Mental Illness and Working on a “Broken” Brain.

I haven’t posted for a very long time. And it’s not for lack of ideas for blog posts. I’ve actually got a sticky note attached to my computer with a couple of awesome ideas…I just haven’t had the capacity to put words together. Or maybe I just couldn’t muster the massive amount of energy it takes to put words together.

I’ve written before about my anxiety and depression. The last few months it’s gotten really bad–worse than it was when I closed my law practice just about 5 years ago now. But a lawyer can’t just drop out of life and crawl into a hole and sleep, even when that feels like the best possible solution (I’ve got BILLS, ya’ll). Especially when that lawyer has a regular 9-5 corporate gig. So I decided I needed to be proactive and get on top of it. Back in October I went to my primary medical care provider and discussed options, but had also looked into TMS therapy. At my appointment with my primary care, we decided I’d bump up the dosage on my anti anxiety maintenance medication, and bump up the dosage on the benzo I was taking as needed when I’m in a bad place, but hold off on trying another antidepressant. I wanted to wait and see what happened with TMS.

TMS stands for Transcranial Magnetic Stimulation. You can read more about it here: https://www.mayoclinic.org/tests-procedures/transcranial-magnetic-stimulation/about/pac-20384625. It’s not necessarily covered by insurance. There was some hoop jumping to get my insurance to cover it, but they did end up doing so on a one-off basis. My treatment protocol is 20-30 minutes at a time; I’ve been going during my lunch hour at work, every weekday less holidays, since the beginning of December. The clinic I’ve been doing it through shows excellent results in most people. Like, 86% respond favorably, 66% go into complete remission of their depressive symptoms.

Hell on Earth, actually.

Sadly, my depression is really secondary to my anxiety and panic disorders…and TMS is less effective for people like me. In my case, I’m in that 14% that it’s not been effective for at all, and I only have 5 treatments left out of 36. However, going through TMS DID put me under the care of an awesome psychiatrist I wouldn’t have gotten into otherwise. I started new medications (there actually ARE meds I hadn’t tried before!!) just over a week ago. And thankfully, the new anxiety med has completely knocked my anxiety down. Which means that my depression is now manifesting more than the anxiety, because it takes at least a month for antidepressants to reach therapeutic levels in the brain.

So now I feel like Nothing. Flat. I have little to no interest in anything, and I’m exhausted. But after being in a state of near constant panic for the past 4 months, it’s kind of a relief to have my brain not revved in fear 24 hours a day. Because that’s what anxiety feels like to me–my brain is in a continuous state of dread, worry, panic, and stress, like I’m hanging on by my fingernails, and constantly on the verge of tears. I don’t sleep well, and when I do sleep, I wake up in the middle of the night for no reason at all and can’t go back to sleep, or because I’m having horribly graphic violent nightmares that have scared me awake and then I can’t go back to sleep. To say it’s exhausting and distressing is an understatement similar to those warning signs that say “Warning: 900 degrees Fahrenheit is Hot. It will burn you.” Duh.

I was thinking about this this morning and remembered an incident from way back in the day, when my Grandpa Tanner was still alive, but was in a nursing home with Alzheimer’s disease. He’d fallen and broken his hip, but kept trying to get out of bed. Alzheimer’s causes its sufferers to “time travel,” if you will, and hallucinate that they are living at some time in their past. My grandpa regressed to his younger years when he was a cowboy in Jackson Hole, Wyoming, and had to go feed and herd cows. He kept trying to get out of bed because, in his mind, he needed to go to work. The nurses didn’t know what to do with him, so they called my folks to help. My dad was talking to him, trying to convince him he needed to stay in bed with his broken hip. Finally, Daddy said to Grandpa, “Dad, you wouldn’t make a horse work on a broken leg, wouldja?” And Grandpa thought about it for a beat and said, “No. I wouldn’t.” And he calmed down, and quit trying to get out of bed.

That’s my Grandpa Tanner, second from the right, back in the day.

And so it is with those of us with broken minds–because mental illness IS all in my head, just like asthma is all is the lungs, and scoliosis is all in the spine. I have a chemical imbalance. I likely always will. I’m going to be realistic about what I can do, and do all that I can, but not beat myself up over what I can’t do but think I “should” (terrible word, that “Should”). I’m going to treat my mental illnesses, and stay on top of them, but stop expecting myself to “work on a broken leg”…because even an old cowboy will tell you that you don’t work anyone on a broken leg. You gotta get that thing healed.

I can be taught.

