
GPSolo Chair, as he leads the Division to
“Work Hard, Do Good, and Have Fun.”
It has been a pleasure being part of “Steve’s
Group.” I look forward to serving GPSolo
under your leadership, Steve!
software, Convene. We extend our gratitude to all who planned and participated.
The Banyan Courtyard of the Spring
Meeting’s headquarters hotel, the historic
Moana Surfrider, is named for a famous
banyan tree planted there in 1904. This
banyan tree stands 75 feet high and spans
150 feet across the courtyard. Much like
this tree, the GPSolo Division plans to
continue to grow and expand through
meetings such as this one and our other
activities in the year ahead. Join us! 
Spring Meeting Wrap-Up
Our joint Spring Meeting with the National Asian Pacific American Bar Association (NAPABA) Western Regional
Conference was a successful collaboration and a wonderful experience.
Based on the title of the second solo
album by Israel Kamakawiwo’ole, an
iconic Hawaiian musician known worldwide for his beautiful rendition of “Somewhere over the Rainbow,” the theme for
the conference was “Facing Future.” As we
rush forward in our busy lives and practices, it was fitting to gather in Hawaii to
think about the future and what lies over
the rainbow.
We hosted nine hours of CLE programing; honored Leighton K. Oshima
and Sherry P. Broder, two remarkable solo
lawyers, with the Solo and Small Firm
Lifetime Achievement Award; heard an
engaging interview with former Hawaii
Supreme Court Chief Justice Ronald T.Y.
Moon Sr.; and participated in a variety of
other amazing programs, all in the wonderful atmosphere of Honolulu, Hawaii.
We truly could not have hosted this
successful conference without the collaborative efforts of GPSolo, NAPABA, the
Hawaii Bar Association, the NAPABA
Hawaii Chapter, and our many sponsors,
including our premier sponsor, Thomson Reuters, which provided our meeting
app through their proprietary meeting
GPSOLO | ambar.org/gpsolomag
PROTECTING ABA MEMBERS
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keeps your firm running if you can’t be there.
Designed exclusively for ABA members in law firms of 5 or fewer attorneys, this insurance
can make all the difference if you become disabled due to illness or injury.
It can pay up to $10,000 a month for regular business operation expenses such as rent
or mortgage, interest payments on business debts, non-attorney employee salaries, and
much more. This valuable insurance not only helps provide greater financial security, but
also allows you to give back to the good works of the legal profession.
Call ABE at 800-621-8981 for more information*
or visit info.abendowment.org/solo
* Including plan features, costs, eligibility, renewability, limitations and exclusions, and charitable contribution opportunity.
ABE is a tax-exempt section 501(c)(3) charitable and educational organization. Professional Overhead Expense Disability
Insurance is a group insurance plan, meaning coverage is issued to an ABA member under a Certificate of Insurance; it is not
provided under an individual policy, nor is it employer/employee insurance. Underwritten by New York Life Insurance Company,
51 Madison Avenue, New York, NY 10010 under Group Policy G-5381-0 on Policy Form GMR-FACE/G-5381-0. Plans may vary
and may not be available in all states.
Bonnie Czarny (ABE), is licensed in AR, Ins. Lic. #404091 and CA, Ins. Lic. # 0H99426.
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11
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Solo, Small Firm and General Practice Division News
Strategies for Success
September 24 to 26, 2015
InterContinental Boston
Boston, Massachusetts
You are busy solo and small firm
practitioners. You need a program in
a concise format that requires minimal
time away from the office but delivers takeaways that increase efficiency,
streamline your business, and increase
profitability. So new this year, GPSolo
has consolidated its Fall Meeting CLE
sessions to four exciting plenaries with
high-profile national speakers, all to take
place on Friday, September 25. The Solo
& Small Firm Summit provides a unique,
all-in-one environment for education,
networking with colleagues, a legal marketplace (expo), and idea sharing.
This year’s theme is “Strategies for
Success.” Today more than ever, we
need to ensure a competitive advantage
by being on top of new developments in
marketing and technology. A solo or small
firm attorney’s business development and
technology budgets are drastically smaller
than those of Big Law. You need to maximize your dollars to create the most bang
for your buck. This program delivers.
And you will leave the Solo & Small Firm
Summit feeling inspired by our nationally
recognized keynote speaker.
The goal in creating this Summit is to
give you an opportunity to explore tools
and resources that will make you a more
effective practitioner. By networking and
sharing your knowledge with others, you
will receive a unique perspective on what
it takes to be more successful.
Among the plenaries:
„„ Nationally recognized law firm
marketing expert and best-selling
author Stephen Fairley, CEO,
The Rainmaker Institute, LLC,
will help you improve your law
firm marketing strategies.
„„ The essential technologies leveraged by successful firms will be
12
iStockphoto
Solo & Small Firm Summit:
Strategies for Success
discussed by Debbie Foster, Partner, Affinity Consulting Group.
This session is designed to help
you cut through the flood of tech
decisions a small firm has to make,
focusing on five essential technologies: practice management
software, document automation
software, legal-specific time/
billing/accounting software, document management/search software, and, finally, utility software
that will help make your life easier.
„„ A national panel of elder law
practitioners moderated by Lori
Stiegel, Senior Attorney, ABA
Commission on Law and Aging,
will discuss the rise of elder abuse,
neglect, and exploitation of clients
with dementia. This presentation
is designed to raise awareness and
understanding of the elder abuse
epidemic and to assist attorneys
to begin the process of addressing
potential elder abuse within their
pool of clients and potential clients.
In addition, a special CLE panel event
focuses on the rise of elder abuse. You
will learn how to recognize elder abuse
and how to help your clients if you suspect it. And don’t worry, we are still offering the following programs:
„„ Kids in Need of Defense (KIND)
training. Learn how representing
a minor is different from representing an adult. The KIND training
will cover basic issues you need to
keep in mind when meeting with
and representing children through
different stages of their case. The
program will give a broad overview
of the child representation process,
not specific just to immigration issues, and will also include some
ethical considerations when representing children.
„„ Difference Makers Awards Luncheon. Enjoy lunch with our
keynote speaker and honor our
Difference Makers Award winners.
„„ Regional Bar Leaders Dialogue.
GPSolo is proud to serve as the
voice and advocate for the solo
and small firm practitioner and
is undertaking several initiatives
aimed at supporting these practitioners’ needs. One of these initiatives is the Regional Bar Leaders
Dialogue, a roundtable of local and
state bar leaders sharing ideas and
discussing best practices in serving
solo and small firm practitioners.
Everyone is welcome!
„„ Green Room. Have you been
feeling a little “green” in certain
areas of technology, social media,
or online marketing? Stop by our
Green Room and sit with an expert
for drop-in, one-on-one help.
For more information (including details on the fourth plenary session and
the identity of our keynote speaker)
and to register today, go to ambar.org/
summit. Save $100 if you register by August 26, 2015.
This unique conference engages and
informs attorneys at all levels of practice.
You don’t want to miss it. 
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
GPSolo
MEMBERSHIP BENEFITS
Your work is vital. Our partnership is essential. The ABA Solo, Small Firm and General
Practice Division (GPSolo) is “your ABA home” with the resources and tools to run your
law practice more efficiently and cost effectively than ever.
Where You Belong
BENEFITS & PROGRAMS
Brown Bag Sessions – Attend our 60-minute monthly webinars held midday on a variety
of topics. Attendance is free for GPSolo members, and access to a catalog of previously
recorded topics is available 24/7, year-round on the website.
Committees – Get involved. Volunteer. Get good at it. GPSolo has 32 substantive
committees that deal with concerns pertaining to essential areas of law and professional
issues such as practice specialty and practice setting.
GPSolo Magazine – Receive a complimentary subscription to our flagship magazine, in
print and online. Published six times a year, GPSolo is devoted to critical themes for solo
and small firm lawyers, including the latest in technology and practice management.
GPSolo eReport – Enjoy the Division’s monthly online e-newsletter, which provides
valuable practice information, news, technology, trends, feature articles, and tips on
substantive practice areas.
KIND – Volunteer with Kids in Need of Defense, GPSolo’s Pro Bono and Public Service
Project and winner of the 2014 SOC Meritorious Service Award. Assist children who
otherwise would be forced to represent themselves in immigration court.
Solo and Small Firm Resource Center – Find the resources you need on marketing,
technology, practice management, CLE, and substantive law—including hundreds of books,
videos, e-books, and forms for your immediate use. Log in at ambar.org/soloandsmallfirms.
SoloSez™ – Connect with the e-mail discussion forum for solos and small firm lawyers,
featuring 1,500+ subscribers discussing everything from tech tips and legal opinions to
what to wear to court.
GPSolo National Conference and Meetings – Attend our gathering of solo and small firm
lawyers each fall, as well as our Division Spring Meeting and Annual/Midyear programming,
for continuing legal educational, business networking, and social opportunities.
On-Demand CLE, Teleconferences, and Products – Receive discounts on continuing
legal education programs, publications, and downloadable forms on key issues.
GPSolo LinkedIn Referral Program – Connect with a national referral network of your
GPSolo colleagues and share practice management advice.
Member Discounts and Special Offers – Obtain preferred prices on GPSolo books,
downloadable forms, e-books, rental cars, services, office supplies, travel, videos, and webinars.
A direct line for all of your membership needs: Contact Susan Delhey-Thomas
at (312) 988-5641 or [email protected].
Visit us at www.americanbar.org/gpsolo
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The Beginning
of the End
Your First Meeting
with a Family Law Client
By Marianne Rebel Brown
T
he purpose of a client interview is
to be retained by a paying client
who can benefit from your firm’s
services. Even though you may
want to help the client, no client
will be helped if you can’t keep
the lights on and pay your staff.
Likewise, it is difficult to represent
Veer
a client who will not follow and
14
trust your advice.
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
GPSOLO | ambar.org/gpsolomag
15
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Setting the Tone Early
The client interview starts with the client’s initial contact to the office. It is
important to set the tone of the value of
your professional services. The phone
should be answered professionally with
the name of the firm and the name of the
staff member. In my practice I use a live
answering service during off-hours and
no voice mail during office hours.
in the interview. Give the prospective
client the opportunity to ask any questions, but do not let the client’s questions
take the interview off on a tangent. The
advice will be more accurate if you have
the whole picture. Just as the applicant
is deciding whether to retain you, you
should be deciding if the applicant is a
good fit for you and your services. Can
you help achieve the client’s goals, and
If the prospective
client takes control of
the interview, you may
not get the information
you need.
When an appointment is scheduled,
the prospective client’s phone number
and e-mail address should be noted and
the consultation fee discussed. For a
divorce consultation, advise the prospective client to bring preliminary
documents such as tax returns with W-2s
as well as statements for retirement accounts and statements of any credit card
debt and mortgages. Because of the nature of family law cases, ask for a safe
contact number and a non-work, secure
e-mail. Directions can be e-mailed. Confirm each appointment the day before.
Remember, this person is choosing
a lawyer and you are choosing a client.
Your reception area should be comfortable
and professional. Each prospective client
should be offered coffee, tea, or water and
given an intake form. Seek to create value
from the initial contact. Try, to the best
of your ability, not to make clients wait.
When the prospective client is escorted to
your office, ask again if he or she needs
any beverages. Supply pens and note pads
(with your office name and number) in case
the prospective client did not bring them.
Interview Questions
It is important to make sure that you
control the focus and initial questions
16
are these goals realistic? If the prospective client takes control of the interview,
you may not get the information you
need, and the advice that the client gets
could be less accurate.
First, it is important to know deadlines and to ascertain whether the case
will be complicated by other factors. Has
the client complaint been filed? Are there
response deadlines?
Second, it is important to assess the
prospective client and his or her expectations. What is the client’s history with
attorneys? How many attorneys have
represented the applicant in the past?
It is important to gauge the quality and
conflicts of the previous attorney representation. Why is the client talking
to you and not the previous lawyer?
Does the client owe the previous lawyer money? Was the previous attorney
competent and the client difficult? Did
the previous lawyer make mistakes that
you will need to fix?
Is there a reported or unreported history of domestic violence? Is there a substance abuse history? Has the client been
to court before for support, custody, or
domestic violence? Try to judge the balance of power in the marital relationship
as well as whether there are any marital
torts. Which party wants the divorce and
why? Do they have an agreement on any
issues? These questions assist the attorney in determining potential roadblocks
to representation.
There are five major substantive areas
for the interview:
1. Marital history. Knowing the
number of marriages and length of
this marriage is important in order
to gauge the nature and extent of
entanglements.
2. Income/employment. The parties’ income, earning history, and
skill and education level are critical. This information is used to
access the level of support and/or
alimony or the exposure for alimony and/or support. Is one party
in school? Did either party get an
education during the marriage? Is
it likely that the supported spouse
has a new paramour or future
spouse in the wings that would
impact alimony?
3. Assets. What are their assets? Is
the parties’ relationship working
on a financial level? Who makes
the decisions regarding investments? Is there liquid money to
pay a divorce retainer? Does one
party spend and the other save?
Are there any inheritances or exempt assets? Have those assets
been co-mingled? What are the
parties’ ages and retirement assets? How much Social Security
are they likely to get when they
retire? I don’t ask each of these
questions directly, but I ask questions that yield the information.
It is important to gauge whether
the parties’ relationship was not
functional on multiple levels. If
they have children, have they
saved for their education? How
are they going to pay for college?
Do they own real estate? Is there
equity? Who wants the real estate?
Can the person who wants the real
estate get a mortgage solely in his
or her name? Are they willing or
able to trade assets for the house
or have one party buy the other
out of his or her share?
4. Debts. What are the debts? Is
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
bankruptcy likely? Who pays the
debts? How is their credit? Who
will pay the debts? Who incurred
the debts? How much is the mortgage? When you get to the debt and
asset part of the interview, you may
find that one party knows nothing of their finances. In this case,
you will need extensive discovery,
subpoenas, and maybe depositions.
5. Children. It is important to know
the names and ages of each child
and the residence of each child.
What is each child’s educational
status, special needs, activities, and
relationship with each parent? Will
the children go to college or are
they in college? Are both parents
committed to a college education
for their children? If the children
are in college, how do they pay for
it? Are the children into drugs or
alcohol? Do they have a juvenile
delinquency history? Do the children respect both parents? Who
does what with the children? Who
schedules the appointments and
makes the day-to-day decisions?
Is the husband a little league coach,
or is he an absentee parent? Does
the wife work long hours while the
husband cares for the children? I
will ultimately give some preliminary advice on custody. I want to
know each party’s work schedule,
especially if children are involved.
Do the parents travel for work? Is
there a fixed schedule or monthly
or weekly schedule? Does either
parent plan to move out of state?
Concluding the Interview
Now what do you tell the prospective
client? Remind the client repeatedly
that any advice you give is based on the
information you have been provided.
There are two sides to every divorce.
If the parties have children, the children are a good starting point. Discuss
joint custody versus sole custody versus shared custody. There are many
options that allow both parents to
share time with the children. If child
support can be impacted by parenting
time in your jurisdiction, you should
inform the applicant.
GPSOLO | ambar.org/gpsolomag
An estimated alimony and child support calculation can be done, qualified
again that it is based on the information
in front of you.
Briefly summarize the possible equitable distribution of assets and liabilities, based on the information provided.
If assets could be exempt, you should
point them out. Retirement assets can
be divided before retirement without
withdrawing them or paying taxes on
them using a court order; explain this to
the prospective client.
with our firm logo, name, and address
to keep the papers together.
A prospective client who is not ready
to move forward should be praised for
being proactive and encouraged to call
and schedule a second appointment if he
or she has more questions or is ready
to move forward. If the prospective client could lose more by waiting, explain
this. Don’t judge or force or sell because
the prospective client may come back in
months or years.
If the prospective client clearly wants
If the prospective client
is not a good fit or
appears unreasonable,
don’t take the case.
The conclusion is where you should
discuss payment for services. When
quoting a retainer, consider and discuss
complicating factors. It is important to
tell the prospective client that the retainer is not the total cost of the divorce but
rather the money you need to get started.
Detail filing fees, costs, and cost of service. Exploring other potential sources of
funds such as credit cards, assets, family,
or loans is important. If the parties have
limited resources, recurring credit card
payments can be a method to replenish
the retainer without the need to make
large payments. The prospective client
should understand that he or she ultimately will be responsible for the legal
fees, even if the other party is ordered to
pay and does not.
If the prospective client is ready to
move forward, he or she must sign a
retainer agreement and pay the initial
retainer.
He or she is now a client. The client
should be given a divorce packet and
financial statement to complete with a
deadline to complete it, as well as a copy
of the retainer agreement. In my firm
we also give the new client a portfolio
to retain you and move forward but
needs time to gather the funds, give
him or her the paperwork and a folder.
The retainer should be completed but
not signed and should be held with the
intake form. It will be available for the
staff to use when the client returns.
Any prospective clients whom you
do not wish to represent because they
appear difficult or their positions unreasonable should be told that they may do
better with another lawyer.
Remember, your goal from the inception is to have a satisfied, paying client.
If it is not a good fit, don’t take the case.
If the prospective client doesn’t have
enough money, don’t take the case. You
could end up doing $5,000 in work for
$500. You could end up with a malpractice or ethics complaint from a client you
can never satisfy. 
Marianne Rebel Brown (mbrown@mbrownlegal.
com) is the principal of the Rebel Brown Law
Group, LLC, a firm with a practice predominantly
in family law, with offices in Glassboro, Haddon
Heights, and Wall, New Jersey. She is also a
certified matrimonial attorney in the State of
New Jersey.
17
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Technology to Revitalize Your
By Wells H. Anderson
H
ow can family law attorneys
take advantage of technology
in marketing, delivering legal
services, and administering their
law practices? Wells H. Anderson,
a member of the GPSolo Editorial Board,
interviewed Mark A. Chinn (chinnandassociates.
com, 601/366-4410) on these topics.
Chinn practices law in Jackson, Mississippi,
and is the author of The Constructive Divorce
Guidebook: Empowering Families to Reach
Long-Term Positive Results (2006) and a
chapter on marketing in How to Capture and
Keep Clients: Marketing Strategies for Lawyers
(2005), both published by the ABA GPSolo
Division. He also has written books published
by the ABA Family Law Section: How to Build
and Manage a Family Law Practice (2006) and
Forms, Checklists, and Procedures for the Family
Lawyer (2010).
Marketing
GPSolo: What technologies have you found
to be particularly valuable in connecting with
potential clients?
Mark A. Chinn: Number one, I think that
marketing has been completely transformed in
the last five years. The predominant force is now
the Internet and social media.
There’s just no question in my mind that to
succeed right now you have to be well versed in
social media, the content of your website, and
blogging, and also be up to speed on what’s next
on the horizon. Something that’s big today can
GPSolo: What do you think are essential
ingredients for the home page of a lawyer who
wants to attract new business?
18
iStockphoto
be completely gone tomorrow.
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may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Family Law Practice
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19
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Chinn: In the past we always
thought that the first thing people did
when they needed a lawyer was to ask
their CPA or a neighbor or someone
they knew who had a divorce. Now, I
believe that when any question comes
up, whether it’s about a lawyer or about
history or about athletics or anything,
people immediately reach for their
iPhone or their iPad and punch in the
search term.
Our statistics show that people who
are accessing our website are coming
predominantly from the iPhone and
the iPad. They’re not coming from their
computers.
opinion, is that we should go in the exact
opposite direction.
I think that the best website will have
a brand impression for the viewer to see
first, but then a very simple listing of the
menu. The menu should list the things
that people are really looking for.
Our statistics show that the numberone thing people want is to know about
me, the lawyer. Then the next thing they
are looking for is an answer to a question,
for example, about divorce.
GPSolo: That’s a great answer. I think
it answers a question that a lot of lawyers have. As technology changes, they
understand part of the picture, but then
If your website
doesn’t look good on
a smartphone, you’re
making a huge mistake.
The first thing I would say, which
maybe hasn’t been emphasized a lot
in some other places, is that you may
have a website and you may think it’s
pretty good, but if it’s not adapted for the
iPhone, you’re making a huge mistake.
Nobody wants to look on an iPhone at
a website that’s not adapted for it.
GPSolo: I couldn’t agree more, Mark.
Google announced that websites that are
not “mobile friendly” will have significantly lower rankings in search results on
mobile devices (tinyurl.com/k3yvevz).
Chinn: Wow.
GPSolo: That was implemented on
April 21, 2015. It’s certainly a wake-up
call. So let’s say that a family lawyer has
understood the importance of this and
has a website that works well on mobile
devices. What content do you think is
best for a prospective client to see on the
home page?
Chinn: I have a really strong opinion
that people should avoid glitz. We have
a tendency to want to make something
look spectacular and exciting. My personal opinion, and this is not backed
up by anything other than my personal
20
when it comes to the blank page and
what to put there, that can be daunting.
Value Pricing vs. Hourly Billing
Chinn: That takes us to another topic
about my practice in particular and about
a movement that I think is gaining considerable momentum throughout law
practice. That is moving away from the
hourly billing practice into what I call
value pricing, which is a term coined by
author Ron Baker (verasage.com/ronaldj-baker). In other words it’s simply flat
fees or staged fees, set fees that are not
by the hour.
From the standpoint of what we do, if
you’re charging by the hour, the harder
you work to be good at what you do,
the more time you save with technology, conceivably you get paid less. And
that’s not right.
GPSolo: Why go to the bother of investing your valuable time in automating
with technology?
Chinn: Right, and money. Why invest
time and money in getting more efficient
if you can’t get paid for it? And the answer is, you’re charging the wrong way.
The ABA Law Practice Division has
been a leader in trying to eliminate the
billable hour. They have been leading the
charge, not behind, but leading.
But it’s like trying to learn a new language. It’s really that different.
Client Intake
GPSolo: Let’s take the next step of forming the relationship with the prospective
client, converting a prospective client
into a client. Is there room there for
technology to assist the lawyer?
Chinn: Yes. There are a couple of
things we do that assist the lawyer and
assist the client. We have a section on our
website that tells (1) about the way we
price and the way you pay and (2) about
what to bring to the initial interview. In
addition we have a questionnaire on the
website that clients fill out. It is our new
client questionnaire, and they can fill it
out right on the website. When they
come into the firm, everything that we
need is already done and sent to us, and
we can move right into having a good
conversation.
GPSolo: It really boosts the efficiency
of your law practice when this work is
done up front, rather than in that initial
interview, which you’re probably not
charging for by the hour.
Tools for Lawyer Efficiency
GPSolo: That brings me to one of my
favorite questions. In terms of getting
your work done, what comes to mind
first when you think about a really key
piece of technology for you? And we can
certainly expand on this topic.
Chinn: Let me just tell you how my
desk is set up. Maybe that’ll lead us to
the answer. I have three screens and I’m
able to handle everything by looking at
these three screens.
On the first screen is the scanned
mail. So the first element to how I do
my work is a copy machine that allows
us to scan and index every single document that comes into the firm or that’s
related to a case that goes out of the firm.
So every document that’s necessary for
me to view in a case is available on that
left-hand screen.
In the middle screen is my case management system. The biggest problems in law practice are deadlines and
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may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
last-minute preparations. If you have
case management software and learn
how to use it, you can take almost 100
percent of the worry out of law practice because you can stage your work
through reminders and a hundred other
facets of your case management system.
So when I’m working, I have my calendar right there on the center screen
in my case management system. I have
every file that’s either active or closed in
my case management system. I can go
into any file and get refreshed as to what
it’s about through a little summary that
I put there. I can access all communications on the file, all events, all potential
future dates on the file right there on the
screen, in the middle.
On the right is my e-mail. And, of
course, that’s operated in sync with my
case management system.
I have fun thinking about the contrast between me today and me in
1995. . . . [I]n maybe a minute and a
half, I do what used to take me 40 to
45 minutes. As I said, I kind of laugh
at myself because I’ll come in and I’ll
get started at 8:00 in the morning and
by about 9:30, 10:00, I want to take a
break. There’s a little voice that says to
me, Chinn, you’re lazy now. But then
the other voice says, wait a minute. You
just worked on 30 files.
So, with everything that I’ve done, it
takes less time. I was working at crosspurposes as long as I was working by
the hour. That’s why I chose to change
to value pricing.
E-mail Pitfalls
GPSolo: You say that your third screen
is dedicated to e-mail. What are some of
the pitfalls and perils of e-mail?
Chinn: Oh, the perils of e-mail. Obviously, the first pitfall is [the risk] when you
have something that’s being forwarded
around and other people are being copied.
You can easily, easily hit a reply button
and send to opposing counsel something
intended for co-counsel or for a client.
Another pitfall with e-mail is the susceptibility to sending something that’s not
well thought out or that’s angry. This risk
goes up by 100 percent—and in texting,
too. So let me move into client communication through texts and e-mails.
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I carry my phone with me at all times.
This last weekend I was at our lake house
having a great time. But I walk by my
iPhone and say, hmm, I wonder what’s
going on. I look for communications,
maybe from clients or opposing counsel,
and it’s kind of interesting. [But] be really
careful because there are a couple things
that can happen. You are not in your total
lawyer mode when you’re at the lake house
or at home, watching football and drinking a beer. And you better just be careful
that you don’t send a response to anybody
that’s not totally well thought out.
Chinn: The best thing that any reader of your magazine can do is go to the
ABA meetings. . . Go to the two independent meetings [i.e., GPSolo Division
Fall and Spring Meetings] and go to the
Annual Meeting. . . . Go to the seminars
and go sit in the coffee room with people
from around the country, Canada, and
the world with a cup of coffee and say,
“Tell me about your practice.” And that’s
the best thing possible for anybody to
do. [Editor’s Note: The ABA Midyear
Meeting is another annual opportunity
for great connections with other lawyers.]
Be careful when
responding via e-mail
at home or while not in
“total lawyer mode.”
GPSolo: Mark, I think that’s really a
good point that lawyers can overlook.
We can think of ourselves as very analytic, intelligent people, but we have
emotions and moods, too, which have
significance when communicating with
clients, as you say, in an atypical setting.
Chinn: There’s a big difference when
I’m here at the office. I’m totally plugged
in and I have the ability—and should
take advantage of it—to look at every
document in the Jones file. I may not
look at all of it, but it’s there. It helps
me deliver a better response. That’s not
to say that you can’t do some business
from the house or other places; I think
you should, but be careful because the response from the house, on a quick reply,
may not be what it should be.
