Author Archives: BarryKnobel

The (Unintended) Consequences Of Mandatory Mediation In The Family Courts – Part 2 [The Attorneys’ Side – There Is A Difference Between ‘Wanting To’ And ‘Needing To’]

Let me say this up front: I candidly admit that I’m the embodiment of the “professional oxymoron” (most of my colleagues would prefer to just ignore the “oxy” part).  On the one hand I am, and have been for many years, very cynical regarding all things family court (i.e., you cannot be given a 15-minute block of time within which to decide the fate and immediate futures of spouses, parents, and children,  based on a maximum 8-page affidavit that is most always “borderline perjury”) … while on the other hand I remain the eternal optimist (the Pollyanna) who wants to believe that all party-litigants, when given the choice between doing the right thing by making meaningful compromises in order to achieve total control over their joint or collective futures [“Plan A”] versus these same parties placing these decisions (which will affect their lives and the lives of their children) into the hands of perfect strangers [“Plan B”], would choose “Plan A” 100% of the time.

And the eternal optimist in me would be wrong at least 50% of the time.

Having now been swimming in the mediators’ pool for approaching 7 years, I’m convinced there are unintended consequences resulting from the mandatory part of mediation in family court litigation in South Carolina.

I’ll try to explain if you’re interested in reading on.

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The (Unintended) Consequences Of Mandatory Mediation In The Family Courts – Part 1 [The Judges’ Side -Trying To “Outrun The Numbers” And The 365-Day Benchmark Rule]

For a number of years now, but most significantly from around 2004 to the present, the family court system in this State became a seemingly never-ending process of trying to “outrun the numbers”; that is, the now 58 active family court judges were (and continue to be) each tasked with hearing and deciding approximately 3,000+ cases per year, which included, but were not necessarily limited to, motion hearings, contempt hearings, juvenile hearings, DSS hearings, child support hearings, domestic abuse hearings, pro se filings, bench warrants, and contested final hearings…and that was just a judge’s standard “in-court” work, and not his/her “in camera” requirements.

With the implementation of the revised August 27, 2014 “365-day Benchmark Rule” it was the obvious intent of that South Carolina Supreme Court order to force litigants and attorneys (the “attorneys’ side”), not necessarily to have completed the litigation within a 365-day period of its commencement (i.e., filing) date but, to have requested a final hearing within 365 days of the commencement date.  However, the flip side of that “benchmark” (the “judges’ side”) was clearly intended to give another “arrow in the quiver” – albeit a draconian one – to the chief administrative family court judges in controlling/reducing the number of pending cases by providing for the absolute dismissal of any case which failed to comply with the 365-day timeline requirements imposed by this benchmark order.

Provided you not tell anyone, I’ll let you in on a secret:

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Was Ray v. Ray A Herald For “Open Discovery” In The Family Courts?

How many family law attorneys reading this blog believe that it’s now a form of legal malpractice not to request an “open discovery” order (i.e., permission to use the discovery rules set forth in the South Carolina Rules of Civil Procedure) at the earliest possible time and in virtually every family court case?  And in what percentage of those cases where you engaged in “open discovery” did you find it to be significantly cost-effective to your client (in other words, by the sole and specific use of pretrial discovery, you were able to achieve a final, financial result for your client which exceeded that client’s costs in attorney’s fees and litigation expenses directly related to the additional time spent in engaging in such pretrial discovery)?

Although there are most always “unintended consequences” flowing from virtually every legislative act and court rule affecting family court processes, “open discovery” in our family courts has clearly resulted in increased litigation costs, more motions to compel, delayed mediations, delayed final hearings, motions to continue for lack of the production of documents, more depositions….on and on.

As you are most probably aware, the long-standing “discovery rule” in our family courts is brief and to the point.  Rule 25, South Carolina Rules of Family Court states:

“Recognizing the unique nature of the court’s jurisdiction and the need for a speedy determination thereof, the prompt voluntary exchange of information and documents by parties prior to trial is encouraged. However, formal depositions or discovery shall be conducted only by stipulation of the parties or by court order upon application therefor in writing. Such an order may prescribe the manner, time, conditions and restrictions pertaining to the deposition or discovery.”]

In the practice of present-day family law in South Carolina I’m not aware of a single family court judge or family law attorney who use and rely solely upon Rule 25 to limit or constrict  the framework within which to navigate a domestic relations case.  I am very much aware, however, that a decade ago there were significant efforts by several family court judges to overhaul and expand Rule 25, all of which were “shot down in flames” by both the bench and bar.

And then along came the case of Ray v. Ray, 647 S.E.2d 237, 374 S.C. 79 (S.C., 2007).