The QDRO: NOT the Horror Story You Think It Is

*At the outset, I should say that QDRO’s CAN be a tricky, but only insofar as there are rules that have to be followed, and they don’t actually apply to all the different types of retirement plans that are out there.  And if you have a lot of different financial assets, or a bunch of different retirement accounts, or have a super complicated algorithm you’ve agreed to to calculate how much each person is getting, you’ll be dealing with a much more involved process.  But for the rest of us, the thing that MOST affects the complexity is waiting for years to file one.  But let’s not get ahead of ourselves…

~~ALSO–This article is not intended to substitute for legal advice. It is for information ONLY. Consult with an attorney in your jurisdiction for legal advice.~~

THAT is a horror story…

“QDRO” is an acronym for the term Qualified Domestic Relations Order.  If you’ve been through a divorce where a retirement plan was divided as property, you’ve probably heard the term (though you may not have known what it meant.)  Federal law was enacted decades ago to prevent a worker’s retirement funds from being garnished or otherwise taken away from that person, strictly because it diminished the person’s financial security after they retire (and could lead them to being dependent on government programs.)  That law is found at Title 29 of the United States Code, Chapter 18.  It’s called ERISA (Employee Retirement Income Security Act).  Under ERISA, certain plan retirement accounts cannot be garnished, assigned, or otherwise “alienated” from the person who owns the account under the plan.  EXCEPT.  Except when there is a division of the account in a divorce, and ONLY if a Qualified Domestic Relations Order has been entered.

There is a difference between a “Qualified” Domestic Relations Order and a Domestic Relations Order.  QDROs only apply to ERISA retirement plans.  I don’t want to get into the weeds too much on what makes a retirement plan ERISA qualified (mostly because that’s really not my area of expertise).  But as a general statement, the types of plans that are covered under ERISA are non-government pension plans, profit sharing plans, 401(k) plans, and certain employee stock ownership plans.  The one most people will be dealing with is the 401(k).

So what are the Magic Legal Words you have to use to make a QDRO actually “qualified”?  In a nutshell:

• The Order must clearly state the name and last known mailing address of the plan participant AND the name and last known mailing address of the Alternate Payee.  And you MUST use that term—Alternate Payee—to describe the person who is getting a portion of the account funds.
• It must state the amount of money that’s being awarded to the Alternate Payee, OR
• It must clearly state how that amount is to be determined. (For Example: One half of the funds that existed in the account as of the date of divorce, or one half of the value of the account, less amounts that existed in the account as of the date of the marriage, with the date of marriage provided in the QDRO.)
• The Order must state how many payments are to be made to the Alternate Payee, or what time period the Order applies to.

And

• It has to specifically state what plan the Order applies to (Like “ABC Company 401(k) Plan”).

Notice that if the Order is making a division based on a calculation that you don’t have to actually do the math in the Order.  The plan administrator does that for you; you just need to be totally clear on how it’s to be calculated.  This is generally stated in the divorce decree, so you’d just need to copy the instructions from the decree into the QDRO document.

ALSO—to be “qualified,” the Order MUST NOT

• Require the plan to distribute any benefit that wouldn’t actually be available to the plan participant under the plan (like, it can’t say that the alternate payee gets payments from the plan before the participant would be allowed under the terms that already exist.)
• It can’t require the plan to pay out more money than it’s actually valued at (for instance, it can’t give someone $10,000 if the account is only worth $7,000.)

And

• It can’t assign benefits to a new alternate payee that were already assigned to a DIFFERENT alternate payee (think: second marriage/divorce, and the retirement account was already divided with the first wife…second wife doesn’t get ½ of the total, because ½ of the total is already first wife’s.  Second wife could only get ½ of the husband’s portion that’s still in the account.)

It’s also a good idea to include the last four digits of the plan participant’s and alternate payee’s social security numbers and/or birthdates, just to clarify WHO these people are.  And you need to state that the QDRO is being entered pursuant to a domestic relations order that was entered in a court with jurisdiction to make the division, and what the date of divorce is.

Because you DO want this to be you one day, right?

So you’ll need to wait to finalize the divorce before you prepare your QDRO, but you should NOT wait too long.  See, that’s one of the things that really makes these more complex.

Let’s say that you’re divorced on October 1, 2019.  The divorce says you’re entitled to ½ of the value of the account as of the date of divorce.  So what happens if you wait 5 years file your QDRO, and in the meantime, the plan participant took a loan against the account, and now the total value is less than your half would’ve been as of the date you got divorced?  You are still entitled to your half of the account as it existed on October 1, 2019, but how do you expect to get it?  OR, you’re entitled to ½ of the value of the account as of the date of the divorce, plus any losses or gains that it’s experienced up until the date the account is divided….but the account has lost half of its value by the time you file the QDRO 10 years later (like when the market crashed in 2008, for example.)  You just lost a huge chunk of what you’d have been entitled to but for your taking a decade to get the QDRO done.  Or if there were gains…calculating the gains would be as to your portion only, not your ex’s.  See?  Much less straightforward.

