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Leftist Values Are Causing Young Americans to Be Miserable

It seems that Americans may have been happier, and certainly less lonely, during the Great Depression and World War II than today. (Photo: Vichai Phububphapan/Getty Images)

I began part one of “Why Are So Many Young People Unhappy?” with data showing the apparently unprecedentedly high rate of unhappiness among young people in America (and elsewhere, but I am focusing on America).

The rates of suicide, self-injury, depression, mass shootings, and loneliness (at all ages) are higher than ever recorded.

It seems that Americans may have been happier, and certainly less lonely, during the Great Depression and World War II than today, even with today’s unprecedentedly high levels of health, longevity, education, and material well-being.

There is, of course, no single explanation, and I listed a number of possible explanations:

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Increased use of illicit drugs and prescription drug abuse, and less human interaction because of constant cellphone use are two widely offered, valid explanations. Less valid explanations include competition, grades anxiety, capitalism, and income inequality. And then there are young people’s fears that because of global warming, they have a bleak, and perhaps no, future.

But I do believe that a loss of values and meaning are the two greatest sources of unhappiness.

Among the values lost are those of communal associations. As the great foreign observer of early American life Frenchman Alexis de Tocqueville wrote in 1831, Americans’ unique strength derived largely from their participation in innumerable nongovernmental associations—professional, social, civil, political, artistic, philanthropic, and, of course, religious.

But these have all dwindled as government has become ever larger. Whereas Americans got together and formed bonds of friendship through nongovernmental associations, through what organizations will Americans form friendships today?

In a video presentation at its 2012 national convention, the Democratic Party offered its answer: “Government’s the only thing that we all belong to,” the narrator said.

Then there are traditional middle-class values, like getting married first and then having children.

Today, a greater percentage of Americans are born to unwed mothers than ever before, and fewer people are marrying than ever before. There are, for the first time in our history, more single Americans than married Americans.

While it is certainly possible to feel lonely in a marriage, people are far more likely to feel lonely without a spouse, and increasingly without children, than with a spouse and children.

And now we come to the biggest problem of all: the lack of meaning.

Aside from food, the greatest human need is meaning. I owe this insight to Viktor Frankl and his classic work “Man’s Search for Meaning,” which I first read in high school and which influenced me more than any book other than the Bible.

Karl Marx saw man as primarily motivated by economics; Sigmund Freud saw man as primarily driven by the sexual drive; Charles Darwin, or at least his followers, sees us as primarily driven by biology.

But Frankl was right.

As regards economics, poor people who have meaning can be happy, but wealthy people who lack meaning cannot be.

As regards sex, people who do not have a sexual life (such as priests, who keep their vow of chastity; many widowed and divorced older people; and others) but have meaning can be happy. Sexually active people who do not have meaning cannot be.

As regards biology, there is no evolutionary explanation for the need for meaning. Every creature except the human being does fine without meaning.

And nothing has given Americans—or any other people, for that matter—as much meaning as religion. But since World War II, God and religion have been relegated to the dustbin of history.

The result?

More than a third of Americans born after 1980 affiliate with no religion. This is unprecedented in American history; until this generation, the vast majority of Americans have been religious.

Maybe, just maybe, the death of religion—the greatest provider of meaning, while certainly not the only—is the single biggest factor in the increasing sadness and loneliness among Americans (and so many others).

A 2016 study published in the American Medical Association JAMA Psychiatry journal found that American women who attended a religious service at least once a week were five times less likely to commit suicide. Common sense suggests the same is true of men.

The bottom line: The reason so many young people are depressed, unhappy, and angry is the left has told them that God and Judeo-Christian religions are nonsense; their country is largely evil; their past is deplorable; and their future is hopeless.

That seems to be a major reason, if not the reason, for so much unhappiness: not capitalism, not inequality, not patriarchy, sexism, racism, homophobia, or xenophobia but rather having no religion, no God, no spouse, no community, no country to believe in, and, ultimately, no meaning. That explains much of the unprecedented unhappiness.

And it explains the widespread adoption of that secular substitute for traditional religion: leftism. But unlike Judaism and Christianity, leftism does not bring its adherents happiness.

NBI Seminar: Discovery, Lay Witnesses & Experts

I  recently had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Divorce Procedure & Settlement Agreements” and I had opportunity to speak on four main topics in particular: Client Screenings & Case Strategy, Filings & Pleadings (with Sample Language), Discovery, Lay Witnesses & Experts, and Alternative Dispute Resolution.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Discovery, Lay Witnesses & Experts.”

Thanks!

__________

Discovery, Lay Witnesses & Experts

  • Basics

            Discovery is an important part of virtually every divorce.  There are a variety of ways to secure the information necessary to adequately navigate the client through the property division process.  First and foremost, having the client secure and furnish the lawyer all of the documentation and information he has in his possession is the easiest and presumably fastest way to obtain it.  If the client does not know what all is owed/owned by the parties, or cannot secure information and/or documentation, and/or is simply uncertain, it may be a good idea to conduct formal discovery.  How complex or intense or comprehensive the discovery process will be depends on the client’s resources to sustain the discovery process, and the complexity of the particular case.  More often than not the parties have a good idea of who s/he owns and/or owes and what the spouse has as well, so the discovery can be fairly focused.

