This is the fourth of a series of articles wherein I share a conversation I had with the executive producer and director of “Divorce Corp.” wherein we discussed the 58 reasons why I was unable to endorse the film. Since my last article covered points 11 through 15, I will start this article with my 16th point. In an effort to eliminate any possible confusion, the items in italics are my responses to Mr. Sorge. They are in italics because those responses were never sent to him.
Mark Baer:
“Sixteenth, the issue with an attorney taking a lien on a house is not an issue from my perspective. In fact, since the client is not paying money each month to the attorney with actual cash, it is like play money to the client. Furthermore, I had a client strip my lien the only time I ever took one and then file for bankruptcy. She ran up fees like water and ended up wiping out tens of thousands of dollars in fees she incurred. In an effort to be paid, I retained a collection attorney. The client ultimately filed for bankruptcy. On December 23, 2013, I finally received my share from the bankruptcy trustee, which was 6.3 percent of the amount billed. Mind you, the fees were incurred in 2009. Please explain to me how my client was harmed by my having taken a lien on her house? It seems to me that the joke was on me and I will never again take such a lien. By the way, I am by no means unique regarding my concerns pertaining to the risks in taking such a lien.
In fact, according to Daniel R. Gold, CFLS, ‘Many clients’ legal services are funded on borrowed money—i.e., money from real estate or credit lines; therefore, when there is a crunch in real estate values or on the credit side, the cash flow needed to sustain an ongoing legal process simply is not there. In many cases, it is too difficult to find a buyer for the couple’s home or someone to loan money to the spouse who wants to stay in the house and buy the other one out. All of those factors make it harder to resolve and/or fund these cases. Such situations create a number of challenges, and they often force lawyers to be more creative, or to do things they would not necessarily want to do. For example, California law expressly allows family law attorneys to record a lien on their clients’ share of community real property. That lien has its own name—a Family Law Attorney Real Property Lien (FLARPL). See California Family Code §2033(a). Although permissible, is it a favored course of action? My answer is no, but understandably, there may be no other realistic alternative. Taking a lien on your client’s house raises an inherent conflict of interest, even with the most careful and thorough disclosure and waivers. Further, in many instances, the client ignores their bills on the assumption that it’s going to be covered when the house sells. This ‘denial’ only postpones the sticker shock and bad feelings that take place when escrow closes, and the law firm takes a considerable chunk of the proceeds they were counting on getting.”
Joe Sorge:
“We understand and are sympathetic to professionals getting paid for their work. However if we look through the trees and focus on the forest, the bigger message is clear: go to family court and the attorneys will get your house. We think that’s a tragedy. The system should not cause citizens to lose a large portion of one half of their assets simply because one party wishes to fight.”
I will say it once again, nobody has to go to family court to divorce and nobody has to retain counsel. If a person opts to retain counsel, they should pay for those services. Furthermore, as I keep saying, nothing prevents parents from mediating their family matter. The choice as to process and type of attorney, if any, is retained is up to the parties themselves. However, “unless and until the default process for handling divorce and other family law matters is changed from litigation to some form or forms of consensual dispute resolution, it only takes one person to sink the ship and thus destroy the family. Parents who end up in court are forced into an adversary system that knows little about child development and less about the best interests of children or the family unit. In sum, the adversary system destroys families.”
I should also take this opportunity to share the following quote from Bill Eddy, LCSW, Esq.:
“One or both parties in many (most?) Family Court cases today have a mental health issue that is unrecognized – such as a personality disorder, substance abuse, bipolar disorder, depression – disorders which are often characterized by denial and blaming others. This reflects the growth of these problems in the larger society today. These are not problems unique to Family Court, but Family Courts need to recognize them.
Sadly, Family Courts provide a forum for people with such problems today (in contrast to when I began practicing law), especially because family lawyers, judges and other professionals are not trained in identifying mental health issues, get stuck arguing about them out of ignorance and there are few mental health resources for treating them even if they were properly identified. Family courts were never designed to diagnose and treat mental health issues, and the adversarial process is guaranteed to fail at it. Reforms need to involve more mental health training for professionals and more conflict resolution skills for clients to help them make decisions out of court in non-adversarial settings.”
When such individuals are involved in a family law matter, I am afraid that there is no easy or simple solution to the problem.
