Fixing the Picker: Part III. Money

Most divorces arise from serious disagreements about money:  How to handle it, how to save and spend, how to get it, and who has the power or control over it.  Whenever I see a statistic about what causes people to break up, THINGS and MONEY are always the number one issue.  He can’t keep a job.  She spends every dime that comes into the house.  He wastes the joint money on golf, a boat, or some other habit he insists on maintaining.  She overspends on the kids, claiming a right to do so because “it’s all about the CHILDREN”, despite that it will put them into bankruptcy.  She refuses to work despite that he says they can’t afford a stay-at-home parent.  They spend themselves into bankruptcy.  He doles out money to her like a parent giving allowance to a kid.  She maintains her salary in a separate account for herself (after advice from others that a woman always needs “her own” money), while thinking of HIS salary as jointly owned.  He sends money to his parents to help them out in their old age, despite that she says they can’t afford to do so.  She is jealous of the alimony or child support that he owes to previous relationships and wants him to run to court and find ways to reduce it.  They invest in a business, throw all their money into it, and then can’t agree on some details of how to save it when it fails, and blame each other for losing their nestegg.  Every one of these situations comes from a divorce I handled, and I could simply keep going.  The point is that every person has their own issues, and every couple develops their own ways of handling the joint issues.  And many times, these issues and the couple's ways of handling the issues can create problems.

          However it comes around, money is a huge issue in many marriages, and is the catalyst for most breakups. 

          Given this information, it makes sense to have long discussions about money before you marry.  If your officiant does not require pre-marital counseling that has a component about finances, you should do it on your own.  And even if you do get a premarital counseling on finance, you should work harder on this issue than your counselor requires. 

          After years of being a divorce attorney, I decided to avoid this for my future relationships.  When we were dating, I decided to explore the whole situation before we went further.  Use my choices as a guide in doing it, yourself:  I provided information to my (now) husband about my finances, my office and business, my retirement savings, my income and my tax liabilities.  He knew the value of my house, my car, and the loans on them.  He knew about every credit account I had.  I asked for his information.  I got him to let me browse through his copy of his divorce file along with all the financial disclosures from it.  I checked to make sure he had fully paid his divorce lawyer from his previous marriage.  I knew his child support situation and his retirement savings situation.  I looked (with permission) at the credit bureau report that he had from the purchase of his post-divorce house.  I offered for him to get a credit bureau report on me. 

          We talked about our future plans, about our business plans, our retirement plans, our careers, our plans for financing our lives.  We talked about the fact that neither of us were from rich families and were not living off of trust funds.  We talked about whether either of us would have ongoing obligations to our parents as they aged and how we planned to handle the moral obligations without ruining ourselves financially.  We talked about the same issues in regard to his kids and their college expectations.  We looked at each other’s career paths, and discussed the mistakes we and each other had made. 

          Even with all this talk, there were surprises.  We did not anticipate the economic downturn and the resulting affect it had on our real estate and retirement accounts.  We did not anticipate the job situation that required us to move around the country.  But the fact that we had discussed all these other pieces of the puzzle ahead of time made it possible, when the country’s financial crisis arose, for us to trust each other in discussing how to resolve our personal issues within the country’s crisis. 

          The older you are, the more of a track record you have in issues involving things and money.  Look at how someone chooses to spend thier money.  Are they living high on a small budget and using credit to do so, or are they pinching pennies with a million dollars in the bank?  Are you overspending your income and hoping a partnership with someone will help solve your credit issues?  Does your proposed partner know that you expect them to solve your money issues? 

           If you and your partner are young, it’s difficult to ascertain what your partner’s attitudes might be, but even if both of you are financial babies (very new to understanding financial issues), you can figure out if you have similar hopes and dreams, and whether you have a smart plan for making those things happen.  You know whether each other has bought all the toys you can afford or whether you are trying to develop a habit of working and saving for a rainy day.  And recognize that it will take work to grow together in these issues. 

           If you and your partner are older, you can look at your partner’s track record and figure some of this out.  Expect that you will not change someone else’s basic attitudes about money.  Expect that you will have to negotiate and grow together on this issue.  Expect that from time to time, even people who agree on everything will encounter surprises or have to negotiate.  But you cannot ignore it. 

Fixing the Picker: Part II. History

When looking for a new mate, pay attention to their history. 

If they are older than 22, they have been an adult in the real world long enough to develop work habits and thrift habits.  They have had a relationship or two.  They have personal habits and goals.  While it is possible to change and improve ourselves over time, lasting improvement is rarely motivated by outside sources.  Look for someone whose historical interests, attitudes, and habits are consistent with your needs.  There are many clues available in a person's history. 

If they are not yet self-supporting, are they respectful of their supporters and seeking the opportunities that are available to start becoming self supporting? If they are self supporting, is it at a level and with a realistic ambition to move ahead? If they are older than their mid-20s, have they been a job hopper? a corporate climber? a "work until I have a little savings then cause issues and stop working until I'm desparate" type? Are they reaching for a pie in the sky without foundation (the rap artists who have never taken a course in music, music production, english, poetry, artistic management, or financial planning, for example)? Are they barely graduated from high school, yet aspiring to be a doctor or lawyer or engineer? Did they work through summers in college or did they sleep till noon and play computer games all day?

Is their age similar enough to yours that you will be going through the same life stages at the same time, or are they going to want babies at the time you need to be planning retirment (or visa versa)? Are they going to be wanting to travel at the same time you need to decide which nursing home to enter? Are they going to be putting their kids through college at the same time as you're wanting to be finish your own education?  Will they be ending a career while you are just beginning? 

If you met them online, do they spend their lives online? If you met them at a party or bar, are they consumed with partying or bar-hopping? Do they have interests outside the one that brought you together?

Is their energy level exhausting? Do they need rescuing? From themselves or from a situation they chose to get into?