            A first step for an attorney to take after a client hires him for a divorce is to create some sort of list, spreadsheet, or chart of all the known assets or liabilities of the marriage that is easily sortable, readable, and modifiable, so that one can have a clear picture of the marital finances as information becomes available.  When creating the spreadsheet, be sure to distinguish between premarital / separate property, joint (or comingled) property, marital property, post-marital property, and/or anything covered by a pre/post nuptial agreement.  It is important to remember that just because one’s client’s name (or the spouse’s name) does not appear on a particular asset, does not mean that party does not have a marital interest or claim on that property in divorce.  It is also wise to instruct one’s client to gather all documents in his/her possession as soon as possible before the opposing spouse takes them and/or disposes of them.

            Discovery in the context of divorce is not substantially different, in terms of procedure and forms, from discovery in most other forms of typical civil litigation.  Typical discovery requests consist of interrogatories, requests for production of documents, and admissions.  It is worth noting that while discovery is generally permitted in divorce, it requires leave of court in other areas of family law (e.g. custody, support, etc).

            For those unfamiliar, interrogatories are merely a list of questions to the other party asking for various information regarding the marriage and the property held by it.  Requests for Production of Documents is pretty self-explanatory: it is merely a list of requests for particular documents regarding the marriage and the property held by it.  Requests for Admissions are little unusual in divorce cases, but they are sometimes used.  A Request for Admission sets forth a statement of purported fact, and requests the responding party to admit it, or deny it with specificity. Under Pa.R.C.P. 4014 admissions that go without a substantive response within thirty (30) days of service are supposed to be deemed admitted, so there is some pressure to respond to them, however court decisions under this Rule have removed most of its teeth, which has resulted in the hard thirty (30) day deadline having very little bite.

            Responses to all discovery requests are, of course due within thirty (30) days per the Rules of Civil Procedure.  If no responses are forthcoming after thirty (30) days, then one must remind the opposing party/attorney in good faith that the responses are due.  If, after a reasonable time, the responses are still not forthcoming, then a motion to compel discovery (and for sanctions if appropriate, see P.R.C.P. No. 4019) may be necessary.  Like any other form of civil discovery requests, the responding party can always object to a particular request as being overbroad or burdensome or some other objection, which can be resolved by a judge.

            Of course, one need not always send the opposing party the discovery requests.  Each party also has the right to issue subpoenas for documentation from third parties if the opposing party refuses and/or cannot furnish the requested documentation.  Of course, a subpoena is typically for documentation that is not in the name of the client.  Sometimes it may be more effective to send the opposing party a set of authorizations to sign along with the discovery requests.  The authorizations can be for various banks or financial institutions (for example) giving the opposing party and/or his attorney permission to go to those banks or institutions directly to secure the desired documentation.

            Finally, depositions are also a possible way to conduct discovery.  A deposition is simply like an interview that is under oath and held before a stenographer.  The attorney who requests the deposition may ask the person being deposed (e.g.: the opposing spouse) a variety of probing questions in order to gather information and data.  A spouse is an obvious target for a deposition, but tax preparers, financial planners, and co-workers, among others, can also be good candidates for deposition.

  • What to request

            The things one can request in discovery may seem overwhelming at first as the possible options seem almost listless.  It may seem obvious, but documents one should request should generally involve or reflect the assets, income, debts, and/or liabilities of the parties.  Below are some suggested items about which one may issue a discovery request:

  • Bank accounts (individually, jointly, or with a third party);
    • this may include cancelled checks;
    • savings, checking, CDs, money market accounts, etc;
    • this helps with tracing money expenditures;
      1. This may give a lead to investigate accounts the other party has refused to disclose;
    • Paypal?
  • Real estate (individually, jointly, or with a third party);
    • mortgages and liens on the real estate;
    • Dates of acquisition;
    • Names on the deed(s);
  • Businesses (e.g.: a landscaping business, or law firm, or pizza shop);
    • This opens up a whole subset of discovery about the assets, liabilities, income, debts, of the business(es);
  • Cars, boats, and other large items;
    • Outstanding notes/loans for the same;
    • Approximate current value;
    • Dates of acquisition;
    • Names on the title(s);
  • Jewelry, art, collections, memorabilia, and any other personal property of any significant value;
  • Stocks, bonds, investments for the most recent five (5) years;
  • Pensions, 401(k)s, IRAs, retirement funds, annuities, defined pension plans, etc;
  • Tax returns for the most recent five (5) years.  These will include crucial information regarding:
    • income from all employment;
    • capital gains;
    • interest;
    • dividends;
    • investment distributions (e.g.: IRAs);
    • unemployment compensation, social security, etc;
    • W-2s and 1099s;
    • Refunds (sometimes a party overpays taxes in order to receive an artificially large refund);
    • Deductions (this may provide a lead to undisclosed assets);
  • Pay checks / stubs;
  • This is related to the “Businesses” noted above.  If someone is self-employed, there is always a chance that what is being reported on a tax return regarding business income is not precisely accurate.  As a result, discovery into some of the inner workings of a business may be illustrative.  For example, if a spouse runs a pizza shop, then perhaps discovery into cash register receipts, supply purchases, payroll, and/or business purchases may be helpful to discern what the actual business income is;
  • Any documentation of loans a party may have, especially the application for the loan which likely has financial disclosures on it.  This will enable the attorney to compare and contrast the financial disclosures on the loan application with what the party claims;
  • Copies of any and all bills, utilities, expenses, paid;
  • Gifts;
  • Law suits, and other legal claims;
  • Social media;
    1. This may reveal other relationships, employment, money expenditures, activities, locations, etc.
    1. Try to keep social media posts to a minimum;
    1. Looking at the public parts of someone’s social media accounts is fair game;
    1. Do not send a friend request (or something similar) to the opposing party, which would allow one to see otherwise private material;
    1. Access?  This is balanced by probative value.
  • Text messages, emails, electronically stored data (do not forget cellphones, ipads, etc, if relevant).

