Archive for the ‘Blog’ Category

It is an honor to post this guest blog by the Honorable Barry W. Knobel, former Family Court Judge, now running Knobel Mediation Services, LLC.

Judge Knobel provides an incredibly insightful explanation of our Supreme Court’s recent opinion in Lewis v. Lewis. This case changes the landscape of practicing family law in a positive way. Now, the appellate courts may review and reconsider issues that were formally left solely to the discretion of the trial judge. This ruling is a positive stance by our Supreme Court because it allows the Court to insure consistency amongst the trial bench.

“During the years I have practiced law, and especially family law, I would guess there have been most probably a dozen appellate court opinions which could be categorized as having altered the “family law landscape” in terms of how we practice family law from the first client interview through a family court trial or final hearing (see: Johnson v. Johnson [alimony]; Panhorst v. Panhorst [equitable division of marital property]; McCrosson v. Tanenbaum and Paparella v. Paparella [custody]; Floyd v. Morgan [modification of child support] and Webb v. Sowell [college "support" for an adult child] to name a few of those “game changers”).

Yesterday, the South Carolina Supreme Court filed an opinion which will have the equivalent of creating a seismic shift in the appellate court world, and one which will be discussed and debated in the legal circles of this State for years to come. The opinion will also change the way in which family court judges issue their written instructions for final orders and/or craft the orders which they author, and in crafting these orders, it will also require the family court judge to be even more sensitive to the development of his or her trial record. For attorneys who are skilled both inside the family courtroom and inside the appellate courts, the decision in this case will give them an emboldened new sword-and-shield. Finally, and unfortunately, for those family law attorneys who have never known “how to protect your trial record”, this opinion will either force you to learn how, or it will force you to call your malpractice insurance carrier to up your policy limits.

Please take a moment of your day to read and digest the artfully crafted majority opinion written by Associate Justice John Kittredge in the case of Lewis v. Lewis . Of interest and significance to me, personally, is that Lewis was an unpublished 2008 Court of Appeals decision (2008-UP-645) in which the issues on appeal centered on the value of the marital residence (the family court judge accepted the wife’s expert’s appraised value) and the court’s award of expert fees. And yet, the South Carolina Supreme Court granted a writ of certiorari and used this virtually unknown case to clarify, but certainly redefine, the “abuse of discretion standard” which has been a bulwark in the practice of family law and a companion to every family court judge.

Without taking a great deal of your time, but to give you a gist of what you will read in Lewis, Justice Kittredge writes: “We take this opportunity to give historical context to the appellate court standard of review of family court factual findings. … Our standard of review, therefore, is de novo. Our modern day usage of the term “abuse of discretion” does not comport with our constitutionally authorized standard of review”.

For the family law attorney, I believe that Lewis will either force you to take harder looks at the “certainty of settlement” of your cases, or will force you to create as perfect a trial record as you can with the intention of now satisfying not one, but two audiences…first and obviously, your family court judge, but, if you fail to prevail, then your appellate courts (both appellate courts) if your clients can afford to appeal. If you fail to prevail at the trial level, then you will most certainly hope that the judge’s order is (1) poorly crafted and (2) contains some findings of fact unsupported by the trial evidence and testimony. Most certainly, at the appellate level, Lewis has thrown open the door wider for you, and given you a potential safety net, than at any time in the recent past.

For the family court judge, I would believe that Lewis will require that final orders are detailed enough to not only support the judge’s decision, but also to support the evidence and testimony in the trial record…and in that order of concern.

Finally, I don’t know why – and of course I will never know why – the Supreme Court selected this unpublished opinion as the vehicle to sharpen its appellate sword; however, I can only guess that our Supreme Court wanted to send a very clear message to the entire bench (at all levels) and bar that, in matters of equity, it is also “the ultimate and final trier of the facts”.

There has been a paradigm shift at this level, and I would urge that you study this case and know how to use it in the future.”

Barry W. Knobel
Knobel Mediation Services, LLC
111 Sharpe Street
Post Office Box 22 (Preferred mailing address)
Anderson, South Carolina 29622
Telephone: 864.226.3500
Fax: 864.226.3544
email: barry@knobelmediationservices.com
website: www.knobelmediationservices.com

The Big Thing Celebrities Fight Most About When They Divorce-And Why You Should, Too, by guest author Jeffrey A. Landers, CDFA, CRPC of Bedrock Divorce Advisors, LLC.

We’ve all heard stories about celebrity divorces that become caustic and bitter disputes, fought tooth and nail in the courts for months –and sometimes even years.

But, why are these cases so complex and difficult? What could possibly cause such a long, protracted fuss?

