Episode 20 - Avoid getting overpowered on settlement negotiations

Custody!  Divorce!  Parenting time!  Money!  Disagreements over children!     

When one parent has an attorney, and the other doesn't, there is a big imbalance of power during negotiations.  When that parent without an attorney receives a proposed custody, allocation or parenting-time agreement written by the other parent's attorney, it can be confusing -- to put it mildly. Simple phrases and paragraphs can lay the groundwork for HUGE, BITTER disputes and disagreements, long into the future.  In this Episode 20, Attorney Barry C. Boykin and Attorney Kevin R. Johnson discuss, agree, and disagree about some of the possible paragraphs and perplexing problems that can confront the unwary.

From their perspective as Chicago attorneys, Barry and Kevin attempt to bring hope and clarity to a troubled world, where lawyers, judges and other professionals see the best and worst of human behavior on public display.     
                                                                                                             
Attorney Kevin R. Johnson - http://www.divorce.nu/   
                                                                             
Attorney Barry C. Boykin -  https://www.gclclaw.org/barry-c-boykin

Transcript

 episode-20-avoid-getting-overpowered-on-settlement-negotiations.

Mon, 1/18 4:26PM • 23:05

DISCLAIMER: This transcript was auto-generated using a program designed for that purpose and lightly edited and any grammatical and typographical errors, or unintended meanings may occur from time to time, although we make every effort to keep such errors to a minimum.

SUMMARY KEYWORDS

parents, child, attorney, special occasion, party, parenting, paragraph, extracurricular activities, written agreement, deal, weekend, other side, fence, consent, summer, client

SPEAKERS

BARRY, KEVIN

BARRY  00:02

I'm attorney Barry Boykin…

KEVIN  00:04

I'm attorney Kevin Johnson. Welcome to another episode of our podcast, “Dynamite Divorce and Other Matters,” as we explore another issue in family law. And Barry, what have you got today?

BARRY  00:17

Today I wanted to talk about, Kevin, the idea of a parent who is presented with a proposal by the other parent. And these are parents that are just at the aftermath of a parent, this is typically the case when a parent acts quickly to get something in place to establish things relating to there. 

KEVIN  00:43

Alright, so it's time to make a deal. 

And we're talking about somebody who's on the receiving end of some sort of a document written by an attorney, working with the other side. 

And I guess we must be, you know, face facts here, the other attorney is not on your side, when you're being presented with a proposed agreement. The other side's really their mandate is to take over and take control and do what's best for the client. And if that means feeling like you get run over by a truck, actually, that's their job zealous - advocacy, okay, they are not no matter how much nice they are, they are not on your side. And it's not their job to see after your goals, right. So it's, it is a little bit of an imbalance of power, the other side knows more, has more experience. And here you are trying to decide if this multi-page document is something you should sign right? 

“Before we go further,

BARRY  01:42

this podcast is no substitute for the specific legal advice you will get by consulting one on one with a licensed attorney in your state or country, we hope that before taking any action that might change your life or your financial situation. And before making decisions that might significantly affect your children and the people around you. You do find and meet with a licensed attorney.” 

And this multi-page document is often presented in my experience, not by the attorney who is kind of invisible in the wings, but by the attorney’s client, the other parent, Kevin, do you know why that is?

KEVIN  02:23

I've even had the situation where I'm representing someone, and lo and behold, a typed document turns up in my client's possession that the other side has written. And wait a minute, that's supposed to be attorney to attorney. 

Now, I think that…that's not right. But what you're describing is the unrepresented person and the person bereft of an attorney on their own, now sees a document coming in from the other parent. And I, I don't know what the advantages are, unless it maybe seems more friendly and more, you'll be more likely to accept it if the other parent gives it to you directly. You think that might be why they do it?

BARRY  03:03

Well, here's my explanation. There's often times when someone gets a letter from a lawyer, and it’s the first time perhaps they've ever had contact with the lawyer in their life. It is like a splash of cold water. And I think the other thing is that the attorney on his or her part, wants to be careful that …”I don't want to seem to be… I can't represent both”.