Even if their history is really a non-history, it might have meaning!  Have they managed to get to a ripe, old age without ever making a commitment?  Two examples:

First:  A friend who got to the age of 40-something, without ever being engaged, or even owning his own home.  He had a good job but never stayed in the same company for longer than 5 years, always upwardly mobile, but never in the same location.  He had a good income.  He was interested in women, but not interested in commitment.  When he finally got married, he didn't consider anything about his bride other than that she was cute, the sex was good, and they had lots of fun.  And, as all his friends said, “it’s about time.”  It ended in a few years, after it stopped being so fun.  He is simply not a person who wants a commitment in his life, he wants excitement and change, and he probably should not have listened to his friends. Someday when we’re all in a nursing home, he will be the happy old dude who dates every reasonably healthy woman on his floor and flirts with all the staff. 

Second:  another friend got to the age of 40-something, without having gone through with a wedding (2 broken engagements), never even gommitting to buying a house until he was about 45 years old.  He did have a job, but it was something he drifted into, having gotten there by default after college and never leaving.  He made his way up the ranks because of how long he had been there, and was comfortable with it.  He liked his life.  Go to work, go home, get online and read.  For exercise, he would take long, relaxing walks.  Alone.  His life was perfect and he wanted to share it with a woman, but had waited for so long and rejected so many opportunities, that he felt he deserved a perfect woman to join his perfect life.  He felt he had zero baggage, so she should not have any, either.  The fact that he lived in complacency and preferred isolation so long, spending 40 years without ever making a commitment or changing anything about his life, became his baggage.  He did not recognize it.  He remains single in his mid-50s, and is considering joining a monastery as a second career.  It will make him happy.  His need for solitude, peace and perfection tends to preclude joining as a partner with any other person.  

Moving on with various issues in a person’s history.  The older a person gets, the more you can see their history on their faces.  Do they have telltale signs of a history of hard partying, smoking, over-sunning? If they have stopped these habits, are you willing to live with someone who is suffering from hepetitis, lung cancer, and skin cancer treatments? Or is it a history of over-eating and joint problems? Or a history of anorexia/bulemia and heart/energy problems? In your 20s, you won't see the results, you'll only see the bad habits... but the older you get, the more likely you'll see the results in their faces. Sallow, yellow or gray skin... yellowing teeth, distended stomachs (fatty liver), saggy skin, hearing problems... all battle scars from a youth misspent (or well-lived), but all likely to create lasting baggage. Just know WHICH baggage you're willing to live with.

Do they have a pack of kids already who are hard to support, and promising you that they want to start a NEW pack with you? Are their family, career, financial plans realistic?

Do you see, ANYWHERE on this list, anything about loving thier looks?  That is last because it will change as we age.  It changes based upon what we do now.  Some, particularly bad, looks are a function of bad choices in youth, as previously discussed.  Some looks are correlated to time spent in the salon or gym.  Some are all about the choice to eat excessively or an obsession with not eating at all.  Either choice will have an affect on looks, some good, some bad, but not all will be things we want to live with.
The history that we are building will change our looks, so when we make physical appearance a first priority in a relationship, we are guaranteeing short relationships, as our looks change.  A friend of mine is a perfect example.  She loved men with long hair.  As we became adults, she kept picking men with long hair.  Unfortunately, the responsible professionals tended to have to cut thier hair, at least whlie they were building their professional reputations, so she would fall out of love when they cut their hair, or she wouldn't choose a man with short hair to begin with.  Her relationships were limited as a result.  She would ignore a spotty job history, a volitile "artistic" temperament, a little recreational drug use, if he had the look that she liked.  It took her decades to change this thought process.  Very difficult, frustrating decades for her, as relationship after relatioship failed. 
When we start with looks, we become blind to the rest.  We make excuses for the bad stuff that came with the person who had the right looks, and we hope that their bad relationship history will not repeat itself.  We are usually out of luck on this issue, when we start with looking for the "look".  Stay tuned for Fixing the Picker, Parts III and IV, where we will finally address Money and Physical attraction!  

Fixing the picker: Part I How they treat others

When looking for a mate,

Look at how they treat their parents. This is how they will treat you when you are old and/or sick.

Look at how they treat waiters, waitresses and salespeople at stores. This is how they will treat you when you are waiting on them or doing chores for them.

Look at how they treat their ex. This is how they will treat you when they are angry at you.

Look at how they treat/train their animals. This is how they will treat/train their children. If you have fundamental differences in approach, you might want to consider how you will reconcile your differences.

Where is my question asking what they look like and whether they surround themselves with attractive people?  NOWHERE.  The reason is that issues of looks and physical attraction are the least of the things we should be looking at.  Looks and physical attraction are EASY to find.  All you need are eyes.  Any group of a thousand people… a good 300 of them will be physically attractive to you (and a different 300 of them will be physically attractive to someone else.  That part is about chemistry, and regarding chemistry, there is someone for everyone out there). 

But if you start with the good looking group, and then try to figure out which of them has a good enough character to continue to work with, it’s tough.  You will be blinded by the cute-ness.  You will try to find excuses for bad behavior.

If you start with the group of people who have good behavior… let’s say, 100 of those thousand whose behaviors match your needs, and then stand THAT ONE HUNDRED GOOD PEOPLE, all in front of you.  And then check to see whether they match your needs for financial issues, history issues, age issues, career and family plans.  You might end up with a good 10 people out of that thousand, standing in front of you.  But those 10 people will all be emotionally compatible with you.  Statistically, 3 of them will likely have the physical appearance/chemistry that you want.  THOSE THREE are the needles in the haystack that you are looking for.  You can choose to date any of those three, and not find yourself having to make excuses for them, trying to change them, or hoping that you will be able to get over your aversion to their issues.  

START with the character issues, and the lifestyle issues.  And then move on to the looks.  Not the other way around. 