            When it comes to social media, a client should be advised to be sensible and temperate.  Avoid online fights, insults, openly discussing the divorce, or mistakenly posting something that could be “incriminating.”

            Authentication of social media and text messages for use at a hearing is a new area of the law, so tread carefully.  Simply having the right telephone number or user name on the text or post will not be sufficient in and of itself to authenticate the text or post as there is no way to confidently discern who sent it or posted it.  It seems the Court will evaluate texts and social media posts on a case-by-case basis by taking a holistic view of the post/text with full consideration circumstantial evidence that could link the text/post to a certain person.

            Finally, witnesses – both lay and expert – are often called upon to testify at a deposition or hearing.  Lay witnesses can testify to what s/he has seen or heard regarding what the parties have done, spent money on, and/or said about their finances.  For example, an employee of the spouse’s pizza shop may be able to testify as to how much business it does, where the money is kept, and/or how its finances are managed.             Sometimes expert witnesses are required to discern or illuminate a couple’s financial picture.  For example, a forensic accountant may be needed to piece together the disparate financial documents and evidences to form a coherent financial picture.  Perhaps a tax preparer, or realtor, or accountant may be needed to shed light on a disputed economic issue.  Of course, in the twenty-first century, it may also be necessary to have some sort of technology/computer expert to discern whether electronic information was deleted to altered.

YALE LOSES AN INSPIRATION

Seaside, Florida, is one of the exemplary achievements of New Urbanism, the school of architecture that favors mixed commercial/residential spaces, common grounds such as the old village green, and pedestrian-friendly roadways. Seaside became especially famous as the setting for the 1998 film The Truman Show, which portrayed the town as an ideal environment for middle-class life.

In Seaside’s town square is a building with a solid three-story wall, featuring a giant mural of a distinguished-looking old man with a pensive look on his face. He seems out of place. Kids stack their bikes at the foot of the wall. Trailers selling sno-cones, doughnuts, barbecue, and hot dogs are just across the drive. Nobody wears a coat and tie as the man on the wall does.

His name is Vincent Scully, longtime professor of art history at Yale University and, for a time, at University of Miami. Scully’s visage presides over Seaside because many of the town’s architects took his classes at Yale, where they encountered the masterworks of the past. In his courses, Scully spoke of these works as if they were entirely pertinent to the modern world. His instruction was formative for the New Urbanism. (If you stroll around Seaside, you can see evidence of architectural history embedded in the “beachy” designs and colors and materials.)

He was an electrifying lecturer. An account of the mural in the local paper says, “His undergraduate lectures at Yale were always standing-room-only.” None of the people wandering around the town square now know who Scully was, but everything that draws them there can be traced back to him—to Scully lecturing Seaside’s creators, in their 20s, in “Introduction to Art History: Renaissance to the Present.”

I first visited Seaside more than 20 years ago, touring it with a friend who had a cottage in Grayton Beach a mile away. In fact, this was when The Truman Show was being filmed. The town wasn’t yet complete, but the moment you crossed the boundary line you knew you had entered a visionary space. The houses, the layout, the green spaces, the small shops . . . they were the result of an outlook in which form followed human need, not just function. It took an architectural historian from Columbia whom I met a few years later to explain to me who Scully was and how he shaped the Seaside project.

Which makes what happened at Yale University this year especially dismaying. It’s a familiar tale: “Introduction to Art History,” a longstanding course in a Western Civ tradition taught over the decades by renowned professors and packed with eager students, undergoes a diversity revision. Too many white males, too Eurocentric, too neglectful of non-Western voices and cultures. Time to take it down.

The prototype episode is Stanford 1987, when Jesse Jackson led 500 students in a march around campus protesting the general education requirement that was fulfilled by the course “Western Culture.” They chanted as they marched, “Hey hey, ho ho, Western Culture’s got to go!” One year later, the faculty complied, replacing Western Culture with a bundle of offerings that included a sufficient amount of non-Western culture and works by women and people of color. (An important new report from the National Association of Scholars, authored by Stanley Kurtz, recounts the Stanford episode in detail and explains how Western civilization disappeared from Stanford and every other major campus in the decades that followed.)