Resources for Family Lawyers
GPSolo: Exactly. That’s a good transition
into the last topic, Mark, which is resources for family lawyers. We’re going
to be mentioning your excellent book,
Forms, Checklists, and Procedures for the
Family Lawyer. What other resources of
any sort do you recommend for a solo or
small firm family law lawyer?
GPSolo: I think that’s great advice. I
know in my work when I go to professional conferences and talk to people, I get
not only great ideas but also inspiration
and energy that carries back into the office. It makes for a very productive time
of year after each of these conferences.
Chinn: There are just so many good
things that go into ABA meetings now.
Talking to people at those coffee tables
is just a magnificent practice growth
experience. And then add to that the
friendships. The best friend I have is an
international custody lawyer in New Jersey that I met through the ABA. How
do you replace that?
GPSolo: Great. Thank you very
much. I hope you have an excellent time
in court this afternoon, and thank you
for your time this morning.
Chinn: Thank you. I enjoyed it; I really did. Good luck. 
Wells H. Anderson, J.D. ([email protected],
800/575-0007), works remotely with busy solos
and small firms across North America. His company
(activepractice.com) solves law office productivity
problems with technology and provides computer
and mobile device backup and security services.
21
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credit
22
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Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The Ethical Traps a Family
Law Practitioner Must Avoid
F
By Sara Rittman
amily law can be a very rewarding area of practice, but it has its
well-known downsides. One
downside is that family law
usually ranks first or second
among practice areas for complaints received by disciplinary offices. The good
news is that these complaints frequently
relate to things that can be addressed
fairly easily. The other good news is that
these complaints often do not result in
any disciplinary action. Unfortunately,
even complaints that do not result in discipline may consume large amounts of
your time and cause a great deal of stress.
It is no mystery why family law generates so many disciplinary complaints.
In family law cases, more than any other
type of case, both sides frequently feel
that they lost. Additionally, the issues
involved are often highly emotional.
An unhappy, emotional client is certainly more likely to file a complaint
than any other. Add to this the fact that
custody, child support, and sometimes
maintenance issues continue to distress
the client after the case is over. When
you total all these factors, it may be surprising that family law clients do not file
more complaints.
iStockphoto
Communication and Diligence
The most frequent topics for complaints
in all areas of practice are communication and diligence—or, more specifically,
complaints about inadequate communication and lack of diligence. These complaints stem from various circumstances.
In some situations the primary complaint
is actually about fees, but clients will
come up with reasons why they do not
believe that they should be required to
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pay the full fee. If such a complaint sufficiently lists concerns about communication and diligence, the disciplinary
office may open an investigation rather
than referring the complainant to the fee
dispute resolution program (even though
fee dispute resolution programs handle
fee disputes better).
A few concrete steps and, perhaps,
an adjustment to your perspective can
help avoid complaints related to insufficient communication and diligence.
Your primary goal should be to avoid
reasonable complaints about inadequate
communication and the lack of diligence,
whether they wind up in a fee dispute
resolution proceeding or an investigation
by the disciplinary office. However, you
should also strive to reduce the likelihood
of unreasonable complaints.
Communication. The ABA Model
Rules of Professional Conduct (Model
Rules) requirements in this area are
fairly simple. You are required to keep
the client informed about the status of
the matter and to comply promptly
with a client’s reasonable requests for
information. Rule 1.4(a). You are also
required to explain things to the client
to the extent reasonably necessary so
the client can make informed decisions.
Rule 1.4(b).
Paragraph (a) of the communication
rule is the source of most complaints. If
you are one of the minority of lawyers
who considers the case to be “yours,”
an attitude adjustment may be the first
step toward better communication with
your client. Lawyers who become too
personally wrapped up in a case sometimes forget that all their work is actually
for the benefit of their client.
23
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Make sure you inform your client of
all events, negotiations, and other activities in the case. One of the simplest ways
to do this is to send an informational
copy of most documents to the client.
You can do this relatively easily if you
use e-mail to communicate with your
client. Even if you do not use e-mail,
sending copies is still the most effective
way to let your client know what is happening in the case. If you mail documents
rather than e-mail them, you may want
to send them in batches at reasonable
intervals. If you are e-mailing them to
your client, you can forward copies to
your client as you go along.
require any action by the client. Obviously, sometimes you will also need
to provide an explanation of the documents or events.
Most complaints come from the part
of the communication rule that requires
prompt compliance with reasonable requests for information. However, the client’s requests for information frequently
arise from an insufficient or nonexistent
flow of information from the lawyer. If
your client calls or e-mails asking for
information, you, or someone on your
behalf, should respond promptly. What
is promptly? As with all things in the
law, it depends.
You should respond
promptly to the
client’s requests for
information. But
what is “promptly”?
Notice that I said you can e-mail copies by forwarding copies to your client.
It is dangerous to copy your client on
e-mails to opposing counsel or third
parties. Your client may not realize that
the other parties received the e-mail, and
your client may be a person who, by default, hits “reply all.” In my opinion, the
use of “reply all” should be a conscious
decision. Unfortunately, not everyone
takes this approach. If you copy your
client on an e-mail to opposing counsel,
you run the risk that your client will send
a reply intended only for you that will
also go to opposing counsel.
If you are an average lawyer who understands the importance of keeping the
client informed, establishing routines
for providing clients with copies can
take care of most of your obligations
to keep the client informed about status.
Explain to your client at the outset that
you will be sending copies simply to
let the client know what is happening
and that most of these copies will not
24
Certainly, some clients make unreasonable demands. However, for most
clients, if you respond within a time
frame that you consider reasonable, the
disciplinary authorities will also consider
it reasonable. Discuss response times at
the outset of the representation or once
you can see that response times are an
issue for the client to encourage the client
to consider these time frames reasonable.
If you respond outside of what you consider a reasonable timeframe, be sure to
apologize to the client.
The second prong of the communication rule is to explain matters in a way
that will permit the client to make informed decisions. Do you communicate
in a manner that is very lawyerly? Most
family law clients do not deal with lawyers, legal vocabulary, or the legal system
on a regular basis. Your client will be
better informed and much happier if you
use everyday language to explain events
in the case and the client’s choices.
Diligence. Complaints about lack of
communication are frequently combined
with complaints about lack of diligence.
Understandably, if you have not been
diligent, you may be hesitant to return
the client’s phone calls or e-mails.
The diligence rule is even simpler
than the communication rule. Rule 1.3
states, in total: “A lawyer shall act with
reasonable diligence and promptness
in representing a client.” The best way
to comply with the diligence rule is to
have a tickler or calendaring system that
keeps track of deadlines and reminds
you of deadlines as they are approaching. If you have staff, you should make
sure that they receive the same deadline
reminders. Many practice management
programs and other software programs
easily accomplish this task. Just make
sure someone enters the deadlines and
that they enter them correctly.
The client relations trick here is to
remember that the practice of law has
skewed your perspective on the passage
of time. A case that is proceeding at a
reasonable pace from your perspective
is usually taking an eternity from the
client’s perspective. So, even if you are
being entirely diligent, your client may
be unhappy with the amount of time
things are taking. The best ways to address this problem are: (1) Keep your client’s perspective in mind; (2) actually be
diligent—keep things moving as much as
you can, consistent with your client’s interests; and (3) educate your client about
the amount of time it will likely take to
accomplish various goals or steps in the
proceeding. This is not the time to take
an optimistic approach with the client.
Be realistic, and remember: If you tell
the client “four to six months,” the client
will hear “four months.”
Conflict of Interest
Current clients. In some geographical
areas, the legal community previously
considered it permissible to represent
both sides in an uncontested dissolution. The current version of the Model
Rules prohibits this type of joint representation—even if the parties are willing to waive the conflict. Rule 1.7(b)(3)
provides that a lawyer cannot handle a
representation if it involves the assertion
of a claim by one client against another
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may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
client whom the lawyer is representing in
the same litigation. In other words, even
if both sides agree, you cannot represent
both spouses in the same dissolution.
You may represent one party while
the other party is unrepresented. In order
to do this, you must clearly understand
that you only represent the spouse
who is your client and you cannot look
after the interests of the unrepresented
spouse, nor can you have confidential
communications with the other spouse.
You must deal with the unrepresented
spouse as required by Rule 4.3. Practically speaking, this means that you must
make reasonable efforts to ensure that
the unrepresented spouse understands
your role (i.e., only representing your
client). You must also avoid giving the
unrepresented spouse any legal advice. If
you give the unrepresented spouse legal
advice or allow that spouse to believe
that you are looking after his or her interests, you will be engaging in a conflict
of interest under Rule 1.7.
If you are representing one spouse
and the other spouse is pro se, you may
communicate with the unrepresented
spouse, including any negotiations necessary to prepare the documents for the
uncontested dissolution. You may submit documents you prepared to the unrepresented spouse for signature, but you
may not advise the unrepresented spouse
about the documents. You must advise
your client of his or her options and of
the consequences of the agreement.
Prospective clients. Prior to the
adoption of Rule 1.18, you had to consider a prospective client who provided
confidential information but did not hire
you as a former client under Rule 1.9.
This meant that very little contact could
create a conflict. Some individuals seeking to file a dissolution action used this
situation to their advantage, contacting
multiple lawyers about the possibility of
representation in order to prevent their
spouse from hiring those lawyers.
More than 40 jurisdictions have adopted some version of Rule 1.18. Following the adoption of Rule 1.18, only
information that would be “significantly harmful” to the prospective client
who provided the information creates
a conflict. By limiting the breadth of
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information obtained during an initial contact, you can avoid this type of
conflict. In other words, you may still
be able to represent the prospective client’s spouse in the dissolution. However,
you must refrain from using information you obtained from the prospective client unless it is information that is
generally known.
gives informed consent.
Aside from providing competent services, the most critical aspect of limitedscope representation is making sure that
the client understands what services you
will and will not provide. This begins
with obtaining informed consent from
the client. You should refer to Rule
1.0(e) and the related comment for the
If you represent one
spouse while the other
is pro se, avoid giving
any advice to the
unrepresented spouse.
Even if you did not limit the information sufficiently, if you took reasonable
measures to try to limit the information,
other members of your firm may be able
to represent the prospective client’s
spouse in the dissolution. In order for
another member of your firm to represent the prospective client’s spouse, you
must be timely and completely screened
from this representation. If someone in
your firm chooses to undertake this
representation, you must immediately
implement whatever measures Rule 1.18
requires in your jurisdiction.
If your jurisdiction allows screening, you should study the definition of
“screened” in Rule 1.0(k) and the related
comments. Screening requires actual isolation of the screened lawyer in order to
protect the information that creates the
conflict for that lawyer.
Limited Scope (Unbundled)
Representation
Sometimes clients do not want full representation. Limited representation may
simply be their preference, or they may
not be able to afford full representation.
Rule 1.2 allows you to limit the scope
of representation to provide some legal
services in this situation so long as the
limitation is reasonable and the client
definition of “informed consent.”
Many states have adopted more specific rules related to limited-scope representation. You should be careful to study
the rules of your jurisdiction before
starting down this path. In some jurisdictions you must spell out the scope in a
writing signed by the client. In some jurisdictions you may ghostwrite pleadings
and other documents for a client without
disclosing your involvement. In other jurisdictions the pro se party must disclose
that a lawyer was involved and, in some
jurisdictions, the party must disclose the
specific lawyer who provided assistance.
Conclusion
When you practice family law, you deal
with clients who seldom understand the
law and are almost always emotionally
distressed. Paying extra attention to
the ethical rules that deal most directly
with client relations can improve the
attorney-client relationship and reduce
your chances of experiencing a disciplinary complaint. 
Sara Rittman ([email protected]) is
the principal of Rittman Law, LLC, in Jefferson
City, Missouri. Her practice focuses on helping
licensed professionals with ethical issues and
disciplinary matters.
25
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Tips for Providing
Limited-Scope
Representation in
Family Law Cases
By Anne C. Adams
H
ow many times do attorneys
meet with potential clients
at an initial consultation and
the potential client seems
interested in obtaining legal
services until the attorney starts talking
about the initial retainer and attorney
fees? Many people consult an attorney
about divorces, child custody disputes,
and other family law matters because they
want help navigating the legal system, but
they ultimately decide they cannot afford
the legal fees. Limited-scope representation is one possible solution. When an
attorney offers limited-scope representation as an alternative to full representation, counsel provides a win-win solution
to the potential client and the attorney.
Attorneys who offer limited-scope services for family law matters may be able to
convert more of these initial consultations
into paying clients.
What is the difference between full
representation and limited-scope services
in family law cases? The client in a limitedscope services case is a self-represented
party, also known as an in pro per party;
the attorney assists the self-represented
party with some of the legal tasks in the
case instead of handling all the legal tasks as
counsel would in a full-representation case.
Limited-scope representation is sometimes referred to as providing unbundled
legal services. The assistance by the attorney can involve preparing pleadings,
26
running child support calculations, assisting with negotiations, giving legal advice,
preparing a self-represented party to appear in court, and appearing in court on
a limited-scope basis. Some states have
court forms that can be used when the
lawyer appears in court representing a
self-represented party for a specific matter, such as custody and visitation. For
example, California has several judicial
council forms that can be used in court
proceedings when the attorney is appearing on a limited-scope basis.
Advantages of Limited-Scope
Representation
What are the advantages of limited-scope
representation for the self-represented
party? First, the self-represented party
will save money if that party performs
some of the work instead of asking the
attorney to perform all the work. Second,
the self-represented party might pay a
lower deposit for legal services because
the attorney will be providing fewer
services. Third, the self-represented
party might have greater control and
involvement in the case. Fourth, the
self-represented party might perceive
that she gets more value for her money
because she is only paying for the services that she is not willing to perform
herself or for services that she believes
require an attorney’s expertise. For
example, a self-represented party on a
GPSOLO | July/August 2015
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may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
limited budget might want an attorney to
prepare the legal documents required to
obtain a child custody hearing but plan
to represent himself at the court hearing.
Another self-represented party might already have prepared the documents for a
child support hearing but want the lawyer to represent him at the court hearing. Sometimes, a self-represented party
only wants to pay to consult with the
attorney and ask the attorney to review
documents.
What are the advantages of providing limited-scope services for the attorney? First, the attorney can assist
a self-represented party and receive
compensation based on the attorney’s
more limited role in the case instead
of losing a potential client who wants
his services. Second, a self-represented
party may become a client receiving fullrepresentation services when he learns
that it is more difficult and time consuming than he expected to represent himself.
Third, it may be easier to collect attorney
fees because the attorney fees for each
case will be smaller. Fourth, in some
cases, when counsel is not the attorney
of record for the case, the attorney may
not need a court order to withdraw from
the case or need to ask the client to sign
a document substituting counsel out of
the case.
The rules for terminating services
when the attorney provides limitedscope services will be different in different states. It is important to properly
terminate representation of the limitedscope services client so the client is not
expecting counsel to perform additional
legal services. An attorney should always notify the client in writing that
the attorney-client relationship is terminated. This written notice of withdrawing from the case is especially important
if there are still additional issues to be
resolved in the case. Counsel should
consult the state and local court rules
regarding the proper way to terminate
limited-scope services in her state.
iStockphoto
Setting Up Limited-Scope
Representations
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What steps does an attorney need to take
to start accepting limited-scope representation cases? First, the attorney needs to
27
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
investigate whether or not limited-scope
services are permitted in family law cases
in the state. Second, if limited-scope services are permitted, then the attorney
needs to review any ethics opinions,
court rules, and other relevant documents regarding limited-scope representation in the state. Third, the attorney
needs to determine which services will
be provided on a limited-scope basis, for
example, preparing pleadings in the name
of the self-represented party, providing
advice to the self-represented party for
a fee, reviewing documents, assisting
with negotiations, discussing strategies,
and appearing in court for a specific
issue only. Fourth, counsel will need to
determine if there are any optional or
mandatory court forms used to provide
limited-scope services in the state. Some
jurisdictions may only require that attorneys disclose their involvement in
the case for certain limited-scope tasks.
Other states may have broader disclosure requirements. It is very important
that attorneys know the court rules and
understand the ethics issues in their state
regarding disclosure to the court and the
opposing party about assisting a party
that is self-represented.
The attorney needs to prepare a fee
agreement that describes counsel’s obligations to a self-represented party in the
case. It is very important that the selfrepresented party and the attorney agree
on which one of them is responsible for
certain tasks and document this agreement in writing.
The fee agreement should state how
much the attorney is paid, other fees
and charges, the method for computing
compensation, and when payment is due.
The fee agreement should also comply
with any applicable court rules, ethics
opinions, and codes in the jurisdiction
where the attorney practices.
Counsel should carefully interview
a potential client for limited-scope representation to ensure that the potential
client fully understands the limitations
of the attorney’s responsibilities in the
case. The client must be willing and able
to be responsible for the part of the case
that the client is handling without the
attorney’s assistance. If an attorney feels
uncomfortable working with a particular
person on a limited-scope basis, counsel should decline the case or offer fullrepresentation services only.
Counsel needs to fully explain to the
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potential client the difference between
limited-scope representation and full
representation. Counsel should discuss
whether legal documents sent by the
court or the opposing party and their
attorney will be mailed to the attorney
or to the limited-scope services client.
They should discuss who is responsible
for responding to legal documents sent
to the attorney or the limited-scope
services client. Counsel and the limitedscope services client need to discuss
who is responsible for keeping track
of court deadlines and court hearings.
During this discussion, potential clients
may inform the attorney that they only
want full representation. Many clients
are not comfortable with assuming the
additional responsibilities involved with
limited-scope representation.
What type of potential client is a good
candidate for limited-scope services?
This individual will usually be very concerned about paying the cost of legal services. However, potential limited-scope
clients may simply want to have more
control over their case than they would
have in a traditional attorney-client relationship. Potential clients should be
comfortable presenting their case to
the judge and answering any questions
from the judge. Potential clients should
be willing and able to pay the legal fees
for the limited-scope work and handle
any legal tasks they assume.
Fee Agreements and
Fee Structures
As noted above, counsel should document in the initial fee agreement (or
in an addendum or attachment to this
agreement) who will handle various
aspects of the case so there are no misunderstandings. For example, counsel
might agree only to prepare a written
response to a request for a court order
to change child custody but not handle
any court hearings. This agreement must
be understood by the attorney and the
limited-scope services client and properly documented in writing by both of
them. Some attorneys use a checklist to
designate who will be responsible for
various legal tasks. Other attorneys use
an addendum to a fee agreement. It is important to document the charges for each
GPSOLO | July/August 2015
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may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
task the attorney performs. If there are
any changes to the fee agreement, these
changes should be stated in a written
document that is signed by both the attorney and the client.
Many attorneys find that the limitedscope services client is more receptive
to a flat fee for providing legal services.
Many people are uncomfortable with
the uncertainty of paying an hourly
rate for an unknown number of hours.
Many clients have limited funds to pay
an attorney, and they want to establish
how much it will cost to receive specific
legal services.
Attorneys who have not set flat fees
previously may want to review some of
the firm’s prior hourly billing statements
to determine an average range of charges
for a specific legal service. For example,
an attorney could determine how much
clients are typically charged to prepare
the initial documents to start a divorce,
then the firm could set a flat fee to prepare that set of documents or each individual document. The firm could set a
flat fee for a morning or afternoon court
hearing and another fee for an all-day
hearing. After the flat fee is established,
it should be monitored to determine if
the flat fee provides sufficient revenue
to the firm and is agreeable to the clients. If the flat fee is not working, it can
be adjusted. The attorney should also
check any court rules and ethics opinions regarding setting legal fees to ensure that the flat fees comply with the
state’s requirements.
Sometimes the firm may not want to
set a flat fee for a particular matter or
preparation of a specific type of document. For example, when attorneys prepare documents relating to requests for
court orders for child custody matters,
the time it takes to prepare documents
for different clients may vary greatly depending on the number of issues raised in
the documents. There are different ways
to handle this situation. One firm may
decide to charge a flat fee based on the
number of pages in the pleading and the
number of pages of exhibits attached to
the pleading. Another firm may decide
to charge an hourly rate with a cap so the
client knows the maximum that would
be charged to prepare the document. A
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third firm might decide that some documents or matters can only be handled on
an hourly billing basis.
Some attorneys may be concerned
about clients expecting a discount
for limited-scope services. Attorneys
typically charge the same fees for
limited-scope legal services and fullrepresentation legal services. Many attorneys ask for all their flat fees to be
paid at the beginning of the case instead
of only asking for a deposit toward legal
fees. Other attorneys are willing to offer
payment plans. The client saves money
with limited-scope services because the
attorney is performing fewer legal tasks.
attorneys on a limited basis. The attorney
may want to include information about
limited-scope services on the firm’s website. Counsel also may want to promote
the availability of limited-scope services
through Internet marketing sites.
Attorneys who have never provided
limited-scope services may be concerned
about ethical issues and court rules in
their state, but many states permit
limited-scope services for family law
cases. An initial resource for researching court rules and ethics opinions can
be found on the American Bar Association website (americanbar.org). The
Standing Committee on the Delivery of
Some attorneys may be
concerned about clients
expecting a discount for
limited-scope services.
Attorneys should perform the same
quality of work for a limited-scope
services client that they perform for
a full-representation client. Limitedscope representation clients may be a
good source of referrals to the attorney
because people who pay less money for
legal services may be happier with the
results they received for their money.
Marketing and Ethics
There are many ways to market limitedscope services. A lawyer can discuss the
concept of limited-scope services during
the initial consultation if she thinks it is
a good alternative for a potential client.
The attorney may want to include information about limited-scope services in
the office’s written marketing materials.
Counsel may want to join an attorney
referral service that offers panels for
limited-scope services. The lawyer may
want to blog about limited-scope services because many consumers are not
familiar with the availability of using
Legal Services has a Pro Se/Unbundling
Resource Center (tinyurl.com/7p43uop)
that has court rules and ethics opinions
from many states. Attorneys can further
research limited-scope services through
their state bar associations. Some state
bar associations offer ethics hotlines.
Conclusion
There are benefits to both self-represented
parties and attorneys when attorneys
offer limited-scope services in family
law cases. An attorney may want to start
by accepting a small number of limitedscope representation cases until counsel
can refine office policies, procedures, and
documents for assisting self-represented
parties on a limited-scope basis. 
Anne C. Adams ([email protected],
818/715-0015) is a Certified Family Law
Specialist certified by the State Bar of California
Board of Legal Specialization. She practices in
Los Angeles County, California. She is writing a
book on limited-scope services.
29
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Divorce and
Domestic
Violence
30
GPSOLO | July/August 2015
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When Family Law
Meets Criminal Law
A
By Aimee Pingenot Key
lthough family law and
criminal law are two very
distinct areas of law, they
frequently overlap, creating
challenges for practitioners
of both disciplines. When a family law
case involves elements of criminal law,
the case becomes exponentially more
complicated for the family law practitioner. Often, the multitude of orders in
the family courts and the criminal courts
seem to conflict with one another. Cases
may proceed simultaneously in different
courts and through different attorneys,
leading litigants to question which orders
take precedence. This article examines
the common intersection between family
law and criminal law specifically in the
realm of domestic violence.
iStockphoto
Divorce and Domestic Violence
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Divorce is frequently a triggering event
for domestic violence. Domestic violence is generally defined as abuse by one
partner against the other in a marriage
or other intimate relationship. Pushing,
shoving, hitting, sexual assault, and other
forms of physical attack are all forms of
domestic abuse, as are stalking, intimidation, isolating a partner from others,
withholding money, and emotional abuse
of all kinds. Research from the National
Coalition Against Domestic Violence
found that on average nearly 20 people
per minute are physically abused by an
intimate partner in the United States.
This equates to more than 10 million
women and men each year. One in three
women and one in four men have been
victims of some form of physical violence
by an intimate partner in their lifetime.
One in five women and one in seven
men have been victims of severe physical
violence by an intimate partner in their
lifetime. Further, one in seven women
and one in 18 men have been stalked by
an intimate partner in their lifetime to
the point that they felt very fearful or
believed that they or someone close to
them would be harmed or killed.
Although the legal definitions of
domestic violence can vary between
states, the National Center for State
Courts’ State Court Guide to Statistical Reporting 2009 defines domestic
violence as “criminal cases involving
violence, coercion, or intimidation by
a family or household member against
another family or household member.”
All 50 states and the District of Columbia have statutes that require the courts
to consider domestic violence committed by one parent against the other in
resolving a custody or visitation dispute
between parents. Many states also have
statutes or case law that require courts
to consider the occurrence of violence
in a child’s household in resolving custody disputes aimed at ensuring a child
is not placed in a household where violence occurs or where a parent will not
protect a child from future violence. As
recently as 2010, 22 states had enacted
presumptions against awarding custody
of children to parents who committed
family violence, whereas the remaining
31
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
states and the District of Columbia only
required that a court consider family
violence as a factor in determining child
custody. Most states do not have statutes that discuss exactly what level and
frequency of violence determine possession and custody, allowing judges wider
discretion to consider the impact of domestic violence. Some states such as New
Hampshire and Nevada define abuse in
terms of the state criminal codes, requiring the abuser’s conduct to fit into one of
the list of crimes in the statute before it
is considered in a family law case. States
set out different kinds of proof to show
what is admissible or required to prove
domestic violence. Arizona requires the
courts to consider findings from other
courts, medical reports, police reports,
child protective services reports, and witness testimony, whereas in Massachusetts
the issuance of an ex parte protection
order is not admissible to show abuse.
Most state statutes do not require proof
that the child witnessed the violence or
that the violence had an impact on the
child. However, at least six states statutes
require the court to determine whether
the violence had an adverse effect on the
child when custody and possession are
being decided.
In about one-third of states, police officers are also authorized or required
to remove guns when they arrive at the
scene of a domestic violence incident
without further investigation or court
intervention.
In some states, the police can give the
victim an emergency protection order
(EPO). An EPO is a short-term protection order typically given to a victim by
the police or magistrate when his or her
abuser is arrested for domestic violence.
The EPO is generally for a limited period, such as three or seven days. This
permits the victim time with an EPO in
place to request a longer-term protection order. An EPO may be issued where
there is not yet a family law proceeding
in court. An EPO is often the basis for
an individual to seek a more permanent
order of protection in the family courts.
Protection order. All 50 states and
the District of Columbia have statutes
for some form of protection order. However, states have different names for these
orders. For example, Illinois, New York,
and Texas call them protection orders or
orders of protection, while California
calls them restraining orders and Florida calls them injunctions for protection
against domestic violence. A protection
Most states lack statutes
that exactly define
what level of violence
determines custody.