Realistically, we can’t do this.  Because we decide who to ask out by whether they attract us when we see them.  BUT, consider making one adjustment to the order in which you do things.  Ask out someone who is cute, maybe, but do not CONTINUE to date them until they meet some of your other requirements.  Don’t make excuses for someone whose treatment of their family offends you, whose treatment of waitresses embarrasses you, whose treatment of their ex worries you.  No matter how cute they are, if they treat these people in a way that you would not, if they treat these people in a way that you are uncomfortable, terminate the relationship.  It is not worth continuing.  Someone else will be good for you.  Someone else will be good for them. 

PAY ATTENTION to your picker!

And stay tuned for Fixing the picker Part II, History.  Part III, Money and things, and Part IV, Looks. 

Don't shred the kids! A 3 step guide.

A child who becomes a victim of a serious violent crime can fully recover, quickly, with help.  The same goes for children in war zones.  One must remove the child from the danger, reassure the child that the adults in their life will prevent new incidences where the child will be re-victimized, and then give the child an opportunity to vent their concerns without judgment.   Children who do not recover were either not removed from the situation, were not protected from recurrences, or were not given the opportunity to explain it to an independent adult.  The part that most people get hung up on is step 3.  Venting.  For serious trauma, venting to the parents is not enough. 

The three step process works for every new frightening thing a child experiences as they develop.  For typical fearful things like a barking dog, the parent will keep the child safe, teach the child how to safely approach a strange dog, and then let the child talk excitedly about how scary it was.  For most difficulties, this is enough.  But while most parents can handle getting a child through most of the little traumas on the way to growing up, parents are not equipped to handle the third step where the child has become a victim of crime, has lived in a war zone, or when the family is splitting up.  Parents have enough problems handling this on their own, and usually cannot remove themselves from the situation well enough to be credible sources of help to the child who needs to talk about it.   

Divorce trauma is more like trauma involved in living in a war zone, than it is like having lived through a minor thunderstorm.  The victimization of divorce is created by being asked to lie to the other parent, or to choose sides.  They may be experiencing a war zone in their own home.  They are victimized by parents who do not agree on the parenting issues.  The good news is that it is just as possible to fix these traumas as it is to fix the traumas of being a crime victim or childhood war survivor.  The trick is to stop the trauma, prevent a recurrence, and give the child an opportunity to speak to an independent third party. 

            It does not matter that you are probably not separating because of parenting issues.  Children are the center of their own world, and cannot believe that something else could have caused this.  Children do not understand financial planning, let alone differences in opinion over finances.  Hopefully, children do not understand sexual infidelity.  In their world, the parent’s purpose in life is to create and raise the child.  You may know that your issues have nothing to do with the children, but the children do not.  To the children, they are somehow responsible for their parents having created the war zone they now live in.  You can tell them otherwise, but they do not believe you. 

It does not matter how hard you try, your child will sense that his own parents are each other’s enemy.  If you are one of the 99.9% of separating parents who are separating because of some disappointment, you cannot fully hide this from the child.  You must try, but you must also understand that your child might feel the need to choose, or to make you feel as though a choice was made.  No matter how hard you try, your children take the pieces of information they get from observing you, and they draw conclusions.  Sometimes they draw the right conclusions, but more often they draw skewed or exaggerated conclusions.

            Maybe you and your ex are truly being amicable, but simply have a disagreement on where to live.  You are handling the disagreement like adults, but your child knows that a disagreement exists and does not know how to handle emotions like an adult, and therefore, while putting two and two together, your child envisions much worse things happening. 

            Or if you and your ex are not being amicable about the split, and one of you is convinced that a move will be traumatic for the child, or having two homes will be traumatic.  The child will be at risk for believing that one parent’s house is somehow dangerous or scary.  Suddenly, a very ordinary situation (moving as life’s opportunities change), becomes a trauma to the child.  A move that would be exciting, if the parents were doing it together and to provide new opportunities for themselves, is suddenly wrong, just because the parents disagree and only one of the parents is doing the moving.   
            In many cases, the parents believe that they should enlist a family friend or relative to listen to the child.  Unfortunately, this often simply cements the battle lines, becasue the child knows that these people are likely to report back to the parent who is aligned with the supposed confidante.  Truly the child needs to vent to an independent third party who will not tattle on them to either parent.  They need to feel that it will not hurt them or their parent’s feelings to tell the truth.  They need a therapist. 

            If you worry about the cost, ask for help from your religious leader, your school district, your health insurance plan, your employee assistance plan, a community group or your lawyer.  Remember, this will not be as long of a time in therapy as you probably need.  They have not been betrayed by a lover.  They do not have as much past to explore.  They need child therapy, not adult therapy.  They need to feel safe and get through their own issues, which are that Mom yells and Dad cries and money is suddenly scary to talk about and no one is home when they get home from school, and they feel bad about it because their parents feel bad about that part, too. 

            A good therapist can help a child get through this, as long as they are brought in early enough.  Wait until the other parent has convinced the child that you are evil; wait until lying to each of you in order to keep the peace has become habit; or wait until your teen has decided that their friends are more important to them than their battling parents, and the therapy will be difficult, expensive and long.  Wait until their grades suffer or they have started drinking or using drugs, and the therapy will be much more difficult. 

            Bottom line:  get the kids in to see a therapist as soon as practicable.  You can work on stopping the situation and preventing it from happening again on your own, but you cannot manage the part of the help that involves their need to talk about it.  The longer you wait, the worse it gets.  Remember, they follow you everywhere, try not to let them follow you through the same shredder that you are going through.   
  

Saving legal fees

So many people ask how to save on legal fees, and ask why I do not give information in my blog that would prepare them to go do it for themselves in court, so they never have to hire a lawyer in the first place.  I have many tips to save on fees (please see other posts, and come ack from time to time as I add new ones to my "how to work with a lawyer" section). 

However, I do not pretend to give a lesson in law during my blog posts.

