Almost a quarter of a century ago, as a first year law student, I was required to take a course on Philosophy and the Law.  I absolutely hated that class, did not understand its importance, and found the subject matter very frustrating and difficult to comprehend.  I recall the Professor calling upon me to answer questions relating to the material and being completely incapable of responding intelligently.  To my surprise, I now regularly find myself involved in discussions relating to Philosophy and the Law as a result of my writings and people's frustrations with regard to the legal system and family law attorneys.  I am proud to say that I have evolved since taking that course and have come to develop a rather fond appreciation for philosophy. 

The most recent such discussion occurred on Facebook on January 30, 2011, after I posted the following statement, "The brother of a friend of mine, took his life on Wednesday, after losing his business, home, family and dignity as a result of false allegations of domestic violence by his wife in a divorce proceeding….  I wish people would realize the consequences of their actions." 

In response, some people commented that, "equal parenting is needed to solve this perverse problem."  Others opined that the system is somehow corrupt or that it was the result of "purposefully fueling the flames of hatred between a father and a mother to keep them perpetually tied up in court until there's nothing left for them OR the children...."  A great deal of disdain toward lawyers was conveyed to me during the discussion.  In fact, people were commenting about "attorney assisted false allegation instruction… and perjury," both topics about which I have previously written. 

As I mentioned in those articles, " it is estimated that as high as 80% of allegations of domestic violence and child abuse are completely false….  It is widely recognized that false claims of domestic violence are often made in divorce and paternity actions in order to gain a legal advantage. "  Nevertheless, " Judges almost never refer a case to the District Attorney's office for a perjury prosecution" and "persons who knowingly make such accusations are almost never subject to legal sanctions" because otherwise everyone who testified in court "would go to jail."  My article on perjury also explained the California State Bar's position that "since communications between the attorney and his client are confidential, we will not be able to learn what representations by the client the attorney relied upon in presenting the client's claims."

As a participant in the Facebook discussion, I commented as follows:  "I do not disagree with the statement that family law attorneys tend to 'stir the pot' and encourage or assist their clients in making false allegations.  I was involved in a case where my client's wife continuously made such allegations and... made the case much more difficult and expensive than necessary.  After the case was over, the then ex-wife wanted to sue her attorney for having encouraged her to make false allegations in her declaration. She was not able to pursue such a thing because it would have meant her admission that she committed perjury." 

In response, someone said that attorneys "guide divorcees thru the process of annihilating the opposition, with every tactic available, and that includes very dishonest means.  Attorneys are essentially giving the means to break the law, assisting in doing so, AND GETTING AWAY WITH IT."  Interestingly enough, I addressed that issue in my article entitled, "Family Law and Attorneys Fees."

I responded as follows:  "A courtroom/lawsuit is the wrong forum/manner for handling marital discord.  The fact that attorneys (judges were attorneys first) have been found in general not to care about interpersonal relations only makes it worse.   Let's not ignore the fact that emotions are so high that people going through a divorce are suffering from 'temporary insanity.'"

Someone then commented that when people are suffering from such "temporary insanity," it is the perfect opportunity for family law attorneys to "milk them" by fanning "the flames" in order to "line their pockets."

In response, I stated that, "I am merely acknowledging that the system is flawed, but that nothing is perfect.  It is easy to find fault.  The challenge is to find a real solution."

Someone then remarked, "The legal system's performance speaks loudly about its lack of compassion, just as loudly as it does about its lack of justice."  Another person was adamant that equal parenting (50/50 timeshare) was the answer. 