So as far as actually preparing the QDRO goes, it’s not rocket science.  Here’s an example of some basic language that would work to make your “domestic relations order” a “qualified” one (The Magic Legal Words):

1. Parties: The parties hereto were husband and wife, and a divorce action is in this Court at the above case number.  This Court has personal jurisdiction over the parties.  The parties were married on [DATE], and divorced on [DATE the court signed the Decree].
2. Participant Information: The name, last known address, social security number, and date of birth of the plan “Participant” are:  [Name], [Address]; [social security number]; [birthdate].
3. Alternate Payee Information: The name, last known address, social security number, and birth date of “Alternate Payee” are:  [Name], [Address]; [social security #]; [birthdate].
   1. The Alternate Payee is the spouse or former spouse of the Participant. The Alternate Payee shall have the duty to notify the plan in writing of any changes in mailing address subsequent to the entry of this Order.
4. Plan Name: The name of the Plan to which this Order applies is the [Name of the 401(k) plan] (hereinafter referred to as “Plan”), administered by [Company].
   1. Any changes in Plan Sponsor or name of the Plan shall not affect Alternate Payee’s rights as stipulated under this Order.
5. Effect of this Order as a Qualified Domestic Relations Order: This Order creates and recognizes the existence of an Alternate Payee’s right to receive a portion of the Participant’s benefits payable under an employer-sponsored defined contribution plan that is qualified under Section 401(k) of the Internal Revenue Code (the “Code”).  It is intended to constitute a Qualified Domestic Relations Order (“QDRO”) under Section 414(p) of the Code and Section 206(d)(3) of ERISA and the Retirement Equity Act of 1984, P.L. 98-397.
6. Pursuant to State Domestic Relations Law: This Order is entered pursuant to the authority granted in the applicable domestic relations laws of Utah.
7. Provisions of Marital Property Rights: This Order relates to the provision of marital property rights as a result of the Decree of Divorce between the Participant and the Alternate Payee.
8. Amount of Alternate Payee’s Benefit [this paragraph should be customized to reflect the Decree as ordered in the parties’ case.]
9. Commencement Date and Form of Payment to Alternate Payee: If the Alternate Payee so elects, the benefits shall be paid to the Alternate Payee as soon as administratively feasible following the date this Order is approved as a QDRO by the Plan, or at the earliest dated permitted under the terms of the Plan Benefits will be payable to the Alternate Payee in any form or permissible option otherwise available to participants under the terms of the Plan, except a joint and survivor annuity.
10. Alternate Payee’s Rights and Privileges: On and after the date that this Order is deemed to be a QDRO, but before the Alternate Payee receives a total distribution under the Plan, the Alternate Payee shall be entitled to all of the rights and election privileges that are afforded to Plan beneficiaries, including, but not limited to, the rules regarding the right to designate a beneficiary for death benefit purposes and the right to direct Plan investments, only to the extent permitted under the provisions of the Plan.
11. Death of Alternate Payee: [It’s a good idea to address what happens to the alternate payee’s portion if they die before all the funds are distributed].
12. Death of Participant: [Spell out who gets the funds if the participant dies before they’re all distributed].
13. Savings Clause: This Order is not intended, and shall not be construed in such a manner as to require the Plan:
    1. to provide any type or form of benefits or any option not otherwise provided under the Plan;
    2. to provide increased benefits to the Alternate Payee;
    3. to pay any benefits to the Alternate Payee which are required to be paid to another alternate payee under another order previously determined to be a QDRO; or
    4. to make any payment or take any action which is inconsistent with any federal or state law, rule, regulation or applicable judicial decision.

_____________________________________________________________________________________

I recognize that that language probably looks like just so much Gibberish to some–which would seem to make QDROs super hard to put together.  HOWEVER, in my practice, I found that a LOT of companies that had employee retirement plans that could be divided by a QDRO already had their own QDRO template that they liked to use.  I could contact the company’s plan administrator and ask them to email me a copy (or in the Bad Old Days, mail me a hardcopy I could then copy and type up), and it would have all of this information in it already, with all the Magic Legal Words & Phrases.  I just needed to put in the specifics of the case I was working on.  Generally they’d want to get a copy of the court-signed Divorce Decree before sending me the template, which is another reason you need to wait until the divorce is finalized to prep your QDRO.