Orders of Protection
In all 50 states and the District of Columbia, individuals who have experienced
domestic violence have civil and criminal remedies to protect themselves from
further abuse.
Emergency protection order. In
many states, when the police encounter
a domestic violence situation, one of the
two parties involved in the dispute is required or requested to leave the home.
32
order is different from an EPO because
it lasts for a longer term, typically one to
five years, and in extreme circumstances
up to a lifetime. A victim can renew the
protection order if he or she still feels
threatened by the abuser.
A protection order may include many
different provisions, including:
„„ No-contact provision. This prohibits the abuser from calling, texting, e-mailing, stalking, attacking,
hitting, or disturbing the victim.
The order against contact may also
protect other people in the family.
„„ Provision regarding contact.
This permits the abuser to communicate peacefully with the victim for limited reasons, including
care and transfer for visitation of
their children.
„„ Stay-away provision. This orders
the abuser to stay at least a certain
number of yards or feet away from
the victim and the victim’s home,
job, school, and/or car. The stayaway distance can vary by state,
judge, or the lethality of the situation, but is often at least 100 yards
or 300 feet.
„„ Move-out provision. This requires the abuser to move out of a
home shared with the victim. This
order may apply even if a residence
is in the sole name of the abuser.
The judge can order the police to
escort the abuser to remove personal items from the residence, or
shared place of business, so that
the victim is protected by the police during any necessary contact.
„„ Firearms provision. This requires
the abuser to surrender any guns
he or she possesses (in about twothirds of states) and/or prohibits
the abuser from purchasing a
firearm.
„„ Counseling provision. This orders the abuser to attend counseling, such as batterer’s intervention,
anger management, or Alcoholics
Anonymous.
„„ Provision regarding payment
of expenses. In some states the
court may also order the abuser
to pay for costs that resulted from
the abuse, for example household
bills that are due right away, medical/dental treatment, moving expenses, or loss of earnings. The
judge can also make the abuser
pay the victim’s attorney fees and
can make the abuser pay damages
to the victim or other people who
helped the victim or got hurt by
the abuser.
Protection orders may include the
victim’s children, other family members,
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may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
roommates, or current romantic partner. This means the same no-contact and
stay-away rules apply to the other listed
individuals, even if the direct harm was to
the victim. Many states now allow pets
to be protected by the same order, as
abusers may harm pets to torment their
victims. As a result of growing scientific documentation of the frequent cooccurrence of animal abuse and domestic
violence, state legislatures have begun
to offer legal protection for the animal
victims of family violence. Maine enacted the nation’s first laws in 2006 that
empower courts to include companion
animals in domestic violence protection
orders, and that same year New York
and Vermont followed suit. Since then,
29 states have enacted laws that include
animals in orders of protection.
Some states issue protection orders
for situations that not only involve
physical violence but also threats of violence. Delaware, for example, includes
within its definition of domestic violence instances where an abuser causes
a victim to reasonably fear receiving a
physical injury, even where no injury
follows. In Delaware defendants may
be convicted under such circumstances
even when they act without intending
to cause such fear, if they are found to
have acted recklessly and with extreme
disregard for the probable consequences
of their acts. Delaware’s definition of domestic violence also includes instances
where a person conveys to the victim a
threat to harm a third person, such as
the victim’s child. In some states, people
may be charged with an additional offense besides the underlying act where
a child witnesses the commission of the
act. In Utah a defendant is guilty of child
abuse where a child is present during the
defendant’s infliction of serious bodily
injury against a person with whom the
defendant cohabitates.
Federal Firearms Prohibition
A person who has been convicted of the
felony or misdemeanor crime of domestic violence toward a spouse, former
spouse, cohabiting intimate partner, or a
person with whom the offender shares a
biological child is prohibited from owning firearms. Likewise, a person under a
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permanent restraining order is not permitted to own firearms. A qualifying
protection order in which the federal
firearms prohibition would apply is one
(1) where the petitioner and respondent
are married or formerly married, live together or formerly lived together, or have
a child in common, or the petitioner is
the respondent’s child; (2) issued after a
hearing of which the offender had actual
notice and an opportunity to participate;
(3) that restrains the offender from harassing, stalking, or threatening the intimate partner or child or from engaging in
conduct that places either the partner or
child in reasonable fear of bodily injury;
(4) that includes an express finding that
the offender presents a credible threat to
the physical safety of the intimate partner
or child; or (5) that expressly prohibits the
use, attempted use, or threatened use of
physical force against the intimate partner
or child that might reasonably be expected
to cause physical injury.
Enforcing Protection Orders in
Different States
The Violence Against Women Act
(VAWA) is a federal law enacted in 1994
that provides for investigation and prosecution of violent crimes against women,
imposes automatic and mandatory restitution on those convicted, and allows
civil redress in cases prosecutors choose
to leave unprosecuted. The full faith and
credit provision of VAWA defines “protection order” as any civil or criminal restraining order, injunction, bail or release order,
probation condition, or any other order
for protection issued to protect victims of
domestic violence, sexual assault, dating
violence, or stalking or to deter offenders from further violence or abuse. Under
VAWA, domestic violence survivors may
move as part of a plan to keep them safe
from a former abuser. The Full Faith and
Credit Clause of the Constitution and
VAWA requires that a valid protection
order can be enforced in the jurisdiction
Some states issue
protection orders not just
for physical violence but
for threats of violence.
Violation of Protection Orders
Violation of a protection order can be
treated as a felony, misdemeanor, or
contempt of court and may result in a
variety of penalties depending on the severity of the violation, the specific terms
of the order, and the state in which the
violation occurred. Felony charges are
often reserved for either repeat or serious violations. Sometimes violations
are considered both contempt of court
and a new domestic violence charge
such as aggravated stalking or other
advanced crimes, although California
found this to subject the defendant to
double jeopardy. In many states, police
policy is to arrest violators of these orders automatically.
where it is issued and in all other U.S.
states and territories as well. Therefore, if
an abuser stalks a victim in his or her new
state of residency, the police must uphold
the protection order from another state.
Conclusion
Although family law is very different
from criminal law, an understanding of
the implications and interconnection
between the two allows practitioners to
better protect and advise their clients in
cases involving domestic violence. 
Aimee Pingenot Key (akey@gbfamilylaw.
com) practices family law as a partner with
GoransonBain, PLLC, in Dallas, Texas. She also
holds a master’s degree in social work.
33
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Advising Same-Sex
Couples after
Obergefell and Windsor
By Arlene Zarembka
34
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may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Veer
T
wo years ago, the U.S. Supreme Court, in a 5–4 decision
written by Justice Anthony M.
Kennedy and joined by Justices Ruth Bader Ginsburg,
Stephen G. Breyer, Sonia Sotomayor, and
Elena Kagan, held that Section 3 of the
federal so-called Defense of Marriage Act
(DOMA) violated the Equal Protection
and Due Process Clauses of the Constitution. United States v. Windsor, 133 S.
Ct. 2675 (2013). Section 3 prohibited any
federal recognition of same-sex marriages
at any level of the federal government
and limited the definition of “spouse” to
a “person of the opposite-sex who is a
husband or wife.” The Windsor Court did
not decide, however, whether a state must
recognize same-sex marriages lawfully
performed outside the state or grant marriage licenses to same-sex couples within
the state.
A flood of litigation filed by same-sex
couples ensued in states across the country—some seeking recognition of marriages performed in other jurisdictions,
and others seeking the right to marry in
their states. Most courts ruled in favor
of the same-sex plaintiffs.
But in November 2014 a panel of the
Sixth Circuit Court of Appeals broke the
trend of same-sex marriage victories. By
a 2–1 vote, it upheld same-sex marriage
bans and bans on recognition of out-ofstate marriages in cases from Kentucky,
Michigan, Ohio, and Tennessee. DeBoer
v. Snyder, ___ F.3d ___ (Nov. 12, 2014).
The Supreme Court granted petitions
for a writ of certiorari involving all four
states sub nom Obergefell v. Hodges.
Exactly two years after the Windsor decision, the Supreme Court ruled
in Obergefell v. Hodges, ___ S. Ct. ___
(June 26, 2015) that states must: (1) issue
marriage licenses to same-sex couples on
the same basis that they issue licenses to
different-sex couples and (2) recognize
any lawful same-sex marriage performed
in another state or country. The Court’s
decision also applies to territories, but
not to Native American tribes (which
are sovereign nations). Again, it was a
5–4 decision written by Justice Kennedy
and joined by the same four justices as
in Windsor.
The Court held that the right to marry
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is a fundamental right inherent in liberty,
and under the Due Process and Equal
Protection Clauses of the Fourteenth
Amendment, same-sex couples cannot be
“deprived of that right and that liberty.”
The Court emphasized that religions that
oppose same-sex marriage may continue
to teach their principles regarding marriage, as can individuals who oppose
same-sex marriage for other reasons.
“The Constitution, however, does not
permit the State to bar same-sex couples
from marriage on the same terms as accorded to couples of the opposite sex.”
The Court concluded:
No union is more profound than
marriage, for it embodies the highest ideals of love, fidelity, devotion,
sacrifice, and family. In forming a
marital union, two people become
something greater than once they
were. . . . It would misunderstand
these men and women to say they
disrespect the idea of marriage.
Their plea is that they do respect it,
respect it so deeply that they seek to
find its fulfillment for themselves.
Their hope is not to be condemned
to live in loneliness, excluded from
one of civilization’s oldest institutions. They ask for equal dignity in
the eyes of the law. The Constitution grants them that right.
Essentials of Representing
LGBT Clients
If you want, or have, any LGBT (lesbian,
gay, bisexual, transgender) clientele, it’s
crucial that you understand the issues and
concerns of the LGBT community. You
cannot do so without knowing the very
long—and continuing—history of prejudice and discrimination against LGBT
persons. You also must be 100 percent
comfortable with LGBT persons; most
LGBT clients will sense any discomfort.
And you need to keep abreast of the rapidly changing legal landscape affecting
the LGBT community.
Don’t assume that all same-sex partners, even long-term partners, plan to
marry. Many gay and lesbian partners,
particularly older couples, have lived
for years without the option to marry.
Although marriage is now possible for
all same-sex couples, many couples are
weighing the pros and cons of marriage
before running to get a marriage license.
And many of those who do marry still
do not have the full recognition of their
marriage that different-sex spouses take
for granted.
Advising Same-Sex Couples
about Marriage
When advising a same-sex couple about
marriage, it’s important to have a complete picture of the couple’s income
and assets. Ask which assets are owned
jointly and which separately. Ask about
any medical conditions that might result
in nursing home placement in the future.
State statutes have numerous provisions that differ depending on whether
a person is “married” or “single.” If
an applicant for public assistance benefits (such as Medicaid) is considered
“single,” only her or his own income
or assets are considered in determining
eligibility. Before the applicant can be
eligible for Medicaid, his or her “countable” assets must be spent down to the
minimum amount allowed by the state’s
Medicaid rules. If the applicant is married, however, then the income and assets of both spouses are considered in
determining the applicant’s eligibility.
Moreover, some states consider the income and assets of both partners who are
not married in determining the eligibility
of one of the partners. Assets cannot be
transferred or given away to qualify for
Medicaid because Medicaid “looks back”
five years from the application date for
any transfers of assets. It will impose
a penalty period for gifts made during
that five-year period, including donations. Thus, in some cases, remaining as
unmarried partners will be preferable to
marrying, at least from a public benefits
eligibility perspective.
Most long-term same-sex couples
contemplating marriage are unlikely to
want a prenuptial agreement. But if they
do, they each need separate legal counsel.
You should not represent either of them
in negotiating or drafting the agreement,
as this would be a conflict of interest and
open you up to a potential claim by a disgruntled client if the couple later divorces.
35
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Consequences of Marriage
Policies issued by federal departments
since Windsor require that legally married same-sex spouses be treated the same
as different-sex spouses in programs
under the jurisdiction of that department. For example, all same-sex married couples must file as married for all
federal tax purposes.
the attorney should advise the client to
meet with a representative at the Social
Security office as soon as possible to determine the potential benefits available
so that he or she can decide whether to
apply for them. Moreover, the biological,
adopted, or dependent stepchild of a deceased wage earner also might be eligible
for survivor benefits.
Major problems can
arise when only one
partner is recognized
legally as the parent.
Many couples focus on the immediate financial impact of marriage. But
there are other consequences of which a
couple may be unaware that could have
a major impact later. These include the
marital privilege in court and standing for a surviving spouse to pursue a
wrongful death claim if his or her spouse
is killed owing to another’s negligence or
wrongful act. Moreover, marriage could
adversely affect such government benefits as insurance subsidies under the Affordable Care Act or eligibility for public
assistance programs.
A married person cannot designate
anyone other than his or her spouse on
most retirement plans and accounts, unless the spouse gives written consent. If
a client has named someone other than
the partner as beneficiary of all or part
of a retirement plan prior to marriage,
it is important that the partner (now
spouse) consent to such beneficiary
designation after marriage; or, if the
spouse does not consent, then the client
must revise the beneficiary designation
to name the spouse as the 100 percent
primary beneficiary.
If a client may be entitled to benefits
from Social Security based on his or her
living or deceased spouse’s benefits, the
attorney should find out if the client
is aware of such benefits. If not, then
36
Same-sex married federal employees
have the same spousal rights as differentsex married employees. The Office of
Personnel Management (OPM) also
has an expansive definition of “family
members” for purposes of sick leave,
funeral leave, and several other leave
programs (including an employee’s
same-sex domestic partner, the children
of the partner, and some other relatives
of the partner).
A U.S. citizen or lawful permanent
resident can sponsor his or her samesex spouse or fiancé for family-based
immigration. The U.S. Citizenship and
Immigration Services also is reopening
all previous immigration petitions that
were denied solely because of Section 3
of DOMA.
Wills and Other Estate Planning
If you are preparing estate planning
documents for a same-sex couple, married or not, ask: (1) how they want to
refer to each other in their documents—
do not assume they want to use “wife,”
“husband,” “spouse,” or “partner”; (2)
whether there are relatives who might
challenge the distribution of assets upon
death or who might seek to remove the
person designated to serve as attorneyin-fact for health care and financial
decision making upon incapacity; and
(3) whether they wish to include nocontest clauses in their wills and/or trusts
to exclude from receiving any portion
of their estates anyone who contests
the distribution of their assets after
death and/or files suit seeking removal
of their designated attorneys-in-fact in
their powers of attorney for health care
and/or financial affairs.
Determine what, if any, state law exists regarding the “right of sepulcher”
(disposition of the body upon death)
for married and unmarried decedents.
Understand that many in the LGBT
community consider one or more persons who are not “next-of-kin” (legally
speaking) to be part for their chosen
“family.” Careful drafting of the “right
of sepulcher” document is essential to
ensure that the client’s chosen person will
have this right.
If a couple does marry, one of the
important protections married couples
can have in most (perhaps all) states is
tenancy by the entireties protections
from creditors. Therefore, draft the
documents to re-title any property that
is jointly owned by the couple before
marriage into tenancy by the entireties
ownership after marriage. I suggest including the date and place of marriage
in the deed.
Be aware that some statutes might
refer to “husband and wife” rather than
“spouse.” In light of the Obergefell
decision, such statutes should be interpreted as applicable to same-sex spouses
as well as different-sex spouses. However, in conservative states, some judges
might conclude that these statutes are
not applicable to same-sex spouses. To
avoid such a ruling, such statutes need
to be revised to refer to “spouse” and
not to “husband and wife.” It is important that attorneys draft revisions
to such statutes and advocate both with
their bar associations and in the state
legislatures for such revisions.
Many married clients (and, unfortunately, some attorneys) believe that a
married person does not need a health
care power of attorney, thinking that the
spouse will be able to make health care
decisions upon incapacity. In some states,
however, a spouse does not automatically have the right to make health care
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decisions for an incapacitated spouse.
Although many doctors will turn to the
spouse for consent to treatment or termination of life support, failure to have a
health care power of attorney can be very
unfortunate if a dispute erupts among
family members regarding treatment or
end-of-life decisions. This is especially
true if some relatives are not supportive of the same-sex relationship. Moreover, relatives’ apparent “acceptance”
of an LGBT family member’s partner
or spouse can change drastically when
serious illness, injury, or death occurs.
Lack of a health care power of attorney
can mean that a court will need to appoint someone to make the decisions if
the incapacitated person’s spouse is deceased or incapacitated or in the case of
a family dispute.
Regulations issued by the Obama
administration require any hospital
that receives Medicare or Medicaid
funds—which are virtually all hospitals—to allow a partner to visit an ill
partner in the hospital. Nevertheless, it’s
important for same-sex couples to carry
a copy of their spouse’s or partner’s
health care power of attorney (and any
marriage license and/or domestic partner/civil union registration) in their car
and also in their carry-on luggage when
traveling. Health care facilities might
not accept the assertion of a same-sex
spouse or partner that he or she is the
spouse or partner of the injured patient,
so documentation is essential to ensure
visitation and health care decision making by the partner.
Adoption
When same-sex couples, whether partnered or married, are raising children together and only one partner or spouse is
recognized legally as the parent, major
problems can arise. The children’s lack
of a legally recognized relationship with
the other partner or spouse can result
in tremendous psychological and financial harm to the children. For example,
if the legally recognized parent dies, a
relative of the deceased parent, rather
than the co-parent, might be appointed
as the children’s guardian or conservator. If the couple separates, the legally
recognized parent might attempt to cut
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the children off from contact with the
co-parent. If the co-parent dies, the child
might not receive survivor benefits otherwise available if the co-parent were a
legally recognized parent.
In many states the couple can obtain a co-parent adoption (sometimes
called a second-parent or stepparent
adoption) so that both partners or
spouses become legally recognized as
parents of the children. In co-parent
adoptions, be sure that the guardian
ad litem appointed to represent the
children’s interests supports co-parent
adoptions by same-sex couples. Some
judges will grant co-parent adoptions
whether or not the couple is married.
Other judges will only grant such adoptions if the couple is married; if there
are reasons the couple does not want to
marry (see above), attempt to persuade
the judge that the children’s best interest
is in having two legally recognized parents, regardless of whether the parents
are married. If there are no judges who
will grant such adoptions to a same-sex
couple under any circumstances, then
it’s important to consult with legal organizations such as the National Center
for Lesbian Rights, the American Civil
Liberties Union, or Lambda Legal regarding possible litigation challenging
the court’s refusal to consider co-parent
adoption petitions by same-sex couples
on the same basis as adoption petitions
by different-sex couples.
An adoption tax credit is available
to a partner who adopts the other partner’s child. The adoption tax credit
is not available, however, to a person
who adopts his or her spouse’s child.
Therefore, if a couple is considering
both marriage and a co-parent adoption,
it may be financially advantageous to
complete the adoption prior to the marriage. However, be aware that Internal
Revenue Service policies could change
as to the availability of an adoption tax
credit for same-sex partners who are
not married.
Even if the couple was married at the
time a child was born to or adopted by
one of them, a co-parent adoption is important to protect the child’s relationship
with the non-biological or non-adoptive
parent. There may be jurisdictions within
the United States or elsewhere that will
refuse to recognize the co-parent as a
legal parent unless there is a formal adoption decree that names the co-parent as
a parent of the child.
A Final Caution
Even though the Supreme Court has
struck down all bans on same-sex marriage and marriage recognition, this is not
the end of the struggle for full equality
for the LGBT community. Some opposed to equal rights for LGBT persons
are claiming that the Obergefell decision
violates religious freedom, even though
the decision makes it clear that no religious denomination is required to marry
anyone. On June 28, two days after the
Obergefell decision, the attorney general
of Texas authorized county clerks in the
state to deny marriage licenses to samesex couples based on a clerk’s religious
objections.
Moreover, there is no federal law
that prohibits discrimination by private
companies based on sexual orientation
or gender identity in employment, public
accommodations, or housing, and many
states still lack such anti-discrimination
protections. Discrimination against
LGBT persons in housing, employment, and public accommodations
also has been justified under “religious
freedom”—or simply out of prejudice
against LGBT persons. In states without
anti-discrimination protections, a gay
or lesbian employee can marry his or
her partner but be fired if the employer
learns of the marriage or of the employee’s sexual orientation or gender identity.
Thus, the struggle for full equality for the
LGBT community is far from over. 
Arlene Zarembka ([email protected])
is a solo lawyer in St. Louis, Missouri, whose
practice concentrations are estate planning,
elder law, probate, and co-parent adoptions.
A large percentage of her clientele is from
the LGBT community. The author and her
spouse were one of the ten plaintiff couples
that successfully challenged Missouri’s ban on
recognition of same-sex marriages in Barrier, et
al. v. Vasterling, et al., #1416-cv03892 (Circuit
Court, Jackson County, Mo., Oct. 3, 2014),
which was filed by the American Civil Liberties
Union of Missouri.
37
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So You Want to Pack Up
the Kid and Go
A Guide to Post-Divorce Relocation
By Elise F. Buie and Alexis Young
38
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I
n this day and age, it is not uncommon for people to move to a different city, state, or even country for a
variety of reasons. Jobs, remarriage,
adventure, family ties, even climate
are some of the stated reasons people
choose to move. Generally, there are
no legal implications associated with
an adult’s decision to relocate. However, in the case of a relocating parent
post-divorce or separation, this parent
better think twice before loading the
U-Haul. Like Forrest Gump’s momma
always said, “Life is like a box of chocolates. You never know what you’re
gonna get.”
The issue of relocation comes up
when the custodial parent seeks to move
with the child. Relocation disputes are
particularly difficult for courts to resolve
for two primary reasons. First, courts
must balance the custodial parent’s
constitutional right to move with the
non-custodial parent’s right to regular
and consistent parenting. Second, oftentimes the relocating parent is relocating
to better his or her circumstances and
potentially that of the child. The court
can either disrupt the relationship of the
child with the non-custodial parent by
permitting the move or disrupt the relationship of the child with the custodial
parent by not permitting the move.
States vary in their approach to the relocation dispute: Some place the burden
of proof on the parent seeking relocation
to demonstrate that the move is in the
child’s best interests, and others place the
burden of proof on the parent opposing
relocation to demonstrate that the move
harms the child’s best interests. Some
states have a presumption preventing the
move and others have a presumption allowing it. Washington has a presumption
in favor of relocation.
iStockphoto
Washington Statutory Law
The relocation laws in my home state
of Washington only apply if there is an
existing court order—a parenting plan
between the two parents. Washington
has different rules for relocation depending on whether the proposed move is
out of the child’s current school district
versus relocation within the same school
district. In both scenarios the custodial
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parent must provide notice to the noncustodial parent of his or her intent to
relocate with the child.
If the relocation is out of the child’s
school district, the notification must be
given by personal service or any form or
mail requiring a return receipt and must
be made no less than 60 days before the
date of the intended relocation of the
child. Alternatively, notice may be made
within five days after the date that the
person learns the information required
to be included in the notification if the
person did not know and could not reasonably have known the information in
sufficient time to provide the 60 days’
notice and it is not reasonable to delay
the relocation. The custodial parent must
include a service address during the period for objection, a brief statement of
the reasons for the intended relocation,
and a notice to the non-custodial parent
that an objection must be filed with the
court and served on the custodial parent
or the relocation will be permitted. The
notice must contain a statement that the
relocation will be permitted unless the
non-custodial parent files and serves an
objection within 30 days. Additionally,
the notification shall also include several
other items such as the street address of
the intended residence, the name of the
child’s school in the new residence, the
date of the intended relocation, and a
proposed parenting plan for a revised
residential schedule. There are some
exceptions when the custodial parent
is entering a domestic violence shelter,
believes that his or her health or safety
or the health or safety of the child would
be put at risk, etc.
If the non-custodial parent files the
objection in a timely fashion, then the
judge/commissioner will schedule a
hearing to decide what is in the child’s
best interests.
If the intended relocation is within the
same school district in which the child
currently resides the majority of the
time, the custodial parent must provide
notice to the non-custodial parent by any
reasonable means. The non-custodial
parent may not object to the relocation
but may seek to modify the parenting
plan or custody decree. The failure to
provide notice is grounds for sanctions,
and a person entitled to file an objection
may do so whether or not the person has
received proper notice.
In Washington there is a rebuttable
presumption that the intended relocation of the child will be permitted. The
non-custodial parent may rebut the presumption by showing that the detrimental effect of the relocation outweighs the
benefit of the change to the child and the
custodial parent based on the following
(non-weighted) factors (in no order of
priority):
1. The relative strength, nature, quality, extent of involvement, and
stability of the child’s relationship with each parent, siblings,
and other significant persons in
the child’s life;
2. Prior agreements of the parties;
3. Whether disrupting the contact
between the child and the person
with whom the child resides a majority of the time would be more
detrimental to the child than disrupting contact between the child
and the person objecting to the
relocation;
4. Whether either parent or a person
entitled to residential time with
the child is subject to limitations
under RCW 26.09.191;
5. The reasons of each person for
seeking or opposing the relocation
and the good faith of each of the
parties in requesting or opposing
the relocation;
6. The age, developmental stage, and
needs of the child and the likely
impact the relocation or its prevention will have on the child’s
physical, educational, and emotional development, taking into
consideration any special needs
of the child;
7. The quality of life, resources, and
opportunities available to the child
and to the relocating party in the
current and proposed geographic
locations;
8. The availability of alternative arrangements to foster and continue
the child’s relationship with and
access to the other parent;
9. The alternatives to relocation and
whether it is feasible and desirable
39
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for the other party to relocate also;
10. The financial impact and logistics
of the relocation or its prevention;
and
11. For a temporary order, the amount
of time before a final decision can
be made at trial.
The court cannot consider whether
the custodial parent will have to forgo
the move if the relocation is denied
or whether the non-custodial parent
will have to relocate if the child does.
However, if the court allows relocation
and must alter the parenting plan accordingly, then it can ask about these
considerations.
To block the move, the trial court
must consider each of the factors and
find by a preponderance of the evidence
that they indicate that relocation would
be more detrimental than beneficial, and
it must make specific findings on the record regarding each of the factors.
employable with her present
training.
„„ The relocation would remove the
child from an environment that he
was used to.
„„ Washington provided a better
quality of life than Texas.
„„ The non-relocating parent’s longdistance travel to see the child in
Texas was not a good scenario.
„„ The relocating parent had no
realistic plan to become selfsupporting in less than three years.
„„ The relocating parent’s financial
and educational opportunities in
Washington exceeded those in the
potential residence.