The chair of Yale’s Art History department mouths the standard rationale. He told the Yale newspaper that non-Western cultures are “equally deserving of study” and that singling out the Western tradition is “problematic.” It’s as if he’s reading the talking points handed out to every humanities department chair since 1987. From now on, Yale will replace the old survey course with thematic courses such as “Art and Politics” and “Global Craft” and “Sacred Places.” They will all be diverse. We may be sure, too, that they will include the premise that Western Civ is a hidebound conception.

I don’t bother to debate the diversifiers any more about the value of Western Civ curricula. They know what’s politically correct, and they follow the herd. My experience, too, has been that their learning in the tradition is fairly shallow. Besides that, I’ve spent too many hours losing the battle again and again—in committee rooms at my own universities and while working on projects for College Board, Common Core, and other national organizations—not to realize the war is over. The multiculturalists won, the traditionalists lost.

But let’s understand the nature of their victory correctly. When Stanford replaced Western Culture with a multiculturalist course, most of the students didn’t like it. A curriculum review six years later found that 72 percent of the students rated it poorly. It wasn’t the diversity that bothered them, but the incoherence of the offerings—a little of this culture, a little of that, something old, something new . . .  Stanford eventually scrapped it. (The Kurtz report has all the documentation for the outcome.)

It’s a story that has been repeated across the country. As the humanities have become more diverse and less Western, enrollment has plummeted. Since 2011, the number of majors in history has fallen more than 30 percent, with the number of English, philosophy, and foreign languages majors falling more than 20 percent. The Rainbow Coalition at Stanford trashed the Western Culture course, but in fact it was one of the most popular undergraduate experiences at that tech-heavy campus. And now it’s gone. An effort by conservative students at Stanford three years ago to revive it was met by charges of racism and xenophobia.

The same decline will happen at Yale. Does anybody expect that “Art and Politics” will inspire the creation of something as beloved as Seaside? Do the teachers think it will draw more sophomores to the major? These professors may enjoy their multiculturalist virtue as they introduce fewer students to Giotto’s chapel and The Raft of the Medusa, but they will never see their countenances memorialized in the public square.

By Mark Bauerlein and published in First Things in January 2020 and can be found here.

NBI Seminar: Divorce Procedure & Settlement Agreements – Filings & Pleadings (with Sample Language)

I  recently had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Divorce Procedure & Settlement Agreements” and I had opportunity to speak on four main topics in particular: Client Screenings & Case Strategy, Filings & Pleadings (with Sample Language), Discovery, Lay Witnesses & Experts, and Alternative Dispute Resolution.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Filings & Pleadings (with Sample Language).”

Thanks!

__________

            Filings and pleadings in divorce typically follow established and customary forms.  The typical divorce pleading does not need significant detail when it comes to specific property or issues.  The pleadings merely serve the purpose of establishing what the claims are in general and not to any specific piece of property.  Unlike other forms of litigation, there is not any significant advocacy in a divorce complaint (e.g.: arguments or assertions of entitlement to certain pieces of property, etc).  A divorce complaint primarily establishes what grounds for the divorce are claimed and what other related claims are being sought (e.g.: alimony, equitable distribution, etc.).  Of course, no property claim need to be asserted if one does not think it is necessary (e.g.: there is little to no property to divide, or all the property sought by the client is in his/her own name and, therefore, no division is necessary for that party).

            Of course, one has to establish whether a fault or no-fault divorce is to be pursed.  Alternative pleading is permitted (keep in mind one must always consent to one’s own divorce), but, as divorce is an emotional and personal process, raising fault claims, which are extremely unlikely to be the basis on which the divorce is granted, may only cause unnecessary emotionality on the part of the opposing party.

            Upon filing the complaint, it must be served within thirty (30) days (or ninety (90) days if out-of-state) upon the opposing party.  Service must be: (1) via personal service; (2) via certified mail (signed by the opposing party); (3) and/or through a voluntary acceptance by the opposing party (via an Acceptance of Service).  If the complaint is not served within thirty (30) days, it must be reinstated before another attempt at service is made.

Divorce case timeline:

            The sequence of the typical divorce case is fairly predictable in terms of litigation, which proceeds as follows:

