The South Carolina Chapter of the American Academy of Matrimonial Lawyers has issued a position statement regarding the pending joint custody bill, H. 4614, currently before the State Senate. This legislation would create significant changes in the way custody cases are decided in South Carolina, and in some respects would limit the Family Court’s ability to craft custody arrangements that fit the needs of South Carolina families.

Robert Rosen, Esq., President of the SC AAML Chapter states, “The Joint Custody Bill Needs Work.” Read the Chapter’s position statement written by Mr. Rosen and approved by the Chapter here in PDF format.

In an unusual reversal of itself, the South Carolina Supreme Court in a 3-2 opinion authored by Justice Kaye Hearn reversed itself on the issue of the Family Court’s authority to order a non-custodial parent to help pay for an emancipated  child’s college expenses.

In McLeod v. Starnes, issued March 7, 2012, the South Carolina Supreme Court overruled Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010)(which had held that it was a violation of the Equal Protection Clause to make non-custodial parents contribute to an emancipated child’s college expenses overruling Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979). In McLeod, the Supreme Court finds that the State has a legitimate interest in protecting the children of divorced parents from the ill-will often engendered by acrimonious family break-ups and held that our judges can now again order non-custodial parents to help pay for college expenses.

In so ruling, the Court placed a heavy emphasis on the State’s interest in protecting the children of divorced families from “the acrimony of marital litigation impact[ing] a parent’s normal sense of obligation towards his or her children.” The Court stated:

As can hardly be contested, the State also has a strong interest in ensuring that our youth are educated such that they can become more productive members of our society.  It is entirely possible “that most parents who remain married to each other support their children through college years.  On the other hand, even well-intentioned parents, when deprived of the custody of their children, sometimes react by refusing to support them as they would if the family unit had been preserved.” In re Marriage of Vrban, 293 N.W.2d 198, 202 (Iowa 1980).

Based on the possibility that some parents, when deprived of the custody of their children, might retaliate against the custodial parent by refusing to assist the child with college expenses, the Court has reinstated the law of Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979).

Under Risinger and its progeny, a family court judge may require a “parent to contribute that amount of money necessary to enable a child over 18 to attend high school and four years of college, where .  .  .  there is evidence that: (1) the characteristics of the child indicate that he or she will benefit from college; (2) the child demonstrates the ability to do well, or at least make satisfactory grades; (3) the child cannot otherwise go to school; and (4) the parent has the financial ability to help pay for such an education.”

For those parents who hoped to ask for support to pay for their children’s college expenses as part of their divorce action or subsequent to their divorce but chose not to pursue this relief because of the April 2010 ruling in Webb v. Sowell, they should contact their former attorney and revisit this issue.  Based upon McLeod v. Starnes it may be possible to seek this relief from the non-custodial parent for children who plan to attend college or are currently in college and not supported by the other parent.

Eric Solotoff, a prominent New Jersey divorce attorney, has written a humorous but incredibly insightful article on his blog on “How to Not Settle Your Case.” This tongue-in-cheek post provides valuable wisdom in a funny way, and hopefully clients will recognize the behavior described in that post is self-destructive. 

An excerpt: 

9.  Ignore your lawyer’s advice.  What do they know anyway?  If your lawyer is telling you that you should jump at the deal on the table because it looks like a huge win, disregard it.  If they tell you that you have real exposure on certain issues or may be forced to pay your spouse’s legal fees, roll the dice. If your attorney tells you that they are willing to try your case, but that you should consider settlement because the cost of the settlement will be less than the cost of the trial plus the absolute minimum you have to pay, don’t believe it.  And what does your lawyer know about the law or the judge anyway?

Eric S. Solotoff is a partner in the New Jersey firm of Fox Rothschild, LLP.  He is Co-Chair of the Family Law Practice Group, certified as a Matrimonial Law attorney by the New Jersey Supreme Court and a Fellow in the American Academy of Matrimonial Lawyers.  Eric’s blog is read by thousands on a weekly basis.  Enjoy his commentary and consider subscribing to his blog as he frequently posts valuable information for family law attorneys and clients.

When your marriage is falling apart and a divorce is imminent, it is critical to find a skilled, experienced, competent family law attorney to represent your interests. With a little bit of legwork and some patience, you can find a highly experienced divorce attorney who is the “right fit” for you. The following three simple steps outline a basic approach to put your case in the hands of the right attorney.

Step 1: Ask Your Friends for Attorney Referrals

Begin by asking your divorced friends, family members, and trusted coworkers for their thoughts about the attorneys who represented them – and the attorney who represented their ex-spouse.

Do not simply ask “Did you like your attorney?” Dig a little deeper. Be specific. Ask questions such as:

• After your experience what is the most important quality to have in a divorce attorney?

• What did you like the most/least about your attorney?

• Did you feel the attorney listened to you?

• Did you feel your attorney advocated for you?