Most experienced lawyers have encountered the situation where a client arrives having already messed up their cases.  We do not mind this, so long as the client knows that we are starting to work from a deficit, and that we might not be able to accomplish their goals at this point.  We do not mind when people pay us to correct the mistakes that they have made by attempting to proceed on their own, with the half-informed positions that they got by browsing the internet.  I have made a significant amount of money from clients who came to me after messing up thier own cases, and needed to be rescued from themselves.  However, we have happier results with our clients if we can direct the case from the start.

We have ethical requirements to comply with as well, for our practices.  Ethics requires that we not assist in the unauthorized practice of law.  We are permitted to assist in the general understanding and public education, but the issue is whether we are helping people or hurting people, when we give specific tips. 

For that reason, I confine my blog posts to information that will help you work with your legal counsel, as opposed to making some pretense of preparing you to do it for yourself.  The DIY lawyer has usually googled some issues, looked in Wikipedia, and maybe even gone to a law library to read a few professional articles and cases.  What they miss is the fact that the law is not static, so the case you read from 2008 might have been changed in the 3 years since it was written.  The statute you are relying on may have been interpreted differently than you are hoping, and worse… the tactic you have prepared might fail for no particular reason and because you have not had a legal education, you have no idea how to pull out of the tailspin that your case is in. 

To continue with that analogy, it’s very easy to fly the plane when it’s up and the skies are clear.  And maybe the online gaming pilot program has prepared you to handle dodging missiles that are being fired at you, but when it’s time to land, don’t you wish you had someone who actually completed flight school and has their pilot’s license? 

Trying to handle your own case is like trying to do surgery on yourself, fly a jet liner after having played “pilot” on your X Box, or building a skyscraper after having looked up how to build a house frame on the internet.  Most surgeons would not try surgery on themselves.  Most pilots will not fly with an unlicensed pilot at the controls, and most engineers expect a full-out architectural plans before they break ground on a new skyscraper.  To tell the truth, even most lawyers do not handle their own divorces.  It’s just plain foolish, saving a dime in the attempt to do something that could cost your life’s savings.   Keeping with the example of a divorce, there are very few conditions under which one should ever handle one’s own divorce.  Even if you are entirely in agreement with your spouse about what you want to have happen with the children and assets and debts, get a lawyer to write it up just to make sure you’ve been complete about it.  However, it is reasonable to expect to be able to handle your own divorce if you have no property, no debts, no claims to alimony, no children, and no expectation to get a share of each other’s retirement accounts.  Basically, we only expect this type of situation in very short marriages.  Otherwise, be careful, you may never know what you gave up unless you have a lawyer review it for you.    

The same principles work for other types of court action.  Unless the cost of what could be lost in the lawsuit is something that you are OK with losing, do not try it on your own.   

But please, keep coming to my blog to learn about how to avoid lawsuits, what the general rules are, how to dress in court, how manage your relationships or contract negotiations to avoid court, and how to manage your relationship with your attorney.  I have some good tips on how to use your attorney's services to minimize the fees, but trying to do without and attorney, is not one of them. 

There is NO three day right to cancel a contract

                I often get calls from people who want to cancel a contract they made.  Maybe they just bought a special refrigerator, or a security system, or a cellphone, or a car.  Sometimes they made a contract to purchase a house or maybe just rent an apartment.  For whatever reason, they now want out of it and think they have the right to cancel the contract within 3 days.   With very few exceptions, they are wrong.  There is generally no right to cancel any contract, unless you have a reason within the contract or within the law that allows you to rescind the contract.

                I know where the myth about cancelling contracts started.  After World War II, door to door salespeople were common in our country.  They would sell roofing, or siding, or vacuum cleaners or encyclopedias.  If they came to your door and you answered, because of the expectations of courtesy back in those days, you probably would have invited them to step inside.  They would tell you that your own home was about ready to fall apart, or show you how much dirt you had on your bed sheets that their vacuum cleaner could remove.  They would keep it up until you signed on the bottom line, agreeing to an overpriced version of whatever product they were selling.  In rare occasions, these products were worth what you paid for them, but in many instances, the sale was being made to someone who did not entirely understand what they were purchasing.  Sometimes, if the buyer was a divorced woman, a widow or an elderly person, the tactics felt like strong-arm tactics.  The implication was that the salesperson would not leave you in peace until you purchased his product.  Little old ladies, fearful that their house was about to come crashing down and having an arm twisted by a salesperson, would agree to a bad contract, and then a few days later their son-in-law would come over and get furious over mom being cheated. 

                Consumer groups started springing up and pushed for laws that would protect consumers from the worst of these tactics.  After all was said & done, the laws only covered situations where you did not solicit the encounter, where the person came to your house and got you to sign with tactics that feel excessive.  These “right to rescind” laws are usually very limited, and do not cover most situations.  As a result, the contract you made with the cellphone company may have a way to help you get some relief from an excessive bill, but this is usually not the law that will help you with that. 

In states that have these laws, sellers usually do not count your transaction as a sale and would not make a move to help you or schedule the service until the three days passed.  If you are one of the few who has the right to rescind because your contract falls under the statute, you need to make sure you rescind it correctly, giving notice in the proper way, and keeping proof that you gave the notice of your intention to exercise the right to rescind, as well as proof that you gave this notice to them within the correct amount of time. 

                But even if your contract does not come under the very limited right to rescind, all is not lost.  If fraud truly occurred in your situation, you may have a way out.  Or certain services may have different rules entirely.  For example, some states have written laws about high-pressure time share sales.  And most states have specific rules about getting out of a rental or real estate purchase contract.   Often, when the sale is real estate, there are specific rules within the contract about how to get out of it.  The contracts are very long, so it is worth having a lawyer review it if you have decided that you want to cancel it, to find out what your rights are if you cancel.  It is possible or likely that you will have to pay some money in order to cancel a real estate contract, for example, but the amount you would pay would be far less than following through with a bad contract to buy a house, so it is worth looking into it.