The appellate court found that the
trial court did not adequately consider
all the factors, specifically the following:
„„ The child’s relationship with parents, siblings, and other significant
persons: The trial court failed to
The court cannot
consider whether the
parent will have to
forego the move if the
relocation is denied.
How It Works in Real Life
(Case Analysis)
As an example of how the Washington
statute is applied, it makes sense to dissect a recent case regarding relocation in
Washington: In the Matter of Parenting
and Support of K.B.K., 176 Wn. App.
1021 (2013). In this case, the relocating
parent’s primary reason for relocation
from Washington to Texas was to be
near her mother, upon whom she was
financially dependent. The trial court
concluded that this reason did not justify
the relocation. The court further found
the following:
„„ Nursing programs were available
in Washington.
„„ T h e r e l o c a t i n g p a r e n t w a s
40
consider the child’s relationship
with his grandmother and sister.
„„ The good faith and reasons for
seeking/opposing relocation: The
trial court’s finding that the relocating parent merely “wants” to
reside with her mother was unsubstantiated, there was no evidence
of bad faith, and the findings were
based on the trial court’s opinion
as to the educational opportunities
in each state.
„„ The impact of relocation on the
child’s development: The trial
court’s finding that the child’s opportunity for educational development in the current state was equal
to or better than the potential state
was based on the trial court’s own
opinion.
„„ The quality of life in current and
proposed locations: The trial
court’s finding was based on a general comparison of the two states
and subjective opinions about the
quality of life in both.
„„ The alternatives to relocation and
whether it is feasible and desirable
for the other party to relocate also:
The trial court relied on its own
opinion about the differences between opportunities in Washington and Texas.
„„ The financial impact of relocation: The trial court considered
its own belief in concluding that
the relocating parent should stay
in Washington where she had no
job, housing, etc.
The matter was remanded to the trial
court for proper consideration.
So, what does this mean for your client? Well, in Washington it means that a
relocating custodial parent will be permitted to relocate the children unless the
non-custodial parent can present specific
evidence that overcomes that presumption by addressing each of the specific
factors that must be considered at the
trial level. The non-custodial parent cannot overcome the presumption simply
by showing general detriment. But, as
we practitioners know, judges who are
often parents with their own unique experiences interpret the case law based on
those experiences rather than simply the
evidence presented.
Your Box of Chocolates:
Choose wisely
It’s not all a matter of law and presumptions, it’s about children and relationships; relocation that actually serves the
child’s best interest is also about sacrifice,
selflessness, sharing, and doing what is
right for the child without regard to
what might be “fair” or “reasonable.”
Although the relocating parent might not
know what his or her box of chocolates
will offer, the relocating parent needs to
ask some very important questions before biting into that first piece:
1. How much time is actually spent
with the non-custodial parent?
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Sometimes children have increased
contact with the non-custodial
parent if that parent was not very
involved before the move because
now there are longer blocks of
time to spend together.
2. What is the quality of the custodial
parent’s support system in the new
environment? Very little research
has been done on healthy remarriages and the adjustment of children, but the improved support
system is likely a benefit to the
child.
3. Will the relocating parent enjoy
enough of a socioeconomic benefit
from the move that it will impact
the children positively?
4. Can both parents effectively parent alone?
5. Do the parents effectively communicate and cooperate?
6. What resources exist to handle
travel costs?
7. Are there conduct disorders or
behaviors in the non-custodial
parent that make the move a protective factor?
8. How old is the child? Generally
a child needs to be at least six to
eight years old to be able to maintain appropriate attachments.
Let’s say that, after consideration
of these factors, the U-Haul is rented
and the piece of chocolate is selected.
Here comes the bite. What is inside that
chocolate?
Imagine the following relocation: The
move is based on the custodial mother’s
desire to remarry, and the non-custodial
father agrees that relocation is in the
children’s best interest. The children are
allowed to visit their non-custodial father any time they wish with only seven
days’ notice to buy a ticket, and the noncustodial father can visit the new children’s home whenever asked; in the latter
circumstances, the non-custodial father
stays in their custodial mother’s new
home (she and her new husband either
go out of town or stay out of the house),
drives their car, and is able to experience life in the new locale alongside the
children in their new environment. The
non-custodial father attends their sporting events, meets their friends, schedules
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meetings with their teachers, helps them
learn to drive, and walks the family dog
that used to live with all of them. Imagine that the mother provides the noncustodial father tickets to local sporting
events so that he and the children can
enjoy the local sports scene together. The
children are all provided smartphones so
that they can call, text, e-mail, or video
call with their non-custodial father at
any time desired, and they are allowed
to spend any and all holidays with their
non-custodial father, any portion or all
the summer with their non-custodial father, and any and all vacation time with
their non-custodial father.
interest, not the relocating parent’s best
interest. The mother in our imaginary
scenario might not like coconut filling,
but if that is the chosen chocolate, she
had better figure out how to make the
best of it for the sake of the children.
Just like all things kid-related, this
stage will pass. All too often, it will
pass far faster than any parent envisioned. So, my best advice as a family
law practitioner, relocated custodial
mother, and avid chocolate lover: Before planning any move, consider not
only the legalities of relocation but also
the emotional and financial toll that it
will have on the parent choosing the
Consider not only the
legalities of relocation
but also the emotional
toll it will take.
Now imagine all this despite monthly
grounds for court action on child support, zero contribution to college costs
despite a signed agreement to the contrary, zero contribution to reimbursable
expenses, and consistently late and unpaid child support. These imaginary kids
have hit the jackpot—a relocating parent
who understands the importance of the
relationship with both parents despite
many obstacles. (Let’s not forget the
sainthood of the stepfather who agrees
to support the children’s best interests
alongside the custodial mother.)
The bottom line: The relocation in
our imagined scenario was to allow the
custodial mother to remarry, so all suffering must ideally be borne by that relocating mother—not the children and not
the non-custodial father. The idea that
there will be a benefit to the relocating
parent such that it will trickle down to
the children only exists if the relocating
parent truly understands the social science on relocation and its impact on children and thus is willing to do whatever it
takes—and I mean whatever—to make
the relocation serve the children’s best
relocation—and more importantly on
the children and the non-relocating parent. Relocation is as big a decision as the
divorce itself. Divorce and relocation
are adult decisions that have profound
impacts on the children involved. Thus,
the relocation consequences that flow
should be borne by the relocating parent
as much as possible, not borne by the
innocent children.
Don’t pack that U-Haul and don’t
bite into the chocolate unless you are
willing to act in your child’s best interest over and over and over again, even if
it never seems fair. I can assure you, divorce and relocation are not fair in your
child’s eyes. 
Elise F. Buie is the founder and principal of Elise
Buie Family Law Group, PLLC (elisebuiefamilylaw.
com). Her practice focuses on family law,
dependency, and guardian ad litem work. She
strives to help clients resolve disputes outside
of court action and also educate clients on
effective, respectful co-parenting skills. Alexis
Young ([email protected]) is an
associate at Elise Buie Family Law Group, where
she practices solely family law.
41
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
How to Divide Retirement
Assets in a Divorce
By Andrea Ciobanu and Chris Hirschfeld
42
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
R
etirement plans are often
among the largest marital assets subject to distribution
in a marital dissolution, and
the regulations surrounding
retirement plans can be intricate and
complex. In addressing the distribution
of retirement plans, professional expertise, reasonable discovery, and sufficient
education are strongly recommended for
a family practitioner or any lawyer addressing such issues. This article seeks to
provide a basic overview of retirement
asset distribution, including issue spotting, caveats, and perhaps a few landmines to avoid.
iStockphoto
Discovery: What Are
Retirement Benefits?
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Just about every state considers retirement benefits as marital property (or
“community property” if you live in
a community property state). Retirement benefits include military pensions, veteran’s educational benefits,
Employee Retirement Income Security Act (ERISA) funds, individual retirement arrangements (IRAs), Keogh
plans, employee stock ownership plans
(ESOPS), 401(k) and 403(k) plans, etc.
Social Security payments, compensation for military injuries, and workers’
compensation disability awards are
generally not considered community
property (see the sidebar on page 45 for
exceptions). A spouse may not be aware
of the other spouse’s complete assets or
retirement benefits eligible for distribution, so there is a minimum amount
of discovery that family law attorneys
should engage in to adequately protect
and advocate for their client’s rights, as
they pertain to the distribution of retirement benefits.
In preparing for a marital dissolution, the minimum discovery that you
will want to engage in will be to obtain
personal tax returns including all schedules and work sheets. This is a good
source of information for some basic
forensic analysis. Federal tax returns
will reveal if the family earned interest
or dividend income, thereby revealing
assets in the personal estate. It will also
reveal whether any business income
was earned.
Most states will divide the marital assets if the assets are vested. Some states
will also consider how long the parties
were married. Regardless of the length
of the marriage, retirement benefits
should be discussed and settled. Some
states will permit a coverture fraction,
meaning that portion of the value of the
benefits attributable to the marriage and
divided between the parties. This number can be ascertained by an appraiser
to separate the portion of the benefits
that was earned during the marriage
from the portion of the benefits that
was earned outside the period of marriage. Obviously, whether or not you
will seek a coverture fraction will depend on your respective state laws and
which party you are representing. In all
circumstances, however, the petition,
marital settlement agreement, and judgment should all provide either for the
spouse’s waiver of retirement benefits
or the division of any such benefits and
should have clearly defined terms for
the distribution amounts, dates of distribution, and manner of distribution;
this will help prevent future potential
problems between the parties.
As an example, consider Judith
(Lund) Pherson v. Michael Lund, 997
N.E.2d 367 (Ind. Ct. App. 2013). The
husband and wife divorced in 1991, and
the parties’ original dissolution decree
granted the wife 50 percent of the husband’s pension. The husband worked an
additional 18.5 years after the parties’
dissolution decree was entered. Upon
the husband’s retirement, the wife began
to receive payments from the pension
based on the 42 overall years the husband
worked for the railroad. Thereafter, the
husband petitioned the trial court to revisit the dissolution decree to establish
the correct amount to be paid to the wife
out of his pension. He believed that she
was entitled only to 50 percent of the
pension acquired during the parties’ marriage. The Indiana Court of Appeals affirmed the trial court’s decision in the
husband’s favor and provided that his
post-separation pension contributions
constituted after-acquired property
that was beyond the scope of the settlement agreement to divide between wife
and husband.
43
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may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Consider also Ryan v. Janovsky, 999
N.E.2d 895 (Ind. Ct. App. 2013). Here,
the parties’ original dissolution decree
was issued in 1991, and the property
settlement agreement awarded the wife
50 percent of the husband’s defined benefit pension. Her benefits were payable
at the time he received his benefits. In
2011 the wife’s attorney prepared a qualified domestic relations order (QDRO)
and presented it to the husband. He
refused to sign said QDRO. The trial
court ruled that the wife was no longer
entitled to any portion of the pension
because of the delay in presenting the
QDRO to the husband for his signature.
She appealed the trial court’s decision.
The Indiana Court of Appeals noted
the extended amount of time; however,
the dissolution decree entitled her to 50
percent of the husband’s pension. The
court expressed that because there was
no immediate payable judgment in 1991,
the 20-year period would begin running
at the time the pension participant went
into pay status.
5. analyze income potential for each
spouse for determining alimony,
maintenance, and/or child support; and
6. assist clients in preparing a budget.
If the dissolution involves a business,
you may want to consider a qualified
business appraiser, such as an accredited
senior appraiser (ASA), who can help
you appraise business assets, identify any
excess asset value on the company balance sheet, and identify enterprise versus
personal goodwill if that is an issue in a
given jurisdiction. You may also want
to consider a certified public accountant (CPA), who can provide additional
information regarding the financial position of a family-owned business and
provide additional tax planning ideas.
Document Checklist
Most financial experts can provide a
detailed list of documents and can also
assist your client in ascertaining detailed
asset lists. You will also want sufficient
bank statements with enough history to
The same asset
distribution may seem
less equitable in five
years than it does now.
Getting Experts
You will want to identify potential financial experts who can assist in the
preparation. For instance, you will want
to consider a certified financial planner
(CFP). A CFP can help you:
1. understand the risk/return profile
of financial assets;
2. determine the proper mix of liquid
versus illiquid assets for eventual
distribution;
3. understand the tax ramifications
of each asset class;
4. understand each spouse’s employee benefits, including health and
retirement plans;
44
document cash in and cash out from savings accounts, checking accounts, CDs,
and other bank-held assets and safety deposit boxes. In addition, you will want
to request the following:
1. corporate and personal federal tax
returns;
2. investment account statements,
including mutual funds and brokerage statements;
3. company benefit plans;
4. summary plan documents;
5. monthly or annual retirement account statements for employee/
spouse;
6. descriptions of health benefits;
7. Social Security benefit statements;
8. copies of pay stubs, including
withholdings; and
9. client-prepared budgets and balance sheets of personal assets and
liabilities.
Business appraisals will require a
completely separate document checklist. Commonly requested items include:
1. corporate financial statements;
2. corporate tax returns;
3. corporate documents; and
4. shareholders lists.
Analyzing the Personal Estate
As mentioned above, financial experts
can assist the family law attorney in ascertaining the assets of a personal estate,
just as in a dissolution. It is particularly
important to understand earning potential of each spouse going forward, as well
as the income potential of each asset class
considered in an asset distribution and
the tax ramifications of each asset as it
will be consumed.
Retirement assets specifically are
governed by ERISA law and require a
QDRO to ensure legal separation of the
asset from the employee participant to
his or her spouse. Tax planning is critical with regard to retirement plan assets.
Additionally, company plan documents
need to be reviewed thoroughly to understand any restrictions.
You should analyze not only the
“fairness” of an asset distribution proposal from a valuation standpoint but
also the impact on future income (aftertax) and future value based on a spouse’s
intent/need to consume such assets for
his or her lifestyle needs. How equitable
an asset distribution is may vary from
the date of distribution to three or five
years later, depending on the makeup of
the assets a spouse receives and his or her
need to live on those assets immediately.
A qualified business appraiser can
provide initial insight regarding the
potential value of a family-owned business. An attorney may decide to hire a
qualified appraiser as a consultant where
analysis is protected by attorney-client
privilege. If an appraiser is hired eventually to provide expert testimony, reports
and working papers will be discoverable. A business appraiser can provide
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insight into the difference between the
company’s overall value and the portion of value that would be considered
personal goodwill (a non-marital asset
in certain jurisdictions). The business
appraisal may identify liabilities to the
company that are in fact loans from one
of the spouses and would therefore be an
asset on the personal balance sheet of that
spouse. A business owner may represent
limited income when in fact the owner is
taking large distributions.
QDRO Issues
A QDRO is a legal judgment mandating
the distribution, segregation, or attachment of one person’s property for the
benefit of another. (Some states refer
to this as a DRO; for purposes of this
article, we will refer to this as a QDRO
because this is the more commonly used
name and the official name used by the
Internal Revenue Service.) Typically, the
spouse receiving the transfer pays his or
her attorney to draft the QDRO paperwork and also bears the costs of transfer,
if there are any; however, these issues,
like most issues, are negotiable. The
QDRO must be presented to the plan
administrator, who must confirm the
QDRO is a qualified or valid order. The
QDRO identifies the non-participant
spouse as an alternate payee. QDROs
apply to all qualified retirement plans.
QDROs may not require the plan to pay
benefits before the earliest retirement age
of a participant who is still active and has
not separated from service. The earliest
retirement age is the earlier of:
„„ the date on which the participant is entitled to a distribution, or
„„ the later of the date the participant attains age 50 or the
earliest date upon which the
participant could begin receiving benefits if the participant
terminated employment.
QDROs need to be properly drafted to ensure enforcement. Even in an
amicable dissolution, it is highly recommended that an attorney draft the
QDRO to be consistent with the employee participant’s plan document.
Some 401(k)-type plans charge QDRO
processing fees. They typically range
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Division of Disability
Retirement Benefits
Some states, such as Maryland, consider disability retirement benefits divisible, so be
sure to check your local state laws. Also, if your client is divorced but the marriage lasted
ten years or longer, your client can receive benefits on the ex-spouse’s record (even if the
ex-spouse has remarried) if:
„„ your client is currently unmarried;
„„ your client is age 62 or older;
„„ the ex-spouse is entitled to Social Security retirement or disability benefits; and
„„ the benefit your client is entitled to receive based on his or her own work is less
than the benefit your client would receive based on the ex-spouse’s work.
If your client remarries, he or she generally cannot collect benefits on the former
spouse’s record unless your client’s later marriage ends (whether by death, divorce, or
annulment). If the ex-spouse has not applied for retirement benefits but can qualify for
them, your client can receive benefits on the ex-spouse’s record if they have been divorced for at least two years. For more information on this, please see the official Social
Security website (ssa.gov/planners/retire/divspouse.html).
from $300 to $1,200. The plan will automatically deduct the fee from either
the client’s share or the former spouse’s
share of the account. Some states allow
companies to specialize solely in drafting
QDROs. Such companies may be worth
considering because this is an area that is
not only complicated but deals with a lot
of money—and is an area often fraught
with malpractice claims. If engaging such
a QDRO specialist is not an option in
your state, you should work closely with
experts and attend training in this area
to the fullest extent possible if you will
be drafting QDROs. Malpractice in this
area is often not discovered until many
years later.
Part or all of the retirement benefits
a party receives through a QDRO will
probably become taxable income. A
party may delay paying income taxes on
a lump-sum payment by rolling it over
into an IRA or another qualified plan
(such as his or her own 401(k) account).
If a party rolls the funds over directly, he
or she will not owe taxes until the funds
are withdrawn. As such, if the party can
wait on the money, this is the better alternative because the party will pay the least
amount of tax penalty. One important
exception includes benefits paid as child
support (instead of as marital property
or alimony/spousal support). These are
taxable to the employee and not the
former spouse. For more information on
taxes, see IRS Publication 575, Pension
and Annuity Income, and Publication
590, Individual Retirement Accounts,
at irs.gov.
Conclusion
As you can see, the division of retirement assets can be a complicated area
of the law. You should definitely engage in the requisite discovery to become fully informed of what marital
assets are on the table. If you develop
good form discovery outlines, it will be
much easier to request this information
in future dissolutions. You also need to
familiarize yourself with experts in the
field and utilize their expertise for such
issues. Ultimately, education is the key.
Attend as much training and receive as
much updated information as you can so
that you may properly educate yourself
and your clients. 
Andrea Ciobanu, MPA, JD (aciobanu@
ciobanulaw.com), is the managing attorney of
Ciobanu Law, PC, and frequently writes and
speaks in the area of family law. Chris Hirschfeld,
ASA, MBA ([email protected]), is
an accredited senior appraiser (ASA) with an
MBA from the University of Chicago School of
Business; he specializes in business appraisals,
specifically in litigation or marital dissolution
matters.
45
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’Til Debt Do Us
46
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Part
The Interplay Between
Bankruptcy and Divorce
By Laura S. Mann
iStockphoto
I
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n almost 20 years of practicing law in
a variety of settings and in a variety
of substantive areas, I have seen, all
too often, the bankruptcy issues that
arise in the divorce context. Having
practiced in both of these areas of the
law for much of that time, I have seen
many mistakes made when a client gets
matrimonial advice from a lawyer who
only does bankruptcy law or when a client gets bankruptcy advice from a lawyer
who only does matrimonial law. Commonly, such lawyers advise clients about
these cases without knowing the impact
of this advice in both contexts.
Issues also arise when no advice is
given outside the attorney’s usual area
of practice. For example, a spouse might
agree in a marital settlement to assume all
marital debt, including that in both parties’ names, with the plan of filing bankruptcy afterward, believing the debt will
be wiped out and there will be no adverse
consequences for the post-discharge nonpayment of that debt. As will be discussed
in more detail below, this is not necessarily the case and could have grave consequences for the divorced debtor.
Further complicating matters is the
question of what laws govern. Whereas
state laws govern matrimonial law almost
exclusively, bankruptcy is governed by
federal law, although it incorporates significant aspects of state laws. Knowledge
of both is critical.
This article will provide an overview
of how bankruptcy law and divorce law
can interact. Given the limits of this article, however, this overview can only
scratch the surface of the issues involved.
If your client’s case will likely involve
both areas of the law but you practice
only in one or the other, I strongly advise you to collaborate with an attorney
in the complementary field. (For more
on such collaborations, see the sidebar
on page 49.)
Bankruptcy While Married
It is a common misconception that if one
spouse files for bankruptcy, so must the
other. This is not correct. One spouse
is permitted to file without the other,
although in most cases both spouses’
incomes are counted toward eligibility
if the person seeking to file is pursuing
a Chapter 7 that requires passing an income “test” to qualify.
Another common misconception is
that if one spouse files for bankruptcy,
the other spouse’s credit will be adversely
impacted by that filing. It is not the filing
of the bankruptcy or the discharge of
debts that adversely affects a non-filing
spouse’s credit. It is the nonpayment of
joint debts and obligations that could
do so.
If all debts in the non-filing spouse’s
name are paid timely, that spouse’s credit
should not be adversely impacted. Be
aware, though, that clients often confuse,
misunderstand, or frankly just do not
know whose names are on what account,
including mortgages, car loans, etc. Before you advise your client, verify the
account status by pulling a credit report
and contacting the creditor. This information may alter your advice to that client and the ultimate decision the client
makes about whether or not to file bankruptcy. If the spouses are contemplating
divorce, it definitely should impact the
terms of any settlement agreement the
parties reach.
47
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Bankruptcy Basics
The usual types of bankruptcy most people consider when they think about filing for
relief are Chapter 7 and Chapter 13. The Chapter 7 commonly is referred to as the “liquidation bankruptcy,” while the Chapter 13 commonly is referred to as the “repayment
bankruptcy.”
In most cases, a Chapter 7 discharges (wipes out, erases, eliminates any legal obligation to repay) all dischargeable debt. All debt is not dischargeable. The common types of
debts that are not dischargeable are some taxes, criminal fines, debt incurred by fraud,
and, of the most significance to this article, domestic support obligations.
A Chapter 13 usually requires a repayment of some or all of the filing party’s debt over
a period of three to five years, then discharges the remainder. This article mostly focuses
on issues that arise in a Chapter 7 bankruptcy, as this is the most common I see in my
practice.
Bankruptcy During Divorce
It is routinely understood that one of the
most common causes of divorce is financial difficulties. With the economy being
what it has been the past five or so years,
these issues and the interplay between
them have arisen far more often in my
practice than I had seen before. Clients
often ask me whether they should file
for bankruptcy first or divorce first or
whether they can pursue both simultaneously. Of course, almost always the
answer is “it depends.” On what does
it depend?
A detailed discussion of all the factors
that play into this decision would make
this article far too long and take away
from its primary focus. Thus, I will touch
on them briefly to enable essential issue
spotting so you know when to research
further or seek specialized assistance
from a colleague.
One of the first inquiries: Why a divorce (or bankruptcy), and why now?
My bankruptcy consultations typically
have three main components. The initial
inquiry is whether the prospective client
can file for bankruptcy (or for a particular type of bankruptcy). Other attorneys
may end the inquiry there, believing that
if the prospective client wishes to file and
can file, it is his or her role or obligation
to do so on the client’s behalf. This is not
where the inquiry ends for me.
The next question I explore in a
bankruptcy consultation is whether or
not a prospective client should file. Just
because someone can file for bankruptcy,
does not necessarily mean he should. For
example, I have had people come to me
48
seeking to file over relatively minimal
debt, say $5,000. In my opinion and in
most cases, there typically are better options to address the relatively minimal
debt than bankruptcy.
Another common example is people
who come to me seeking to file bankruptcy who are uncollectible or “judgmentproof.” They do not own any assets that
could be levied or have any income that
could be garnished. Some insist on filing
anyway (it’s their choice after all, which
they are entitled to make after having
all the pertinent information), but after
hearing this advice, many decide it is not
necessary and thus do not file.
If the answer to both of the above
questions is “yes,” the next line of inquiry I make when assessing bankruptcies for my clients is when they should
file. Timing can affect significantly the
client’s rights regarding debt and the benefits and drawbacks realized from filing
for bankruptcy at a given time. This is no
less true when the clients are married and
also contemplating divorce.
Bankruptcy first? There are many
benefits to a married couple who are
contemplating both divorce and bankruptcy to file a joint bankruptcy prior
to filing for divorce. Of course, this option should only be considered when it
is appropriate to wait for a divorce filing.
First, a couple who files jointly saves
money. Filing for bankruptcy is a lot of
work. Filing two bankruptcies can be
almost double the work. Thus, if the
bankruptcy is filed prior to the divorce,
the spouses can file one bankruptcy petition instead of two. They pay one court
filing fee. They pay one legal fee. If they
were forced to file separately by waiting until after the divorce was over, this
would double the cost and the amount
of work required, as they each would
have to provide the mass volume of information and documents to the court
(or to their lawyers). Even if the legal
fee when filing jointly is higher than for
a single filer (this depends, of course, on
each individual attorney’s fee structure),
typically the total fee would be less than
if each spouse filed separately. Getting
a discharge of debts prior to filing for
divorce also simplifies and cleans up the
divorce issues, making the divorce less
time consuming and, thus, less costly.
Second, a couple who files jointly
prior to divorce saves stress and unnecessary time and worry addressing
the issues of the parties’ marital debt in
the divorce. If the debts are erased via a
bankruptcy, these issues do not need to
be addressed in the divorce. The parties
both will be in a much better position
to rebuild financially after the divorce if
they walk away debt-free.
Finally, the exemptions to which a
debtor is entitled under the Bankruptcy
Code apply to each debtor. Thus, if a
married couple files jointly, their exemptions are doubled. This could enable the
protection of certain assets, usually the
marital residence, that otherwise would
not be protected if only one spouse filed.
One potential drawback of filing a
joint bankruptcy prior to divorce is that
the attorney may run into a situation
where a conflict of interest arises, leading
to complications and additional costs for
the parties. Proceed with caution.
Another drawback is that filing jointly might render the couple unqualified
financially to file under Chapter 7 given
both incomes or only one set of household expenses, whereas one or even both
of them would qualify financially if they
waited until after the divorce and had
separate households.
Divorce first? As mentioned above,
there are many advantages to filing bankruptcy prior to divorce. But what if the
divorce cannot wait? What if one spouse
needs financial support from the other,
and the only way to get it is by obtaining
a court order in a divorce filing? What
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if one spouse needs a custody order that
cannot wait until a bankruptcy is completed? What if one spouse’s income is
too high, disqualifying the other from
filing? If any of these fact patterns fits
your client’s scenario, it may be necessary or prudent to file for divorce first
and consider bankruptcy later.