My new found appreciation for philosophy came out in my final remark that "The reality is that procreation proves nothing about one's ability to parent.  You are imagining a world in which everyone is a good parent.  I guess that the legal system and society should turn a blind eye to the fact that parents commit child abuse, child neglect and that children are permanently scarred or worse as a result of the actions of their parents.  While I admit that the system is not perfect and while I believe that the adversarial system destroys families, I am not ignoring the fact that children are innocent victims of the actions of their parents.  They are the collateral damage of their parents' behavior. As much as you want to blame the legal system and the lawyers, the truth of the matter is that if people did not seek out "pit bull" attorneys to go for the jugular of their spouse/the other parent, those types of attorneys would fail to earn a living and things would change.  The reality is that people deliberately seek out destructive attorneys to accomplish their dirty work and then play the blame game.  I was an economics/business major in college.  If there is no demand for such despicable and anti-social attorneys, the supply would diminish.  On the other hand, when the demand is great, so is the supply.  Which came first?  Did the lawyers create the problem or did the society's demand for such lawyers create the problem.  I believe that society's demand for such lawyers created the problem and that the only way to improve things is for society in general to take responsibility for its role in creating the problem and change the reality.  I may detest anti-social lawyers (the majority who do not consider the consequences of their actions and do not care about interpersonal relations), but I do not ignore the reality that they are also the most successful lawyers because they are in great demand by our society."

Much has been written about divorce insurance, since the August 5, 2010 launch of WedLockDivorceInsurance.com. This is the first time that insurance of this type has ever been available. “The product is sold as individual policies. You buy it in units of coverage. Each unit is valued at $1250 at a cost of $15.99 per unit. For instance, if you bought 10 units of Divorce Insurance; it would cost you $159 a month.... Policy holders can buy up to 200 units of divorce insurance which is $250,000 in coverage.” “Then, if you get divorced and your policy has matured (see below for the maturation rules), you would send WedLock proof of your divorce. In return, you’d receive a lump sum of cash equivalent to the amount of coverage you had purchased.”

"So how does the company prevent people who know they are going to get a divorce from signing up? To prevent that kind of adverse selection, the policies don’t mature until 48 months after their effective date (though people can purchase additional riders to reduce that maturity period to 36 months and to get their premiums back if they happen to divorce before the policy matures)." "That will hike your monthly premium to $30 per unit.”

Unless you purchase the additional riders and your marriage ends less than 48 months after you purchase the policy, you lose whatever premiums you paid for the insurance. At $30 per month, the return on the "investment" if the marriage ends within 48 months of obtaining the insurance policy is relatively low. Therefore, it makes little sense to purchase such riders. However, without such riders, if you divorce before the waiting period is over, the premiums are lost. For a standard policy, "if a policyholder who bought 10 units got divorced after 10 years, he or she would have handed over $19,188 and would receive a payout of $27,500.” If the math does not add up, that is because “after the required 4 year waiting period is over, the policy goes up in value every year by $250.00 per unit." However, bear in mind that policy holders who never divorce, lose whatever premiums they paid for the insurance.

All in all, the insurance does not seem very cost effective. "It seems that people would be better served by self-insuring, i.e. putting $15.99 per month into a savings account and earning interest, rather than paying for such coverage and then possibly never getting divorced. Plus, some divorces are relatively amicable and may not cost tens of thousands of dollars. In response to this notion, Mr. Logan (the CEO and Founder of Wedlock Divorce Insurance) said that while people could end up with more money that way, there’s always the chance that money would be squandered by a soon-to-be ex spouse. 'There is nothing to stop your spouse from raiding those investments and taking it all.... And then with all the money gone, you’re left with all the legal bills,' said Mr. Logan, who said the idea for the product came from his own experience with a financially painful divorce." "He also argues that the $250 per-year appreciation per unit is much more than the miniscule returns available today on savings accounts.... In addition, the company’s Web site makes the argument that most people don’t have the discipline to save consistently.”

If a person has the discipline to make a monthly premium payment for such insurance, I would hope that they would also have the discipline to place those funds into a savings account. It may be that the return on such an investment is miniscule, but at least the investor is guaranteed a return on their "investment." Furthermore, if a person is not bothered paying for such insurance, what would prevent that same person from placing those monies into an account which is not accessible to their spouse? Any concern that a spouse would “raid those investments” is therefore easily addressed and at no cost.