                The general rule to follow, if you are an adult, is to take adult responsibility for your decisions and do not allow someone to badger or embarrass you into spending money you do not have to spend or do not want to spend.  However, if you find yourself in the unpleasant circumstance of having made a purchase that you now regret, run to a lawyer with the contract in hand, to have a contract review.  Give the lawyer every reason that you want to get out of the contract, along with a copy of the contract and an explanation of how you got into it.  Somewhere among that information there may be an exception in your state, that would allow you to get out of it.  Only a lawyer licensed in your state who has experience in contract law, will be able to know this.  The lucky thing is that it will not take more than a brief consult about the contract with maybe a demand letter written by the lawyer to the seller, to know whether you have a chance to get out of your contract.

Managing a high conflict opponent in litigation, part II: put it in writing

One problem with the high conflict opponent is that they are unable to negotiate an issue to settlement.  They have difficulty believing that if their opponent is willing to agree to something, that this could possibly be in their own best interests to agree as well, and so putting anything in writing and signing it is generally not done by a high conflict person unless it's unavoidable.  If they have been presented with something in writing that they must follow, a statute, rule, court ruling or contract, they will look for a loophole to crawl out of the minute the thing becomes inconvenient. In general, they do not follow rules if it does not suit them, and they will try to find a way to re-interpret things to allow them to do as they wish. 

Most attorneys recognize that agreements which are not in writing are subject to improper interpretation and very difficult to enforce.  While unwritten agreements are often subject to honest mistakes and differences of opinion, the high conflict opponent creates a new level of meaning to “difference of opinion”.  When you know that you are dealing with a high conflict personality, never rely upon a settlement until it is in writing, and recognize that if there are loopholes, the high conflict litigant will find a way to crawl through them.

I had one high conflict case where the judge made a temporary custody ruling.  My client arranged to maintain the schedule of activities in the hour between school and when he could get home from work, that they had maintained during the marriage.  However, upon realizing that my client was no longer going to support her lifestyle, his high conflict wife decided to manipulate the parenting issues, in the hopes that if she got sole custody, that she would get the house and support to maintain her lifestyle.  She decided that the "right of first refusal for babysitting time" meant that she could insist on exercising parenting time during my client's week at the time the kids would usually have been at thier extracurriculars, play dates and tutoring sessions.  She would show up and create a fuss with the tutors, coaches, and other parents, insisting that she had the right to this time with the children.  The children, embarrassed by her behavior, had their grades plummet during the few months that she was doing this before we were able to get a hearing scheduled where a judge ordered her to stop. 

In another situation, a judge at trial ordered that my client woudl get the house as long as she was able to re-finance it within 30 days, and if she could not, it was to be sold and the proceeds split.  Her high conflict ex spouse refused to sign her refinance documents, and once 30 days passed, he had a realtor put a “for sale” sign in the yard and start marketing the house.  I was able to get a quick hearing to order the high conflict opponent to cooperate with the re-financing.  We suggested adding a clause into the judge’s original ruling to force the opponent to cooperate, and we got the judge to order the opponent to pay for her costs in getting this change, as the loophole he thought he had found in the judge’s order was clearly bad faith in trying to circumvent the order. 

The first tactic is to put everything in writing.  The second step is to enforce the contract.  The third step is to look for ways to improve or add to the contract when the high conflict person believes they've found a loophole.  Finally, the fourth step (which is only really available to lawyers and people who repeatedly draft contracts like landlords, but which hopefully does not happen for individuals in divorce situations), is to create a new form for a better contract to avoid this problem with new situations in the future.  Everyone involved must understand that the high conflict person will take every ambiguity and try to use it to their own advantage, not caring who they hurt in the process. 

This is not a problem exclusive to family law.  I know a high conflict personality who thought he had found a loophole in his mother’s will and took his mother’s estate to pay off a house that had been jointly owned by himself and his mother.  This high conflict personality’s siblings cannot recover the mother’s estate.  After 2 years the courts finally traced what happened, but were unable to recover the funds, as the high conflict brother is now insolvent, having sold the house and spent the proceeds.  Anyplace there is a contract, rule or written document, a high conflict personality who is constrained by it will look for a loophole.  The high conflict loophole seeking is different than a person seeking justice by a reasonable means, bur rather the high conflict personality seeks personal advantage without regard to the effect on others.  They will look to manufacture loopholes where none exist, and will seek out ambiguity rather than certainty.     

In some rare situations (more frequently in parenting or ongoing support issues), documentation can often give cause to re-open litigation.  In ongoing litigation, documenting the high conflict person's issues with an interim order can help your lawyer find evidence to resolve an issue.  In a contract situation, you will need to get an attorney to review the contract to see if amendment or enforcement of the contract will help you. 

How would the siblings whose brother looted their mother's estate handle this?  Start with enforcing the contract, in this case, the Mother's will.  These siblings should have immediately sought probate after the mother's death, and obtained liens/stays on the property so that the high conflict person could not have diverted their estate to pay off the mother’s house.  Waiting is what allowed their brother to exploit a loophole he thought he had found.  More importantly, during their mother’s life, they should have consulted with their mother to make sure her will had no loopholes, and everything she intended was clearly explained in detail, so that it would not have been vague enough for anyone to twist her intent and circumvent her choices.  Some things are nearly impossible to fix, after the fact, and this is one of them.  The lawyers involved will certainly change their will forms to close up the loophole that this sibling thought he found.  But there may be no way to recover the money that this sibling wasted.   

If you find yourself in litigation over a contract, and the judge offers an opportunity modify the contract, be sure to have more than one option for alternative clauses.  Also, you will want a clear explanation of how the opposing party acted in bad faith and therefore costs of the litigation should be paid by the opposing party.  Make sure you have followed all of the local and state rules required to set up for a ruling to be in your favor on the main issue as well as on the issue of awarding costs and fees.  Understand that there are many jurisdictions which require specific citations and other “magic words” before your request for compensation for someone else’s bad faith can be granted.  All the legal strategies in the world cannot fix this if you have not used the correct magic words for your jurisdiction. 