• What was your opinion about the opposing attorney? (Surprisingly, it is not uncommon for one to have high regard for the opposing side’s attorney. Asking detailed questions about the opposing counsel’s performance can be enlightening.)

• Did your legal fees reflect the value and quality of the legal services that you received?

Pay attention to others’ responses. Take note of which attorneys’ work was valued and appreciated by their clients and which attorneys were a disappointment. Make a list of the attorneys whose work was appreciated and respected because these are the attorneys with whom you need to meet, interview and consider retaining.

Step 2: Interview Several Divorce Attorneys

There is more to a good attorney than simply knowing the law. A good attorney listens to your concerns, strategizes the best plan of action for you, keeps your goals a priority and knows how to make you feel comfortable during this difficult time in your life. The only way to find the right attorney for you is to interview several. Only you can judge whether an attorney’s style and temperament is right for you.

When your case involves significant assets, debts, or contested custody issues, finding the right attorney is particularly important. In these situations, it is imperative to hire an attorney whose practice is primarily focused on handling family law matters and an attorney who also has a consistent record of obtaining positive outcomes in large, complex cases. When complicated issues arise in a divorce, you cannot risk leaving your children’s welfare and your own financial future in the wrong attorney’s hands.

Additionally, you will want to ensure your attorney of choice is familiar with modern technology, particularly social media sites such as Facebook, Twitter and LinkedIn. Evidence gathered from these sources and others, such as text messages, are appearing more frequently in marital litigation. Your divorce attorney must understand how social sharing sites and modern technology work so the attorney can protect the client when the issues arise in court or when the attorney needs to gather information from these sites to use as evidence for client’s benefit.

Another issue that is beginning to occur with increasing frequency is the existence and ownership over frozen embryos and/or sperm donations. Divorcing parties frequently disagree about the best way to deal with these complicated matters. If the ownership or control over frozen embryos or stored sperm may become an issue in your case, you should ensure the attorney you choose is equipped to handle the issue appropriately.

After interviewing potential attorney candidates, ask yourself these questions:

• Did the attorney hear my fears and concerns?

• Did the attorney believe in my case?

• Am I convinced the attorney will advocate for me and protect my children?

• Did the attorney communicate with me in an understandable way?

• Did the meeting give me confidence in the attorney’s abilities?

• Did the attorney raise issues that never occurred to me but might significantly impact my case?

• Did the attorney’s knowledge about complicated matters further increase my confidence in the attorney’s legal skills?

• Did the attorney raise questions about my financial situation, such as taxes and investments that indicated the attorney knew how to handle these issues?

• Did the attorney explain that I might need to hire additional experts, such as a forensic CPA, mental health professional or a forensic computer specialist?

• Did the attorney prepare me for the cost of hiring these experts and explain the benefit such experts might bring that would help achieve my goals?

• Did the attorney explain other avenues to resolve my case to help save me money such as mediation and arbitration?

• Did the attorney explain the differences between litigation, mediation and arbitration?

• Did the attorney explain collaborative law and whether this method is the right or wrong avenue for me to pursue?

• Did the attorney demonstrate an understanding of social media and modern technology, including social sharing websites such as Facebook and Twitter, and how issues related to those sites might occur in my divorce case?

• Did the attorney ask about the existence of frozen embryos or stored sperm donations that might create issues in my case?

Pay attention to the attorney’s answers and the way in which the attorney delivered the answers to you. Then ask yourself these questions:

• Did the attorney and members of the attorney’s team listen to me?

• Did everyone in the office treat me with respect?

• Did they make me feel comfortable and safe?

• Did they ease my fears when having to divulge highly personal details?

• Did the attorney comprehend large amounts of information and quickly grasp the big picture?

• When grasping the big picture, did the attorney articulate my situation in a manner that helped me understand my situation better than before?

• Did meeting the attorney remove much of my angst or create more stress and worry?

• Was the attorney forthcoming about the costs of representation, and understanding of my financial worries?

NOTE: This PDF file is a checklist that you can print off and take with you to each consultation, to help you collect and analyze your impressions of each attorney you interview.

Do not forgo meeting with an attorney merely because the attorney charges for the initial consultation. In most cases, you get what you pay for. Many attorneys who charge for the initial consultation typically provide the potential client with great value, insight and advice at the very first meeting.

By the same token, higher hourly rates do not necessarily translate into higher legal bills. An attorney’s hourly rate is usually comparable with his or her experience. Thus, an experienced attorney should require less time to accomplish many tasks saving the client money as opposed to a novice attorney who might take much more time to complete the same task as he learns the ropes.

Step 3: Do Your Homework—Search the Internet

Use the Internet later in your search. First, rely upon the steps discussed above. Then, use the Internet to learn more about the attorney’s credentials, training, publications, speaking engagements, teaching engagements and bar organization involvement. The Internet should be used as a tool to narrow your list to assist when making your final choice.