Obviously there’s more to QDROs and separating out retirement accounts that exists in practice.  But truly, if you use the terms required (or the template the plan administrator sent you), and get it done soon after the divorce is final, you’ve won half the battle.  If your attorney tells you that they’re going to charge you a ton of money for a QDRO for a super-basic, one ERISA qualified retirement account division, maybe give it a try yourself.  You don’t have to be an attorney to get the Magic Legal Words included in the Order…You just need to know what they are.

P.S.

To Note:  NOT covered under ERISA are state and federal retirement/pension plans, military retirement, severance package type private employer benefits, and IRAs (Individual Retirement Accounts).  YOU DO NOT USE A QDRO TO DIVIDE THESE NON-ERISA PLANS.  They have their own types of forms/Orders, so don’t try to use a QDRO to divide them.  I found that the State of Utah had a packet with information and a template to give instructions on dividing their state retirement plans, so again, it doesn’t have to be a horror story.

PPS.

For a bit more information on this topic, check out the IRS website, here:  https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-qdro-qualified-domestic-relations-order 

and from the Department of Labor, here:  https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/qdro-overview.pdf

From the FB Archives: April 16, 2013

Is it really about what we do with it?

Life is not perfect; I think we all know that.  I’ve had a rough couple of days.  I was up working until 11:00 last night (Yeah! E-filing! Damn YOU!!!! E-filing!!!)  I woke up with the knowledge that I had another full day, but at least my first “You must wear clothes and look presentable” appointment wasn’t until 11 a.m.  Before that, I got an email from a client thanking me profusely for the teeny tiny itty bitty thing I had done for him, and a phone call from an older lady who has called me no less than a dozen times in the past 3 months, thanking me for helping her.  I did precious little for her; I just answered the phone when she called.

This afternoon I had two new client consultations.  Not difficult stuff.  One may become a new client; one can probably handle things on her own.  The first one was distraught….Have ya’ll noticed I’m a big fat cry baby?  I try really hard not to cry with my clients, but damn it!  I suck at that…

I had other work that I did, work that pays, work that will hopefully protect my client from BigLaw’s nasty allegations come next Monday when I have to be in SLC at 9:00a.m. for a hearing.  I hope I did enough.  I hate responding to BigLaw’s filings.  They really suck.  But then there is this Woman, my client, with a child.  And I am again emotionally sucked into it without even wanting to be.

I have gotten better.  I don’t cry with all of them anymore.  I can pat their shoulders, squeeze a hand, and give them reassurance, while telling them what to expect.  I can walk away, relieved that they can’t afford a lawyer because I just KNOW they would turn into Super Needy client who runs out of money and becomes the most demanding at that point.

I had some personal distress this week as well.  And this morning, as I was sunk in the Lows of that, I had the Highs of my client and this old lady telling me that I am definitely OK.

It’s a weird place to live, my head….My therapist thinks I’m great.  He doesn’t have to deal with my neurosis….

Like the poor jackass pictured above, it’s possible I was carrying a little too much…

From the FB Archives: April 2, 2013

*Things got better for a minute, so I could take a deep breath…and then they tanked again after this.  Such is life.  And I AM in a much better place now.

2 April 2013

The Miracle of the Passage of Time

I signed a new client today, with the accompanying retainer payment, and got payments from a couple of other existing clients on their monthly bills.  And as I was getting in my car to go to the bank to deposit them, I could not help but reflect back.  Not too long ago, every new client with new retainer money, every payment from a client on work I’d done for them, was a miracle–a sudden, miraculous gift from heaven, that swooped in at the last second and saved me from imminent financial ruin.  There were a lot of financial miracles back not too long ago.  The man I did not know who paid for my gas when my credit card (unbeknownst to me) was expired and declined after I’d put $20 worth in my car.  The large Christmas present from my grandma that paid my child support and a couple of bills.  The money stuffed in my purse from my aunt that bought gas money to get home to see my kids.  The rent paid from across the waters by my big brother, coincidentally on HIS birthday.  And every time a check came in from a client, it was like some of the weight that threatened to crush me continually was lifted, if just for a little tiny bit of time.

 

I marveled today that I am not in that place anymore–that place of wrath and tears, beyond which looms but the horror of the shade, to quote William Earnest Henley, in that poem I love, Invictus.  There is still significant struggle, but it’s no longer for the basic necessities of life.  I have enough to keep consistently afloat every month, without the cellphone company calling and threatening to disconnect if I don’t pay immediately.  And today I am grateful, and marvel at the miracle of the passage of time.  I used to really like that quote, “It will all be ok in the end, and if it’s not ok, it’s not the end,” but I had a hard time feeling it.  I’m starting to feel it.  Thank God for that.