As in all situations where you find yourself in litigation with a high conflict opponent, you need to get the help of an attorney who is familiar with the high conflict nature of this situation in order to maximize the possibility of winning on these issues.    

Managing a high conflict opponent in litigation. Part 1: TIME

One of the common factors in high conflict litigation is that the persons driving it are unpredictable, oppositional, self-centered (or unconcerned with the needs of others, in the case of the sociopath), and they lie as easily as they tell the truth.  One of the most troubling things in litigation with these people is their tendency to pop up with some new strange “fact” the minute it looks like things are going against them, usually a lie or half truth. 

                This is the court hearing where the judge is about ready to rule on a temporary custody issue giving reasonable parenting time to both parties, when the high conflict party decides to pop up with, “but you can’t do that, the children are afraid of him,”.  And with 5 other hearings on the morning docket, the judge wants to move this one along and wants a professional to explore the new information before he sends the children to spend time with the parent accused of violence, so the high conflict personality will get time alone with the children to alienate them from the other parent before being ordered to allow reasonable parenting time. 

                Or maybe this hearing will be the one where the high conflict litigant, watching the judge about to make a decision to give the house to the opposing party, will pop up with a claim that she had forged his signature on a vital document and therefore everything the judge has heard in this courtroom is based upon a lie.  And now it’s a Peyton Place worth of issues rather than a simple property split.  Suddenly, the judge decides not to resolve the property issues and puts them off for a few months until there is more time on her docket for a more thorough hearing with evidence on the various papers involved.  And the high conflict spouse will have an opportunity to find (or manufacture) evidence that will obscure the real issues, in the hopes that a confused issue will result in a bigger award to him than what would be fair. 

                And then there is the high conflict litigant who figures out how to control the hearing from the start, because the judge is not shutting them up, and who brings in evidence of everything but the kitchen sink, discussing irrelevant issues, demanding compensation for things not in their pleadings, etc., etc.  This type of high conflict litigant interrupts the opponent’s time for hearing, overtalking them and not allowing them to have their time, mixing truth and half truths with outright lies, and their victim will have an impossible time trying to untangle the web of lies to show the judge the bottom line.  This high conflict behavior is akin to throwing a pot of pasta at the wall and hoping at least one strand sticks to prove that it’s done.  The whole pot of pasta might have to be sacrificed to the effort, but at least they’ve proven their point, one strand is done.  At high cost, they’ve proven their point on one issue and gotten more than a fair judgment in their favor.   

                What is the most important strategy to deal with this?  TIME.  The high conflict litigant’s opponent must find time in front of the judge to untangle the mess that is created by the lies, must request the opportunity to thoroughly cross-examine the high conflict person who has just created the web of lies, and must remember that the person who comes up with a spontaneous lie such as this, always contradicts themselves if given enough opportunity to do so.  An attorney who is aware that this high conflict opponent might try this “surprise testimony” strategy (commonly known as “sandbagging”, among lawyers), will be prepared with reasons to give the judge.  These must be lawful reasons that the judge will recognize, that due process demands that the judge give the victim of such claims an opportunity to thoroughly examine the issues.  The attorney walking into such a hearing will also be prepared with alternatives to give the judge so that the delays caused by the unexpected claims do not subvert justice (for example, children withheld from a parent gives the opponent the opportunity to alienate the children from that parent, or finances put on hold can sometimes result in un-recoverable losses).

                Even when one believes they are walking into an easy hearing, one needs a backup plan:  An alternative option for interim parenting time in case the judge refuses to rule, options for supervision of a parent accused of wrongdoing, options for moving the immediate financial needs along or freezing accounts to prevent further deterioration of a family’s finances.  The client needs to project the confidence of being prepared for the hearing to be easy, but needs to be ready for the possibility of needing a backup plan.  Too frequently, litigants disappointed by a high conflict opponent’s outrageous claims have messed up their own cases by being unable to adjust their expectations and agree to an intermediate resolution.  A judge does not react well to a litigant who, having been accused of wrongdoing, reacts outrageously, petulantly or obstructively.  The high conflict litigant knows how to push their opponent’s buttons, and will do so in the effort to convince the judge that the lies they have told are true. 

                Once you know that your opponent is a high conflict personality, it’s easier to prepare.  Make sure to ask the judge for plenty of time, and be prepared to enforce that time.  In their bag of tricks, every attorney needs several different ways to explain the need to enforce their right to cross examine, to have time to explore the issues. 

Kids, don’t try this at home:  In one particularly high conflict situation, I even had an assistant time my opponent’s obstructive objections, because the judge was not shutting him down and allowing him to ramble on and on (over my own objection).  When the judge explained that my time was over, I was able to give the judge the exact amount of time that my opponent had intentionally wasted, and the judge agreed to give me additional time to account for not only what my opponent had wasted, but also an additional amount of time to make up for the fact that I had not similarly intruded on my opponent’s case.  Ordinarily, the tactic I used to counteract this opposing attorney’s behavior would have only generated anger by a judge who had allowed their courtroom to get out of control.  I would not recommend it and hopefully will never have to repeat this strategy, but the thing that convinced the judge in my situation was that I had laid the foundation for this particular argument, objecting to the nature of the opposing counsel’s obstructionist objections in a way that made it clear that this issue had to be remediated by the judge.  I also had a plan in mind, and several alternative solutions to propose to the judge at the point where I needed to enforce my right to the opportunity to speak.  This particular judge, knowing my opponent’s reputation, had tried to rein him in by limiting our time, and it had backfired.   This judge was open to my suggestions when the time was ripe because of this background.  Without exactly this situation, I could have easily found myself being held in contempt.  In this particular case, the high conflict opposing party had sought out a lawyer who had a high conflict personality, and between the two of them, my team had quite a difficult job keeping the case under control.  In the end, we were successful, but it was a long and difficult journey in this case.  If anyone reading this blog feels that they need to try this tactic, they had better be a licensed attorney with a background in litigation, and they most certainly must have tried all the other options for limiting their opponent’s attempts to hijack the courtroom proceeding, and they must be very aware of what line must not be crossed, to avoid being held in contempt. 