  • Complaint;
    • Affidavit Under 3301(d);
  • Notice of Counseling;
    • by statute most divorce litigants are entitled to three counseling sessions upon filing for the same;
  • Service of Process;
    • the Complaint must be served within thirty (30) days of filing, otherwise it must be reinstated;
    • Affidavit of Service / Acceptance of Service / Affidavit of Signature;
  • Counteraffidavit;
  • Answer and Counterclaim;
    • there is no default judgment as with a typical civil case.  Instead, the Notice procedure needs to be initiated before a decree is entered (see below);
    • the Counterclaims are whatever divorce claims one wants to include, especially ones that have not been raised in the initial Complaint (e.g.: alimony or equitable distribution);
    • a defendant can pursue a decree on the strength of his counterclaims regardless of what the plaintiff does or does not do;
  • (parallel litigation: custody, support, and/or alimony pendente lite);
  • Motion practice (if necessary);
    • e.g.: exclusive possession, motions to compel, petition for special relief, spoliation issues;
  • Affidavit of Consent (for 90 days for divorce by consent under 3301(c)) or Affidavit Under 3301(d) (for divorce by one (1) of separation);
    • an Affidavit of Consent cannot be filed before 90 days have elapsed after service of process of the Complaint.  It also must be filed within thirty (30) days of execution;
  • Discovery
  • Options to transmit (there are two parts to every divorce: grounds and property division);
    • Notice of Intention: for grounds or to transmit;
      • this gives the opposing party twenty (20) days to take action before a grounds order is requested;
    • Notice to Withdraw economic claims;
      • this gives the opposing party twenty (20) days to take action before the claims are withdrawn;
    • Praecipe to Transmit or to approve divorce grounds;
      • this gives the opposing party twenty (20) days to take action before a decree is requested;
      • this also may include an Affidavit of Non-Military Service (if the opposing party is unrepresented);
  • Property Settlement Agreement or Certification for a Divorce Master;
  • Decree (or decree and order).

SUPER SPOOFER Professor uses ‘feminist buzzwords’ to get entire passage from Hitler’s ‘Mein Kampf’ published in academic journal

Peter Boghossian and his colleagues said they were stunned by how easily the joke papers were published in what he described as ‘grievance studies’

Peter Boghossian helped create a series of spoof academic papers to satirise a number of fields including what he describes as the “grievance studies” – including fields on gender, obesity and homosexuality.

The assistant philosophy professor at Portland State University in Oregon penned a total of 20 “intentionally broken” and “nonsense” papers with the help of two collaborators.

Each of one was deliberately ridiculous – but astonishingly seven were accepted by peer-reviewed journals, The Times reports.

One, “Our Struggle is My Struggle: Solidarity feminism as an intersectional reply to neoliberal and choice feminism”, was a rewrite of chapter 12 of Hitler’s 1925 autobiographywith feminist “buzzwords switched in”.

All the spoofs featured “very shoddy methodologies including incredibly implausible statistics”, as well as “ideologically motivated qualitative analyses” and “claims not warranted by the data”.

 
Hundreds of students at Portland State University appear to be backing their Professor in the wake of the scandal.
 
The deliberately provocative hoax included a rewrite of chapter 12 of Hitlers Mein Kampf.

Further bizarre passages includes one published under the fake name Helen Wilson in the journal Gender, Place & Culture, owned by Taylor & Francis, the British publisher.

This was supposedly an investigation of the “rape-condoning spaces of hegemonic masculinity” and had involved examining “10,000 dogs’ genitals” in public dog-walking parks.

The paper suggested that men should be trained, like canines, to prevent “rape culture”.

Another wrote: “It is suspicious that men rarely anally self-penetrate using sex toys, and that this is probably due to fear of being thought homosexual (“homohysteria”) and bigotry against trans people (transphobia)”.

Another letter of support. This one from @RichardDawkins. Thank you.

 

View image on Twitter
Dr Boghossian and his colleagues said they were stunned by how easily the joke papers were published.

“We wanted to see if these disciplines that we called ‘grievance studies’ are compromised by political activism that allows for the laundering of prejudices and opinions into something that gets treated as knowledge,” he said.

World-renowned scientist and atheist Richard Dawkins was one of a number of leading academics to write to the university in support of Boghossian, saying that his first response to the “brilliant hoax” was “to let out a howl of incredulous mirth”.

“Do your humourless colleagues who brought this action want Portland State to become the laughing stock of the academic world?” he wrote.

Leading academics including Richard Dawkins have given their backing to an ‘elaborate’ hoax.

“Or at least the world of serious scientific scholarship uncontaminated by pretentious charlatans of exactly the kind Dr Boghossian and his colleagues were satirising?””

A student of Boghossian’s, Austen Holmberg, added: “I firmly believe that Peter’s actions are extremely valuable in that they have made crystal clear the disheartening corruption and pseudo-scholarship that has taken a foothold in academia.

An official for Portland State University said that Dr Boghossian had studied “human research subjects” without proper ethical approvals, The Times reports.

A further charge regarding the falsification of data is under review.

By Phoebe Cooke and published in The Sun on January 10, 2019 and can be found here.

 

NBI Seminar: Divorce Procedure & Settlement Agreements – Client Screenings & Case Strategy

I  recently had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Divorce Procedure & Settlement Agreements” and I had opportunity to speak on four main topics in particular: Client Screenings & Case Strategy, Filings & Pleadings (with Sample Language), Discovery, Lay Witnesses & Experts, and Alternative Dispute Resolution.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Client Screenings & Case Strategy.”

Thanks!

__________

            The first step in almost any lawyer/client interaction is the initial client interview.  This initial interview is to allow the lawyer to meet and get to know his client and obtain necessary information.  While clients may like the face-to-face meeting, a more effective way to secure important data and information from the client at the beginning of one’s representation is through a questionnaire, checklist, and/or an interview sheet.  This is an opportune time to gather information about financials, pre/post – nuptial agreements, personal property, bank accounts, and a general story of the case.