The answer is simple. Typically, the big thing celebrities battle most about when they divorce is this:

Intellectual Property Rights

And quite often, these are rights you should be fighting for, too.

Without question, no one “enjoys” dividing marital property. Remember the famous scene from When Harry Met Sally when the recently divorced Harry (Billy Crystal) urges his starry-eyed friends Jess and Marie to label their belongings?

“Do me a favor –for your own good,” Harry says. “Put your name in your books right now, before they get mixed up and you don’t know whose is whose. Because some day, believe it or not, you’ll go fifteen rounds over who’s going to get this coffee table –this STUPID, WAGON WHEEL coffee table!” Classic.

Of course, as a Divorce Financial Strategist(TM), I totally understand what Harry was trying to say. But, in all honesty, there’s a lot more to it than that.

Sure, divorce requires dividing marital property such as homes, bank accounts, retirement plans, and yes, maybe even coffee tables (especially if they are antiques). But, in many cases, women neglect to realize that divorce doesn’t only split tangible belongings.  Divorce can impact intellectual property rights, too, and depending on your individual circumstances, these rights can be the most valuable of all.  They can be worth thousands, if not millions, of dollars.

Celebrity couples (and their attorneys) are well aware of the value of intellectual property rights –and that’s precisely why celebrity divorces can be so contentious.

As a point of reference, consider this: The divorce dispute between Michael Douglas and his first wife, Diandra, in now entering its fourteenth year! Within the last few months, Diandra filed suit claiming that she is entitled to half Michael’s earnings from Wall Street: Money Never Sleeps, a film released in 2010. Why? Because in their initial divorce settlement (back in 2000), Michael agreed to pay Diandra half of the acting earnings he accrued while they were married, including any residuals, merchandising and ancillary rights.

Reportedly, their agreement also contained language that stated Diandra would be entitled to additional money from any future “spinoffs”. According to her latest suit, Diandra contends that since the new film involves a character that Michael developed in the original Wall Street (which was filmed during their marriage), she is entitled to half of his earnings from the new movie, too.

All this may seem fairly straightforward, but it’s not. Here’s the complication. Diandra’s entire case now revolves around this single, seemingly picayune, point: Is the new movie a spinoff or a sequel? If it’s a spinoff, she gets half. If it’s a sequel, she gets nothing.

Or, in other words . . . it’s all about intellectual property rights.

If you’re considering divorce, there are a few essential points you need to know to better understand how the split could impact your intellectual property.

For starters, let’s be clear about who may have intellectual property. If you’re an author, songwriter, artist, poet, actor, designer (software, website, fashion, packaging, architectural, etc.) . . . or if you’re an inventor, entrepreneur or business owner . . . or if you have a website, logo, tag line, articles and/or white papers you’ve written . . or (I think you get the idea) . . .then you have intellectual property.

Also, understand that there are four main types of intellectual property:

1.     Patents

2.     Trademarks

3.     Copyrights

4.     Royalties and other contractual rights

And any of these may be considered marital property, which means they may be divided during divorce.

(For a more detailed discussion, see my article about the differences between marital property and separate property.)

Rules about how intellectual property can be divided vary from state to state, but the general rule of thumb is this:

Value that’s created during the marriage must be divided. And, by extension, any value that’s created before or after the marriage is typically excluded from division.

In Community Property States, both spouses are usually considered equal owners of all marital property, so any value created from intellectual property would be split 50-50. There are nine Community Property States:  Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

The remaining 41 states are known as Equitable Distribution States, which consider factors such as the length of marriage, the age and health of the parties, their income and future earning capacity and many other factors when determining a settlement. Settlements in these Equitable Distribution States do not need to be equal (50-50), but they should be fair (equitable).

(Note: some states have laws with both Community Property and Equitable Distribution characteristics, so always consult with your divorce attorney to ascertain which laws are specific to your state and situation.)

Regardless of what state you live in, what’s referred to as “creative control” typically remains with the inventor or creator of the intellectual property. Think about it for a minute and you’ll realize this is a reasonable approach –it usually maximizes future income potential, which obviously works in the best interests of both parties.

Intellectual property rights are just one of many assets that will need to be divided and will have financial and tax implications. Having a qualified divorce financial planner on your team can not only keep you out of trouble, but he/she can also help secure your financial future. After all, at the end of the day, you may not want that awful, wagon wheel coffee table –but you may, indeed, want your fair share of any patent, trademark, copyright or royalty payments.

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Jeffrey A. Landers, CDFA™ is a Divorce Financial Strategist™ and the founder of Bedrock Divorce Advisors, LLC (http://www.BedrockDivorce.com), a divorce financial strategy firm that exclusively works with women, who are going through, or might be going through, a financially complicated divorce. He also advises women business owners on what steps they can take now to “divorce-proof” their business in the event of a future divorce. He can be reached at Landers@BedrockDivorce.com.