 I will discuss another strategy of dealing with a high conflict opponent in my next post. 

The Problem with Sociopaths

There is a popular TV show about a psychopath/sociopathic killer.  Dexter.  I’ve watched it with some friends who subscribe to the network that produces it.  The show has prompted an interesting conversation about sociopathy.  It is written so that the character regularly explains his inner feelings to the audience.  In the first season, his inner feelings were classic signs of sociopathy.  By the second season, we had a feel for his behavioral history, which was also classic sociopathy… torturing animals, learning how to imitate the feelings of others, etc. 

                But by the third season, we were seeing chinks in the writing about a classic sociopath.  Unable to sustain a show about a person without empathy for several years without finding a reason to feel sympathy for him, they started writing in extreme situations from his childhood.  Normal people who had not experienced such extreme difficulty might be willing to excuse abhorrent behavior in the child who had experienced such extremes.  His inability to feel empathy also suffered.  We saw signs of affection that he had for others in his surroundings, more than simple appreciation of a person who was useful to him (as a classic sociopath would feel), but rather, an affection for others that would motivate him to put himself out to help these others… his sister, a girlfriend, a pal at work.  He started seeming more human, and his failings seemed to be similar to a modern romantic hero.  The kid who suffered extremely as a child, and who developed some nasty behaviors as a result, yet grew up to be a successful professional with a loving family.

                And this is the problem with sociopaths.  Those of us who have the ability to empathize with others, to experience love, affection, and willingness to engage in selfless acts on behalf of another person, are unable to empathize with someone who does not have that capacity.  We cannot envision that someone might simply be incapable of empathy, might not have that ability in their genetic makeup.  So we invent explanation, tragedies, motives for their apparent heartlessness.  We envision a romantic version of the sociopath as a misunderstood being.   We envision that we understand them, and by understanding them, we may become capable of helping them.  We take events that others would survive (sometimes with help), and choose to believe that the sociopath’s behavior is explained. 

                But we cannot explain, understand or fix the problem.  A sociopath is a master manipulator and liar.  They are arrogant and lose respect for anyone they can fool, and to some extent, they fool all of us.  They are not interested in changing, and do not see the value in being able to feel love. 

                Some people think that a sociopath is a super-narcissist, having all the self-centeredness of the narcissist, but without the need for affection, without a conscience that would cause them to feel remorse about things.  I do not necessarily agree with this thought.  I tend to believe that Narcissism is a separate entity entirely.  I believe that sociopathy comes from an inability to empathize, and that sociopaths are self-centered only by default.  They do not show the extreme rage that a narcissist shows when crossed.  I believe that sociopathy is based in biology, not created by unfortunate circumstances.  I believe that Narcissism starts when a person is raised with an extreme attention to self-esteem, pride, self love.  I believe that Narcissism is nearly impossible to treat because the narcissist does not feel the need to change, having been trained to believe that they are perfect.  Yet I believe that this disorder is the result of training, and not the malfunction of any part of their biology.  I rarely hear of a Narcissist for whom anyone traces their odd behaviors to any stressful life event.  Yet people always look for a stressful life event in the history of a sociopath, to explain their behavior.

                I believe that no stressful events explain either disorder. 

                I can find no scientific studies to confirm or deny my own beliefs, just others who have formed opinions based upon their observations, some similar to my own, some different.

                It is interesting that persons with very similarly difficult personalities, who are both capable of lying without remorse, who cause havoc in those around them, would have such different motives for their behavior.  But that’s the way it is.  Just like a person who hears voices may suffer from schizophrenia or may be suffering from some different form of psychosis.  Just like their psychosis might be caused by biology or by the environment.  They may have suffered a several stressor or they might have ingested a poisonous substance that caused the hallucinations.  It does not matter, in many areas of psychology very similar symptoms can come from very different places, and therefore the treatment must be very different. 

                The problem with sociopathy and narcissism is that they are not as amenable to treatment.  Whether they ever will be, is questionable.  And the reason, for sociopathy, is that those of us who do have empathy, will never fully understand someone who does not have empathy.  Without that understanding, we cannot envision a treatment, we cannot find a way to motivate a person to treatment.  Our best bet is to control the behavior.

While the writers of Dexter seem to have gone off track in later seasons by giving him human emotions, a feeling of empathy for others, they did one thing right.  They gave him a father who tried to channel his urges in a path that would be least harmful.  And our best bet in treating sociopaths is to train them to behave in a way that conforms to what we want from them.  Figure out what motivates them (money, fame, comfort), and use that to motivate them to act as we need them to act.  And never expect them to feel empathy or love.  If we are in a familial relationship with a sociopath and wish that they would eventually feel love or empathy, our best hope is to learn to give up that hope.  We will not fix the sociopath’s missing empathy.

                We have no other options, spinning romantic tales of children rescued from the brink of destruction and becoming sociopaths as a result, is not productive and will not solve this.  Falling in love with a sociopath based upon their sad tale of woe and believing that we can fix their problems through the power of true love, is useless.  Believing that they will ever return our feelings, similarly useless.  But getting to a point where we can peacefully co-exist, if we can find what motivates them and keep from being disappointed in their lack of feeling, is entirely possible. 

                The problem is, those of us who have empathy cannot understand this.  We cannot help ourselves.  We will continue to look for things to feel sorry for them about, to look for the reason that they can’t be who we want them to be.  Even when we know everything about their condition, we cannot spend a significant amount of time with them without humanizing them, just as the writers of Dexter were unable to sustain the emotionless nature of their main character through more than a few seasons.   