Further, it is important to find out how the attorney’s peers view his or her skills by researching other well-known legal websites. Some of the following respected legal websites grade and rate attorneys according to their skills and experience:

• Avvo
• Martindale-Hubbell
• Super Lawyers
• The American Academy of Matrimonial Lawyers
• The International Academy of Matrimonial Lawyers

Conclusion: Be Proactive in Your Divorce Attorney Search

You may have to interview a few attorneys before finding the best fit for you. Investing the time to find the right attorney to handle your divorce should pay big dividends later on. Thus, do your homework to protect yourself, your children and your future.

In a lengthy opinion following a discovery motion in a personal injury case, Judge Richard Walsh of Franklin County, Pennsylvania ordered Plaintiff to disclose her login information for her Facebook account.  Defense counsel had argued that Plaintiff had previously posted photographs and comments about her going to the gym and enjoying activities that she had previously testified under oath that she could no longer do as a result of the accident.

Apparently, at some point in the past, Plaintiff’s Facebook profile was “public” and accessible by defense counsel.  On that basis, the judge granted defense counsel unfettered access to Plaintiff’s Facebook account.   The judge wrote in a footnote, “The Court does not hold that discovery of a party’s social networking information is available as a matter of course. Rather, there must be a good faith basis that discovery will lead to relevant information. Here, that has occurred because Jennifer Largent’s profile was formerly public. In other cases, it might be advisable to submit interrogatories and requests for production of documents to find out if any relevant information exists on a person’s online social networking profiles.” However, despite the footnote commentary, Judge Walsh ruled that Plaintiff has to give over her username and password for her Facebook account thereby granting defense counsel access to Plaintiff’s messages and chats that are never “public” or accessible except to the individual to whom such messages are sent.  In addition, by allowing unfettered access to Plaintiff’s account, Judge Walsh’s ignored his own observations that defense counsel was only entitled to information that could lead to discoverable evidence.  One has to wonder if Judge Walsh understood the overly broad nature of his order and if Plaintiff’s attorney tried to protect his client by arguing that such ruling was overly broad and intrusive.

This author only has access to the court’s order and knows nothing else about this case.  However, it seems clear that Judge Walsh is unfamiliar with the multiple functionalities of Facebook.  One wonders if he knew he was granting access to chat logs and private messages in addition to “publicly” posted information. One also wonders if Plaintiff’s own attorney possessed enough information about the various components of Facebook to object to the Court’s ruling as overly broad or to offer less intrusive remedies to permit access to properly discoverable information while still protecting  his client’s private (and irrelevant) information.

Another Pennsylvania judge wisely crafted a much more narrow remedy for this problem.  This past June 2011, Magistrate Judge Carlson, of the Federal District Court of the Middle District of Pennsylvania, struck a careful balance between the litigant’s rights to discover relevant information and the opposing party’s right to keep private, irrelevant matters private.  Thus, unlike Judge Walsh who ordered a Plaintiff to hand over her user name and password, Judge Carlson ordered an in camera review of the Facebook page of the party’s Facebook page and then ordered disclosed only those items it believed could lead to discoverable evidence.

What is concerning is the general lack of knowledge within the Bar and the judiciary about other remedies that are readily available to address access to another party’s social media account.   Judge Walsh could have issued a protective order that limited the use or dissemination of Plaintiff’s Facebook information or ordered in camera review by an independent third party.

Instead, Judge Walsh gave defense counsel a twenty-one day period in which defense counsel could rifle through Plaintiff’s Facebook account accessing all settings, messages, chat logs, photo albums, and the like. (While defense counsel, whom I do not know, is likely an attorney of the highest ethical caliber, Judge Walsh’s order contained no restrictive language to protect Plaintiff’s information and to prevent defense counsel from sharing it with others, including his own client.)

While I disagree with Judge Walsh’s overly broad order, I do agree that posts to one’s Facebook Wall could reasonably be considered public posts even if the account is restricted. Therefore, such “Wall posts” are and should be discoverable as noted by Judge Walsh.  (My guess is that this is the only information Judge Walsh intended for defense counsel to obtain, but if he did not use or understand Facebook, he would not know that there is much more to Facebook than Wall posts.)

This flawed ruling is likely to happen again so be forewarned and do not let it happen to you if you are a litigant or to your client if you are the attorney.  The best way to access historic Facebook data is to obtain information through the Facebook’s data downloader.  Such records can easily be downloaded and then third parties could be ordered to review the information and remove any protected material or materials not likely to lead to discoverable information.  This simple solution is not only less intrusive but is also likely to produce more accurate and admissible evidence.

In an era where many people think Mark Zuckerberg is starting to look a lot like the new J. Edgar Hoover because he keeps a record of every stray photo, comment, or poke ever posted by a Facebook user, lawyers must educate themselves and their clients about the realities of social media and advocate for their clients by keeping abreast of social media and other uses of the Internet.   Lawyers who do not pay attention to how the world and their clients operate technology run the very real risk of losing not just cases and cash, but also their licenses to practice law.