Sometimes movies reflect real-life providing us with an opportunity to learn a lesson or two. While watching the hit movie and Oscar-nominated “Marriage Story”, the storyline relative to divorce cases was depicted perfectly.
“Marriage Story” Lesson #1 — Choose the Right Divorce Attorney The husband, portrayed by actor Adam Driver, hired an older, seasoned attorney who seemed to have a very nonchalant attitude in regards to his case. He was a very nice man — but he was not aggressive whatsoever. He was no match for Laura Dern’s character (the wife’s attorney) and he was putting his client in a position to be walked all over. He encouraged settlement and even commented about the aggressiveness of Laura Dern. Adam Driver’s character’s first attorney was a terrible match for him and his divorce case. However, he may have been the perfect attorney in an uncontested matter for a friend of Adam Driver’s, and someone could have sang his praises to Adam Driver. He simply was not the right attorney for Adam Driver’s character, nor was he a match for Laura Dern. Eventually, Adam Driver took the “if you can’t beat ’em, join ‘em” approach and returned to the first attorney he interviewed whom he initially did not see eye to eye with regarding his case, nor his approach and legal representation plan. Real-life Search for an Attorney? It is amazing how accurately this reflected the real-life search for an attorney in a family law or divorce matter. Not everyone sticks with their first attorney, for a variety of reasons. Personalities play a gigantic role in how divorce cases proceed. Making sure the divorce attorney you select is a good match, not just for you, but also for opposing counsel and the Judge, are extremely important to the outcome of your case. Choosing representation in family law cases such as divorce or paternity is an extremely personal choice. The fact of the matter is that there are many very skilled and excellent divorce attorneys in Chicago, in Illinois, and throughout the United States. However, the person who won your neighbor’s case for child custody (in Illinois, allocation of parental responsibilities) may be a wonderful attorney for your neighbor but could the worst attorney choice possible for you and your situation. Different attorneys have different styles, and not every attorney’s style works for every client or every type of case. “Marriage Story” Lesson #2 — Don’t Believe Everything You See Another lesson from the movie “Marriage Story” is not to believe everything you see in the movies. There was an underlying portion of the movie which was very bothersome to me as a family law litigator, and that is the fact that no attorneys advised Adam Driver’s character from the very beginning as to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). It seemed very likely from the timeline in the movie that New York had jurisdiction over the minor son in the Marriage Story and not the state of California since it appeared the absence from New York was new and temporary. Jurisdiction and a Minor Child’s “Home State” No one ever advised Adam Driver to consult with a New York attorney about whether or not it would have been proper to file a competing case there. In fact, the whole idea of jurisdiction over the minor child and the minor child’s home state was swept under the rug entirely. A parent cannot just pick up a minor child and leave the state in all situations. Depending on the reason for the departure, the length of the departure and the circumstances, some Courts have the ability to Order a minor child to return back to their “home state”. This was not even discussed during the movie and this is likely one of the first things any knowledgeable attorney would have discussed with Adam Driver at the beginning of the case. Don’t believe everything you see in the movies. Overall, not everything is reality what you see in the movies. While the depiction of the various attorneys with different personalities was dramatic it was accurate in demonstrating how the personality of your legal representation may change the course of your case, the legal advice provided in the movie was not sound nor accurate. While “Marriage Story” is certainly an interesting story to watch, don’t rely on what you see in the movies. If you are pursuing a family law case be sure to exercise caution and obtain proper legal advice. You and your child’s future may depend on it. Jessica Marshall is Partner at Anderson & Boback where she focuses her practice on divorce and family law. From contested divorce and child custody matters to military divorce, Jessica is a passionate advocate with an unwavering commitment to her clients. If you need a compassionate and personable divorce attorney dedicated to solving family law problems, contact Jessica Marshall. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/oscar-nominee-marriage-story-divorce-lessons/
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Let’s be honest. It’s not likely that an estate planning attorney is going to be the first attorney you call when having marital troubles. And given the stress and cost of a divorce, it’s not likely you’ll want to add one to your list of contacts during the divorce or soon thereafter.