From the FB Archives–November 1, 2012

*Another one from the archives…More about how a Nice Girl Like Me Ended up Being a Lawyer, and what happened next…

1 November 2012 ·

What I do for a living…

I’m exhausted today.  I practice family law, and to me that means that I am meeting people who are in one of the worst times of their lives, and doing what I can to comfort, advocate for, and provide a dose of reality to, my clients.  I see myself almost as a Mother to these grown people, who are not related to me.  Probably not good for my mental health.  The Dalai Lama has a book about loving others, and he advises thinking of yourself as the Other’s mother in terms of how you feel toward them.  While I don’t think he meant that I should make myself crazy by “mothering” my clients, there is wisdom in having that attitude about those we come in contact with daily.

I had been thinking about this Mothering thing I do, and how I really need to NOT do that, today especially, because I am so very tired.  I have problem solved, comforted, hand held, buoyed up, and advocated today, and it’s wearing the hell out of me.  At 3p.m. I was thinking it was time to curl up on the floor and let all of the Others’ problems sort themselves out.  I shouldn’t do this.  I shouldn’t take all this on myself.  I shouldn’t.  And what if I didn’t?

Edgar A. Guest wrote a lot of poems that are viewed by many to be trite, or cliche, but there is this one….It’s called Myself:

Myself

by Edgar A. Guest

I have to live with myself and so

I want to be fit for myself to know,

I want to be able as days go by,

To look at myself straight in the eye.

I don’t want to stand with the setting sun

And hate myself for the things I’ve done.

 

I don’t want to hide on a closet shelf

A lot of secrets about myself,

And fool myself as I come and go

Into thinking that nobody else will know

What kind of man I really am;

I don’t want to dress myself in sham.

 

I want to go with my head erect,

I want to deserve all men’s respect

And in this struggle for fame and pelf

I want to be able to like myself.

I don’t want to look at myself and know

That I am a bluster and empty show.

 

I cannot hide myself from me;

I can see what others can never see;

I know what others can never know,

I cannot fool myself, and so

Whatever happens, I want to be

Self-respecting and conscience free.

 

I had a client, at the end of a very long and stressful mediation, who snapped at opposing counsel, “How do you sleep at night??”  The attorney looked at her and without a break said, “The same way your attorney sleeps at night.”  She looked at me, and I looked at her, and I said, “Sleeping pills.”  The brain won’t shut down and leave these clients alone at night, when they are not paying me to worry about them….

So until I find out a way to separate myself from my clients and STILL respect myself, I will continue, on what may be a self-destructive path, for the sake of liking myself.

If you don’t like who you see, might be a good time to change it…

July 21, 2012…From my FB Archive

It used to be that on Facebook people wrote “Notes”–it was a little space to write an article or whatever and post it to your wall.  You can still do this, but it’s fallen out of vogue, if you will… I was going through my Notes this afternoon, and decided that they’d be good to post here.  After all, this blog is about How A Nice Girl Like Me Became a Lawyer.  And these old Notes tell more of the tale.  I’ll post more of them as time passes.  I start at the oldest one I can find.  So, without further ado...

On Being a Superhero

21 July 2012 at 00:01

So today was interesting…I got a call from the attorney who represented my ex in my divorce, and he invited me to go to lunch with him and most of the rest of the firm he’s with.  Just to talk about “a few things.”  What they wanted to talk about was getting me to go work for them and do all THEIR domestic law cases.  Which is flattering, but my current position is perfect for me in terms of work hours/flexibility/etc.

I was thinking about this Thing that my life has become as I drove back to my office after lunch.  If I had had a lawyer, I would not be one now.  And I am a good lawyer.  This firm in Logan is the 2nd one to try and hire me away since I started working with Feller & Wendt.  I have a good reputation with the judiciary here in northern Utah, and my clients like me and appreciate the work I do for them, and how I treat them.  And then I thought of Peter Parker, and all the other Superheroes who were just regular people until something terrible happened to them.  Peter Parker was bitten by a spider, and it destroyed his life as he knew it.  No more close friends, always having to carry a secret around with him, but he became Spiderman.  Pretty cool to have superhuman powers, right?  Oh, except that part where he can’t really enjoy life like a normal person, ever again.  “With great power comes great responsibility.”  Would Peter Parker change back to Normal if he could?  I’d be willing to bet he would.  I’m not Spiderman, but maybe I’m Super Divorce Lawyer–I had a horrible thing happen to me that changed my entire life, and now I’ve gained such a unique perspective on divorce and all the emotional havoc that accompanies it that I’ve become something different than I was before.  Sadly, I can’t really have the normal life anymore because of it.  I just have all the Great Responsibility.