            The questionnaire or checklist is a good method to collect information for a few reasons.  First, if a dispute arises between the attorney and the client later in the course of representation, the attorney can point to the questionnaire as a justification for taking some actions or not taking others.  Second, it is a better use of a client’s time and money to take the time to prepare it as opposed to making the attorney a stenographer simply writing everything the client reports.  Third, it also helps the client to take the time to organize his thoughts and have everything in one place.

            Some information and documents to collect (for both parties if possible) when interviewing the client includes:

  • names;
  • contact information (mailing address and residential address);
  • social security numbers;
  • marriage and separation dates;
    • establishing these dates is critical as these dates frame how the value of marital property is calculated;
  • the names and ages of the children of the marriage;
  • employment history and income information (especially tax returns);
  • assets:
    • real estate;
      • mortgage?;
      • value?;
      • who is on the deed?;
    • bank accounts;
    • investment accounts;
    • retirement accounts (note survivor benefits);
    • health insurances;
    • life insurances (note beneficiaries);
    • personal property (including collectables);
    • inheritances?;
    • automobiles, boats, etc.;
    • personal injury or workers’ compensation claims;
  • businesses owned;
  • liabilities;
    • credit cards;
    • mortgages;
    • loans;
    • timeshares;
    • student loans;
  • ancillary custody and support issues;
  • education background;
  • medical limitations.

            Of course, the initial client interview also allows the client time to ask whatever questions he may have about the law or the process he is about to undertake.  This is a great opportunity to explain to the client the anticipated length of time the case will take and how property ownership works in the context of divorce.  For example, it is a common misconception among clients that property in one’s own name (and not in the other spouse’s name) is the exclusive property of that client in a divorce, and helping to clear that up – and other issues – helps the client have more realistic expectations as to how the case will unfold.

            After meeting with the client and gathering all the available information and documentation, the attorney can devise a strategy as to how to proceed.  Each case is unique and, therefore, needs a unique approach.

Some actions you may need to consider are the following:

  • determine which property and assets are marital, pre-marital, post-marital;
  • determine on a separation date;
  • can the other spouse be found to perfect service of process?;
  • freezing bank accounts;
  • will custody or support need to be litigated as well?;
  • freezing credit cards;
  • is a PFA in play, or could one soon be filed?;
    • if so, how will this impact divorce, custody, and/or support?;
  • is this a case that will go to a trial or will it settle?  Is an alternative method of resolution an option?;
  • will the divorce be fault or no fault?;
    • fault divorce:
      • examples of faults: abandonment (one year or more), adultery, abuse (i.e.: cruel and barbarous treatment), etc.;
      • Fault divorces are rare.  They account for only about five to ten divorces per year in Pennsylvania;
      • it is worth noting that fault divorces are risky inasmuch as they can be lost.  In other words, the spouse claiming the other committed a marital fault bears the burden of proof to prove that fault.  If the court rules that the fault was not proven, then the divorce will be dismissed and the parties will remain married;
      • it should be noted that whether a divorce is fault or non-fault has no bearing on how the marital property is to be divided.  Choosing to pursue a fault based divorce is really only for personal reasons, as there is no legal benefit to pursue one as opposed to a no fault divorce.  The only possible effect a fault may have is to render a spouse ineligible to collect spousal support if it is proven that s/he committed a fault;
    • no fault divorces:
      • can one be secured via consent (i.e.: 3301(c)), which only requires a ninety (90) day waiting period after service of the complaint?;
        • sometimes delaying a client’s consent to a divorce can give that client leverage and/or negotiating power when negotiating a settlement.  Indeed, if one party is collecting spousal support, it may behoove that party to withhold consent in order to maximize support;
        • it is important to note that one cannot refuse to consent to one’s own divorce.  If someone files for divorce on the basis of consent, then one must file an Affidavit of Consent.  Refusal to do so could lead to the dismissal of the divorce complaint.  The reason for this is that one cannot benefit (e.g.: spousal support) from one’s own refusal to pursue one’s own case;
      • will the divorce be secured unilaterally based on a period of separation of one (1) year or more (i.e.: 3301(d))?;
        • no consent is required once the year of separation has elapsed;
      • as long as the legal grounds are established (i.e.: Affidavits of Consent are filed in a timely manner or there has been a one (1) year separation), no fault divorces do not require a hearing to determine, or justify, the grounds for the divorce (hence being “no fault”);
        • a hearing, if required, will determine what the separation date is and/or how marital property should be divided;
  • practical issues:
    • are there substance abuse issues?;
    • are there physical abuse issues (is a PFA appropriate?);
    • should your client see a therapist?  What about the children?;
    • wre all the household expenses being paid?  By whom?;
    • what about insurance (e.g.: health, home owners, car, life)?;
    • does the client have to go back to work?;
  • when did the parties separate?;
    • establishing a separation date is critical as it sets the end date (the marriage date is the start date) for the calculation of the value of much of the property at issue in a divorce;
    • the separation date also begins the countdown for the one (1) year separation required by Section 3301(d);
    • separation does not require physical separation.  Separation is when at least one (1) of the parties no longer believes s/he is living in a marriage relationship (i.e.: the “cessation of cohabitation, whether living in the same residence or not.”);
    • one way to establish separation is to look at the actions and behaviors of the parties.  Moving out of the marital home is an obvious indicator of separation, as is the cessation of sexual relations (but how do you prove this? It could be rather unseemly.), but there are subtler things are as well, like retaining a divorce lawyer, moving into another bedroom, opening up a new bank account in a single name, and/or using a maiden name again.  Of course, another way to clearly establish a separation date is for one party to declare/claim one in writing to the other party;
    • if there is a dispute as to what the separation date is, it will have to be resolved at a hearing in court.  As mentioned above, the separation date may have a significant impact on the value of marital property;
    • a clear and bright line separation date is the filing of the divorce complaint.  The filing of the divorce complaint is the default date for separation if no other date is ultimately chosen;
    • of course, separation can be reversed through reconciliation, which would, obviously reverse the indicia of separation: parties move back in with one another, resume having sex, and/or withdraw the complaint, etc.  As reconciliation reverses separation, if the parties separate again, the value of property is the recalculated according to the new separation date.  Again, whether reconciliation happened is a factual matter a court may need to determine.  A failed attempt at reconciliation does not necessarily qualify as a reconciliation that would lead to recalculating the value of marital property.  It is very fact dependent;
    • a separation date can be established by court, stipulation, or simply not contesting the date claimed by the other party;
  • would the parties be amenable to a separation agreement (which is basically a post-nuptial or domestic relations agreement)?  Separation agreements are not common in Pennsylvania, but they may be helpful in establishing ground rules while the divorce is pending;
  • there is no category of “legal separation” in Pennsylvania.  There is only married, single, and divorced.