Simultaneous filings of divorce and
bankruptcy? In my experience, this
would be highly unusual and typically
not recommended, although I can envision a few scenarios where it may be the
best course of action. For example, imagine that the divorce cannot wait as one
spouse has physical custody of the children, the other spouse is failing to pay
support, and the parent with physical
custody needs a court order of support to
provide for the family. At the same time,
the parent with physical custody is facing
a bank levy, wage garnishment, foreclosure, or eviction and needs the benefits
of the bankruptcy to delay, or perhaps
resolve, the potential loss of income or
home for himself and his children.
In these scenarios, it may provide the
most benefit to the client to seek both a
divorce to put in place temporary orders
of support or custody, as well as a bankruptcy to delay or stop a wage garnishment, bank account levy, foreclosure,
eviction, etc., until these issues can be
resolved one way or the other.
Bankruptcy after Divorce
What is dischargeable? 11 USC §727(a)
provides that “(a) The court shall grant
the debtor a discharge, unless . . .” then
lists 11 exceptions to discharge. The pertinent exceptions are discussed in more
detail below.
11 USC §727(b) of this section provides that “Except as provided in section
523 of this title, a discharge under subsection (a) of this section discharges the
debtor from all debts that arose before
the date of the order for relief under this
chapter. . . .” The “order for relief” occurs immediately upon the filing of the
bankruptcy petition in most cases.
Thus, all debts except those specifically listed in the statute are discharged.
In the matrimonial and post-matrimonial
context, some of the debts and obligations are eligible for discharge, while
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Collaborating with Bankruptcy
or Marital Lawyers
If you are an attorney who practices primarily, if not exclusively, in either bankruptcy or
marital law, I strongly encourage you to consult with one or more attorneys who focus on
the other area of the law when issues like those mentioned in this article arise. Such collaboration can ensure, as much as possible, that the advice you provide does not create
unforeseen disasters for your client—and then ultimately for you.
Thus, if you do matrimonial law only and you are handling a divorce where the parties
have significant debt and may be contemplating bankruptcy, you should consult with a
bankruptcy lawyer regarding the timing of the divorce versus bankruptcy, what terms are
important to negotiate in any divorce settlement agreement, and how best to protect
your client when negotiating those terms.
Conversely, if you primarily are a bankruptcy lawyer representing a couple or a married individual and there may be a divorce looming, you should consult with a matrimonial
lawyer in your jurisdiction. This will enable you to assess the impact of the timing of your
client’s bankruptcy filing on the financial aspects of the potential divorce.
others are not. Generally speaking, debts
and obligations that are not “in the nature of support” including those that
are for the settlement or distribution of
marital property are dischargeable. This
includes the division or buyout of equity in a marital residence, the division
of marital bank accounts, etc.
What is not dischargeable? 11 USC
§523(a)(5) provides that “A discharge
under Section 727, 1141, 1228(a),
1228(b), or 1328(b) of this title does not
discharge an individual debtor from any
debt . . . for a domestic support obligation. . . .” 11 USC §101(14A) defines
“domestic support obligation” as:
a debt that accrues before, on, or
after the date of the order for relief
in a case under this title, including
interest that accrues on that debt
as provided under applicable nonbankruptcy law notwithstanding
any other provision of this title,
that is (A) owed to or recoverable
by - (i) a spouse, former spouse,
or child of the debtor or such
child’s parent, legal guardian, or
responsible relative; or (ii) a governmental unit; (B) in the nature of
alimony, maintenance, or support
(including assistance provided
by a governmental unit) of such
spouse, former spouse, or child of
the debtor or such child’s parent,
without regard to whether such
debt is expressly so designated;
(C) established or subject to establishment before, on, or after
the date of the order for relief in
a case under this title, by reason
of applicable provisions of - (i)
a separation agreement, divorce
decree, or property settlement
agreement; (ii) an order of a court
of record; or (iii) a determination
made in accordance with applicable nonbankruptcy law by a
governmental unit; and (D) not
assigned to a nongovernmental
entity, unless that obligation is assigned voluntarily by the spouse,
former spouse, child of the debtor,
or such child’s parent, legal guardian, or responsible relative for the
purpose of collecting the debt.
In other words, domestic support
obligations in the nature of support are
not dischargeable. This applies regardless of how the agreement or court order
designates the obligation. The courts will
look at what the obligation actually is
for to determine whether or not it is
dischargeable. They are not bound by
how the agreement or underlying order
characterized it.
For example, if a state court orders
one spouse to pay the other’s attorney
fees or mortgage payments, if the bankruptcy court determines that award is
“in the nature of support,” the obligation
49
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will not be discharged. Conversely,
even if the state court order or divorce
agreement characterizes an obligation
as “support,” if the bankruptcy court
determines it really is not “in the nature
of support,” the obligation will be discharged. Whether an obligation is “in the
nature of support” is interpreted broadly
by some courts to prevent the discharge
of those obligations when inappropriate.
by another person.
The automatic stay does not affect
most proceedings relating to the divorce
or parenting. This includes the establishment, modification, or enforcement of
actions relating to current child support
and spousal support, the collection of
child support or spousal support arrears
from property that is not in the bankruptcy estate (typically future income),
Are enforcement
proceedings subject
to bankruptcy’s
automatic stay?
Thus, in most instances, child support or spousal support will not be discharged. This includes both arrears and
future obligations. Obligations relating to the distribution of marital assets
typically will be discharged. Attorney
fees ordered to be paid by one spouse to
another may or may not be discharged,
depending on whether or not the bankruptcy court determines the obligation is
“in the nature of support.” This is a very
fact-specific and case-specific inquiry.
If the right to collect an alimony obligation has been assigned to another, the
alimony obligation can be discharged in
bankruptcy.
Establishment, modification, and
enforcement proceedings? Are establishment, modification, or enforcement
proceedings subject to bankruptcy’s
automatic stay (11 USC §362)? The
answer to this question again is the clichéd attorney response: “It depends.”
On what does it depend? If the establishment, modification, or enforcement
proceedings do not relate to or affect any
part of the “bankruptcy estate,” then the
proceeding is permitted. 11 USC § 541
defines “property of the estate” as all
legal or equitable interests of the debtor
in property as of the commencement
of the bankruptcy case. This includes
all property in which the debtor has
an interest, even if it is owned or held
50
the establishment of custody and parenting time, the establishment of paternity,
the modification of child support or
spousal support, the seeking of protection from domestic violation for a spouse
or child, the withholding of income to
collect child support, the reporting of
overdue support to credit bureaus, the
interception of tax refunds to collect
child support arrears, or the suspension
or restriction of drivers’ or professional
licenses to collect child support arrears.
Post-filing income of the debtor is not
part of the bankruptcy estate. Thus, an
enforcement action for the nonpayment
of support seeking to garnish from the
debtor’s post-filing wages is not prohibited by the automatic stay. Thus, it may
proceed.
Criminal contempt actions are not
governed by the automatic stay and may
proceed. Courts are split as to whether or
not civil contempt actions are allowed.
Some courts have held that the automatic
stay prohibits all civil contempt actions.
The majority of courts, however, have
held that civil contempt actions that seek
to uphold the dignity of the court order
and punish the contemnor for violating
said order are not governed by the automatic stay and may proceed.
When the modification or enforcement action impacts any part of the
“bankruptcy estate” or the enforcement
of an obligation that would be discharged, then the automatic stay does
prohibit enforcement actions. A violation of the stay subjects the movant to
possible monetary sanctions and attorney fees.
To determine whether the order is
intended to coerce obedience or to effectuate collection of a judgment, courts
examine the totality of the circumstances. If it is unclear, the safest course of action is to file a motion in the bankruptcy
court seeking relief from the automatic
stay. This is a request to the bankruptcy
court seeking the court’s permission to
be allowed to proceed against the debtor
in state court for the relevant enforcement action.
Violations of the automatic stay? A
debtor who alleges any action in state
court is a violation of the automatic stay
can challenge that action in state court
or can bring an action in bankruptcy
court under 11 USC §362(k). This section permits the debtor to seek relief for
violations of the stay, including actual
damages, attorney fees, costs, and, when
appropriate, punitive damages for willful
and knowing violations of the automatic
stay that damaged the debtor. Further,
the debtor can pursue such relief in
bankruptcy court not only against the
ex-spouse but also against the attorney
who allegedly violated to stay.
Conclusion
The interplay between matrimonial law
and bankruptcy law is a complex quagmire that must be navigated carefully.
Not only is it important to determine
whether or not a client should proceed
with relief, but an even more important question can be when to proceed.
Although bankruptcy can prevent the
matrimonial lawyer from seeking certain relief on behalf of a client, it does
not prevent all or even most relief from
being sought. When questions arise, do
not hesitate to consult with a knowledgeable lawyer in your jurisdiction experienced in the issues that relate to your
particular case. 
Laura S. Mann, Esq. ([email protected]), is
the principal of the Law Offices of Laura S. Mann,
LLC, Riverdale, New Jersey.
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A m e r i c a n B a r A s s o c i at i o n
Lawyer Interrupted
By Amy Impellizzeri
This book covers both the practical and ethical considerations
for lawyers taking a break in service for a variety of (voluntary
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absence, taking care of family, changing careers, disciplinary
actions, and retirement. The book focuses on the importance
of pre-planning, addresses the considerations unique to each reason for a
break, and shares stories and advice from a broad population of lawyers who
have taken a break from service for each of these reasons.
As former law partner-turned-law professor/author, Liz Brown, said in her
Foreword to Lawyer Interrupted: “What Lawyer Interrupted does, more than
any other book to date, is collect the best advice for all stages and types of
career questioning that lawyers may have and to present it in an immensely
enjoyable and highly readable way.”
2015 • 6 x 9
152 Pages • Paperback
Product Code: 5150483
Regular Price: $69.95
GPSolo Members: $52.46
This is an innovative, practical, and substantive book for lawyers of any age
and practice area. It covers all aspects of leaving the practice, including
everything from family leave and retirement to second careers and disciplinary
action. It then examines the practical considerations and ethical issues in
returning to law. The author also provides extensive resources to enable
readers to explore relevant situations in more detail.
To order, call the ABA Service Center at (800) 285-2221
or visit our website at www.ShopABA.org.
Publication Orders, P.O. Box 10892, Chicago, IL 60610
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52
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may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Administrative and Judicial
Processes in Child Support Cases
What’s the Difference?
By Dan Pingelton
T
he dual system of family
courts in the judicial branch
and administrative hearing
agencies in the executive
branch is found in almost half
of the states. An additional 13 states that
do not use administrative process nonetheless employ non-judicial hearing officers to adjudicate child support matters.
Judicial branch family court begins
with a docket call. Executive branch administrative hearings often begin with
a phone call. The domestic docket is
reached in the courthouse after a brisk
walk (or a cab ride) ending at the security checkpoint. Administrative hearings
often allow counsel to sit at her desk on
a rainy Monday morning, sipping an
espresso while cross-examining over
the telephone. The rules of evidence are
relaxed, along with the dress code.
“But I know my judges! These socalled hearing officers are just hired guns!”
No, they’re not. And like them or not, in
those states featuring both judicial and administrative process in family law cases, an
effective lawyer will understand the interplay and choices involved in both systems.
iStockphoto
The Need for Speed
Because every state has chosen to receive
federal money for child welfare programs
such as TANF (Temporary Assistance for
Needy Families), every state is required to
expedite child support cases. A state can
hurry things up through its existing court
system, or it can adopt an administrative
process to speed along child support determinations. The nation’s child support
program is driven by the IV-D agencies.
The term “IV-D” refers to Title IV-D
of the Social Security Act, administered
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by the U.S. Department of Health and
Human Services, Office of Child Support Enforcement (OCSE). Each state is
required to have a separate organizational
unit to administer the IV-D program, and
these units often staff and train administrative hearing officers.
Child support orders are generally
addressed in three circumstances: establishment, enforcement, and modification. The choice (if there is one) between
using a court or an administrative agency
often depends on which circumstance
confronts counsel.
Establishment
The classic child support establishment
case is, of course, a divorce. The dissolution decree contains a child support
order, and the newly divorced couple
goes on their way to co-parent a healthy
child. One hopes. Of course, it doesn’t
work out like this often enough. Furthermore, half of all new mothers under
30 are unmarried. The IV-D program
pushed states to establish support orders independent of whether a divorce
was filed or whether the parents were
married. So while divorce percentages
may level off, establishment orders will
increase in the years ahead.
Involved parent. Counsel representing an involved parent will prefer
a judicial action for either a divorce
or a parentage proceeding. Everyone
will benefit from a detailed parenting
plan—and this is something that most
administrative agencies are incapable of
dealing with. Therefore, if an involved
parent is served with administrative
process, counsel should file in court and
seek to transfer all proceedings there. A
well-functioning IV-D agency will resist
delaying the establishment of a support
order while a companion court case drags
on, so counsel may want to proactively
initiate a temporary custody and support
proceeding in court. Many courts will
stay companion IV-D agency proceedings provided a support order is in place.
Notably, some locales have benefitted from IV-D agencies partnering with
various entities (colleges and universities,
not-for-profit groups, bar associations)
to provide counseling and mediation services that encourage parents to agree on
a parenting schedule commensurate with
a new support order. Judges and hearing
officers alike can stress the merits of a
mediated schedule to the parties before
them. A key factor to initial success is establishing both the support order and the
schedule in the same proceeding. Unfortunately, these programs are far too few.
Uninvolved obligor. When a client
shows up at your office bearing either
a summons from the courthouse or
an administrative notice, the choice of
forum will have initially been made for
you. Still, if the client is uninterested in
having a relationship with the child, the
administrative proceeding is preferred. It
is quicker, cheaper, and hearing officers
are accustomed to people not desiring
to take an active role in their child’s life.
Some judges, on the other hand, may not
look kindly upon these obligors.
Enforcement
Administrative agencies are particularly
adept at adjudicating enforcement cases.
This is especially true because centralized collection records are required in
every state. Equitable defenses for the
53
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may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
non-payment of child support have dried
up in many states. The vast majority of
administrative enforcement actions are
quick affairs, with confirmation of a
certain arrearage triggering various remedies such as a lien, tax refund intercept,
or wage withholding. Private counsel do
not participate in most of these hearings.
Obligor. Counsel representing the
obligor will want to confirm that the
payment records are correct. They usually are, but with cases involving older
children and a long history, some states
generate errors during data conversion
processes. It is a rare occurrence, but
the records are not always correct (even
though many state statutes create a presumption that they are).
the courtroom is, of course, preferable.
Yet private counsel will often recognize
that the remedy of contempt seldom visits the obligor of means (although it can
be a lot of fun when it does). It is often
preferable to let the IV-D agency do its
enforcement work in its forum of choice
and quietly participate in an administrative hearing to see what if anything the
obligor has to reveal. Administrative determinations of debt eventually become
enforceable through classic judicial remedies familiar to private counsel, such as
garnishments and levy and execution.
Quite a bit of information can be gleaned
at ease during an administrative proceeding. At the end of it all, counsel may use
it as she pleases.
Try to keep “deadbeat”
parents out of court—
negotiate a payment
plan if possible.
With enforcement cases, obligors may
be further categorized as follows:
Deadbeats. Keep these guys out of
court. Try to negotiate a payment plan.
IV-D agencies exist because of deadbeats,
and they are accustomed to working large
amounts of case files by negotiating repayment. Have your client pay something
quickly, lest he or she trigger more serious
efforts, such as a criminal non-support case.
Good-faith debtors. Some have fallen
on hard times. Others have legitimate defenses, such as abatement claims during
periods of unplanned custody transfers.
These folks may fare better in court, depending on your judge. Although many
believe an abatement claim is better suited for a judge, some administrative hearing officers are well equipped to handle
this issue. Because enforcement efforts
frequently damage a debtor’s financial
capacity, the often-less-expensive administrative hearing may be advisable here.
Obligee. If a contempt action will lie,
54
Modification
In some states, the IV-D agency will use
administrative process to modify a court
order. So as not to offend the separation of
powers, this is usually done with the original court passing on the merits of the proposed modification once it comes out of
the end of the administrative pipeline. The
notion was originally offensive to some
lawyers accustomed to having none but
their own judge modify their own court
order. Years into the process, however,
things have calmed down. Judges have
been relieved of the significant burden
of periodically reviewing support orders
(mandated by the feds). The IV-D agency
now does that and initiates modification
for cases that qualify, using either the
administrative process or the expedited
judicial process. In the end, if a particular
case demands a particular court touch a
particular child support order without
the permanent taint of the administrative process, every state’s constitutional
scheme allows that. The rest of the tainted
modifications seem to fare as well, also.
Initiating party. Counsel representing a party who desires a modification
will usually want to file in court. Counsel
is better able to control the process. The
court will be able to address nuances with
which the agency may not be as adept. This
is especially true with issues involving custody and specialized types of support—
college students or disabled children.
A party of limited means who would
otherwise qualify for pro bono judicial
modification services can be referred to the
IV-D agency for a modification, thus freeing up counsel for another pro bono case.
Defending party. Perhaps the most
naturally antagonistic posture is defending the parent who fought for a fair support order from the judge only to have
it challenged a few years later in some
strange administrative action by some
hearing officer fresh out of law school.
In truth, this is rarely the case, but the
potential for problems welcomes criticism of what are called “admin mods.”
Potential problems with admin mods
include these:
Parenting time. Child support is increasingly tied to parenting schedules. In
many states, obligors can obtain financial credit for significant time spent with
a child. Dealing with existing parenting
schedules should not pose a problem for
administrative agencies unless there is
proof that a parent is not exercising the
anticipated time. In that event, a hearing officer may tread into problematic
custody matters best suited for a judge.
Even more troublesome are informal arrangements between the parents that have
existed for a time prior to a modification.
Should the hearing officer consider the
arrangement without a formal parenting
schedule when setting support? What factors should the hearing officer consider,
such as the history and specificity of the
agreement? If an informal agreement
envisions significant parenting time but
lacks other features statutorily required of
a parenting plan, how should an administrative hearing officer treat it? If significant parenting time issues are intertwined
with a support obligation, counsel should
try to have the matter heard in court unless the administrative hearing process in
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counsel’s jurisdiction is particularly adept
at dealing with these issues. Without an
allied enterprise, such as formal mediation, this poses a tall challenge.
Imputation. Where imputation of income is appropriate, counsel will need to
be especially cautious, as some hearing officers are not well-trained in the process.
Cases with high-income, self-employed
parties generating copious financial documentary evidence can present a problem
for some hearing officers.
Domestic violence. This can always
derail an administrative process because
IV-D personnel may simply back away
when a “DV” label appears in a case.
Courts are better equipped to deal with
these types of cases, including related
orders of protection, either separately
or within the support order itself.
Previous rebuttals. If a court’s prior
support order was based on a rebuttal
of a presumed support amount, counsel
will need to ensure that the agency understands and respects that rebuttal when
addressing a subsequent modification.
(Many statutes and rules specifically address this concern.) The issue arises most
often when the parties negotiated a combined financial package in resolving the
original case—maintenance, support, debt
allocation, property division. Is the modification an attempt to take advantage of a
uniquely tailored financial package? Or is
the modification a legitimate request to fix
an inappropriate support amount based
on uniquely changed circumstances since
that original deal was struck? A court is
usually best suited to this task.
Procedural Notes for
Administrative Process
Below are several features to bear in
mind when navigating the administrative process:
APA form. Agencies follow state
statutes similar to the Administrative
Procedure Act.
Notice. Many administrative hearings
commence with service by certified mail.
Do not mistake the deadline dates as flexible. Many agencies will forgive a missed
deadline. Many are not required to, and
some will not. Missed deadlines can often
be remedied in a subsequent court proceeding, but not without embarrassment,
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expense, and more work. And, in a very
few unfortunate incidents, a missed administrative deadline can be as damaging
as a missed pleading deadline.
Exhaustion. Most states require parties to exhaust applicable administrative
remedies before seeking relief in court.
This requirement cannot be met simply
by requesting an administrative hearing
and then not showing up. A party must
actively participate and advocate. (In cases
where an agency has initiated a modification of a judicial order, the review process
is often different from a classical APAstyle judicial review. This is grounded in
consideration of the separation of powers.)
quota beyond finishing cases in a timely
fashion. They are not hired guns for the
IV-D agency or a party. They are trying
to apply the law to the case before them
to reach a legally correct result. Like
judges, most of them truly care about
the quality of their work product.
Private contractors. In some locations, counsel may learn that a hearing
officer is employed by a private company
under contract with the state IV-D agency.
Many longtime IV-D attorneys view these
contracts for quasi-judicial hearing officers as inherently suspect. The individual
hearing officers may be fine folks drawn
from the ranks of previous government
Courts are better
equipped to deal
with cases involving
domestic violence.
Hearing packets. Many agencies will
mail documents for the hearing weeks in
advance. This makes for easy discovery,
sometimes without even asking for it.
Evidence. Administrative agencies
use “relaxed” rules of evidence. But
they relax rules without real risk of harm,
such as the unfettered use of copies. Most
hearing officers will disallow egregious
hearsay, but may allow less onerous
hearsay. Many hearing officers will allow
documentary evidence to be submitted
following a hearing. If in doubt, ask.
Most administrative decisions are based
on “competent and substantial evidence
upon the whole record.”
Findings and conclusions. Almost
all administrative agencies will render
findings of fact and conclusions of law
whether requested or not. You thus have
a template should you need to appeal an
erroneous decision.
Courtesy. Afford hearing officers
the same courtesy as you do judges.
Like most judges, most hearing officers
deserve it. They are not trying to make a
employees. But they now answer to a forprofit company. Privatization has been
highly successful in a number of endeavors throughout the IV-D program, but
its place in the hearing process is suspect.
Counsel may wish to register an objection on the record if he or she finds an
employee of a multi-national corporation
is adjudicating the case. Judges are certain
to share this dim view of privatized hearing officers as well.
Conclusion
Chinese philosopher Lao Tzu said, “Expediency is the mere shadow of right and
truth; it is the beginning of disorder.”
Thoughtfully managing a case through
the judicial/administrative systems will
help your client avoid disorder long
enough, hopefully, that “right and truth”
will come out of the shadows. 
Dan Pingelton ([email protected]) is the
principal of the Pingelton Law Firm in Columbia,
Missouri, where he focuses on family law, civil
litigation, and special education law.
55
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Hazards of an Online
How to Use Social Media Safely
By Julie Tolek and Justin L. Kelsey
56
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Life
W
e don’t have flying cars or jetpacks yet, but the Internet has
more than delivered on the promise of a more accessible future. The ever-emerging stream of new technologies that connect people and communities also puts them at greater risk.
In the attorney’s role as counselor, we need to help clients
understand these risks—and make sure we avoid them ourselves. In fact it is
our duty to keep abreast of the “benefits and risks associated with relevant
technology,” according to Comment 8 to Rule 1.1 of the ABA Model Rules
of Professional Conduct.
Because we’re not IT professionals, it is not the standard for attorneys to
know about all the emerging technologies out there, but there is a basic requisite
amount of education and training we should be seeking to ensure we serve our
clients well (and comply with Rule 1.1). Social media is one of these emerging
technologies that many people would like to ignore, but attorneys simply cannot keep their collective head in the sand about the far-reaching possibilities
and risks that social media present. To market yourself effectively within the
rules, and to protect your clients, it’s time to recognize that the revolution is
here. And it’s not being televised, it’s being tweeted.
Social Media: What Is It and What Are the Pitfalls?
Most definitions of social media have the following three components: (1) a
virtual, Internet-based community, with (2) widely accessible tools, and (3)
access to publish and view information publicly in many different formats.
Each will be considered below, along with cautions for lawyers and their clients.
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Virtual, Internet-Based Community
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Social media interaction takes place online but is not separate from IRL (“in
real life”). Access to social media is at our fingertips, anytime, anywhere. According to the Pew Research Center, 64 percent of American adults own a
smartphone, and for about 89 percent of folks, this is the only way they have
access to the Internet (tinyurl.com/lzzsc9z). Approximately three-quarters of
these people use their smartphone for social networking.
The recent book So You’ve Been Publicly Shamed by Jon Ronson (Riverhead, 2015) explores the many ways that individuals have made mistakes
online that have led to public shamings, both on- and off-line, including the
loss of their jobs, public harassment, and even death threats. Clients need to be
advised that there is not just a possibility of spillover from the Internet to IRL,
they should absolutely expect that anything they post online will be found by
opposing counsel and turn up in a cross-examination.
In addition, the courts are not afraid to extend online communication to
their IRL equivalents. In one Florida case (tinyurl.com/267vxeu), a man was
arrested for logging on to his Facebook account and sending a “friend” request to his estranged wife. She had a restraining order protecting her from
him and, not surprisingly, his friend request was considered a violation of the
restraining order.
Caution for clients. It is imperative to address with a client the potential
consequences of friending online and of posting emotions, facts, rants, and other
information on social media sites, where this information could be damaging
to the client’s case. One firm, Finn & Eaton, P.C., in Saugus, Massachusetts,
advertises that it performs a social media review for clients as part of the intake
process. This is an excellent idea as most clients probably will not automatically
57
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start filtering themselves on social media.
Having a conversation with clients
about social media as soon as possible
can help them see the consequences of
posts online and hopefully stop them
from posting detrimental information
online. It’s important to remember that
clients are human and may or may not
take seriously the impact social media
can have on a case.
Caution for lawyers. For lawyers a
safe rule is: Don’t post anything online
you wouldn’t be willing to say in front
of a client or a judge. Lawyers should
be aware that online advertising has all
the same risks and rules as other media
advertising. While many bars are still
catching up to the online world, the
restrictions on advertising, solicitation,
and referrals that apply in print apply
online as well.
For example, Model Rule 7.2(b)
places restrictions on a lawyer giving
anything of value to a person for recommending the lawyer’s service. This
would include paying for online reviews,
which may seem obvious until you realize that some search engine optimization
firms will propose to increase your website’s visibility by promoting it on other
sites (for an example, see tinyurl.com/
mb58bm9). If this promotion includes
reviews, then you could be running afoul
of Model Rule 7.2. The same rules that
apply IRL, like investigating your vendors’ practices before hiring them, also
apply to all of your activities online.
Widely Accessible Tools
Social media interaction is open to many,
and many postings are searchable, showing up on sites such as Google and Bing.