"Depending on whose statistics you use, somewhere between 40 to 50 percent of first marriages ultimately end in divorce. (Click here for a breakdown of divorce statistics.)” Therefore, between 50 to 60 percent of those who purchase divorce insurance will never see a return of any sort on their investment. In fact, they will have “lost” all the monies they paid in premiums for the insurance. For those who do receive a payout because their marriage failed, the payout is insufficient based upon the odds. Also, please take note that “the policies aren't backed by any state insurance or other government fund, only by Prime Insurance, Safeguard's underwriters."

Of even greater concern to me is the fact that the premium is being paid throughout the course of the marriage. This is not comparable to a premarital agreement, which is something a couple enters into before marriage. In fact, many couples will not marry without a premarital agreement. There are many valid reasons for entering into such an agreement, but those reasons are not true for divorce insurance. I understand that a large percentage of marriages end in divorce. However, I would strongly suggest that someone re-evaluate entering into or remaining married to someone who would be inclined to purchase divorce insurance and pay the premiums while happily married. There is also the potential for fraud, in that couples in need of the money may divorce just to obtain the insurance payout and still remain a couple and possible remarry. "You'll have to celebrate at least your fourth anniversary with your sweetie in order to cash in, because that's when the policies mature." I do not believe that a four year waiting period is something that will discourage insurance fraud by divorcing in order to recapture monies thrown away in unnecessary insurance premiums.

What Mr. Logan also fails to explain is that the payout from the divorce insurance is taxable to the extent it exceeds the total amount of premiums paid for the policy. He also neglected to explain that if the premium is paid with community property money, the payout from the divorce insurance would be deemed community property. Moreover, if the payout is not deemed community property, it would be viewed as income for purposes of calculating child support, spousal support and attorneys fees contributions. As if that were not bad enough, I suspect that people would spend even more money litigating their divorces and destroying their families, knowing that they will be "reimbursed" for such expenses through their divorce insurance.

It seems to me that Mr. Logan has figured out a way in which to recoup the financial losses he suffered as a result of his divorce. While Mr. Logan may benefit financially from divorce insurance, that is only because he owns the company. I am not sure that the policy holders stand to benefit from carrying such insurance.

If you have an issue regarding family law, divorce, child custody, child support, spousal support, restraining orders, paternity actions, or domestic partnerships, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation.

My last Blog entitled, "Emotions Play an Integral Role in Divorce Proceedings and Therefore Must be Understood by the Attorney" explained that "the emotional impact of a divorce is as severe as that of a death in the immediate family" and that "most of the literature on the psychology of divorce treats divorce as the death of a relationship."  At the conclusion of that Blog, I stated, "It is horrific that 'both our court system and our culture at large' encourage people to make the most important decisions relating to the dissolution of their marriage, including but not limited to selecting an attorney to represent them, at a time when they are most vulnerable to making major decisions that they will later regret.  Yet, when people are grief stricken following the death of a spouse, they are advised to 'try and avoid making major decisions at least for the first year following the loss.'"

After I released that Blog, a family law colleague of mine in New York advised me of information he had learned at Continuing Education Course entitled, "Stress and Sanity in Everyday Practice."  A "Stress Assessment" was provided by a psychiatrist and based upon the Homes and Rahe Life Change score.  Although it was established in the 1960's/70's, that Life Change score is still validated by most mental health experts.  The "Top 10 List" for adults is as follows: 

10. Retirement (45)
9. Marital Reconciliation (45)
8. Fired at Work (47)
7. Marriage (50)
6. Personal injury or illness (53)
5. Death of a close family member 63)
4. Jail term (63)
3. Marital separation (65)
2. Divorce (73) [the score is 90 for non-adults]
1. Death of a spouse (100)

As can be plainly seen, the stress of a divorce comes second only to the death of a spouse.  Moreover, as mentioned in my last Blog, "when it comes to divorce, certain aspects of loss become slightly magnified."  In other words, the manner in which people process and manage the stress/loss caused by a divorce is more destructive to themselves and others because they are able to act out against the other person who was involved in that relationship.  The following are some examples "of the losses that are part of a divorce:  loss of companionship, loss of financial security, loss of a sexual relationship, loss of time with children, loss of an extended family, loss of status as a married person, loss of self-esteem, loss of friends, etc." 