            Discovery is an important part of virtually every divorce.  There are a variety of ways to secure the information necessary to adequately navigate the client through the property division process.  More on the discovery process is mentioned below. 

Pa. Superior Court: Family Court Notice Must Be Meaningful

Although there are standard forms for various pleadings and motions for family matters, they should certainly not be considered formalities or merely boilerplates. In the matter of T.L.G. v. J.D.G., the Pennsylvania Superior Court drove home the importance of pleadings and motions in providing the opposing party notice of what is at issue when going to a family court hearing.

In T.L.G. the parents of two children were subject to a stipulated custody order. One of the two children subject to this order unfortunately suffers from various mental health issues. Her parents both agreed to enroll their daughter in a residential program in North Carolina. At the conclusion of her program in the residential facility, she had the option to enroll in a therapeutic boarding school (which was recommended by the professionals at the residential program), or, in the alternative, she had the option to enroll in a standard public school with in-school and out-of-school therapeutic services. The parents disagreed over where to enroll the child; the child’s mother wanted to follow the recommendations while her father wanted to send her to a public school with additional services.

As the parents were unable to overcome their impasse regarding where to enroll their daughter, the mother filed a petition for special relief requesting the court to enter an order requiring the parties to follow the recommendations of the mental health professionals at the residential program. Accordingly, the court entered a scheduling order that set a hearing date “in consideration of the within petition.”

At the day of the hearing, the judge before whom the hearing took place opened the hearing by announcing that the order he would enter would likely be one that awarded sole legal custody (in the areas of education and mental health issues only). The judge ultimately entered an order granting the father sole legal custody (limited to education and mental health issues), and the mother timely appealed this order to the Pennsylvania Superior Court.

On appeal the mother argued that the trial court abused its discretion and violated her due process rights when it entered an order modifying the custody order (by changing legal custody) despite the fact that there was no petition to modify custody filed by either party.  Instead, the mother argued, her petition simply requested an order to resolve a single discreet issue of dispute between the parties, and the trial court’s order should have reflected that.

In ruling on the mother’s appeal, the Superior Court first noted that “notice and an opportunity to be heard are fundamental components of due process.” Furthermore, the court further noted that notice to a party must be provided within a meaningful time in a meaningful manner. Citing the Pennsylvania Superior Court case of Langendorfer v. Spearman, 797 A.2d 303 (Pa.Super.2002) (which in turn cited Choplosky v. Choplosky, 584 A.2d 340 (Pa.Super.1990)) the T.L.G. court also indicated that “if the parties do not receive proper notice that custody is at issue, a trial court cannot ‘assume that the parties had either sufficiently exposed the relevant facts or properly argued their significance.’”

While filing a petition to modify custody is typically the appropriate manner by which to request a custody modification, the court recognized that a trial court, under the right circumstances, may modify a custody order when it is in the best interests of the child, even if a petition to modify had not been filed. The court clarified, however, that such circumstances are only “if notice of the proceeding adequately advises a party that custody will be at issue, a court may entertain the request to permanently modify a custody order after hearing in that proceeding.”