Hopefully now, someday, all the good I can do outweighs having the Normal yanked out of my life.

Mediation in Divorce: Do we HAFta??

And the short answer to that, in the state of Utah, is Yes.  Now to ‘splain:

Statute governing the mediation requirement in Utah divorces is located at U.C.A. 30-3-39, aptly titled “Mediation program.”  Divorcing parties are required to engage in at least one mediation session.  You’re required to make a “good faith” effort to resolve your issues, but it’s very hard to prove that someone has NOT met in good faith…So just keep that in mind.

Not exactly a “good faith” effort there…

Mediation can be a fantastic way to finalize a divorce quickly.  The statistic is that something like 99.5% of all divorces are settled at mediation, so that is a motivating factor.  In my practice, I always tried to get mediation set up asap, as it’s required by the statute noted above, the court will not schedule a trial date in the case until the parties’ have mediated, and chances are good that the case can settle sooner than later–and this saves a lot of time, money, and emotional trauma.

All of the issues in your divorce can be resolved at mediation.  Do be aware, however, that the court won’t rubberstamp ALL of the things you and your spouse may agree to…Like, you can’t negotiate away child support.  Child support is a right that belongs to the kids, not the parties, so while you may try and say that no one pays child support, it won’t fly–meaning, the court won’t sign your divorce, and they’ll make you change the child support provisions in your agreement. Otherwise, you have all the flexibility you want in mediation to agree to whatever terms you choose to.  Why is this good for you?

 Well, it’s also been shown that parties who choose their OWN terms of a divorce and parenting plan stick to it better than those who have an order forced upon them by the court.  You know your family and your circumstances better than a judge does.  You are really in the best position to decide what will work the best for your family.

That said, mediation is about compromise.  You will not get everything you want.  Don’t plan on that.  As I’ve said before, if one person thinks their divorce was super fair, the other person probably got screwed.  If you and the soon-to-be-ex are both represented by attorneys, no one is going to get everything they want.  And that’s a GOOD thing.

The courts website has some great information about mediation that can be found here. The page also has information about mediators to work in your county, whether they are located in your county or not, and whether they charge for travel if they are not.  I have some of my favorites, and I have links to a couple just to the right here on this blog. Mediators generally run about $100/hour and up, depending on who you use.  There are low and no-cost options if you can’t afford to pay for it, so don’t worry too much about that.

There are limited exceptions to the mediation rule.  Click on the link for the courts website (above) to find forms for getting out of the requirement.  Do know that you can’t get out of it just because you can’t stand the ex.  You’re going to have to have some honest-to-God solid-gold reason why you shouldn’t be required to mediate (domestic violence is one, btw…)

That just may be a good idea..

My final thoughts on this:  I NEVER had my client mediate in the same room as their estranged spouse (or significant other, as the case may be with paternity actions).  My experience is that family law is too emotionally hard to sit in a room across from the other person and be Super Reasonable–there’s too much history, too many hurts to be able to compromise much.  If you choose to be in separate rooms, the mediator can generally accommodate you.  Some really want to do it face to face.  My opinion:  If your goal is to finalize your divorce with an agreement that you can both live with, stay in separate rooms.  No need to start a brawl in the mediator’s office…

 

*P.S.  If you want to message me on my FaceBook page, I can give you my thoughts on specific mediators that I’ve used.  Not every mediator is right for every couple and circumstance.  It’s good to have a little info so that you can make the best choice for you.

*P.P.S.  And don’t forget, courts overturn mediated agreements in Petitions to Modify all the time…Just so you know…

SCRA…And what the Heck does that have to do with my divorce?

In helping people handle their divorce cases, one of the most common questions I get asked is WHY does the court care if the parties are active duty military?  This question comes up in the Military Affidavit that is a required filing in all family law actions…State of Utah or not.  The law that governs this is actually federal law.  It’s call the Servicemembers Civil Relief Act, and it’s found at 50 U.S.C. App. §§501-597b.  The purpose of the Act, as stated within it, is to make it so members of the military who are on active duty/deployed can fully focus on their jobs as opposed to having to worry about civil actions being brought against them.  This doesn’t just speak to divorces–it’s ANY civil litigation, from debt collection to divorce to any other legal action that could be brought against a person.

Protecting our Servicemembers while they are protecting us.

Because the SCRA is applicable to all civil actions, the court has to have a filing submitted stating whether or not either of the parties is active duty military.  It’s a very brief little affidavit, and the best way to comply with the requirements on it is to go to the Department of Defense Manpower Data site, enter the person’s name, birthday or social security number, and hit “submit.”  A little pdf certificate will be produced that you can just print out and attach to the Military Service Affidavit for filing with the court.

