Successful Strategies for Divorce, If You Have No Conscience or Sense of Decency

I have been wanting to prepare a posting entitled "Successful Strategies for Divorce, If You Have No Conscience or Sense of Decency" for years, but have been too busy to organize for this purpose until now.

Because political correctness has all but surely killed any appreciation for satire and thus also scared witless anyone who might wish to write satirically, before I go any further I must make the following disclaimer:  

With my blog posting(s) under the title of "Successful Strategies for Divorce, If You Have No Conscience or Sense of Decency," I am not encouraging anyone to engage in dishonest, illegal or other wrongful behavior in divorce.  My purpose of such a blog posting or postings on the subject is quite the contrary, i.e., to utilize irony, sarcasm, ridicule, or the like to expose, denounce, and deride inequitable behavior in divorce and those who engage in it.  By exposing such misconduct I hope to help in its eradication.


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Memorable quotation from The Rainmaker

Memorable quotation from The Rainmaker (1997), the movie made from John Grisham's novel of the same name:

"Every lawyer, at least once in every case, feels himself crossing a line that he doesn't really mean to cross... it just happens... And if you cross it enough times it disappears forever. And then you're nothing but another lawyer joke, just another shark in the dirty water."

Child Support and Conventional Wisdom

Here's a topic for debate:

Resolved: That the expenditure of child support payments made by one parent to the parent with primary custody of the couple's children are subject to the discretion of the support recipient.

This is clearly not the case. Utah Code Section 78B-12-218 plainly provides:


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In Defense of Justice Over "Conflict Resolution"

Any time someone tells me that I need to see my role as a lawyer as a “problem solver,” I roll my eyes. You know:

“Eric, you need to stop litigating everything and be a problem solver”;

“Eric, we [meaning the opposing attorney and I] need to focus on solving our respective clients’ problem and stop the fighting between them”;

“Eric, I don’t have to justify my positions to you. Now, do we have an agreement or not?”

“If we remember that we are professionals working together to solve a dispute between two third parties [sic], we are more likely to behave like professionals.” (Diana Hagan, Bar & Bench (Salt Lake County Bar Association), Winter 2009) [1]

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Too Expensive

I've heard it for years, but only recently have I come to understand it myself; litigation is too expensive. Way too expensive. Counter-productively expensive. Ruinously expensive. Inexcusably expensive. Unjustly expensive.

Attorneys and the judges who hear their cases should be paid for a valuable service, no more no less, but that is not what is happening now. Litigation has become expensive because, at bottom, everyone's trying to pass the buck, and to those to whom the buck is passed, each of them is out to make a buck.

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KUDOS TO THE UTAH SUPREME COURT ADVISORY COMMITTEE ON THE RULES OF CIVIL PROCEDURE

For many years the Civil Rules Committee has been concerned with the increased expansion and cost of discovery and the impact of this on our civil justice system. Rule 1 states that the rules “shall be liberally construed to secure the just, speedy, and inexpensive determination of every action.” The discovery rules may have contributed to “just” results in the sense that they provide parties of sufficient means with the ability to discover all facts relevant to the litigation, but modern, expansive discovery has had a decidedly negative impact on the “speedy” and “inexpensive” resolution of civil disputes. Current civil discovery practice fosters one of the goals of Rule 1 at the expense of the other two.

Discovery has become the focus and the most expensive part of modern litigation. Discovery is viewed also as a primary contributor to delay.

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Child Custody and the Best Interests of the Family

There is an entrenched, but (in my opinion) illogical and myopic convention in Utah regarding child custody awards. While many appellate cases address the matter, my comments are based upon two cases that concisely summarize what is unfortunately considered the received wisdom on the subject of child custody awards: Pusey v. Pusey, 728 P.2d 117 (Utah 1986) and Tucker v. Tucker, 910 P.2d 1209 (Utah 1996). I hope I can refute this convention with the following comments.

Pusey v. Pusey, 728 P.2d 117 (Utah 1986) provides:

We believe that the choice in competing child custody claims should instead be based on function-related factors. Prominent among these, though not exclusive, is the identity of the primary caretaker during the marriage. Other factors should include the identity of the parent with greater flexibility to provide personal care for the child and the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy. Another important factor should be the stability of the environment provided by each parent.

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