When reviewing the facts of this matter, the court observed that mother’s petition for special relief does not request any modification of the custody order at all. It merely requests the trial court to adjudicate the discreet issue of where their daughter should be enrolled. Furthermore, the court also observed that the trial court’s scheduling order, quoted above, did not reference the potentiality of a modification of custody.

Based on the above, the Superior Court ruled that mother did not have proper notice that custody modification would be an issue at a petition for special relief hearing. In addition, the court did not believe the trial court judge’s opening statement at the hearing that legal custody may be modified constituted notice at a “meaningful time” or in a “meaningful manner.” In the court’s view, requiring the mother to make an objection on the record against the judge’s statement giving her last-minute notice that modification would likely be at issue (indeed, there was not even notice that it would definitely be an issue) is not sufficiently advanced notice to the mother to enable her to prepare or properly advocate. Indeed, the trial court did not even inform the parties that it would, in fact, modify legal custody until it issued its order after the hearing concluded.

In light of the above, the court ruled that the trial court abused its discretion and violated the mother’s due process rights when it awarded the father sole legal custody over educational and mental health matters despite the fact that neither party filed to modify the custody order. The court ruled that the mother did not receive proper notice that the custody order could be modified, vacated the trial court’s order, and remanded the matter. This decision makes it clear that court filings, and the court notices that follow from them, must be specific and provide adequate notice to the parties in order to ensure and protect a party’s basic due process rights.

James W. Cushing is senior associate at the Law Office of Faye Riva Cohen and managing attorney for Legal Research Inc., and sits on the executive committee of the family law section of the Philadelphia Bar Association.

 

Minnesota Amish Must Install Septic Tanks

This is from religionclause.blogspot.com which you can find here:

In Mast v. County of Fillmore, (MN App., June 8, 2020), the Minnesota state Court of Appeals rejected claims by four members of the Amish community that laws requiring them to install septic systems to dispose of their waste water violate their freedom of conscience under the Minnesota Constitution and their rights under RLUIPA. The Court of Appeals said in part:

the district court appropriately concluded that respondents met their burden of demonstrating that appellants’ mulch-basin system does not provide a less-restrictive means of accomplishing the government’s compelling interests of protecting public health and the environment.

Rochester Post Bulletin reports on the decision.

You can learn more about this issue here.

 

 

Court Rejects Claim of Retaliation Because of Foster Parents’ Religious Beliefs

This is from religionclause.blogspot.com which you can find here:

In Lasche v. State of New Jersey, (D NJ, June 4, 2020), a New Jersey federal district court rejected claims by a couple who were formerly foster parents that the state acted unconstitutionally when it removed a foster child from their home and when it suspended their foster care license. Plaintiffs claim that they were retaliated against because of their religious belief that homosexuality is a sin, or because they shared their religious belief with their child. The court found insufficient allegations to support an equal protection claim. As to plaintiffs’ 1st Amendment retaliation claim, the court said in part:

there is no legal support for Plaintiffs’ assertion of a First Amendment right to share their religious beliefs with their foster child, who was neither their biological child nor their adoptive child. In fact, finding that foster parents have an unfettered constitutional right to share their religious beliefs with a foster child would seemingly conflict with the free exercise rights of the foster children and his or her biological parents. Accordingly, I do not find that Plaintiffs can assert a First Amendment retaliation claim based on such a theory.

Rejecting the argument that the state’s actions were in retaliation merely for their religious beliefs, the court said in part:

Plaintiffs’ allegations present a close-question regarding causality, nonetheless, I find that Plaintiffs have failed to allege facts demonstrating “a pattern of antagonism,” or other circumstantial evidence from which retaliatory or discriminatory motives can be inferred.

You can learn more about this issue here.

Court Refuses To Order Vermont To Extend Dual Enrollment Program To Catholic School

This is from religionclause.blogspot.com which you can find here:

In A.M. v. French, (D VT, May 29, 2020), a Vermont federal district court refused to issue a preliminary injunction to require the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program (DEP) that pays for high schoolers to take college courses. The court observed that while those administering DEP advised plaintiffs that religious parochial schools are ineligible to participate, this was an inaccurate characterization.  Instead, DEP is open to students enrolled in public schools, in private schools where a district without a public high school pays tuition, or students who are home schooled. In a prior decision, the Vermont Supreme Court held that the program allowing districts without public high schools to pay tuition to private schools violates the Vermont constitution only when the district reimburses tuition for a religious school and does not impose adequate safeguards to prevent the use of the funds for religious worship. In light of this, the federal district court said in part:

The DEP’s plain text does not impose classifications or disparate treatment based on religion. Indeed, the statutory scheme does not even mention religion…. [A] home study student receiving a religious education from his or her parents may take religious education classes at a postsecondary institution with a religious affiliation provided the home study student can satisfy the DEP Eligibility Requirements. A publicly funded high school student at an approved independent school with a religious affiliation may do the same….

Because qualified independent religious schools are not categorically excluded from the DEP and face no additional burdens not imposed on secular approved independent schools, the DEP Eligibility Requirements are neutral as applied to religion. Plaintiffs have therefore not demonstrated a violation of their constitutional rights giving rise to irreparable harm.

You can learn more about this issue here.

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