Mark Baer:
“Seventeenth, courts can order people to sell everything to pay for lawyers. Surprise! The same is true in probate court – the lawyer and executor gets paid before the creditors. After all of those have been paid, the beneficiaries receive the rest. Who hired the lawyers? Why should they work for free?”
Joe Sorge:
“Similar response. It’s a tragedy. Worse yet, the judges and attorney are friends. The judges have too much power and too many incentives to make decisions that will improve the financial outcome for their friends, at the expense of bankrupting citizens who simply want to end an unhealthy relationship.”
I am afraid that while this obviously does occur, as shown in the film. However, this “conspiracy theory” is nothing more than that – a “conspiracy theory.” Based upon my knowledge and experience, such conspiracies in the family law arena are few and far between.
Mark Baer:
“Eighteenth, I agree that the system tends to fail children. However, I also am very outspoken that I don’t believe that many parents are fit, even in intact families. When they place their family in the realm of legal scrutiny, their fitness can be viewed. According to Bill Eddy, LCSW, Esq., ‘statistics from the United States show an apparent increase in personality disorders among its citizens with each new generation. [P]olice in the United States and Canada have reported an increase in incidents of aggression toward police officers, including spitting in their faces and tearing up tickets in front of them which they had just written. [T]his is also happening in Australia.
[T]his increase in high conflict behavior appears to be related to the same cultural reasons: self-centeredness, isolation and mistrust caused by preoccupation with personal devices; over-emphasis on children’s self-esteem without effort growing up; images in all media (TV news, movies, Internet, cable) of violence, disrespect for authority, and heavy use of alcohol. ([The Australians] seem to have more of an alcohol problem while the U.S. seems to have more of a drug problem.) In others words, our cultures are teaching the behavior we’re trying to stop.’ THIS IS A PARENTING ISSUE.
We have an epidemic with regard to children that won’t care for their elderly parents because among other things, the children don’t have empathy. THIS IS A PARENTING ISSUE!”
Joe Sorge:
“We are on the same page here. We are completely sympathetic to the children. But our suspicion is that if you take away the financial incentives to fight over custody, great things will happen. People will stop looking at their children as financial credits and debits.”
Forced Equal Parenting is about parental rights and has absolutely nothing to do with what is best for children. Generally speaking, however, shared parenting of some sort is in the children’s best interest. According to Joan B. Kelly, Ph.D., there is no evidence that parental conflict is any different in primary custody situations versus shared custody situations. In other words, don’t avoid shared custody arrangements because of parental conflict, especially since the research shows that children are more satisfied and excel in shared custody situations. Shared Parenting is not necessarily Equal Parenting. Shared Parenting is anything from 33% to 50% timeshare. Equal Parenting is 50%. There is little doubt that children are more satisfied and excel when they are loved and cared for by both parents in a shared parenting arrangement. However, according to Dr. Kelly, a 50/50 timeshare default is very problematic.
Considering that “one or both parties in many (most?) Family Court cases today have a mental health issue that is unrecognized,” it is wishful thinking to believe that “if you take away the financial incentives to fight over custody, great things will happen. People will stop looking at their children as financial credits and debits.” Denial is not a river in Egypt.
“The fact that so many parents seem incapable of considering the welfare of their children, especially during and after the dissolution of their romantic relationship with their co-parent, is an ongoing theme throughout my writings. I consistently hear parents and their advocates argue that ‘the rights of the state are subordinate to the rights of fit parents.’ The key terms and phrases involving such ‘parental rights’ are as follows: ‘fit parents,’ ‘fitness,’ ‘unsuitable persons to be entrusted with their care, control, and education, or when some exceptional circumstances appear which render such custody inimicable to the best interests of the child,’ and ‘parent properly nurtures, maintains, and cares for the child.’ Clearly, people have very different definitions for such terms and phrases, so obviously that is an extremely subjective standard.
I am sorry that so many people want to consciously or unconsciously remain ignorant to this harsh reality and therefore don’t like that I am being so forthright in my articles. However, this large population of children has not had a voice until now and the ignorance of others has by no means been blissful to them. I am proud to be the voice of these children.”
Mark Baer:
“Nineteenth, I agree that many custody evaluators are not well-qualified, among other things. How about bias? How about the fact that they might not be good parents themselves?”
Joe Sorge:
“Agreed.”
Mark Baer:
“Twentieth, the issue with gun-for-hire experts is the result of litigation because it is adversarial. It is not specific to family law.”
Joe Sorge:
“Agreed.”
To be continued…
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