The way in which individuals respond to loss is influenced by personality, family, culture, and spiritual and religious beliefs and practices.  The difference in the way society treats the grief from the death of a close family member and from divorce is exemplified by the fact that the United States Department of Health and Human Services - Substance Abuse and Mental Health Services Administration's website refers to grief as something that occurs "after a death or loss" and all of the organizations it lists which provide "information and support for coping with grief"  deal with grief stemming from the death of a close family member. 

If interested, a person can easily find a support group to help cope with the loss and grief caused by the death of a loved one.  Such groups can be found in local newspapers, through friends and family, mental health care professionals, funeral directors and through an internet search.  What is disappointing  to me is not the fact that the Homes and Rahe Life Change score has been around and accepted since the 1960's/70's, but that nothing has been done to alter the way in which people are encouraged to handle the grief resulting from the death of a marriage (or a non-marital relationship involving parents). 

How often does a friend or family member refer a person going through a divorce to a support group or to a mental health care professional to help the person cope with the loss and grief caused by the death of their marriage?  Instead, we encourage people going through such losses to handle their loss and grief in destructive ways by going to war with each other in the courtroom (the family law court). 

Due to the holiday and my birthday celebrations, I did not write a Blog article for this week.  Instead, I began the following discussion on the Discussion section of my Facebook Fan Page: "Should the way in which a religious leader conducts his/her personal life impact his/her career itself?" This is the first Discussion I commenced and I would appreciate as many people as possible participating in this controversial discussion.  If you are not already a Fan of my Fan Page, you must become a Fan in order to participate. The Page can be found at the following site: http://www.facebook.com/MarkBBaerEsq

My last Blog entitled, "Empathetic Family Law Attorneys" explained the unfortunate reality that while lawyers tend to "lack sensitivity to human, emotional and interpersonal concerns," in the field of divorce/family law , such attorneys cause a great deal of damage to families.

In an article entitled, "Divorce and Your Emotional Needs: What You Should Know to Survive Your Divorce", Dr. Deborah Hecker states, "Most of the literature on the psychology of divorce treats divorce as the death of a relationship...." In fact, in " The Emotional Stages of Divorce", Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D. mention that, "[t]he emotional impact of a divorce is as severe as that of a death in the immediate family...,” including " the loss of a spouse through death." As expressed by Ellie Wymard, Ph.D. in " Men & Divorce", "Anyone who has mourned the death of a spouse may not appreciate the comparison, but death and divorce share similarities.... According to bereavement experts, when a man's wife dies, the mourning husband will come to the other side, and ultimately say, 'She is dead and is not coming back.' But when it comes to divorce, certain aspects of loss become slightly magnified. Cathleen Fanslow Brunjes, Bereavement Coordinator' for Hospice Care of Long Island, New York, made the distinction by saying, 'Bear in mind that with divorce there's not a body to mourn. It's disenfranchised grief.'"

In her article, Ellie Wymard, Ph.D., states, "Any experience of loss, regardless of what it is, carries with it similar issues that need to be resolved." The following are some examples "of the losses that are part of a divorce: loss of companionship, loss of financial security, loss of a sexual relationship, loss of time with children, loss of an extended family, loss of status as a married person, loss of self-esteem, loss of friends, etc." As expressed by Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D. in their article, "Although it's painful, grief is a healthy emotional response to the loss of an important relationship."