Nevertheless, an estate planning attorney can help give you peace of mind throughout the process, working by your side and with your family law attorney before, during, and after a divorce to optimize your goals. Before You File for Divorce If you’re still married, it may surprise you to know that your spouse has many legal rights as they pertain to you. Some of these rights make sense in a healthy marriage; however, in an unhealthy one, what you don’t know can hurt you. For example, by default, your spouse has priority in making health care decisions for you. This means that if you’re knocked unconscious in a car accident and your doctor needs consent to engage in a risky procedure, your spouse’s position outweighs that of, say, your mom, or your brother, or your cousin Sarah. In a healthy marriage, that may be fine. But in a marriage that’s on the rocks or in the process of dissolution, this can spell disaster. Similar default rules exist in the case of death. I often explain to my clients that everyone has an estate plan in Illinois, whether they created one or not. Our Illinois legislators created a default estate plan for you too that favors a surviving spouse, providing that all of your estate goes to your surviving spouse if you die without kids, or half of your estate goes to your surviving spouse if you die with kids. These laws are laws of convenience, and in many cases, the default provisions are alterable. Whether you love or despise your spouse, there may be reasons why you don’t want him/her/they managing your finances upon disability, or getting your assets at your death. You may trust your spouse, but fear that asking that they make health care decisions for you may add more to their plate than they can handle. Or, more darkly, you might not trust that your spouse has your best interests at heart when calling the health-care-related shots. There are workarounds for these defaults. Some workarounds come in the form of durable powers of attorney. By preparing a durable power of attorney for healthcare and property, you can select someone other than a spouse to act as your agent in making health care and financial decisions for you during your disability. This is a powerful act to take when going through a drawn-out divorce, and one that can be handled relatively simply by a competent estate planning attorney. While it’s relatively easy to name another person to act as your agent, it’s a little more difficult to keep a spouse from receiving your assets at your death. And a Last Will and Testament is not going to cut it. It may surprise you to know that if you set up a will that, say, disinherits your spouse, that will can be invalidated by your surviving spouse. Specifically, in Illinois, a spouse who has been disinherited from a will has the option, under statute, to renounce the will and take their “elective share.” For spouses without children, that share is one-half of the estate of the deceased spouse. For spouses with children, that share is one-third of the estate of a deceased spouse. Despite these provisions, in Illinois, there are workarounds for this too, workarounds that a competent estate planning attorney can navigate. After You File for Divorce or Finalize the Divorce Family lawyers and estate planning attorneys both emphasize the importance of understanding what are your current assets with the goal of ensuring that your long-term goals can be met. Typically, a marriage that ends in divorce does so through the use of a marital settlement agreement, whereby a married couple divvies up assets between each other, and if there are children involved, makes accommodations for supporting the children. Although the marital settlement agreement answers critical questions like how assets will get divided and how custody of the children will be handled, it does not address other, key goal-oriented questions like, what happens if I become disabled or die — who is going to take care of me, my children, my house? When the most trusted person in your life no longer fits the bill, a well-crafted estate plan can be set up to fill the gap. By bringing in an estate planning attorney at this tumultuous time, your family law and estate planning attorneys can work together to ensure an estate plan is put together to account for contingencies that might otherwise have been non-issues had your marriage ended in a different way. In doing so, they can also ensure that the marital settlement agreement and estate plan align, and beneficiary designations are updated to reflect the settlement and estate plan in a coordinated fashion. So, wherever you are in a marriage, add an estate planning attorney to your team. You’ll be glad for the peace of mind that it gives you. If you’re contemplating a divorce, going through a divorce, or just finalized a divorce, it’s time to talk to an estate planning attorney. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/divorce-dont-forget-call-estate-planning-attorney/ There are so many different reasons why you may consider using a therapist in your family law. A lot of couples going through a divorce have their own personal therapists, which can be a very healthy way to deal with the difficult personal situation they are going through. Some parents need a therapist to assist them in effectively communicating and co-parenting. Many, if not most, minor children have counselors to talk to about their parent’s separation and other issues related to a family law case they are involved in. Finally, sometimes when parents are estranged from their minor children it is required that they attend something called “reunification therapy” to try and rebuild the relationship between the estranged parent and the child.
Things to be Avoid if Using a Therapist in Your Family Law Case All of these therapists are extremely useful, particularly when you have someone knowledgeable about the family law process. However, in my experience as a Chicago family law attorney, there are certain things to be aware of when using a therapist and being involved in a family law case. Therapists Testifying in Court First, your therapist probably does not want to testify, nor are they typically a very convincing witness on your behalf. A lot of therapists develop a relationship with their clients which is personal and private, in order for the therapy to be truly effective. They also often have a bias in favor of their client due to said relationship. It is the same as having your sister or brother or mother testify in your favor – a Judge will think “well, of course, they will sing your praises, they are your mother” and not a neutral party. Therapists can sometimes fall in the same category. They usually have a bias. Additionally, therapists value the confidential nature of their client relationship. For that reason, they often hesitate to testify in a case. Subpoenaing them and forcing them to come testify may not have a good result. So, a therapist is not a good witness to call, in most scenarios, in family law matters. Similarly, your child’s therapist does not want to come testify, for many of the reasons outlined above. Your Judge typically does not want your child’s therapist to come testify, either. There is currently a statute which prohibits disclosure of information from children’s therapists to Guardian Ad Litem’s and Child Representatives in domestic relations matters. Public policy in Illinois is that a child’s relationship with their therapist should remain private. Don’t Delegate Decision-Making Authority Another pitfall with utilizing a therapist in a divorce case has nothing to do with testimony nor disclosure. Instead, it has to do with letting a therapist or mental health treating professional “drive the bus” in the case. This is most likely to occur in a reunification therapy type of scenario. For example, putting into an Allocation Judgment that the parties will take the recommendations of a therapist for purposes of increasing parenting time. The problem with doing this is that a lot of therapists are a bit conservative about pushing the children too far too soon in reunification therapy and they will err on the side of caution. This can become exhausting after a while. Therapists tend to not mind if time is passing. They want to do a good job and they are careful and cautious, as they should be. However, they have a different standard than does a Guardian Ad Litem or Child Representative, or even a Judge, when it comes to deciding when it is time to move parenting time along. They do not tend to move quickly. Judges are in a position where they often have to push people along to the next step, otherwise, cases linger before them forever. They are far better suited to keep the decision-making authority as to when parenting time increases, and they typically move faster than a therapist would. However, being in Court often means attorneys and legal expenses, and if there are limited means to continue fighting the fight, using a therapist to move things along may be the only financially viable option. However, extreme caution is necessary when adding provisions such as these to an order. Contact Anderson & Boback if you have questions about your family law situation including the role your therapist may have in your case. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/using-a-therapist-family-law-case/ |
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