IRS Forms and Information Resources

Over the years, I have noted that the number of new clients spikes a few times of the year, but most significantly right after the new year.

Out of curiosity, I typed “New Years Resolution Divorce” into Google and got 540,000 results in .29 seconds. While not all of the search results were on point, many were extremely interesting. It turns out that my intuition about this topic was right and that there are several reasons for it.

One article on Salon.com put divorce up there with weight loss on New Years resolution lists. Also cited in this article was that affairs are often discovered around the holidays. Another article linked above attributed it to “new year, new life”. Another article claimed that the holidays create a lot of pressures at the end of the year that combine to put stress on people in unhappy or weak relationships. Family, financial woes, etc. associated with the holidays add to the stress. Turning over a new leaf to start over and improve ones life was another reason given. This seems to be a logical explanation for a clearly difficult and perhaps heart wrenching decision.

In my experience, people with children often want to wait until after the holidays for the sake of the children. There is also the hope, perhaps overly optimistic, that the divorce will be completed by the beginning of the next school year. These people tend to be in the “improving ones life” camp.

So as divorce lawyers, we hope to avoid or at least resolve in advance the holiday visitation disputes that inevitably crop up, then relax and enjoy the holiday as we await the busy season to begin.

In 2010, the phenomena started early for us and many other attorneys. We were contacted by more people in December than in any year in recent memory. Moreover, we have heard of more people telling their spouse it “is over” before the holidays this year. I suspect that in some, it was the discovery/disclosure of a new significant other or perhaps pressure being exerted by that person that was the cause. In other cases, the person just didn’t want to wait until the new year to advise their spouse. Whatever the reason, we await those who see 2011 as a chance for happiness or a fresh start. Happy New Year?!?!
Eric S. Solotoff Editor of the Blog
Roseland, NJ
973.994.7501
esolotoff@foxrothschild.com

I tweeted yesterday that my firm’s experience is similar, but my hope, along with Eric and many other divorce attorneys, is that couples can work through their marital difficulties before rashly going down this path.  Here’s wishing all the best in 2011!
Melissa F. Brown

When meeting with a potential client, I first ask whether there is any possibility of reconciliation with his or her spouse.  It is unfortunate when some choose divorce before considering other options to resolve their marital difficulties.  Too often few realize or comprehend the impact of a divorce upon their children, their extended family, friends and themselves.

So, before I initiate a suit on behalf of a client, we discuss alternatives to resolving their issues other than the legal system.  I recommend books to read and counselors/therapists/psychologists/psychiatrists/ministers/rabbis etc to consult who have the professional training to identify the “real source” of their unhappiness in their marriage.

Marriage is not easy.  My 20th wedding anniversary is on the 29th of this month, and my husband and I acknowledge that marriage takes a whole lot of work and lots of forgiveness.  But, even though there are always times in any marriage where one partner hurts or disappoints the other, it is possible to overcome these hurdles if both spouses put their relationship ahead of these momentary low points.  Further, forgiving, respecting and cherishing the other are all part of the formula for a healthy marriage.   Of course, this is sometimes easier said than done, and I certainly cannot hold myself out as one who follows the formula often enough.  I have a long way to go toward remembering those ingredients on a daily, much less monthly basis.

I do know, though, that divorces can devastate  families, emotionally  and financially.  They can also devastate unintended victims especially the children, friends,  extended family, co-workers and others who all too frequently are reluctantly, pulled into the fray.  It is also incredibly sad to hear someone say with huge regret, “If I had only known in my first marriage what I know now, I would have given my all to work out our problems and remain married to my first spouse.”

Some may wonder why am I a divorce attorney?  Sometimes, I ask myself the same question.  Over the years the answer is the affirmation and thanks from incredible people who find themselves in difficult, painful divorce situations from which there is no turning back, who tell my team and me that we helped them through the process.  I think most family law practitioners feel similarly, and they agree we truly want to help our clients through a very difficult and emotional time in their lives.   Practicing family law has its challenges, and it is discouraging at times to work in an environment where there is so much heart ache.  But, when we help people through this process who appreciate our efforts, it is worth the “thick skin” I and others have “grown” over the years.

Before choosing to seek a divorce, please try to resolve your marital difficulties through other means and know reconciliation is always an option.  My hope, my goal, my wish and my prayer for all potential clients are to educate them about the process so they make fully-informed, wise, educated decisions before resorting to the legal system.  But, in those situations where reconciliation is not possible, strive to reach a fair, equitable resolution through a less contentious process, such as mediation, to avoid inflicting unnecessary pain upon your children, your spouse and yourself.