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The Three Horsemen Of The Family Court – Animosity, Mistrust and Control

If you practice family law in South Carolina, then you’ve been introduced to these three specters seated between your client and you inside a family courtroom or at the mediator’s table. They are your three worst enemies in a courtroom or at your clients’ mediation, and you’ll never beat them…unless, that is, you’re clever enough and insightful enough to realize you were the one who invited them to this party…or you did nothing to prevent their attending.

They will stand in the way of your conversations with your clients. They will prevent all manner of rational and reasonable settlement discussions. Like a poltergeist, they will whisper controversy in your client’s ear and interfere with the presentation of your case. They will cause you to be second-guessed by everyone inside the courtroom – the judge, the other attorney(s), your own client. You will become victimized by them, vilified by them, cursed by them. You may even lose sleep over them and, perhaps worse, you will certainly lose money (not make money) because of them.

And this will happen in every divorce case you accept and in every divorce case you will mediate or litigate.

Let me introduce you to The Three Horsemen of The Family Court.

Seated to your right is Animosity – Horseman Number One. I’m sure the two of you have met…many times. Animosity drove your client to your office. It introduced your client to you, and, in fact, during your initial interview, Animosity was the voice of your client. Animosity answered all of your questions, and when, in responding to your client’s/Animosity’s questions, you said all the right things (necessary to fuel that emotion), Animosity convinced your client to pay you a retainer fee. It didn’t matter to you at the time whether you would be clever enough in the end to protect your client’s financial future and his/her interest in obtaining child-related relief.

The problem is this: Animosity doesn’t give a damn about those things. Continue reading →

The Imperfection Of The Family Court

I recently mediated a very difficult case in which the primary issues centered on the parties’ relationship with one another and the impact of that relationship on their very young children. As most often occurs in these always stressful mediations, the back-and-forth meetings and discussions with these parents resulted in often grudging concessions and inch-by-inch forward progress.

Finally, in trying to settle a visitation date, time and location exchange, we hit the “proverbial wall”, at which time one the parties’ attorneys (both parties’ attorneys in this case were excellent, and in that regard, their clients were fortunate) could no longer restrain himself as he continued to argue to me that the other parent’s position was “not logical…there is no logic in their position!”. I listened patiently and when the attorney was finished, I asked him this question:

Can you tell me when “logic” was ever involved in a family court case?

As I have repeated many times over the years, and certainly many times during my family law mediation practice, every case inside a family courtroom is driven by emotions – animosity, mistrust and issues of control run rampant during mediation sessions and certainly outside and inside the courtroom. I’m referring, of course, not just to the litigants, but also to their attorneys. Consequently, I have yet to encounter a single mediation conference where “logic” had anything to do with the settlement or impasse reached in the case.

To the family law attorney: please do your clients a tremendous favor and tell them that the family courtroom is the most imperfect place for decision-making on the planet.  And let me add the following to the mix:

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A “Guest Blog Post” From Family Law Attorney Nancy Jo Thomason – “The Ease (And Sense Of Security) In Filing A Family Court Transcript Of Judgment”

My good friend, and mentor, Barry Knobel, recently wrote a blog about protecting your family court client’s potential assets in a divorce case by filing a lis pendens at the commencement of the action, and that blog concluded with a reference to filing a transcript of judgment as “additional protection”.  The blog could not have been more timely.

Recently, I had my first opportunity in my 21-year family law career where I found it necessary to file a family court-authorized transcript of judgment, and I asked Barry if he would be willing to let me share with you the very simple steps necessary to perfect such a lien.  Since I don’t have my own blog (and rarely have anything new or useful to offer), Barry said he would welcome my being his “guest blogger” so that I could share my experience with you.

There are two sections found in Title 20 (domestic relations) of the South Carolina Code of Laws which govern the filing and enrolling of a transcript of judgment with the clerk of court’s office – South Carolina Code Ann. §20-3-670 and §20-3-680. The first section gives you the authority to record the transcript of judgment; the second actually gives you the form to use and file. Very easy!

In my case, my client (the wife) is to receive certain payments when some land which was solely in the former husband’s name is sold. Since a title search might “miss” the order entered by the family court, it was essential to file, record, and index a transcript of judgment which would better protect her financial interest in this property.

The husband’s attorney and I agreed to include a “transcript of judgment” provision in the parties’ divorce decree, and I then sent the judge both the decree and the transcript of judgment. Continue reading →

For The South Carolina Family Law Attorney – “Scenarios” To Read At Your Own Peril: Scenario No. 2

Last week I posted the first “scenario” in a blog series which I’ve entitled “Scenarios” To (Insure) You Will Need To Insure That Your Professional Liability Policy Is Current (Read At Your Own Peril; and rather than my restating the “history” behind these “scenarios”, I would simply request that you read that last post … and I’ll press on.