In "The Impact of Loss and Grief on Effective Co-Parenting," the authors point out that "There are five stages to the grieving process. These stages are denial, bargaining, anger, depression, and acceptance. These stages are extremely applicable to divorcing and divorced parents, divorcing persons in general, and to those parents who were never married and experienced a dissolved relationship."

As stated in "The Emotional Stages of Divorce," "Experiencing guilt and shame is also a normal reaction to the end of a marriage.... We know that for many individuals, guilt and shame can be so painful that they change very quickly into other, more tolerable feelings, such as anger or depression -- often without the person's even knowing that the guilt and shame are there. This is why it is common in divorce for each partner to blame the other and why it can be so difficult for divorcing partners to accept responsibility for their own part in a failed marriage.... Guilt can cause spouses to feel they have no right to ask for what they need in a divorce, causing them to negotiate unbalanced, unrealistic settlements they later regret.... Similarly, shame often transforms into blame, anger, or rage directed at the spouse."

In their article, Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D. note, "The wide array of emotional states that many people experience during the early stages of the divorce process can diminish their capacity to think clearly, impair their judgment, and make rational decision making difficult or impossible...." "Grief is like a storm that can sweep you off your feet leaving the person lonely, confused, and dazed."

Due to the grief caused by the death of a spouse, it is generally recommended that "In this state of vulnerability this is not a time to be making major decisions that you may regret later. Try to avoid making major decisions at least for the first year after the loss." Although the grief experienced as a result of a divorce is similar to that caused by a death of a spouse, " both our court system and our culture at large encourage us to take action in divorces based on how we feel when we are at the bottom of the emotional roller coaster, when we are most gripped by anxiety, fear, grief, guilt, and shame. After all, that's when most people are moved to make the first call to a divorce lawyer. As a result, people are encouraged to make shortsighted choices based on emotional reactions that do not take into account anyone's long-term best interests."

As I stated in my article entitled, "'Pit Bull' Attorneys and Family Law", "Many people hold the unfortunate belief that when they become involved in a lawsuit – including divorce - they need to find a lawyer who is a "fighter," or "pit bull" (i.e., like the dog bred specifically to fight other dogs). Since legal disputes are adversarial by nature, the logic seems to be that an aggressive attorney will more successfully advance one's interests in court. By logical extension, a lawyer who is not ruthlessly aggressive would be a suboptimal choice. However, I would like to point out that strong, proactive, and even aggressive representation does not necessarily equate with the "pit bull model." Attorneys classified as pit bulls often tend to be belligerent, argumentative, and eager to fight. What the public does not realize is that highly contentious individuals (attorneys included) usually place self-interest above all else. It should be obvious that always looking for more points to fight over, and even taking unreasonable positions on behalf of their clients, generates significantly more money in fees for the lawyer who charges on an hourly basis. Moreover, such attorneys tend to derive a great deal of pleasure from the fight in and of itself. In fact, many attorneys enter the field precisely because they enjoy argumentative confrontation, and tend to be disagreeable and difficult people in general. 'Pit bull attorneys' are not concerned with resolving a case in a fair and equitable manner, despite the fact that the family law court is considered a court of equity, or fairness.... Such attorneys are focused on 'winning,' no matter what the cost, irrespective of right and wrong, and in total disregard of equity."

It is horrific that "both our court system and our culture at large" encourage people to make the most important decisions relating to the dissolution of their marriage, including but not limited to selecting an attorney to represent them, at a time when they are most vulnerable to making major decisions that they will later regret. Yet, when people are grief stricken following the death of a spouse, they are advised to "try and avoid making major decisions at least for the first year following the loss." As Pamela Edwards-Swift stated in her article entitled, "Family Law Attorneys Can Make Or Break Your Case," "The more I do this, the more convinced I am that choosing the right attorney is one of the most important decisions you can make."

The failure of our society to recognize the similarity between the emotional vulnerability following the death of a spouse and that following the death of a marriage causes people to hire attorneys who are unwilling, unable, or incapable of properly managing their emotions.