Cooperative co-parenting versus competitive co-parenting

        Most people have an instinct to protect a child from playing favorites, developing a dislike for or hearing bad information about (a), the people who are raising them and (b), the people who provided DNA to them.  To people who have this instinct, it is intuitive that a child who hears that she was the product of a rape of her mother, (a plot of one of my favorite TV series, “Law & Order”, I think in the Special Victim’s Unit group), will be damaged by this information.  While a child raised with this information under her belt might eventually become a tough cookie who is loved by many, the problems caused by it are instinctively avoided by most of us.  And this is not just a situation with major problems (like finding out that your mother is bitter about your presence on earth because your father was her rapist), it’s also a situation with minor issues (like hearing that your Dad is a failure at finding gainful employment so your Mom can be the stay-at-home mother that she aspires to become).  Most of us understand that and will not burden children with this information. 

                People who understand this will not undermine the other parent’s discipline, will not give the child back the cellphone when the other parent has punished the child by removing it, will not allow the kid to watch TV behind the other parent’s back, will not encourage secrets, playing favorites, and will not bribe the child.  Parents who understand this will present a unified front on issues involving parenting, and for issues they’ve not previously come to an agreement on, they will rehearse and say, “I don’t know, what does your Dad say about this?”, or, “Let me talk to your Mother about it first, OK?”… and the kids will quickly learn that no amount of wheedling will let them play the parents against each other.  Parents who understand this will work cooperatively, even when separated and angry at each other over adult/relationship issues, to find a way for each of them to play an important, hopefully equal, part in the children’s lives. 

                However, way too many people engage in a style of parenting, even when they have not yet separated, which might best be described as “competitive”, if not “malicious”.  They have no problem asking the children to play favorites.  They tell the child to “wait till your father gets home”, and then burden the other parent with the job of meting out punishment.  They sigh heavily when the other parent fails to show up for a kid’s piano recital even though they know the other parent was tied up at work.  They criticize each other even when they do not contemplate separating, or after the decision has been made and therefore the tension between them is settled and they SHOULD be focusing on the children by now.  After separation, they find ways to interfere with the other person’s parenting time, forcing the other parent into bribery in order to get the child to spend parenting time with them.  They engage in bribery, themselves.  Or worse, they accuse the other parent of vile things such as abuse, addiction, abandonment.  They look for excuses to withhold the children from each other. 

                Most parents, EVEN IF VILE THINGS ARE TRUE about the co-parent, care too much about their kids to drag them into the middle of it.  Unfortunately, too many people want to give you dirty tricks about how to handle your divorce and/or custody battle.  They’ll take you to coffee once you’ve announced your separation, and will talk you into hiding all your assets or kidnapping the kids.  They’ll convince you it was “abuse” that the time the other parent looked at you crosseyed or frightened you by yelling loudly during an argument (whether or not you feared for your physical safety, they convince you that your own feeling of upset is what’s relevant to determine whether it’s “abuse).  They’ll have you convinced that this person you shared a bed with for YEARS is evil, evil, evil, and should be crushed.  They’ll write books and blogs about what kind of dirty tricks will preserve your wealth and put your partner in prison.  They give seminars and sell their services to help you with the dirty tricks.  And if you are upset enough by the loss of the relationship, it’s tempting to believe them.  After all, you did not know that this person would leave you or fall out of love with you, so what else is this person hiding? 

                During the separation and divorce process, it’s nearly impossible to keep all of this information away from the children unless you are very strong in your determination not to let them get involved!  Too many people are trying to convince you to play dirty.  But these are YOUR children AND your ex’s children, and if you have that instinct to protect them from bad stuff about their other caretaker/DNA provider, go with your instinct.  There are very few circumstances under which a child should be introduced to a parent’s wrong qualities, and none of those circumstances include hearing it from a recently dumped competing parent.  Even when it’s imperative that a child find out that the parent is not perfect (such as in a foster care situation where the child needs to know that their parent did something wrong and needs to work to change that in order for them to be able to get back together), this information should be approached with as much care as you would approach telling them your version of the truth about Santa Claus, or sex, or that testicular cancer runs in the family so maybe they’d like to consider getting their testes cut off as a preventative measure, or any number of other touchy and difficult topics. 

                Absent serious circumstances (the parent is in prison and therefore unavailable to see the child), children should not find out that their parents are not perfect until well after they are no longer dependent upon adults for their care.  Only if the other parent is entirely cut from the child’s life for legitimate reasons, should the child be informed (carefully) of those legitimate reasons.  And wanting your new mate to be free to adopt the child should not be considered a legitimate reason to bash the other parent!  Even if the other parent appears to have abandoned the children (whatever the reasons), if it is possible that that parent may someday need to be their primary caregiver, if, for example, you and your new spouse die in a horrible accident, you do not want your child to have to go through fear of the new caregiver at the same time as having to deal with grief over your death.  And worse, what happens when, years from now, your child finds out that the other parent does not have horned and cloven hooves as you implied when you were freshly feeling the pain of the separation and busily competing for your children’s time and love?

                When you announce your separation from your children’s co-parent, you will be lucky if you find friends who will supply support without malicious ideas, who will help you figure out how to spend your free time when the kids are not around and will encourage you not to trash the other parent.  These friends and family are gems and you should keep them as close as humanly possible to your children.  They will keep you sane through it, and keep you understanding that your own disappointments in your spouse need not be experienced by your children.  Not to mention that your children’s ability to grow up will improve with as close to equal time as possible with each parent, and your ability to move forward as an adult will improve as you have time without the kids (while they’re with your co-parent) to develop your personal life.  These friends and family might have the number of a good mediator to help you resolve the issues of divorce, or a lawyer who will be able to handle the paperwork of ending your marriage in as businesslike and amicable a way as possible, while still protecting you from the possibility that your evil ex will play dirty tricks.

                My point is that, no matter how evil your co-parent, you need to develop ways to avoid letting the kids get hurt by this evil quality.  And if you find a definitive answer on how to do this, let me know!!!  I have a few ideas on it, but the study of this issue is certainly not complete.