There are more than 200 active social networking platforms according to
Wikipedia (tinyurl.com/k2jhx), and this
doesn’t include dating sites. The most
common platforms that come to mind
immediately when we hear the term “social media” are Facebook, Twitter, and
LinkedIn. The prominence of Facebook
is obvious to anyone who has used the
Internet in the past five years, and at its
core it is a personal networking site. In
December 2013, daily active users on
Facebook passed 757 million on average,
and the number of monthly active mobile
58
users hit 945 million, which is 76.83 percent of Facebook’s total monthly user
base (tinyurl.com/mxs7cfq).
Although Twitter is almost as old as
Facebook, it remains an enigma to many
people, and while Ebizmba.com lists
Twitter as the second most popular social
media site after Facebook (tinyurl.com/
pxuve9y), many are still figuring out the
most effective way to use it. LinkedIn is
third most popular; unlike Facebook and
Twitter, LinkedIn is a social networking
site used primarily for professionals and
businesses.
Another type of social media that
cannot be ignored is blogging. It is
somewhat unclear whether a blog is considered social media or not, but it is safe
to say that blogs are a tool for people to
exchange information and ideas online
and, for purposes of this article, can be
considered social media.
Caution for clients. Clients may not
realize that posting on Facebook can
affect their business life, too. A recent
New York Times article pointed out that
colleges are looking at applicants’ social
media use and students are now sanitizing their accounts to avoid being denied
on that basis (tinyurl.com/mouya2y).
Potential employers and business associates will certainly take the same
precautions, and not just by reviewing
a LinkedIn account. Anything that can
be found on Google will probably be
viewed by anyone doing due diligence.
Caution for lawyers. Clients aren’t
only the ones potentially being investigated, they’re also the ones doing the
investigation. You should expect that
clients and potential clients will be
Googling you, and your business profile
will not be the only page that appears.
Being concerned that a client might see
your vacation pictures shouldn’t even be
your biggest concern.
Model Rule 7.2(c) requires that “Any
communication made pursuant to this
rule shall include the name and office
address of at least one lawyer or law
firm responsible for its content.” This
means that a Twitter profile, for example,
should contain a real name and address
somewhere on the profile if it contains
advertising under Rule 7.2. You not only
have to be concerned that clients will find
your personal profiles, but also that they
might mistake them for business advertisements, especially if you post things
on your personal profile that allude to
your business life. See, for example, the
sample tweet above.
You should consider whether your
social media profiles are for business or
personal use, and if these profiles are for
personal use, should you avoid talking
about your business at all, or should you
just consider all accounts professional?
Check your local jurisdiction to see if
any guidance is provided on how to
make this determination. For example,
The Florida Bar Standing Committee on
Advertising Guidelines for Networking
Sites (tinyurl.com/pn2rrnf) states, “Pages
of individual lawyers on social networking sites that are used solely for social
purposes, to maintain social contact with
family and close friends, are not subject
to the lawyer advertising rules.” This is
helpful in one sense but raises other questions such as: Is a profile completely for
social purposes if I “friend” or “connect”
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
with any professional contacts? What if
one of my clients or colleagues is also a
“close friend” or relative? These lines are
blurry, which brings us constantly back
to our earlier advice: Regardless of the
platform, assume everything you post
online will be seen by a client or judge
and could be considered for business use.
Access to Publish and View
Information Publicly in Many
Different Formats
Social media interaction has many sources and many audiences and isn’t limited
to text. In such a mobile world, the possibility of accessing the Internet on the
go with smartphones is becoming more
prominent (tinyurl.com/mmlrurp). Not
only is the number of people who are
posting content on social media growing, but so is the number of viewers of
the content. This means that the “reach”
of social media is growing.
Social media reach can be summed up
as the general number of people who are
seeing your content online. There are all
kinds of different subcategories of reach
metrics, including things like:
„„ Total impressions: the reach
plus the frequency your content was shown online.
„„ Page mentions: the number of
times readers mention your
post in their own posts, allowing second-generation
viewers access to your content
when perhaps they otherwise
wouldn’t have seen it.
Caution for clients and lawyers. The
biggest risk you and your clients can take
when it comes to social media is ignoring it. Although there are cautions that
you and your clients must take before
publishing on social media, you will lag
behind your competition if you avoid
social media altogether.
Opportunities in Marketing
It always surprises me when I hear of
lawyers who do not yet have a social
media presence. Given how connected
people are and that the Internet is typically the first place people turn for information, to rule out social media as an
instrument to connect to potential clients might hold a law firm back from its
GPSOLO | ambar.org/gpsolomag
potential client reach. Having an online
presence is the first step for a lawyer to
start reaching potential clients. People
can access general practice information
and contact information from a firm’s
website. (Hopefully!) But then what?
Unless that potential client decides to
pick up the phone and call or e-mail
the attorney, the connection to the potential client does not go any further.
With social media, however, lawyers can
interact with potential clients and referral sources, creating more of a dialogue
instead of a one-way advertisement.
divorce her husband for several years but
had been unable to find her husband to
serve him the papers. On the phone, the
plaintiff’s husband said he did not have
a work or home address, so the plaintiff
asked the judge for “service by alternate
means” and used social media as her alternate means of choice.
While the pun on “service” was intended, the services that lawyers offer
go well beyond providing proper notice to opposing parties. Educating,
counseling, advising, advocating, and
all the other roles that lawyers play
The biggest risk you and
your clients can take
when it comes to social
media is ignoring it.
One effective way to create a dialogue with clients is to use content
marketing, which Wikipedia defines to
include “a variety of formats, including
news, video, white papers, e-books, infographics, case studies, how-to guides,
question-and-answer articles, photos,
etc.” (tinyurl.com/medbcp). Content
marketing is a great way for lawyers to
present useful information to the public
online in a way that fosters interactivity
between our profession and the public.
Using social media platforms such as
Facebook, Twitter, LinkedIn, and blogs
is just the medium for the message (the
content), and the interaction only starts
online. The most powerful users of social
media know how to convert that online
interaction into meetings, presentation
opportunities, and clients IRL.
can be improved by using online tools.
Just as communication has been revolutionized by e-mailing with clients,
other components of our practice are
now being moved online, from cloud
computing to billing. It is clear the
law is beginning to use technology
and social media as a means of communication, marketing, and a forum to
carry out legal procedure. Innovators
in law and technology will continue to
find ways to improve access to justice
by using these emerging technologies,
and social media has a part to play in
this revolution. Lawyers who choose
to ignore social media and the other
ways in which technology is disrupting the practice of law will definitely
stand out from the rest—but for the
wrong reasons. 
Augmenting Your Service
Julie Tolek ([email protected]) is the
The law is adapting to this emerging
technology and using social media in
procedure as well. This year, a New
York judge allowed a divorce summons
to be served via Facebook (tinyurl.com/
of5ax4k). The plaintiff had been trying to
founder and principal of Think Pink Law, a family
law firm in Boston, Massachusetts. Justin L.
Kelsey ([email protected]) is the owner of
Skylark Law & Mediation, P.C., in Framingham,
Massachusetts, where he practices as a
mediator and collaborative divorce attorney.
59
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
60
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The Best Software and
Apps for Family Lawyers
By Terri A. Lastovka
iStockphoto
U
GPSOLO | ambar.org/gpsolomag
se of technology in pretty
much everything has become
a must to remain efficient and
profitable. Family law is no
exception to this concept.
With so many variables to consider,
the family law practitioner can benefit
from the use of any number of software
packages that have become available over
the years.
Family law attorneys, accountants,
and other divorce professionals nationwide rely on divorce financial software
to analyze financial data and tax ramifications in divorce cases. Tax-optimized
divorce settlements often produce higher
disposal incomes for both parties. Helping clients find a divorce settlement that
minimizes tax obligations is not only a
matter of professional responsibility but
also an economic reality. Divorce software for attorneys calculates settlements
more quickly and accurately than generic
financial tools can.
On the tangible side of your case,
you have property division, alimony,
and child support—with valuation issues and tax implications. The intangible
aspects of parenting time can be equally
troubling. The technology that has been
produced has become invaluable for
court personnel, litigators, mediators,
collaborative law professionals (dealing
with law, finances, or mental health), and
even the parties themselves.
The financial programs allow you
to enter all the financial information,
including assets, liabilities, and income
information for both parties. A wide
variety of reports can be generated,
including “what if” scenarios to assist
in negotiating settlements. Tax issues are
taken into consideration, including but
not limited to income tax, capital gains,
dependency exemptions, child tax credits, and self-employment tax. Some programs are provided on CD, and you may
get periodic updates throughout the year.
Other programs are downloaded and are
updated frequently throughout the year.
Some of the programs allow your clients to enter the data directly through a
portal, which saves you time and them
money. This is a great way to get the ball
rolling and to get your client on board
with how much information needs to be
addressed.
The software provides a detailed
visual of what is really happening to a
family’s finances. This is helpful to the
client in that it provides a clear way to
understand what is happening in the case,
both in the short term and over time. In
the short term, working with your client
and the program you can fine-tune how
the assets and debt can be divided to meet
everybody’s interests. In the long term,
clients can see how the division and the
payment or receipt of support will affect
their respective financial pictures. The
program’s data can be used by a financial
specialist for both testimony purposes
and to help a client with financial planning. And the data can provide the court
with a very clear understanding of the
client’s position on the issues.
No two software programs are exactly the same, and not all programs are
available in all states, so let’s take a look
at some of your options.
61
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Technology for Financial Issues
Family Law Software (familylawsoftware.
com) automatically calculates child support in 21 states: California, Colorado,
Connecticut, Florida, Georgia, Illinois,
Maryland, Massachusetts, Minnesota,
Mississippi, Missouri, North Carolina,
Nevada, New Jersey, New York, Ohio,
Pennsylvania, Rhode Island, Texas, Virginia, and Washington. It also calculates
child support in Canada. In all these
places, if there is a statute relating to alimony/spousal support/maintenance, the
software does that as well. The software
also prepares the state financial forms
in California, Connecticut, Colorado,
Florida, Illinois, New Jersey, New York,
Puritas Springs Software (www.
puritas-springs.com) has a host of
products specific to federal and Ohio
law. Specific to family law are document preparation and child support
guideline work sheets. Family Law
Practitioner’s Apprentice (FLPA2) automates the preparation of your family
law documents and pleadings. Mistakes
are eliminated by the use of work sheets
for basic information. This information
is automatically transferred to various
family law documents you create, such
as the petition for dissolution, separation
agreement, and judgment entry. Enter it
once, and you don’t have to worry about
such easily overlooked errors as “child”
Technology can
compute alimony vs.
child support trade-offs
and pension valuations.
Ohio, Pennsylvania, and Rhode Island.
This program is a download that is updated frequently for state law and tax law
changes. As an example, Family Law Software released its update for the 2013 tax act
within two weeks after President Obama
signed the bill. You have the ability to
prepare cash flow analysis, child support
guidelines, alimony buy-out calculations,
pension valuation, separate property carve
outs, projection reports, tax answer reports, and a variety of “what if” reports
for equalization payments, child support,
and spousal support. Financial affidavits
and child support guideline work sheets
appropriate for court filing are at your
fingertips. The software developer is very
responsive. One day I was getting strange
results with the separate property portion
of an asset. Tech support found a glitch
and had it fixed in a couple hours. With
different tabs for lawyers, mediators, and
financial professionals, you can get the
level of detail you need without getting
bogged down with a level of detail that
you don’t need.
62
versus “children.” You also have global
defaults available to populate more than
30 different documents. For example, if
you always include certain provisions
in your separation agreements, you can
create a default file that includes your
custom language.
In addition to FLPA2 for document
preparation, Puritas Springs also offers
the Ohio Spousal Support Calculator
(MA) and Revised Ohio Child Support
Guidelines (WROCSG). FLPA2 extracts
the information from the other two programs, so you only need to enter data one
time and all three programs can use it.
The Spousal Support Calculator not only
analyzes tax consequences, but lifestyle
expenses and ability to pay are considered as well, providing a range of options
because one size does not fit all. And the
Child Support Guidelines do a very good
job incorporating the cash medical support obligation. This is a downloaded
product with periodic updates.
Floridom (floridom.com) was designed to be a complete family law case
management system. Originally released
in Florida, it has since expanded to include Colorado, Georgia, Illinois, Kentucky, Maryland, Michigan, Minnesota,
North Carolina, New York, and South
Carolina. It features a series of products:
„„ Divorce Power Analyzer
(DPA), which performs all the
major computational functions
needed by professionals handling divorce cases: financial
statements, child support calculations, alimony/maintenance
calculations, and property division, as well as other major
litigation functions related to
filing suit, managing witnesses,
and managing documents;
„„ Parenting Plan & Time Sharing
Schedule Generator (PAR), a
questionnaire-based program
that allows clients or pro se
litigants to answer a series of
questions and then automatically produces a complete
parenting plan to meet court
requirements;
„„ Domestic Violence Document
Generator (DVDG; Florida
only), a questionnaire-based
program that allows clients or
pro se litigants to answer a series of questions and then automatically produces a complete
petition for domestic violence,
dating violence, sexual violence,
or repeat violence as well as the
court orders and judgments related to the case; and
„„ Contempt/Arrears Analyzer
(CAA), a simple tool that
computes the arrearage circumstances of people not in
compliance with court orders.
Easy Soft (easysoft-usa.com) offers
the ability to provide alimony payment
scenarios and compute alimony based
on the custodial parent’s budget needs,
alimony versus child support trade-offs,
lifestyle analysis, pension valuation, the
present value of alimony for buyout, and
equitable distribution scenarios for all
50 states.
For New Jersey practitioners, Easy
Soft offers its comprehensive NJ CIS
software to provide calculations and
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
scenarios for child support, spousal support, property division, and parenting
plans. Document preparation is automated through its FamilyDocs module,
which contains the entire library of the
New Jersey Family Law Forms published by the New Jersey Institute for
Continuing Legal Education.
For New York practitioners, Easy
Soft offers EZSupport-NY, providing
electronic data collection from clients,
child and spousal support work sheets,
automatic calculations for child support
and spousal support scenarios, and 27
integrated interactive forms specific to
New York.
Divi (www.divilegal.com) provides
an option for those practitioners who
may not have enough family law cases
to sign on for unlimited access under an
annual contract. They charge practitioners $75 per case rather than an annual
fee. However, Divi is limited to property
division analysis and reports.
Margin Soft (www.marginsoft.net)
provides child support guideline work
sheets for Florida, Kentucky, Maryland,
Michigan, and Washington. What’s really different about Margin Soft is that
on the alimony side, the software generates recommendations based primarily
on the factors listed in the respective state
statutes. The vision of the software developer here is that the alimony recommendations generated by the program
are to be used as a “tool” in evaluating
alimony claims to determine what makes
the most sense. There are also some other
unique calculators, such as pension plan
valuation, 72(t) early withdrawal calculator, tiering of child support in cases
of multiple children, a tool to calculate
child support or alimony when a payer
receives variable bonuses, an overnight
counter, and other miscellaneous financial calculators.
FinPlan is offered by Thomson Reuters (legalsolutions.thomsonreuters.
com/law-products/law-books/
collections/finplan) and provides a full
service suite of alimony and child support calculators, after-tax cash flow analysis, present values for alimony buyout,
pension values, alimony recapture, and
property division with equalizing payouts. Add-on programs include Assets
GPSOLO | ambar.org/gpsolomag
Plus to prepare financial affidavits, Equal
Shares to automatically separate marital and nonmarital assets for an easier
property division, and Divorce Math
Arrearage Calculator and Parenting
Time Calculator to keep track of payments and parenting times. FinPlan has
versions for 42 different states. For the
California practitioner, Thomas Reuters
offers through its California Family
Law Report (CFLR) the DissoMaster
Suite, which calculates child and spousal support, property division, and support arrearages. For automated forms,
Thomson Reuters offers ProDoc for
California, Florida, and Texas.
school and medical data, a journal for
private or shared entries to document
what really happened, a message board
for the family, educational tools, and
even different levels of access for different family members. The kids will have
access to the calendar so they know what
their schedule is, the grandparents and
care providers can have whatever level of
access is deemed appropriate, and third
parties such as lawyers and counselors
can be provided access as well.
Custody X Change (custodyxchange.
com) has a module for lawyers and another for parents. The parent module
allows you to customize parenting
The latest apps can
even help clients work
through their differences
regarding parenting.
Technology for Parenting Issues
Up to this point, we’ve been talking
about technology for financial issues in
family law. But what about the children?
How can we be more efficient and effective in helping our clients work through
their differences regarding parenting issues? Yes, you guessed it . . . there is an
app for that, too.
Our Family Wizard (ourfamilywizard.
com) is designed to provide parents
with tools for organization and communication, which can make a significant difference in everything from legal
proceedings to working out visits for the
children. This software provides parents
with a single location for every type of
parenting tool, from calendars to court
information to educational and medical
records for the kids. It can even track
calendars or suggested schedule changes
up to three years in advance.
With Our Family Wizard, there is
no more “he said/she said” because
everything is documented. Not only is
everything on the calendar, but there is
an expense log, an information bank for
calendars to include a separate schedule
for summer vacation, your own defined
holidays, and special events. And it will
calculate the percentage of time with each
parent. Not only can you print the calendar but you also can export it to your
phone or computer calendar. Additional
parenting applications include actual time
tracking, expense tracking, and a journal for medical and school information.
The professional module also includes a
parenting plan document with more than
100 customizable parenting provisions.
Conclusion
Technology can be intimidating at the
onset. But once you find the program
that suits your practice best, you will
find yourself much more efficient with
your time and be able to provide more
effective counsel to your clients. 
Terri A. Lastovka, CPA, JD, ASA (lastovka@
valueohio.com), is the principal of Valuation &
Litigation Consulting, LLC, which focuses on
business valuations (including dispute resolution
valuations) and litigation consulting.
63
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Ready resources
Ready Resources in
Family Law
S
earching for additional resources in family law? Take
a look at the ABA publications below, and check out
the helpful links to website resources hosted by the
GPSolo Division and the ABA. To order any of the
products listed below, call the ABA Service Center
at 800/285-2221 or visit our website at shopaba.org.
The Complete Guide to Divorce Practice: Forms and
Procedures for the Lawyer, Fourth Edition
By Larry Rice and Nick Rice (ABA Solo, Small Firm and General Practice Division; 2012; 5150453; $149.95; GPSolo member
price $135.95)
This complete divorce practice system can easily be customized to fit your jurisdiction and the way you handle cases,
providing more than 500 documents to efficiently take clients
through every step of the divorce practice.
Estate Planning For Same-Sex Couples,
Second Edition
By Joan M. Burda (ABA Solo, Small Firm and General Practice
Division; 2012; 5150450; $119.95; GPSolo member price $105.95)
This second edition to the Benjamin Franklin Award recipient serves as a vital reference to provide services to LGBT
clients. Use this book as a complete resource tool to handle
LGBT legal issues and the array of variables among the states.
Gay, Lesbian and Transgender Clients:
A Lawyer’s Guide
By Joan M. Burda (ABA Solo, Small Firm and General Practice
Division; 2007; 5150317; $89.95; GPSolo member price $65.95)
This book provides an introduction to lawyers and their
clients to the legal landscape as it relates to lesbian, gay, and
transgender persons today and provides the opportunity to
look at issues from the perspectives of those persons.
Letters for Divorce Lawyers: Essential
Communications for Clients, Opposing Counsel
and Others
By Martha J. Church (ABA Solo, Small Firm and General Practice Division; 2006; 5150300; $80; GPSolo member price $65)
Set up chronologically following the usual life of a typical
divorce case and including a CD-ROM with sample letters for
easy customization, this book will help ease the task of drafting
and constructing letters for your practice.
Technology Solutions for Today’s Lawyer
By Jeffrey Allen and Ashley Hallene (ABA Solo, Small Firm
64
and General Practice Division; 2013; 5150463; $89.95; GPSolo
member price $75.95)
This book provides detailed information in basic terms to
help navigate the challenges lawyers face in keeping abreast of
technology and using it as a strategic tool within their practice.
Becoming the Tech-Savvy Family Lawyer
By Melissa A. Kucinski and Daniel J. Berlin (ABA Section of
Family Law; 2013; 5130198; $69.95)
This manual assesses the tech gadgets that best fit into a
family practice, focusing on tools that are mobile and accessible
and have a user-friendly interface.
Child-Custody Jurisdiction: The UCCJEA & PKPA
By Marie Fahnert and Mélyse Mpiranya (ABA Section of Family Law; 2015; 5130207; $69.95)
Gain the practical knowledge and tools you need to analyze
the Uniform Child Custody Jurisdiction and Enforcement Act
and the Parental Kidnapping Prevention Act.
Client Letters for the Family Lawyer:
Saving Time, Managing Relationships, and
Practicing Preventive Law
By Mark E. Sullivan (ABA Section of Family Law; 2013;
5130199; $89.95)
This book offers practice-tested forms, letters, and checklists
that are designed to educate and inform your family law clients.
Collaborative Law: Achieving Effective Resolution
in Divorce without Litigation, Second Edition
By Pauline H. Tesler (ABA Section of Family Law; 2008;
5130160; $129.95)
This updated edition explains how a collaborative approach
engages the unique problem-solving skills of lawyers to achieve
settlements that customize outcomes in the way that few courts
are able to achieve.
The Complete QDRO Handbook: Dividing ERISA,
Military, and Civil Service Pensions and Collecting
Child Support from Employee Benefit Plans,
Third Edition
By David Clayton Carrad (ABA Section of Family Law; 2009;
5130166; $129.95)
This handbook offers step-by-step guidance and advanced
techniques for all stages of the drafting and approval process.
Also included are sample model letters, forms, interrogatories,
and checklists.
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Divorce in the Golden Years: Estate Planning,
Spousal Support, and Retirement Issues for Clients
at Midlife and Beyond
types—from solo to Big Law—with practical, tested solutions
for setting up unbundling practices.
By Leslie Ann Shaner (ABA Section of Family Law; 2010;
5130171; $139.95)
This book addresses how a divorce case is affected by estate
planning established during the marriage, explaining how to
review existing estate plans to avoid complications.
The Military Divorce Handbook: A Practical Guide
to Representing Military Personnel and Their
Families, Second Edition
The Divorce Trial Manual: From Initial Interview to
Closing Argument
By Lynne Z. Gold-Bikin and Stephen Kolodny (ABA Section
of Family Law; 2003; 5130122; $119.95)
This step-by-step manual is designed to help the practicing
family lawyer effectively and successfully navigate through the
complexities of domestic litigation.
The Family Lawyer’s Guide to Bankruptcy:
Forms, Tips, and Strategies, Third Edition
By Shayna M. Steinfeld and Bruce R. Steinfeld (ABA Section
of Family Law; 2014; 5130202; $139.95)
This book supplies practical and current guidance on how
bankruptcy law affects divorcing spouses and updates the case
law that has developed under the 2005 BAPCPA legislation.
Forms, Checklists, and Procedures for the
Family Lawyer
By Mark A. Chinn (ABA Section of Family Law; 2010; 5130174;
$69.95)
Written by a divorce trial lawyer for divorce trial lawyers,
this hands-on manual provides forms, checklists, and procedures
for every aspect of family law practice, from beginning to end.
By Mark E. Sullivan (ABA Section of Family Law; 2011;
5130184; $179.95)
Completely revised and expanded, this new edition covers
all aspects of representing servicemembers and their spouses
in divorce in an accessible, easy-to-use format.
101+ Practical Solutions for the Family Lawyer:
Sensible Answers to Common Problems, Third
Edition
Edited by Gregg Herman (ABA Section of Family Law; 2009;
5130167; $139.95)
A collection of practice-proven tips from leading family
lawyers, this book is full of straightforward information that
you can apply immediately to your own practice.
Settlement Negotiation Techniques in Family Law:
A Guide to Improved Tactics and Resolution
By Gregg Herman (ABA Section of Family Law; 2013; 5130192;
$69.95)
This book will help improve your settlement negotiation
skills in family law cases. Veteran attorney Gregg Herman discusses the many concepts in divorce settlement negotiation,
explaining fundamental concepts and theories, the specialized
aspects of divorce negotiation, and current and evolving topics
in negotiation.
GPSolo Division Links
How to Build and Manage a Family Law Practice
By Mark A. Chinn (ABA Law Practice Division; 2006; 5130140;
$64.95)
A must-read for any family lawyer, this book reveals how
you can gain practical experience in the area, understand the
specialized business aspects of a family law practice, develop
and maintain the ideal client mix, and manage staff, cases,
and finances.
Limited Scope Legal Services: Unbundling and the
Self-Help Client
“Military Family Law: Eleven Common Questions” GPSolo
magazine, January/February 2005: tinyurl.com/papcrwr
Resource page for starting and running a law firm: tinyurl.
com/clwojlp
Solo/Small Firm Forms Library: ambar.org/gpsoloforms
Sponsors page: tinyurl.com/7bzft7p
Other Links from the ABA
ABA Section of Family Law: americanbar.org/family
ABA Solo and Small Firm Resource Center: ambar.org/
soloandsmallfirms 
By Stephanie L. Kimbro (ABA Law Practice Division; 2012;
5110740; $79.95)
This book, the first of its kind, provides lawyers of all
GPSOLO | ambar.org/gpsolomag
65
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
{BEST OF ABA SECTIONS} Family Law
Preparing a Client for
Settlement
By Jennifer A. Brandt
S
ettling a divorce case is no easy
task. It requires parties who
are at odds with each other to
come together for their mutual
benefit. These parties must set
aside their emotions and look at their economic situation in a detached, businesslike manner. Both parties must have the
same mind-set to reach consensus.
Settlement makes sense because clients maintain lots of control over the outcome of the case. Although they may not
achieve every objective on their to-do list,
they typically reach more of their goals
than if they permit the court to decide.
Sowing the seeds for settlement.
During the initial consultation, focus on
learning all you can about the marital assets and debts. Determine why the client
is seeking a divorce and keep in mind
that at this point clients often are consumed with emotions and are not able
to think rationally. The client is seeking
your expertise and guidance and, most
of all, to determine if you are someone
with whom he or she can work.
A responsible attorney will use this
time to educate the client about the law
and how it applies to the client’s specific
case. This is also the time to address the
client’s emotional state and impress upon
the client that the law is not about revenge
or retribution but about equity and fairness from an economic perspective. Discuss the significant cost of trial and explain
to the client that settlement presents an
opportunity to limit costs and also to
maintain some control over the outcome.