As mentioned in the article by Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D., "The resulting 'bad divorces' harm everyone and serve no one well. They are very costly; they fail to plan intelligently for the future; and they inflict psychological scars on both the adults and the children."

If you have a family law issue or questions relating to child custody, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation.

My last blog entitled, "The Cause and Effect of the Historical Shift in the Role of Attorneys" explained that a lawyer's role in peacefully resolving disputes ended in the 1960's, when individuals began pursuing the practice of law seeking wealth and power rather than to address social issues and to help people.  The personality characteristics of those entering the field of law changed in accordance with that shift. 

According to a June, 1997 article from the American University Law Review entitled, "Lawyer, Knowing Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism", "Lawyers' relationships with their clients and with the public likely suffer as a result of lawyers' preference for introversion, thinking, and objective analysis, compounded by a lack of sensitivity to human, emotional, interpersonal concerns. Lawyers' preference for introversion suggests an indifference to their outer world, including other people, and their preference for thinking implies a cool, impersonal attitude, both of which suggest that they may not relate well to other people, including their clients. There is recent evidence that lawyers are actually more like engineers than they are like nurses or teachers, being logical and unemotional, yet unlike engineers, in that their work is inextricably involved in interpersonal conflicts and issues.  These lawyer attributes, although they may be adaptive for the practice of law because they allow the lawyer to avoid feeling unduly emotional about his or her clients' cases, may be maladaptive in the client counseling part of legal practice.  One might conclude that lawyers should become more emotional, partial, compassionate, and interpersonally sensitive.  However, there is evidence that humanistic, people-oriented individuals are the least satisfied lawyers."

The article refers to a suggestion by Leonard H. Churmir, Ph.D. "that law schools, large law firms, and judicial appointments committees might consider motivation testing in order to place or direct law students, new lawyers, and politically appointed judges, respectively, and ensure that they will be 'good fits for the position.'"  I found this suggestion of great interest because recently and prior to learning of that suggestion, I had a conversation with a colleague wherein we discussed "the mental state of the attorneys and how their own personalities can interfere with resolving cases."  I told her that "an attorney's own personality was pivotal in potentially having a negative effect on the people they serve" and that before being granted a license to practice law, applicants should be required to undergo some sort of motivation testing.  I recognize and appreciate the fact that the United States is a free country and that the possibility of requiring such motivational testing is unlikely.  However, my area of practice is family law and the potential negative effect that lawyers with a "lack of sensitivity to human, emotional, interpersonal concerns" cause a great deal of damage to families and the children of those families are innocent victims.  That damage is sometimes irreversible and otherwise can take a great deal of therapy to reverse.   

In an article entitled, "Divorce and the Client's Emotional Needs: What Every Divorce Attorney Should Know", Dr. Deborah Hecker states, "Although divorce lawyers do not need to be trained psychotherapists to represent their clients successfully, they need to do what they can to reduce conflict and promote a divorce environment that helps their client remain focused, calm, and goal-directed. An empathetic divorce attorney can see through the anger, greed, and grief and not allow it to impede a successful legal resolution....  A divorce attorney who understands the psychological stages the client is experiencing can better promote adult behavior and provide quality legal resolution."

In 2002, the Section of Litigation of the American Bar Association prepared a report entitled, "Public Perceptions of Lawyers Consumer Research Findings". Among other things, that report found that "some consumers feel that lawyers do more harm than good.  This is particularly true of people going through a divorce.  They say that divorce lawyers can exacerbate an already difficult situation....  This idea does not just come from the media.  Personal experiences bear it out." 

After the discussion I had with my colleague wherein we discussed the mental state of attorneys, she published an article entitled, "Family Law Attorneys Can Make Or Break Your Case".  In that article, she references our discussion states, "My colleague made a great point. The more I do this, the more convinced I am that choosing the right attorney is one of the most important decisions you can make."