KEVIN  03:25

Yes, that's a good point! Yes…

BARRY  03:27

…I want to make it very clear that I’m only representing one…

KEVIN  03:29

I make it a point to pro se people. If I have a client, and I'm trying to work out a deal. If I can, I'll do the same. I don't want to really have a phone conversation with the other party. Or really, I don't have them into my office, because for fear of what you just said that they're going to think, ‘Well, yeah, we both worked with the attorney. And … I guess he was representing both of us…’ And that… it could be bad later, when they say, ‘Well, I thought you were looking out for me!  Now I don't get my weekends!’ 

So no, I agree with you that you’ve got to make a clean break of it. And that's probably what you're saying the client of the attorney will present the proposed deal, right, not the attorney, right? 

BARRY  04:15

Now, here's another aspect of that situation. And that is that the client who has retained the attorney is often told, ‘Well, if you did get your counterpart to sign, this will save you money. I would have to charge you two or three times as much as if you come back to me with a signed agreement. And there are no issues’. So it's presented as a cost-saving measure. And the parent comes and says, “Hey, look, we can save, both of us save money. If you just sign these documents…thousands of dollars.”

KEVIN  04:45

Well, right, it's attractive because a person who is on the receiving end is already thinking they've saved money by not hiring a lawyer. And now there's further cost savings if we could just put this to bed and get this done. And let's, you know…and it might be presented as, “Look, we don't want to stress everyone out, there's no reason to put a lot of people through…you know, my attorney says it'll be a trial, there'll be testimony and all this stuff, and the uncertainty of a judge. So why don't we just agree…”, and it sounds so good. But I'm here to say that there are paragraphs, often inserted by attorneys in these things, which, while standard in the industry, can come back to haunt you.

BARRY  05:30

So why don’t you give us an example of that. 

KEVIN  05:32

Okay, let's talk about special occasions. Alright. So often, I've seen, and I've seen these things run 12, 15, nearly 20 pages, sometimes what are called “Allocation Judgments”. Now when I say “allocation”, why don't I say “custody and visitation”? Well, ever since January 1st of 2016, they revamped the custody laws and the divorce Laws, they've done away with custody and visitation for parents… What they now have is decision-making on four points, as we know, medical, school, religion, and extracurricular activities. And then it's the “parenting time” formerly known as “visitation”. So parenting time schedule, plus a plan for making decisions. That's your allocation judgment. So often, you get this big long package, but look for paragraphs like this, that make it what are called… what we call it in the legal business, “illusory contract”. An illusory contract is one that looks like a firm agreement. You know your rights, here's what you got, except how about a paragraph like this: 

“Both parties shall endeavor to allow the child to attend special occasions such as weddings, funerals, family celebrations, and the like, when one party receives notice that the child is wanted at a special occasion, that parent shall not unreasonably withhold their consent to the child's attendance at that function or special occasion.” 

Now what? Okay, that opens the door, you might think, Well, yeah, but it would be a limited thing… Who's to say? … it now says, if one party considers there to be a special occasion on “Henry's in town, Aunt Agatha, we're going to have a celebration, cousin's birthday party, we've got tickets to the circus”. So everything's a special occasion if it if you want it to be, and then you would simply notify the other party and point to paragraph 36 of your agreement and say, “You can't say no, it says you can't unreasonably withhold your consent. Oh, we'll give you makeup time. It says that, you get makeup time”. 

But all of a sudden, you have to wonder, from week to week, when are they going to pull this thing? When are they going to say you can't have this weekend because it's the circus, we have tickets… this… that… I hate that variable stuff, and maybe you do too, Barry....

BARRY  07:56

Now I've had parents who have strenuously argued …and perhaps they have a special occasion in mind. And perhaps one way of resolving that would be to define the special occasion so narrowly, which I've seen done. So I've seen agreements, where the special occasion is written in. ‘Aunt Susie's wedding’, or for ‘Uncle Harry's reunion’, or whatever…

KEVIN  08:28

You mean, something, they can foresee this coming up in the future, they just write it in you mean.

BARRY  08:32

They know about it, they don't want to miss it, they and they anticipate [the event]…

KEVIN  08:35

I have no problem with that, because that's very specific. What I'm saying is handing them the golden key and saying, you know, anytime you consider it to be a special occasion, you can have the extra time and deny the other parent their weekend. 