The website is fully secure…in fact, the damn thing is encrypted in such a way that your web browser might not think it’s a secure site.  It is.  So go ahead and ignore the browser’s warning about how it May Be Dangerous.

There’s a link to the DoD page at the right under My Links… So don’t worry, it’s not a big deal, it’s just required…And may well be the easiest thing that you do in your divorce action.

What they don’t teach you in law school…

I started this post back in 2013…or rather, I came up with the name for this post then, and it’s been sitting in my Drafts folder here on the blog just waiting.  And waiting.  And waiting.  While I staggered around and learned on my own about all the things that really aren’t covered about the practice of law in the 3 years I spent studying The Law.  It’s been another 2 years since I tried to start this post, and 5 years since I actually got licensed to practice (October 2010–go me! 😉 ).  I now feel qualified to make a list of things that I didn’t learn in law school, but would have been really helpful to know.  So, in no particular order…

1.  How to Practice Law.  I actually got a bit more of this than some others did, because I worked in the student legal clinics.  I was a part of the Domestic Violence Legal Assistance Project (DVLAP) at the University of Wyoming College of Law.  I actually DID practice law, under the supervision of a licensed attorney.  We only worked with victims of domestic abuse, which meant that almost all of what I did was family law type stuff.  But it was in Wyoming, so it doesn’t necessarily translate over to practice in Utah seamlessly.  There are
   

   “I just got my law license. I’m standing in front of impressive looking books. Now, what in hell am I doing??”

   Rules, and judicial quirks, and specific “language” that is used in pleadings in Utah courts more consistently, and Other Lawyers to deal with.  Practicing law is NOT the same as learning legal theory.  Which is what law school is, by and large.  Being in business as an attorney is a whole world away different than learning what the theory is.  Because sometimes the “theory” doesn’t hold up, because it’s up for judicial interpretation.  Which brings me to #2…

2. The Judge can make up the rules as he goes along.  My first year in law school I was involved in a moot court competition.  Now they don’t usually let first year students (1Ls) participate in these things, because we haven’t taken Evidence, and therefore do not know The Rules.  Evidentiary rules limit what can be presented in court, based on some fairly logical principles (that don’t always hold water well when we’re in the Real World, but that’s the theory).  ANYWAY.  My team was in one of the first rounds, arguing a case before our volunteer “judge.”  I attempted to introduce some information as evidence in our case.  Opposing team objected–that type of evidence was NOT allowed under the Rules.  The judge made some comment about how he thought it was relevant, and he wanted to hear this evidence.  I just remember the flabbergasted look on that 2L kid’s face….”But it’s in THE RULES!!”  We really didn’t know at that point that the court can make up whatever rules it wants to when you are in a hearing.  The attorney’s remedy is to appeal, or file an objection to the order.  Which takes time, and more of your client’s money.  The theories of Rules of Evidence or Civil Procedure are nice, but they don’t necessarily reflect reality.  Which is a very good thing to know.
3. Lawyers can be real a**holes.  We all go into law school thinking we’re generally decent people; and our law school friends are decent people; and our professors are intelligent, rational human beings (who occasionally just aren’t great teachers.)  What we (mostly) don’t learn until it’s too late, is that a lot of lawyers are jerks.  Like, would push their own mother off a cliff if they thought they could make a buck off it.  None of us start out
   

   I swear, I just googled “jerk images,” and The Donald popped up…who am I to question?

   thinking we’ll be like that.  But because law school is nothing if not a pressure cooker for turning out Legal Thinking Robots, we change part way through.  Some of us decide that the world is not as we thought it is, and we’re gonna take whatever we can grab.  Some become disillusioned and leave law school only to go back to what they wanted to be before, just scarred a bit for the experience.  And some of us come out just trying to stay afloat in a sea of a lot of a**holes.  The problem is prevalent enough that lawyers are actually governed by Rules of Professional Responsibility in every state.  These are not to be confused with Rules to Make You a Decent Person; rather, this is how close you can get to the edge of being ethical without falling over and getting a bar complaint.  Because a lot of lawyers just want to know where the line is between Legal and Illegal, just so they can get as close as possible without crossing it.  This means that there are a lot of people who are not following Professor Burman’s advice…At the end of our semester-long professional responsibility class, he summed up the almost 4 months’ worth of subject matter we’d just had in 4 words:  “Don’t be a jerk.”  The fact that you have to TELL lawyers not to be jerks does not bode well.