Determining the client’s goals.
Jennifer A. Brandt ([email protected]) is a
shareholder in the Family Law Department of
Cozen O’Connor, a full-service law firm with more
than 575 attorneys, ranked among the top 100
law firms in the country.
66
Before an attorney can assist a client in
determining a proper settlement, he or
she must help the client understand what
assets and debts comprise the marital estate. The best way to accomplish this is
to serve the opposing party with full and
complete discovery.
The attorney
who believes
he or she
can settle
a divorce
case alone
is seriously
misguided.
Clients may not want to invest the
time, energy, or resources in taking discovery, claiming that they are familiar
with the other party’s assets and liabilities. Nonetheless, full and complete discovery should be strongly encouraged
just as if the parties were proceeding to
trial. This course of action protects both
attorney and client because, if settlement
should fail, the party is ready to proceed
to trial. Moreover, full and complete discovery permits the client to settle with
peace of mind, knowing all that may be
gained and lost in the negotiation.
After discovery is complete, educate
the client as to the various prospects for
settlement. This is the time to review
various settlement scenarios and explain
the likely outcome if the case proceeds to
trial. This also is the time to start aligning the client’s expectations with reality.
Because emotion plays such a major
role in family law cases and can color
a client’s perception, helping the client
cope is almost as crucial as the economics of the case. The first step in dealing
with the emotional aspect of the divorce
is to acknowledge it. Encourage your
client to seek professional help and to
set aside the perceived stigma of doing
so. Although some attorneys may not
want to involve themselves with this aspect of the divorce, it cannot be ignored,
especially if the client is to move toward
resolution.
Setting the stage for settlement.
Some people live by the motto that it
takes a village to raise a child. Similarly, it
“takes a village” to settle a divorce case.
The attorney who believes he or she can
do it alone is seriously misguided. While
it is important to have a client’s trust
and respect, the client still may doubt
counsel’s advice. This is especially true
for clients whose judgment is clouded
by anger and resentment and for those
who are seeking advice, whether directly
or unsolicited, from friends, relatives,
and neighbors who have been through
a divorce or know someone who has,
or from professionals outside of the attorney’s team. These third parties, albeit well-meaning, can seriously derail
a client who is on track for settlement.
However, if these people are valued and
trusted by the client, the attorney may
want to corral them to join the team and
help bring the matter to closure for the
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
benefit of the client. Sometimes this is as
simple as scheduling a meeting with the
client and members of this inner circle to
educate them about the divorce process
and the facts and likely outcome of the
case if it proceeds to trial as well as possible options for settlement.
In some instances, however, clients
continue to be distracted by these wellmeaning outsiders. In these situations,
have a heart-to-heart discussion with the
client as to why you were hired, that is,
for your substantial expertise in these
matters. Inform the client that he or she
cannot compare this case to another, as
each case is unique and no one, except for
the attorney and client, is fully aware of
all the intricacies of this matter.
Once the client begins to think that
settlement is the right approach, the
next step is to decide the methodology
by which to settle the case. If the parties
are fairly amiable and limited issues are
to be resolved, a four-way meeting might
be the way to go. However, this type of
gathering can be a colossal waste of time
and money if used as a forum for grandstanding or if the parties are not equally
committed to resolution.
If the client is committed to settlement
but the other party does not share that
same level of commitment, a settlement
proposal can be submitted in writing to
test the temperature and determine if settlement is possible. Making the first move
by submitting a written settlement offer
puts the client in control and demonstrates
a level of reasonableness. It may cause the
other side to pause and reconsider their
guerrilla trial tactics and understand that
there is a viable alternative to trial. Courts
often look favorably on parties who pursue settlement and unfavorably on those
who become so entrenched in a position
that they refuse to negotiate.
GPSOLO | ambar.org/gpsolomag
ABA Section of Family Law
This article is an abridged and edited version of one that originally appeared on page
16 of Family Advocate, Winter 2015 (37:3).
For more information or to obtain a copy of the periodical in which the full article
appears, please call the ABA Service Center at 800/285-2221.
WEBSITE: americanbar.org/family
PERIODICALS: Family Advocate, quarterly magazine (three issues with how-to articles
and current trends and a fourth “Client Manual” issue for lawyers and clients); Family
Law Quarterly, scholarly journal; Case Update, monthly electronic digest of family law
cases nationwide; eNews, monthly electronic newsletter.
CLE AND OTHER PROGRAMS: Monthly webinars, spring/fall conferences, and the ABA
Family Law Trial Advocacy Institute, the premier trial training program for family lawyers.
BOOKS AND OTHER RECENT PUBLICATIONS: Child-Custody Jurisdiction: The
UCCJEA & PKPA; Complete Guide to Mediation, 2d ed.; The Business Tax Return Handbook,
4th ed.; Client Letters for the Family Lawyer; Becoming the Tech-Savvy Family Lawyer.
Some parties who are committed to
settlement will take their cases out of
the court system and proceed by way of
alternative dispute resolution. Educate
your clients about these options as part
of the settlement process.
An effective, but sometimes costly,
method for achieving settlement is to
start preparation for trial. In many jurisdictions, courts do a superior job of
giving parties numerous opportunities
to resolve the case before trial. Preparing
for and having a client attend a courtordered settlement conference is often
enough to convince the client not to
proceed with trial.
No matter how a settlement offer is
communicated, prior to reviewing it the
attorney should meet with the client and
lay out all possible outcomes so that the
client can make an informed and intelligent decision as to how best to proceed.
The psychology of settlement. Once
a client is convinced that settlement is
a viable and possibly the best option,
explain the psychology of settlement negotiations. Tell the client that negotiation
means compromise, and where one side
sees a resolution as just, the opposition
may not share this view.
Before negotiations are finalized, the
client must feel confident that settlement
is the best possible approach under the
circumstances. Frequently, as a trial approaches and client and attorney grow
weary of the case, any resolution may
seem appealing because it means the end
is in sight. It is essential, nonetheless, that
resolution not be rushed and that the client makes a thoughtful review and acceptance of the deal. The attorney must
ensure that the client fully understands
and is comfortable with all aspects of the
resolution of the matter.
Many family law clients are not overly
appreciative when the deal is done. Nonetheless, over time they will likely have a
greater appreciation for the attorney’s efforts in the painstaking process of preparing the client for settlement. 
67
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
{BEST OF ABA SECTIONS} Family Law
Custody Disputes by Unmarried
Gay or Lesbian Parents
By Kendra Huard Fershee
W
hat makes someone a
parent? The answer in
the United States is the
law. The law is the only
thing that can make
someone a parent; it can trump biology,
and it can deem a person to be a parent of
a person he or she has never met.
In order to maintain efficiency and
fairness in the process of making custody
determinations when same-sex partners
who are also parents split, I argue that
courts should use a more permissive
standing test to determine which parents
can seek a substantive determination of
their parental right. The determination
of whether a non-biological, nonlegal
parent from a same-sex relationship has
standing should be based on a simple,
easy-to-determine test. The test would
only allow court access to parents who
were in relationships with the biological
parent at the time of the child’s conception and birth, and who claim that they
intended to be a parent to the child before, during, and after the child’s birth.
The standing test would be a prima facie
determination allowing the nonlegal,
non-biological parent access to the
court to prove that custody and visitation rights would be in the best interests
of the child.
Why custody disputes between
former same-sex partners are so difficult to resolve. Despite the recent shift
toward acceptance in societal attitudes
about same-sex families, and despite recent Supreme Court decisions loosening
the denial of rights to gay and lesbian
couples, there remains no legal stability
or consistency for gay or lesbian parents
Kendra Huard Fershee (kendra.fershee@mail.
wvu.edu) is an associate professor of law at
West Virginia University College of Law.
68
seeking custody or visitation to the children they decided to bring into the world
and raise.
Parentage, in the case of opposite-sex
couples, is determined by legal status,
not biology. If an opposite-sex married
couple welcomes a child into their marriage, both partners in that couple are
considered the legal parents. Parentage for same-sex couples, regardless
of their marital status, is not always so
legally simple.
standing
should be
based on a
simple, easyto-determine
test.
In a state where same-sex marriage
is legal, the norm is to treat the nonbiological parent as the legal parent of
any child born into that relationship. Despite the fact that these couples are legally
married, some states require same-sex
couples to take additional steps to secure
legal parentage for both partners in the
relationship.
Historically, a child born to a woman
who was not married was considered
an “illegitimate” child and, legally, fatherless. Over time, the laws about the
legal status of unmarried fathers began
to change. No longer was a biological
father required to be married to the
child’s mother to be legally recognized
as a father.
This level of deference is not conferred to unmarried parents in a samesex relationship. Same-sex couples only
get to enjoy parentage deference for the
non-biological parent if three factors are
met. First, the couple must live in a state
that recognizes same-sex relationships in
the form of marriage, domestic partnership, civil unions, or something similar.
Second, the state must apply the marital
presumption of parentage to same-sex
couples that have decided to marry or
enter into a domestic partnership. Finally, the couple must have married or
registered as domestic partners before
the birth of the baby.
Standing as a sword. Standing is one
of the doctrines of justiciability intended
to serve a gatekeeping function to permit
only litigants with actual and immediate legal needs access to courts. Standing
is particularly important to unmarried
gay and lesbian parents who have not
legally adopted their children because
most states view gay and lesbian parents
who did not contribute to the biological
process of bringing their children into
the world and did not legally formalize
their parental status as legal strangers to
their children. This presents two problems in the courts. First, it can serve to
completely bar people who have been as
much a part of their children’s lives as any
heterosexual biological parent from getting past an initial custody or visitation
request filing. If a non-biological, non-​
legal gay or lesbian parent does get past
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
the initial filing, courts have had to do a
full substantive analysis of the relationship of the parties in order to determine
whether the nonlegal, non-biological
parent has standing to intervene. This
bright-line rule is too restrictive, and the
conflated process is inefficient.
There are two particularly troublesome aspects that accompany the conflation of the standing question with the
parentage question. First, courts willing
to consider custody challenges from gay
or lesbian parents who are not legally or
biologically related to the children they
helped raise typically do a full analysis of
the substantive legal question of parental
rights before determining whether the
litigant has standing. Second, for courts
unwilling to conflate the issues of standing and parentage, gay and lesbian parents without legal or biological ties to
their children are summarily dismissed
from seeking custody or visitation without even minimal assessment of the relationship they share with their children.
Prima facie parent test. When a
same-sex couple decides to have children,
each partner is presumably as committed to the idea as the other. But because
only one partner can contribute to the
biological process of creating a child, at
most only one partner can have automatic legal and physical custody rights
to the child born of that decision. In the
context of a gay male couple relying on a
surrogate who is impregnated through in
vitro fertilization, the contribution of the
father, who will be considered the sole
legal and physical custodian of the child,
is nothing more than a sperm deposit.
But the genetic material that helps create the baby who will then be raised by
the partners together is literally the most
important factor for courts confronted
with custody disputes between former
GPSOLO | ambar.org/gpsolomag
ABA Section of Family Law
This article is an abridged and edited version of one that originally appeared on page
435 of Family Law Quarterly, Fall 2014 (48:3).
For more information or to obtain a copy of the periodical in which the full article
appears, please call the ABA Service Center at 800/285-2221.
WEBSITE: americanbar.org/family
PERIODICALS: Family Advocate, quarterly magazine (three issues with how-to articles
and current trends and a fourth “Client Manual” issue for lawyers and clients); Family
Law Quarterly, scholarly journal; Case Update, monthly electronic digest of family law
cases nationwide; eNews, monthly electronic newsletter.
CLE AND OTHER PROGRAMS: Monthly webinars, spring/fall conferences, and the ABA
Family Law Trial Advocacy Institute, the premier trial training program for family lawyers.
BOOKS AND OTHER RECENT PUBLICATIONS: Child-Custody Jurisdiction: The
UCCJEA & PKPA; Complete Guide to Mediation, 2d ed.; The Business Tax Return Handbook,
4th ed.; Client Letters for the Family Lawyer; Becoming the Tech-Savvy Family Lawyer.
partners. Not only does the genetic material of the biological parent trump the
non-biological parent’s opportunity to
win a custody dispute, it blocks the nonbiological parent from starting a custody
action altogether.
Instead of engaging in a full substantive review of parental rights every time
a gay or lesbian parent seeks custody or
visitation rights, courts should employ a
much simpler, more efficient, and fairer
standing test. The prima facie parent test
is straightforward and requires little
analysis by courts. This threshold test
simply requires a litigant seeking custody or visitation with a child to state
two things in his or her complaint. The
non-biological, nonlegal parent must
state (1) that he or she was a partner
of the biological and/or legal parent
of the child at issue when the decision
was made to bring a child into the relationship and (2) that the two partners
intended to co-parent the child after
the child was born. After standing is
established, the court can decide if a
substantive test for parental rights has
been satisfied.
The way courts handle standing
in cases where a same-sex couple split
after deciding to start a family together
is flawed in three important ways. First,
it is an overly rigid test that can bar legitimate litigants with real grievances from
court. Second, it requires courts that are
inclined to delve more deeply into these
custody disputes to do a full substantive
analysis of the non-biological, nonlegal
parent’s potential parental rights to decide standing. Third, in cases where a
court is willing to do the more involved
analysis, it affords the legal parent the
ability to block standing by withdrawing
acquiescence to a parent-child relationship that he or she fully supported until
the adult relationship collapsed. The
prima facie parent test will help resolve
all of these current flaws. 
69
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
{BEST OF ABA SECTIONS} Criminal Justice
Juveniles and Miranda
By Eric Y. Drogin and Richard Rogers
A
lthough the 50th anniversary of the Supreme Court’s
seminal decision in Miranda v. Arizona, 384 U.S.
436, 479 (1966), will soon
be upon us, and despite the Court’s perennial willingness to revisit these issues,
we continue to know shockingly little
about how Miranda warnings are actually conceived, applied, understood, and
utilized. This dearth of knowledge is all
the more true when it comes to the inculpatory statements of juvenile suspects.
Recently, social scientists and legal
scholars have begun to address juvenile
Miranda warnings and waivers in a systematized, evidence-based fashion. Findings from these studies have revealed
information that clearly points to the
need for nationwide reform of how children are to be advised of their rights against
self-incrimination.
Juvenile versus general Miranda
warning misconceptions. Many jurisdictions have specialized Miranda warnings intended only for juvenile offenders.
Overall, a recent survey yielded more than
300 uniquely worded juvenile Miranda
warnings. But are these special warnings
really simpler for juveniles to understand?
Juvenile advisements occasionally provide
explanations (e.g., defining the role of the
judge). More often, they include additional content, such as the right to consult with
a parent, guardian, or interested adult.
The simpler-for-juveniles myth is easily
shattered. Reading levels for understanding juvenile Miranda warnings tend to increase in difficulty. In most instances, the
upper ranges require more than a college
Eric Y. Drogin ([email protected]) serves on the
faculties of the Harvard Medical School and
the Harvard Longwood Psychiatry Residency
Training Program. Richard Rogers (rogersr@unt.
edu) is the Regents Professor of Psychology at
the University of North Texas.
70
education. Consider for the moment the
absurdity of asking younger juvenile offenders to understand and apply to their
own circumstances college-level warnings.
Taking a broader perspective, half of juvenile advisements require more than a
ninth-grade reading level.
Many juveniles
believe their
parents have
a legal duty
to assist
the police in
prosecuting
them.
The markedly increased lengths
of juvenile advisements also assail the
simpler-for-juveniles myth. In contrast
to the general Miranda warnings (with
an average of 95 words), juvenile advisements add 42 extra words for an average
of 137 words. When the total material is
considered, 40 percent of juvenile versions
exceed 300 words.
Individual Miranda warning components. The right to silence. Saying that
one has the right to silence and knowing
what it means are two very different matters. If custodial suspects are to render
informed decisions, then some explanation of the term “right” should be considered. Prior research with several hundred
pretrial detainees found that one-third
failed to understand their “right” as it
applied to their right to silence.
In Berghuis v. Thompkins, 560 U.S.
370 (2010), the Supreme Court affirmed
that a binding invocation of the right to
remain silent must actually be communicated and cannot simply be inferred from
the suspect’s continued silence. In light of
Thompkins, should custodial suspects be
clearly and specifically informed about
how to exercise the right to silence?
In particular, juvenile suspects may
simply not understand the “rules of the
game” that apply to asserting their right to
silence. In light of Thompkins, the pivotal
issue is whether juvenile detainees could
appreciate the long-term consequences of
their admissions, specifically that courts
may determine that they implicitly waived
their right to silence in acting against their
own self-interest.
Evidence against you. For members
of the public claiming average or betterthan-average Miranda knowledge, more
than 80 percent can easily recall the second Miranda component, namely that
any statements to the police can be used
as evidence against them. However, a rational analysis of Miranda waivers requires a
working knowledge of Miranda components, which is unlikely to be achieved on
the basis of recognition alone.
The good news is that over 95 percent
of adults clearly grasp the basic message regarding the perils of speaking with the police. With respect to juvenile offenders, the
findings—while good, at 80 percent—still
leave considerable room for improvement.
The only substantive issues for this
component involve serious misbeliefs
about what may constitute exceptions to
this admonition. For example, about 27
percent of juveniles wrongly believe that
unsigned waivers afford them complete
protection from incriminating evidence.
Forty-two percent of juveniles falsely
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
believe that interrogating officers were
prevented from using “off-the-record”
disclosures as incriminating evidence.
Right to counsel. Juvenile suspects may
wrongly believe that defense attorneys, as
officers of the court, can be required to
divulge incriminating information to the
judge. This misperceived lack of allegiance
jeopardizes the attorney-client relationship because it critically undermines confidentiality and thus effective advocacy.
A dramatic difference has been found in
this misperception as a function of whether
the attorney was court-appointed. While
about 19 percent of juvenile offenders inaccurately believed that the judge is entitled
to a defense attorney’s disclosures regarding his or her client’s guilt, this percentage
increased dramatically to 56 percent with
regard to court-appointed counsel.
In Davis v. United States, 512 U.S. 452
(1994), the Supreme Court specified that
requests for counsel must be worded in
clear, unambiguous language. In an apparent application of the conventions for
ordinary conversation, most adult suspects
and many juvenile suspects mistakenly
equated “I might want a lawyer” with “I
want a lawyer.” Interestingly, it does not
appear that imprecise communications can
be attributed to limited education in offender groups. To improve Miranda warnings, stakeholders must weigh the relative
infrequency but potentially life-altering
consequences of imprecise assertions of
constitutional safeguards against the effects
of “too much” information in the context
of “intelligent” Miranda waivers.
Depending on the jurisdiction, juvenile
Miranda warnings may broaden the right
to counsel to include a right to the presence
of parents, guardians, custodians, and “interested adults.” Whereas the purpose of
counsel in providing legal expertise is relatively clear, the purpose of involving other
adults is not explicit. To what extent are
detained juveniles aware that these adults,
GPSOLO | ambar.org/gpsolomag
ABA Criminal Justice Section
This article is an abridged and edited version of one that originally appeared on page
13 of Criminal Justice, Winter 2015 (29:4).
For more information or to obtain a copy of the periodical in which the full article
appears, please call the ABA Service Center at 800/285-2221.
WEBSITE: americanbar.org/crimjust
PERIODICALS: Criminal Justice, quarterly magazine; Criminal Justice Newsletter,
three times per year; Academics Committee Newsletter, two times per year
(electronic); White Collar Crime Newsletter, two times per year (electronic).
BOOKS AND OTHER RECENT PUBLICATIONS: Trial Tactics; Street Legal; The
Citizenship Flowchart; The State of Criminal Justice; Leapholes (fiction); Achieving
Justice: Freeing the Innocent, Convicting the Guilty; ABA Standards for Criminal
Justice; Annual Survey of Supreme Court Decisions; Asset Forfeiture: Practice and
Procedure in State and Federal Courts; The Child Witness in Criminal Cases; The
Criminal Lawyer’s Guide to Immigration Law; The Shadow of Justice (fiction).
mostly parents and guardians, are intended
to protect the rights of these children? On
this point, nearly 31 percent of juvenile detainees believe that their parents have a legal
responsibility to assist the police in prosecuting them. Under such instances, the
parents are not perceived as advocates for
their children, but rather as legally mandated adversaries. The clarification of parent/
guardian roles would appear essential to an
intelligent waiver of Miranda rights.
Free legal services. Overall, accurate recall of this right is slightly less than 50 percent, suggesting broad deficits in the public’s
working knowledge of free legal services.
Beyond basic understanding of the availability of counsel to indigent suspects, the
majority of general and juvenile Miranda
warnings do not specify who will assume
financial responsibility for the costs that
may be associated with appointed counsel.
This point of ambiguity may leave suspects
in doubt as to whether their families will be
required to cover resulting legal expenses.
This matter is particularly important in juvenile cases as parents are routinely made
responsible for expenses in virtually all areas
of their children’s lives. The remedy for this
fundamental misperception is easy to implement: Simply add the word “free” or the
phrase “at no charge” to this component
of the warning.
Continuing legal rights. In surveys of
the general public, an incredibly minimal
proportion of respondents recalled this
component. This component is sometimes expressed using abstruse and legalistic language.
Substantial numbers of both adult
and juvenile defendants wrongly believe
that once they start talking, their right
to silence is permanently relinquished.
Although many of those encountering
the criminal justice system are able to
correctly paraphrase this component,
the apparent difficulty lies in correctly
applying this information to their own
cases. The challenge for researchers lies in
determining how changes in the language
of Miranda warnings would assist suspects
in applying this knowledge to their own
circumstances. 
71
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
{BEST OF ABA SECTIONS} Science and Technology Law
Think Before You Click:
Ordering a Genetic Test Online
By Andelka M. Phillips
M
ost of us click “I agree”
multiple times a day. We
access myriad services
online but rarely pause
to read the fine print in
all those clickwrap agreements. The use
of online contracts is challenging many
of the traditional conceptions of what a
contract ought to be.
My current research analyzes the contracts and privacy policies used by directto-consumer genetic testing (DTCGT)
companies. My original aim was to examine the current legal mechanisms for
protection of the rights of consumers in
their genomic sequence data and to suggest possible reforms. However, examining DTCGT contracts has forced me into
the depths of online contract law, and this
in turn has made me think more carefully whenever I am faced with an option
to click away. This article will provide
a brief overview of the world of online
contracts in the context of DTCGT.
What is DTCGT? Before proceeding
further, it is necessary to explain briefly
what DTCGT is. DTCGT, also sometimes referred to as personal genome
testing (PGT), is a new industry that
has developed as a consequence of the
recent advances in genetic and genomic
science. DTCGT companies offer a variety of services, but their normal procedure is to allow people to order a genetic
test from their website. Customers then
receive a kit in the mail and use the kit
to take a sample of their DNA. After the
sample has been analyzed, the company
will convey the results of the test to the
Andelka M. Phillips ([email protected].
uk) is a DPhil candidate at the University of
Oxford in the United Kingdom and the general
editor of the Oxford University Commonwealth
Law Journal.
72
consumer and sometimes provide ongoing updates on the individual’s health
information. A web-based interface is
the primary mode of delivering this information to consumers, often without
recourse to genetic counseling.
Genetic
information
can serve
as a unique
identifier.
For health-related testing, the most
common services are predisposition,
presymptomatic, and carrier testing.
Predisposition testing provides an indication of an individual’s absolute lifetime
risk and/or relative risk of developing a
particular condition, while presymptomatic testing evaluates whether a healthy,
asymptomatic individual “has a high
probability of developing a condition”
(Human Genetics Commission, A Common Framework of Principles for Directto-Consumer Genetic Testing Services,
2010; tinyurl.com/ndekmmc). One type
of testing that shows particular promise for personalized medicine is that of
pharmacogenetics, which is concerned
with assessing an individual’s responsiveness to particular drugs or therapies.
Online contracts and DTCGT. Most
DTCGT companies’ contracts and privacy policies take the form of either
clickwrap or browsewrap agreements.
These contracts are mass-consumer
standard form contracts. Most afford
no opportunity for the consumer to negotiate and are drafted by the company
heavily in its favor. Whenever you buy a
product online, participate in an online
auction, update computer software, or
access content from a plethora of websites, you may at some point be asked to
agree to corresponding terms and conditions. Most of the time you will do this
without reading and sometimes without
even glancing at these terms and conditions. Why do we not read them? Is it a
matter of trust? Is it a lack of time? Unfortunately, the reality is that many of us
do not have sufficient time to read these
contracts. There is also a strong element
of trust here. Many of us do trust companies to a certain extent, and we also tend
to think that harm befalls other people
and not us.
Of course, many of us would still not
choose to read online contracts, even if
we had sufficient time to do so. Furthermore, for the ordinary consumer
who chooses to read these documents,
the process is not necessarily one of enlightenment. This is largely owing to the
length of online contracts and also the
language used, as many contracts use
language that requires a high level of
education to understand. There is also a
significant level of misunderstanding on
the part of consumers of the meaning and
effect of online privacy policies.
So what does the common DTCGT
contract look like? Some of the clauses
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that can normally be found in these contracts include: compulsory arbitration;
choice of law; broad disclaimers of liability, including stating that the company
cannot guarantee fitness for purpose;
intellectual property; indemnification;
unilateral change of terms; and clauses
stating that the information provided is
for informational, recreational, and research purposes only.
One of the most prominent DTCGT
companies, 23andMe, has faced multiple
class actions in the past year in the aftermath of the U.S. Food and Drug Administration’s warning letter of November
2013. The recent order centered on an arbitration clause. However, the 23andMe
contract is by no means unique. Similar
clauses have been included in the contracts of other companies.
Some clauses commonly included in
DTCGT contracts may not surprise the
reader, as it is standard business practice
to limit a company’s liability wherever
possible. However, undergoing genetic
testing is not the same thing as purchasing an ordinary consumer product, such
as a television or book. Once a person’s
DNA sample has been sequenced, the
information is irrevocable—an aspect
that several companies mention in their
contracts. Sequenced genetic data can
also count as personally identifiable information, and it can potentially reveal
sensitive information regarding a person’s health status and ethnicity. It can
also serve as a unique identifier of the
person tested, and at the same time it can
be used to reveal information about individuals to whom that person is related.
Toward improved online contracts.
When we take genetic testing outside
the clinic, where there are more checks
and balances, there are arguably more
dangers for the test subject, and it seems
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ABA Section of Science and Technology Law
This article is an abridged and edited version of one that originally appeared on page
8 of The SciTech Lawyer, Winter 2015 (11:2).
