Bar News - November 16, 2012
Family Law: Family Law Lessons Learned
The following are brief suggestions or tips family law practitioners offered in response to our recent request for "lessons learned."
Get a Credit Report
I recommend all clients get a credit report before filing for divorce. Many times, I find clients are surprised by credit cards or other debt their spouses have incurred in their names, of which they were previously unaware, especially in cases where the client never handled the family’s finances.
I also recommend they close all joint accounts they aren’t using or don’t want before the automatic restraining order goes into effect – or at least remove their name – to prevent damage to their credit once they file and their spouses stops paying bills.
Having the credit report in hand also helps us fill out the liability portion of the financial affidavit accurately. You can get a free credit report online.
Linda O’Connell, Cossingham Law Office, Andover, MA.
Traps and Treasures
of Social Media
Family lawyers are no doubt aware of what golden nuggets can be found out about opposing parties (cue those photographs of Mom drunk and all over new boyfriend with her kiddos in the background, or Dad’s new boat as he claims he can’t pay child support), but be sure to check out what your own clients are posting, so as not to be ambushed in court.
Sometimes you sense a client is not being totally honest with you. Searching social media can be a way to research your client’s veracity. I recently encountered a situation that made me seriously question whether offers of proof I had made on behalf of my client were accurate. It led me to an ethical conundrum with regard to my candor to the court.
What followed was a frank and open discussion with my client about what I found on Facebook. We were able to resolve the issue and she was more open with me about things than she had been in the past. When we did get to trial, I was ready for the "surprise" Facebook exhibits entered by opposing counsel. Had I not had the forethought to do that search myself and prepare my client appropriately, it could have been disastrous, and my client would have looked much worse to the judge.
Don’t forget the children! The social media websites of children can be virtual goldmines of information. Teens and "tweens" are notorious "oversharers" and very likely can be sharing important – or damaging – information with their friends.
Also, take note of relationships between the parties. For example, if Mom is lamenting about what a deadbeat Dad is (with all of her good friends agreeing and adding their own colorful commentary), and Mom is also "friends" with her 12- and 15-year-old daughters, we have to assume that the daughters are seeing these critical messages inappropriately, and this matter needs to be addressed.
Social media can be an important tool in a family lawyer’s toolbox, but it can also be a trap for the unwary.
Jessica L. Ecker, Donahue, Tucker & Ciandella, Portsmouth.
Attachments ‘As of Right’ - An Extremely Useful Tool
Your divorce client, John Smith, tells you that his wife, Jane, owns a one-half interest in a summer camp on a New Hampshire lake. The other owner is Jane’s brother. John is concerned that Jane may sell her interest to her brother for less than fair market value.
Your divorce client, Susan Jones, tells you that her husband, Bill’s mother was recently killed in an automobile accident and that he and his siblings may receive a portion of the wrongful death claim. That claim is being handled by a New Hampshire attorney. Your client, Susan, fears Bill will direct the attorney to turn over the proceeds to his siblings, or hide his share when he receives it.
Your divorce client, Tom, has lived in his wife Nancy’s house, which she owned prior to the marriage, for the ten years of their marriage. Tom spent a lot of his premarital funds on renovations to the house. Nancy has discussed putting the house in her children’s name (the children from a prior marriage).
Your divorce client, Debbie, tells you that her husband, Fred, a salesman, is due a large commission check from a New Hampshire employer. Debbie is concerned that Fred is planning on using a substantial portion of this check to take his honey bun on a Caribbean cruise. Debbie does not want the cash to disappear, because there are not a lot of other liquid assets and she needs the money to support herself and the kids, and, incidentally, to pay her attorney’s fees.
Every divorce practitioner has run into circumstances such as these. Few practitioners, however, are unaware of how easy it is to get an attachment in a divorce case.
RSA 498:16 reads, in full, as follows: The plaintiff in a bill in equity, or the libellant in a Petition for Divorce, shall have a Writ of Attachment or a trustee process, as of right, for the attachment of the goods, estate, money, rights or credits of the defendant or libellee to secure the performance of any decree or order that may be made in the suit.
I have used this statute to obtain quick attachments in many cases over the years. I have always had the court grant the attachment on an ex parte basis, by pointing out to the court enough facts to justify the attachment and by citing the statute and noting that my client is entitled to the attachment or trustee process "as of right".
Because your client is entitled to the attachment "as of right", the defendant is not able to argue that your client might not be entitled to the asset at a final hearing, or that other assets might be available to compensate, or that granting of the attachment would be inconvenient, or the like.
Asking for such an attachment is not appropriate in all cases. Of course, it is not applicable to children, parenting time, and the like. Also, although it would be arguably appropriate to attach someone’s ongoing pay checks, I would only ask for that relief in extraordinary circumstances.
In several of the circumstances mentioned above, the petitioner might be entitled to an attachment without reference to 498:16, by claiming a possibility that the asset will disappear or be transferred away, but such proceedings would be much more complicated, uncertain, and expensive.
Why spend your client’s money arguing about whether or not you are entitled to something if you can obtain the same result "as of right"?
RSA 498:16 can be extremely useful in the right circumstances.
Theodore H. Parent, Attorney at Law, Keene.
Free Initial Consultations -
Avoid Wasting Time
I provide free consultations to prospective clients. The consultation is a good opportunity to get to know each other and see if we are a good fit.
Although the consultation is free, I require a credit card to secure the appointment. Unfortunately, sometimes people who schedule appointments choose not to show up without calling to cancel the appointment. Therefore, my policy is to have a credit card on file at the time the appointment is scheduled. If the client does not show up for the appointment, a $175 missed appointment fee is charged to their credit card. There is a 24-hour cancellation policy, and in emergencies such as illness, inclement weather, or car trouble, exceptions are made to the 24-hour rule, as long as I am contacted prior to the appointment time.
As for phone consultations, I generally don’t do them. I like to meet with potential clients face to face, and I can’t review paperwork, such as court orders, a lease, or a financial records over the phone. I will consider phone consultations on a case-by-case basis for clients who live outside the state.
Kysa Crusco, Kysa Crusco Law Office, Bedford. She also writes a blog at nhfamilylawblog.com.