Thursday, July 19, 2007

Caution - Wet Paint

Last weekend I was travelling and in a resort with freshly painted stairs. I knew they were freshly painted because there were signs taped to the railings: "Caution - WET PAINT." So I did what any nine year old would do -- I reached out and touched to see if it was really wet. (It was definitely tacky -- enough to make my hand sticky.)

But wait, I am not nine --- I am a rational reasonable adult -- why did I reach out and touch the paint? I think that sometimes we act first -- and then think later. And sometimes the impulses are so strong, or the impulses are just medium and we are not thinking clearly, that we end up doing things that, after a moment's thought, we may have avoided.

Taking that moment to think becomes ultra important when you are involved in a family law matter. Some impulsive moves could have irreversible consequences --- or consequences that are messy, expensive, and painful to reverse. So before you say something in the heat of the moment, shoot off a threatening email, leave an abusive voicemail message, or lose your temper in front of your kids --- take a moment to see if this is an impulse that you can overcome. If so --- you will make life easier on yourself -- or at least just not as messy.

Sunday, July 08, 2007

That's OK - I'll Just Appeal!

What if you do not like what happens at the trial court level? Do you get a second bite of the apple by filing an appeal of your family law matter?

Generally, everyone understand that our courts include a comprehensive appeals process. Once the trial court renders a decision, generally, you have a right to appeal to the appellate court of your state. If you do not like the result there, you may usually appeal to the state supreme court.

However, the law and procedure limit the scope of review of appellate courts in family law cases. Generally, an appellate court may not disturb the findings of the trial court unless they see a broad abuse of discretion. (The standard varies a bit, based on the state and the issue, but this is an accurate general rule). Additionally, an appeal can be extremely expensive, both in attorney fees and the costs of reproducing the record.

An appeal does not mean that you get a new trial. Additionally, the appellate court is limited to what is in the trial court record ---- so if you did not bring it up the first time around, you will generally not be able to do so during the appeal.

In this unpublished New Jersey case, the court recites the standard of review, and discusses why certain trial court decisions cannot be disturbed. It is a useful opinion to read before your trial, so you understand the importance of what you must present to the trial judge.

Remember that the rules provide limited times for appeals, so if you think you might want to appeal a trial court decision, consult with an attorney right away to make sure you meet all of the deadlines. It is a good idea to understand the merits of your case, and the best and worst possible outcome at the appellate level, so you can make a reasoned decision regarding your appeal.

Thursday, July 05, 2007

I Don't Want to Go Back to Court

When bargaining and negotiating child support and child custody, many people hope that once they come to an agreement, they will never have to go through the (sometimes painful) process again.

So - many people make agreements not to file petitions or not to seek reductions or increases in support or not to try to change custody. However, because child support and child custody depend on the needs and circumstances of the children, these restrictions are generally unenforceable. Accordingly - be careful when incorporating these types of clauses into settlement agreements. The Superior Court of Pennsylvania just addressed this iss in a comprehensive opinion. Read it here.

Some family law agreements are enforceable and non-modifiable - but it is rare that the terms of those agreements have anything to do with children. So be careful when negotiating --- you might give up something that you can never get back, in return for an agreement on child support -- that the other party could petition to change the next day.