4. How to live on nothing when your clients don’t pay.  Actually, I spent all of law school living
   

   Not quite this bad, but pretty friggin’ close…

   on nothing, but the theory was that I would get out of law school and get a job and live Financially Less Pinched Ever After.  Not so.  I graduated just after the economy crashed in 2008.  There were no jobs.  None.  Government wasn’t hiring.  Private firms weren’t hiring.  And I live in a very small community without a lot of jobs anyway.  So I made my own.  I went into business for myself as a sole-proprietor, Marca Tanner, Attorney at Law.  Guess what?  My clients were as broke as I was.  I was effectively working for free in a lot of cases, not for lack of billing, but for lack of clients paying.  I did contract work for a friend just after I was licensed.  She split any collected fees on cases I worked on 50/50 with me, for the hours I billed, at a rate of $150/hour.  So the idea is that I bill 10 hours on a case, I get half of 10 times $150, or $750.00.  Except that if the client doesn’t pay, I don’t get paid.  In November of 2010, I billed $4,000.00 worth on one of my cases.  It was a very law-centric (less fact specific) type case, and a lot had to be done on it.  Guess how much I got paid that month (and that wasn’t the only case I worked on)?  $576.00.  That’s it.  And my rent at that time was $850.  So Thank God for family that helped me out A LOT, and food stamps.  I couldn’t have made it without either one of them.

5. Work-Life Balance.  To be fair, I think they *tried* to teach this.  But when you’re expected to read 150 pages for just 1 of your 4 classes (meaning there’s reading in those classes, too), there’s not a lot of time for Balance.  And I have found that in practicing law (or at least in practicing family law) the cases and clients creep in on the weekends and after hours, even though I didn’t want them to.  I’d find myself in the shower thinking through some client’s issues, what the angles were I could argue in them, what needed to be done next, or just feeling frustrated that I couldn’t get the case finalized.  Their miseries crept into my heart and added to MY miseries; their unavoidable heartbreaks broke my heart over and over and over again.  Balance is necessary for survival in practicing law.  I lost my balance more than once in practice.
   

   Yes, we’re all so Super Happy while trying to be all things to all people, that we just can’t HELP but grin. Or Not.

So that’s a short list.  Law school really sucks.  But it sucks more if you don’t know what you don’t know…Best to be prepared.

Why I’m Glad I’m Not in Private Practice Anymore

I was at the post office in my very small town this afternoon, waiting my turn in line, and listening in on the conversation of the people who were just ahead of me and the clerk who was helping them.  The husband had a letter he was sending, certified, and he wanted to get it where it was going as quickly as possible.  Which because we can’t do overnight delivery from Small Town, Utah, will be Friday via priority mail.  And he was sending it certified.

It was obvious that he was sending it to an ex-wife, the mother of his children.  He didn’t want her to be able to see who the mailing was from before she signed for it, because he was afraid she’d refuse it.  His current wife was also joining in on the conversation–noting that the ex was due for learning a lesson about how the whole world doesn’t revolve around her, and that the way the ex was teaching her children to behave (by her bad example) was tantamount to child abuse.  Husband then pipes up about how he’s still responsible for her house payment, even though they’ve been divorced a long while, and how the ex was supposed to get the mortgage out of his name, but she doesn’t do anything and hasn’t taken care of it yet, and he can’t afford to pay two mortgages…  Then sadness about how the town his ex lives in, that he used to live in, is a mining town, and 3 years ago he and 400 others were laid off from the mines 4 days after Christmas, and he’d been behind on the house payment ever since.

…because pictures of actual skin v. belt sander encounters were really too gross to post.

Sadness and misery.  Broken hearts, broken families, trying to start again, vitriolic exes…. I used to be up to my eyebrows in that every day of my life.  Because even on Saturdays and Sundays, my clients’ miseries haunted me.  In part because I was one of them, trying to deal with an ex, and suffering the hurts that come from having life not go the way  it was “supposed to.”  I am one of those people who cry at a really touching refrigerator commercial.  I feel way way WAY too much of the other person’s pain.  And quite frankly, being involved in divorce and child custody and child support and parent time fights was like being chewed up by a belt sander All. The. Damn. Time.

I am deeply grateful for being able to leave family law behind as a full time practice.  I am still swimming in the sea of divorces and child custody…I’m divorced, and I’m married to a man who is also divorced, and we have our respective exes and children (though my situation is MUCH better than his at this point–only took 10 years to get that way.)  However, I no longer have to depend on clients who are as broke as I am for my livelihood.  A huge load of stress has been lifted from my shoulders knowing that I WILL get paid every other week, by direct deposit, and I can plan a budget and stay caught up with my bills month to month.

I am no longer trying to make a living from other people’s pain.  And there is a lot of comfort in that.