Scenario No. 2

You represent the husband in a contentious divorce action resulting from an even more contentious, long-term marriage.  The litigation has been pending for some time now, and finally after engaging in several previous settlement conferences and a protracted mediation, progress has finally been made in the parties reaching a complete agreement.

Your client is an engineer who has been employed for a number of years by a well-known and hugely successful engineering firm, and he’s convinced that he’ll become a partner in this firm sometime in the future.  The husband has been the sole source of income for the family throughout this lengthy marriage.  The wife has been a homemaker.  The children are all now adults and living away from home. The wife’s attorney and you have been diligently working on drafting a detailed marital settlement agreement covering a variety of marital issues, including the division of extensive financial holdings acquired by the husband over the years of their marriage.

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“Scenarios” To (Almost) Insure You Will Need To Insure That Your Professional Liability Policy Is Current (Read At Your Own Peril) – Scenario No. 1

On October 30, 2008, I made an ethics presentation to our Anderson, South Carolina Inn of Court during which I presented 18 different “scenarios” of varying fact patterns regarding real-world issues encountered in family court litigation.  What remains fascinating to me, however, is that in the 6+ years following that presentation, I still continue to see (and to encounter in my mediations) those identical problems and pitfalls.  So I thought it might be interesting to share these “scenarios” with a wider range of family law attorneys to see whether and how you address them in your family law practices.  At the very least, I hope that some of you will find this informative (and maybe, at times, even helpful).  Here’s the first one:

Scenario No. 1:

The husband and wife are both represented by attorneys in their divorce action. You represent the wife. The parties have reached an agreement which is approved by the family court judge at their final, uncontested hearing. The judge signs the divorce decree which provides for a merger of the agreement into the decree.

The agreement provides, in part, that the parties will sell “by owner” a 20-acre tract of land and divide the net sales proceeds equally. This tract is titled solely in the husband’s name.  Aside from this “marital asset”, which is the most valuable one to the parties, the other marital assets were several bank accounts and the furnishings, all of which have already been divided between the parties prior to their final divorce hearing.

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Practicing Family Law In The 21st Century – Series Post No. 5: Swimming In The Mediators’ Pool

On March 14, 2013, the South Carolina Supreme Court had ordered that, effective June 1, 2013, family court mediation would now become mandatory in 33 counties [South Carolina Supreme Court Court-Annexed Alternative Dispute (ADR) Rules]; however, I would bet the ranch that, mandatory or not, there is not a single attorney practicing family law in any one of the 46 counties in South Carolina who has yet to participate in a family court mediation.  Mediation has now become not only an integral part of the family law lexicon in South Carolina, but it also is very much at risk as being viewed and considered merely another stage in the arc of the family court litigation process.

“Mediation is the art of recovery”.  The objective of mediation is, and always should be, to return your clients’ futures to them by wresting control of those “futures” from the hands of strangers (i.e., judges, attorneys, guardians ad litem, mediators, etc.); mediation is, and always should be, intended to keep your clients as far away as possible from the vagaries and uncertainties of the “family courtroom experience”; mediation is, and always will be, intended to stop the creation (or formation) of your clients becoming lifelong enemies of one another, while allowing your clients to settle and resolve their conflicts on their terms, not yours, and by doing so, enable them to recover from the exquisite, indescribable pain of divorce.

An excellent Upstate family law attorney and close friend told me she was delighted to know that, even in my semi-retirement, I would still remain part of the “mediators’ pool”.  I know she meant that as a compliment, and I took it as such.  But the larger point is the most obvious one …

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In Tribute To My Child

There is a quiet, almost unspoken bond of devotion which a parent has for a child.  No one on earth knows the heart and soul of a child in the way a parent knows.

I adore my child.  And I remain just as adoring a parent as the day my child was born.  If truth be told, I am also in constant wonderment of my child as my child, day-by-day, grows older.  My child’s gentle spirit will remain strong; my child’s willingness to be caring is God-given; and my child’s creative and inquisitive personality is self-acquired.

Yet, as my child grows older, I can still search for and find in that face that same child which I have prayed for every day since my child’s moment of birth.  And I already miss my child … because just as a meandering stream carries a single leaf ever onward and away from its point of beginning, so does each passing day carry my child towards a life joined in spirit with, and yet separate from, mine.  Although I try to remember that we are all children, with some of us simply older than others, I also know that I shall be a parent forever, and my child shall always be my child.

I pray that my child always has a strong sense of home.  My child should always know and feel that the love of this parent is everlasting, timeless … and unconditional.

I write this in tribute to my child.