For more information or to obtain a copy of the periodical in which the full article
appears, please call the ABA Service Center at 800/285-2221.
WEBSITE: americanbar.org/scitech
PERIODICALS: The SciTech Lawyer, quarterly magazine; Jurimetrics|Online, quarterly
scholarly journal; SciTech E-Merging News, quarterly electronic newsletter featuring
up-to-date substantive practice perspectives and news on Section activities.
CLE AND OTHER PROGRAMS: The Section offers a variety of CLE and learning
opportunities through webinars and in-person sessions throughout the year in addition
to two free-to-members programs.
RECENT BOOKS: Guide to U.S. Government Practice on Global Information Sharing,
2d ed.; Medical Biotechnology: Premarket and Postmarket Regulation; The Science
and Technology Guidebook for Lawyers; Bioinformatics Law; Health Care IT.
advisable for these companies to improve
their contracts, and especially their consent mechanisms. This could be done in
an innovative and educational way; it
need not be harmful for the company.
Contracts could be improved by making them more interactive, with attention
being drawn to key clauses; educational
videos could explain the types of information a person is likely to receive from
the company and also explain some of
the most important terms; there could be
more opportunities for customers to opt
out of particular services; and companies
could provide more information about
use, storage, and disclosure of data. The
security and privacy risks ought not to be
underestimated here. For participation in
research, companies could also look to
other consent models used in the medical
research context. Terms such as broad
indemnity clauses ought to be omitted,
and it may be inappropriate to specify
that certain disease risk tests are provided
for recreational purposes.
The proposed way forward does not
have to be detrimental for the DTCGT
industry. It is possible for contracts to be
improved without severely disadvantaging companies. If DTCGT is to live up to
its promises and assist the cause of personalized medicine, it would be beneficial
for contracts to be more fairly balanced
and to empower consumers through providing adequate information in a comprehensible form. If DTCGT genetics is
to have a real connection with consumer
empowerment and enabling people to
take charge of their genetic information,
then consumers need more tools to do
this. If DTCGT companies want to conduct participatory research projects, then
consumers ought to be able to participate
knowingly and more actively.
Regulatory reform is also needed, but
improving contracts and privacy policies would be a cost-effective and useful
strategy in the short term. 
73
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may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
{BEST OF ABA SECTIONS} Individual Rights and Responsibilities
Poverty, Employment, and
Disability
By Alexander Wohl
A
t a time when many U.S.
policymakers increasingly
are focused on the issue of
poverty and economic disparity as an important and
neglected social problem, a particularly
striking set of statistics is one often ignored: the disproportionately high level
of poverty among Americans with disabilities. It is just the latest outgrowth of
a long history of exploitation, neglect,
discrimination, and segregation.
Persons with disabilities experience the
highest rates of poverty of any subcategory of Americans charted by the Census
Bureau. Of the nearly 30 million individuals with disabilities ages 18 to 64, 27 percent, or more than 4 million people, live in
poverty. This is more than double the rate
of 12.5 percent for the entire population.
Although these numbers are revealing, they do not tell us much about the
causes and effects of this economic disparity, particularly those involving the
relationship of poverty to underemployment of individuals with disabilities; the
inadequate and often regressive role of
government programs intended to provide support and assistance, including
health care; and the underlying history
of discrimination experienced by people
with disabilities that has prolonged and
exacerbated these problems.
The disability rights movement. The
first significant law that provided assistance to people with disabilities was a
1950 amendment to the Social Security
Act called Aid to the Permanently and
Totally Disabled, a title that reflected
Alexander Wohl ([email protected]) is a
speechwriter and the author of Father, Son
and Constitution: How Justice Tom Clark and
Attorney General Ramsey Clark Shaped American
Democracy (University Press of Kansas, 2013).
74
the prevailing view that those with the
most significant disabilities would never
contribute to society in any meaningful
way. That law laid the groundwork for the
creation in 1956 of Social Security Disability Insurance, which was followed by
several other important laws.
Many
government
programs trap
people with
disabilities in a
lifelong cycle
of poverty.
Overlapping this increase in federal
support was the growth of the independent living movement, out of which
developed a broader disability rights
movement. This activity helped lay the
groundwork for the Americans with
Disabilities Act (ADA), which had the
goal of ensuring full participation in society for people with disabilities by facilitating equal opportunity, independent
living, and economic self-sufficiency.
While that law has led to increases in
both accessiblity and public awareness,
its full promise has yet to be realized.
Businesses and others sought to undermine the law by suggesting it would be
too costly and burdensome. And many
federal courts, including the Supreme
Court, interpreted narrowly a number
of the law’s provisions. Additionally, the
law focuses on physical rather than intellectual disability and does not address
many of the underlying causes of poverty.
Economic discrimination. One notable exception to the trend of courts
limiting recovery of plaintiffs under the
ADA or reading the law narrowly was the
Supreme Court’s decision in Olmstead v.
L.C., 527 U.S. 581 (1999), in which the
Court addressed the law’s integration
mandate and held that unjustified isolation
and segregation of people with disabilities is discrimination and goes against the
ADA’s goal of ensuring “equality of opportunity, full participation, independent
living, and economic self-sufficiency.”
Most people understand that some
employers will not hire a person because
of characteristics such as race or sex—
and that these decisions are illegal. But
decisions not to hire persons with disabilities can involve more subtle means of
discrimination, based on arguments that
include the assertion that someone cannot do a job, that the hiring would require
extra expenses as a result of the need to
provide accommodations for that employee, or, in the case of employers who
provide health insurance, that it would
increase their insurance rates. Not only
are these considerations illegal, they are
also exacerbated by false presumptions of
incompetence based on low expectations.
The bigger barrier to economic equality and independence faced by people
with disabilities is the complex and
often counterproductive matrix of laws
and government programs intended to
provide support and assistance. These
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may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
supports generally fail to deliver a level
of benefits adequate to alleviate poverty
and have a regressive design that discourages and even punishes efforts to work,
trapping these individuals in a lifelong
cycle of hardship.
In 1972 Congress created Supplemental Security Income (SSI) to help the
elderly and individuals with disabilities
with “little or no income” and provide
them “cash to meet basic needs for food,
clothing, and shelter.” The program acts
as a gateway to Medicaid, which provides
critical health care for low-income people, including those with disabilities. It
also provides long-term supports and
services for people who have trouble
finding typical employment.
But there are a number of significant
problems with these programs. States
have limited allocations, so the wait to
get Medicaid through SSI can be several
years. Additionally, SSI participants are
prohibited from making or having too
much money from what is called substantial gainful activity. There is also a
total asset limitation under SSI of $2,000,
meaning participants are prohibited from
accumulating savings of cash, stocks, or
other assets in excess of that amount.
This limit has not been raised since 1989.
Finally, a number of the employment
programs administered by state agencies
and contracted to disability service providers reinforce dependence rather than
supporting independence by paying artificially low, often subminimum wages.
A potential for change. Not surprisingly, efforts to change these government
programs face enormous obstacles. It
is never easy to alter federal funding
streams, even less so in an age of extreme congressional partisanship and
ineffectiveness. Add to this the disparity
in power and resources between those
GPSOLO | ambar.org/gpsolomag
ABA Section of Individual Rights & Responsibilities
This article is an abridged and edited version of one that originally appeared on page
18 of Human Rights, 2014 (40:3).
For more information or to obtain a copy of the periodical in which the full article
appears, please call the ABA Service Center at 800/285-2221.
WEBSITE: americanbar.org/irr
PERIODICALS: Human Rights, quarterly journal; IRR E-newsletter, quarterly electronic
publication.
CLE AND OTHER PROGRAMS: The Section offers a variety of cutting-edge CLE
programs and teleconferences each year; for more information, please visit our
website.
EVENTS: Thurgood Marshall Award Reception and Dinner, held each year during the
ABA Annual Meeting; Father Drinan Service Award Reception, held each year during
the ABA Midyear Meeting.
individuals and families who advocate
for greater integration and the service
and community rehabilitation provider
industry that uses profits from the current system to seek its preservation.
But there are some promising efforts to help eliminate the poverty and
dependence that ensnares many with
disabilities. In a rare instance of bipartisanship, Congress recently passed and
the president signed the ABLE Act. This
law creates a tax-free savings vehicle as
a new subsection of section 529, the
college savings program, which would
allow individuals and families to save
up to $100,000 to cover expenses that
Medicaid does not without fear of losing
life-sustaining benefits.
There also has been progress at the
federal level and in individual states to
rebalance the Medicaid reimbursable
rate structure. This would help make
community-based, integrated, supported
employment more profitable than subminimum-wage, segregated work, now
the primary service option through the
network of sheltered work providers.
And there continues to be progress on
the legal front. With the backing of the
U.S. Department of Justice, advocates
have used Olmstead to mount successful attacks on unjustified confinement in
a number of state institutions and have also
expanded this to protect “the civil rights of
individuals with disabilities who are unnecessarily segregated in sheltered workshops and facility-based day programs.”
See, e.g., United States v. Rhode Island,
Docket No. 1:14-cv-00175 (D.R.I. 2014).
Ultimately, the ability of the disability rights movement to ensure that
people with disabilities have the civil and
economic protections enjoyed by every
other American will depend on several
factors: additional legal victories, increased political power, and greater focus
by those who have supported other civil
rights movements. Only with this combination will the ability to inform and
educate the public change the paradigm
of how society views and treats people
with disabilities. 
75
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
ˉnin Reports
Ro
Have Faith and Act
Accordingly
By Benjamin K. Sanchez
Love Found and Lost
I once found a great love in my life; I
lost that love as well. I took that love for
granted, and I paid the dear price when it
departed. Yet, I have not given up on the
Benjamin K. Sanchez (713/780-7745,
[email protected]) is a
commercial and collection litigation attorney in
Houston, Texas.
76
iStockphoto
W
e are all faced with seemingly insurmountable
obstacles at one time or
another. Such obstacles
have a tendency to come
at just the worst moments . . . or so we
think. I never claim to know exactly how
every bad situation will turn around, but I
have undying faith that things will happen
according to plan. The Plan may not be
what I want to happen, but many times
the Plan will be for the best, whether or
not I see it at the time. I have admitted
to those closest to me that I have no idea
how a particular negative situation will
be righted, but I often express confidence
that the righting will indeed take place.
What causes me to be so positive in the
face of extreme difficulty?
The answer is a combination of belief
in a higher power, trust that the universe
will align according to what is meant to
be, and my own action to achieve a positive outcome. This does not mean that
I am passive or simply sit back to see
how events unfold. Nothing will help
me unless I help myself. I do acknowledge that there are moments of grace
when we are blessed despite not having
earned these blessings. However, if we
do not acknowledge these blessings and
learn from them, if we are not careful to
cultivate these blessings, they will occur
less frequently and ultimately disappear.
idea of great and powerful love because
I know that I am loved every day. Every
day I wake up is a gift of omnipresent
love. I owe it to myself to love myself and
be content with that love regardless of
whatever comes my way because every
breath I take is an act of love toward me.
To be honest, I experience sadness
from time to time because I long for another great love. Fortunately, such moments of sadness are rare and fleeting.
Others often tell me that I am one of
the happiest people they know. If this
is true, then it’s only because my happiness derives from my unwavering belief
that whatever pain I experience is greatly
overshadowed by the positive people and
experiences I’ve had throughout my life.
Years ago, I chose to be positive as much
as possible, and that attitude has paid off.
I do not know what love will come
my way or if love currently in my life
will explode into greatness. I am confident that I will have again what I once
had (if not a greater love), but I will not
let the absence of such love define me or
drag me down. If you are feeling loveless
at the moment, please be assured that you
are loved here and now, and the love you
seek will appear at the right time.
The Shift
A few years ago, Dr. Wayne W. Dyer made
a movie entitled The Shift. For those of
you not familiar with Dyer, he is a worldrenowned philosopher, teacher, motivator,
and speaker. The Shift is a feature-length
film that cleverly interposes scenes of
Dyer teaching his philosophy of “the
Shift” with scenes of several individuals
whose lives are presented as examples.
As Dyer explains, the Shift occurs as
we move from our life’s morning to its
afternoon. At some point in our lives,
each of us realizes that what once was
true in our morning is no longer true
in our afternoon. Our ego-based needs
and desires in the morning change
when we let go of our ego in the afternoon. The Shift doesn’t happen at the
same time for everyone. Some people
shift more quickly than others. Dyer
teaches that we all will experience the
Shift, even if it occurs at the moment
of our death.
In a prior column, I discussed a study
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showing that what people remembered
most about their lives when they were on
their deathbed was whom they harmed
and how they helped. Dyer encourages
us to make the Shift while we are still alive
and able to enjoy it. How great life can
be when we let go of our selfish ego and
succumb to an internal peace based on
helping others. When the Shift occurs in
us, we learn to trust that the universe is
working for us, not against us.
To Be or Not to Be?
We are all familiar with Shakespeare’s most
famous question . . . so simple and yet so
profound. We are lucky if we actually ask
ourselves this question. Many in the world
fail to take time out to do so. Being that
you are reading this column, I urge you
to ask yourself: “How will I matter?” You
may respond by noting that I am assuming you will matter at all, and my retort
is simply this: We all matter, for better or
worse. So, yes, how will you matter?
The more you matter in a positive
way, the more positivity will flow back to
you. The more negativity you bring into
the world, the more negativity will follow you. Whether you call it the Law of
Attraction, Karma, or the Golden Rule,
it boils down to how you choose to live
your life. Do you blame others for circumstances that you control when they
don’t turn out the way you want? Do you
accept credit when others have helped?
Do you spread joy, or do you bring
people down? What will fill that “dash”
between the dates on your tombstone?
When the comedian and actor Robin
Williams passed away last year, many
agreed that Dead Poets Society was his
crowning cinematic achievement. In the
movie, he plays a teacher who encourages young men to seize the day—carpe
diem! Despite his ultimate dismissal from
GPSOLO | ambar.org/gpsolomag
the school because his teaching style did
not conform to that demanded by the
traditional institution, he knew he had
made an impact when several of his students stood on their desks to acknowledge that they would forever look at life
differently because of him. The scene
is one of the most memorable in all of
American film. I ask you now, stand on
your desk and look at the world from a
new perspective. Take time for yourself,
and get away from the everyday hustle
and bustle. Enjoy all of what life has to
offer by getting out of your routine and
what you know. Try something new. You
might surprise yourself.
Follow Through
Although intention is great, it means
little without action. Will you follow
through? Will you demand others to
follow through if they are to be in your
life? Following through doesn’t happen by accident. It happens as a result
of committed acts on a consistent basis.
We may recognize the higher power and
have all of the greatest intentions, but we
cannot truly change our lives without a
dedication to following through.
The greatest of my personal achievements only have come about as a result
of my following through. And one of
my favorite songs is entitled “Follow
Through” by Gavin DeGraw. In the
song, he tells a new love:
So, since you wanna be with me
You’ll have to follow through
With every word you say
And I, all I really want is you
You to stick around
I’ll see you every day
But you have to follow through
You have to follow through.
If you are inspired by what I’ve written, then I will ask of you what Gavin
asked of his new love: Follow through! 
Join a GPSolo Committee!
Did you set a professional goal to participate more this year? Here is a
great way to fulfill that goal now. Join one or more of our 32 substantive
committees! It’s simple. Go to our GPSolo Committee web page at
http://www.americanbar.org/groups/gpsolo/committees.html
and click on any committee for more information.
Check out the tremendous value of GPSolo’s committees!
Don’t miss out. Think of the networking power to be gained from
sharing insights and ideas with other members. If you have any
questions, contact us at 312/988-5648.
77
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Site-ations
Entertaining Sites
for Lawyers
By William L. Wilson
William L. Wilson ([email protected]) practices
civil litigation with Anderson • Agostino & Keller,
P.C., in South Bend, Indiana. He also teaches
entertainment law at the University of Notre
Dame. He blogs about the intersection of law
and technology at thirdapple.com.
78
Veer
I
n this installment of Site-ations, we
have a hodgepodge of websites for
your consideration. On occasion,
general practitioners have the opportunity to venture into an area of
the law that can be a lot of fun. For me,
that area is entertainment law. While the
issues in the area can be complex, general
practitioners can help clients in a good
number of cases if the lawyer has some
core knowledge and resources.
Music is an art form that almost everyone enjoys, and it shouldn’t be surprising that there are many clients with
dreams of making it big in the music
industry. Some of these clients may aspire to be successful performers. Others
may hope to develop a behind-the-scenes
presence. One useful resource is a set of
free music contracts from HipHopProduction (hiphopproduction.com). In
many cases, the free legal things we find
online are worth every penny we pay for
them. Nevertheless, this set of contracts
provides some forms that lawyers can
use as a starting point. For the client who
needs advice about music publishing,
the THUMP Guide to Music Publishing (thump.vice.com) provides a solid
overview of the music publishing world.
Let’s face it: A lot of what we lawyers need to read to keep up with developments can be a bit dull. Lawyers
who advise clients on entertainment
law issues, however, can find the news
a little less dull because the news often
involves celebrities. Digital Music News
(digitalmusicnews.com) is a prime
resource for up-to-the-minute reports
of events occurring in the world of digital
music. Similarly, THR, Esq., over at The
Hollywood Reporter provides prompt
coverage of legal news in the entertainment world (hollywoodreporter.com/
blogs/thr-esq).
Clients who fancy a career in entertainment will inevitably find themselves confronting copyright questions
at some point. The Stanford University
Libraries presents a good primer on U.S.
copyright law in the form of frequently
asked questions (fairuse.stanford.edu/
overview/faqs). Another area that occasionally pops up involves rights of publicity—those rights that allow Michael
Jordan to keep raking in money from
endorsements long after his retirement
from the NBA. The Graphic Artists Guild
(graphicartistsguild.org) has put together
a nice overview of this area of the law with
an eye toward keeping content creators
out of trouble (tinyurl.com/qf7zfqj).
Have you acquired your Apple Watch
yet? I know many lawyers have, and it’s
hard to miss online articles about the new
Apple wonder. The website 512pixels.net
provides some of the best coverage of
the Apple products that are finding their
way into our personal and professional
lives. Even though the Apple Watch and
its apps dominate the news these days,
there’s still plenty of information about
the iPad and iPhone as well.
Regrettably, hardly a week goes by
that we don’t see some news about a
security breach that results in personal
information being exposed. Some of
these security breaches involve hackers
who obtain user names and passwords.
One useful website, Have I Been Pwned
(haveibeenpwned.com; “pwned” being
online-speak for “owned,” or soundly
defeated), lets you plug in your e-mail
addresses and user names that you use
to log in to websites. The site searches a
large database of hacked addresses and
usernames to see if yours appears. If so,
you find out and have some guidance on
what websites you need to update.
In recent months I ran across a terrific
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
A m e r i c a n B a r A s s o c i at i o n
resource for lawyers looking for advice on
how to practice law. Divorce Discourse
(divorcediscourse.com) sounds like it applies only to family law. In reality, however, Divorce Discourse often presents
articles about running a solo or small
firm practice. The articles cover a wide
range of topics, from using throwaway
credit card numbers for website trials to
the unfortunate lawyer losing potential
clients because of bad breath. The writing
is snappy, direct, and to the point.
Although I can’t give you a specific
website address, lawyers who deal with
real estate on any level can benefit from
any local government GIS website. GIS,
or Geographic Information System, is a
way of tracking data about the land in a
specific governmental entity, such as a
county. Oftentimes, local GIS sites provide search tools to locate a parcel by address or owner name. From there, users
may be able to locate legal descriptions,
assessment data, and more. In addition,
some GIS sites have mapping features
that let you access aerial views of land.
Be wary of mentioning your local GIS site
in conversations with clients, however—
especially in domestic relations cases. A
stalker, for example, might use a GIS site
to locate real estate owned by the victim.
Finally, a site to help you waste a few
minutes now and then: Mental Floss is a
website with “amazing facts” and more. It
offers a series of articles called “Big Questions” (mentalfloss.com/big-questions).
The questions aren’t necessarily big or
even all that important. They can, though,
trigger that itch of curiosity that leads
people to ask why the National League
doesn’t use designated hitters or what
the symbols on the bottom back of your
iPhone mean. These questions won’t help
you win your next case, but they might
help your team sweep up on trivia night. 
GPSOLO | ambar.org/gpsolomag
201 • 6 x 9
214 Pages • Paperback
Product Code: 5150474
List Price: $39.95
GPSolo Members: $31.95
The Lateral Lawyer
By Adam S. Weiss
Moving from one law firm to another is the
most significant career decision an attorney
can make. In this tell-all book, seasoned
legal recruiter Adam S. Weiss guides law firm
partners—and aspiring partners—through the
recruiting process.
Using example situations and the experience
gained from two decades as a lawyer and
legal recruiter, the author explains exactly
how you can receive the best possible lateral
offers by creating the perfect market: one that
makes firms compete for your practice.
To order, call the ABA Service Center at (800) 285-2221
or visit our website at www.ShopABA.org.
Publication Orders, P.O. Box 10892, Chicago, IL 60610
79
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
GP Mentor
Five Things I Wish I Knew When I
Started Practicing Family Law
By Joan E. Loos
Joan E. Loos, Esq. ([email protected]), practices
family law as a partner with Stegmeier, Gelbart,
Schwartz & Benavente, LLP, and is a Certified
Family Law Specialist. She is writing this article as
a member of the Orange County Bar Association,
Family Law Section Executive Committee.
80
iStockphoto
W
hen I started practicing
family law, I struggled
with the issues identified below. Young attorneys entering the
field of family law often encounter
these issues. Some of the issues discussed are inherent in any new practice,
while others appear more readily in a
family law practice.
1. It’s okay to say “no” to a potential new client. Trust your instincts
during the initial consultation. If your
gut is telling you this person is trouble,
or if you are about to become the third
or fourth attorney for this person, or
if it is simply not a good fit . . . then
don’t take the case. The retainer will
be tempting, but in the long run the
difficulties associated with such a client
will outweigh the benefit. Remember:
Sometimes you make more money on
the cases you do not take.
2. Clients tend to exaggerate or
omit facts. It’s okay to question your
clients regarding the facts they tell you.
Your job is to collect the facts (not your
client’s version of the facts), analyze
the law regarding each issue, and apply
the law to the facts. Your analysis is
worthless if the facts are not accurate.
Take some time at the outset to crossexamine your client regarding his or
her story. Taking the time up front to
question your client accomplishes the
following: (1) you will discover a more
pristine version of the facts; (2) you
will see how your client holds up under
cross-examination should this client
ever be in a situation where he or she
has to testify; (3) you have an opportunity to assert control over the situation
(who is driving this bus?); (4) you will
discover the weaknesses of your client’s case more quickly, which leads to
a more reliable and accurate assessment
of the case; and (5) you get to practice
your cross-examination skills.
3. You are worth the money you
charge for your services. For many
young attorneys, this is the most difficult part of practicing law. You have
to believe that your services have
value. If you do not value your skills,
knowledge, and work, then why should
the client? The best time to get paid
is when a client needs you. It’s not
greed. It’s not callousness. It is good
business, and the client will ultimately
respect you for conducting your business efficiently.
4. Do not become emotionally
invested. Family law is often full of
emotionally wounded clients with
emotionally charged issues. Clients
often seek an attorney who can empathize with their position and feel like an
ally. This is not your job. If your clients
need a therapist, then send them to a
qualified professional. If your clients
just want to unload, then send them
out for a strong drink with a friend
who can provide a sympathetic shoulder. Your job is to provide good, solid
advice when analyzing the facts of the
case and preparing a strategy. Sometimes this means disagreeing with the
client’s position(s).
5. Cost-benefit analysis is a friend
to both you and your client. Sometimes it is hard to say no to an interesting issue—and even harder to get the
client to let go regardless of the cost to
litigate an issue. A cost-benefit analysis
is an extremely powerful tool in ferreting out how important the issue really
is to the client. In other words, it can
help the client determine the potential worth of the issue. Explain to the
client the evidence you need to prove
the issue and the accompanying work
to prepare for trial (appraisals, expert
witnesses and reports, depositions, discovery, your time to prepare). Then ask
for a trial retainer to cover the expense.
More often than not, the client will
quickly reevaluate the importance of
a particular issue or all issues and become open to a compromise that makes
sense. This tool will help keep you and
your client in the black.
The practice of family law can be
very rewarding and intellectually
stimulating. However, family law can
also be very draining. Keeping these
five points in mind will assist you with
managing your family law practice. 
GPSOLO | July/August 2015
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
A m e r i c a n B a r A s s o c i at i o n
The Leader’s Journey
A Guide to Discovering
the Leader Within
By Dr. Artika R. Tyner
Leadership is a journey often mistaken for a destination. The
Leader’s Journey: A Guide to Discovering the Leader Within
provides guidance and inspiration for that journey. Reading
this book will provide the reader with inspiration on how to lead
effectively, build new bridges, and establish a vision for the future. This is the
foundation of leadership growth. In three parts the book explores core values
of leadership and how these values inform your understanding of leadership.
This is the beginning of “knowing.”
2015 • 6 x 9
176 Pages • Paperback
Product Code: 5150480
Regular Price: $29.95
GPSolo Members: $24.95
Part 1: Leading Change—Planting People, Growing Justice (Why Lead?)
This section focuses on your personal mission and vision. Since leadership is
about influence, this section explores how you can influence change in the
global community, organizations, professional associations, and beyond.
Part 2: Your Leadership Qualities (What Makes You a Leader?)
This section provides key insights on core competencies of leadership.
Effective leadership requires developing the necessary tools to lead change.
Part 3: Your Leadership DNA (What Is Your Individualized Leadership Style?)
This section offers an opportunity for critical reflection by exploring your
individualized approach to leadership. It provides an introduction to an array of
leadership styles in order to gain insights on how you lead best.
This collection of quotes serves as a source of inspiration and guidance on your
leadership journey. Each quote functions as a critical reflection tool. As you
take the time and reflect on each quote, you will gain new insights. This type of
reflection provides an opportunity for you to strengthen your leadership skills
and share these lessons with others.
To order, call the ABA Service Center at (800) 285-2221
or visit our website at www.ShopABA.org.
Publication Orders, P.O. Box 10892, Chicago, IL 60610
Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
THE SCENIC ROUTE
IS ENJOYABLE
BUT NOT IF
YOU’RE PRESSED
FOR TIME.
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Published in GPSolo, Volume 32, Number 4, July/August 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.