And it's just like this other thing, which I also hate is that the extracurricular activities can be a weapon, and where it gives the party the right to schedule activities and then says to the other parent, it is important for the child to attend their sports and special and extracurricular activities. So on that parent’s parenting time, they shall make sure the child goes to sports events and tournaments and extracurricular activities. So now what you can punch that person's weekend up like Swiss cheese with all kinds of activities. Now I'm talking about pre-COVID. 

Of course, now it's a little more limited with the pandemic, but anything that allows one parent to punch holes in the other parent’s parenting time, or render the agreement, as I said, illusory or unpredictable, is very upsetting to people. 

The analogy I use is, 

let's say you live next door to somebody and you've got a fence in between your yards. It's a nice strong wooden fence. Well, great. You know your backyard, you can go outside, you can enjoy your grass. What if instead, it's like a rope on a couple of sticks. And the other side says, “Well, we're going to need your backyard for this gathering or having and or we've decided our pool is going to go into your yard a little bit, because it's a six-foot pool, it's got to go a little over there.”

Whether it's long term or short term, they come right into your space. That's what I consider parenting time is your space, your time you know what you got. 

And it should be a hard fence. It should be FIRM, not this variable stuff. Not everybody agrees with me, though.

BARRY  10:31

Let me ask you a question, Kevin. And that is when drafting those paragraphs about extracurricular activities, does it make a difference? If the child is two years old, as opposed to a child who's 16 years old? Does that affect how…

KEVIN  10:49

Well, but I… I'm really one for simplicity and less words if I can. 

So I like something like... this would be

 “Neither party shall schedule or enroll the child in extracurricular activities that infringe on the other parent’s parenting time, without that parent’s written consent by email”, (or Talking Parents, whatever they're using). 

And the written part is important so that they don’t say, “Well, I talked to Joe on the phone, he said, ‘Bobby could go to football’”, you know. So it's not a “he said, she said” over who gave approval. Have it be in writing. And now you might think, ‘Well, that's really limiting. What if the child wants to be in sports, and the other side won't let them?”. 

But that's where you persuade the other side, adult to adult, you don't send Bobby over: “Tell your dad, you want to be in summer baseball”. But then the dad says, “Well, we've got plans, we're going to go to the Grand Canyon, we're going to travel!”  You know, don't send the child over to persuade the other parent, be an adult about it and communicate directly. If you can't persuade the other parent. That's it, because that's their parenting time. 

Not everybody agrees with me, though.

BARRY  11:59

So the provision… the provision, I've seen it occur, because it is in almost every parenting agreement, (Yeah), there's something about extracurricular and the statute contemplates that. And so, parents, like the case, we first started talking about, these two young parents, they've just separated, the child is 15 months old. So a child of very tender years, there it's all moot because that child, of course, is not enrolled in anything, and is usually with mom all the time. So they're just speculating about well, years from now, when the child grows up, goes to soccer or enjoys basketball or whatever. Now, that's different from the case I’m familiar with where there is a track record, in other words, the child's already engaged and perhaps have some skill and aptitude…

KEVIN  12:53

Right, right I got that, I got it…

BARRY  12:56

…soccer or something like that. So, the question, is there some difference in the draft between the young parents with the 15-month-old and the parent, 

KEVIN  13:08

Now here's a problem. When you say-  paragraphs I've seen in these things, which I think are horrendous, where they say, 

“Both parties shall take into account the express preferences of the child when scheduling extracurricular activities.  It is understood that the child should remain enrolled in each of the sports that they are now enrolled in, and other sports that are similar in the future. 

 Okay, what you're trying to do then, is say, one parent’s judgment should overrule the other parent’s judgment like it's not having faith that the parents can work it out to the best interest of their child. It's saying, I'm going to bulldoze this other parent with my plans for extracurricular activity. And I'm going to get the child to help me do it by saying, 

‘Bobby, you want to be in summer baseball, don't you?’ 

‘Yes, Mommy’. 

And then, “You tell your dad” 

…and then emails go out. And Bobby wants to be in summer baseball. And paragraph 20 says that the child's Express wishes have to be followed. 

Meanwhile, Dad is on a completely different track. He's got a summer camping trip to the Grand Canyon. He was going to do, “We're going to go go-kart riding in Wisconsin”. He's got a plan. But Mom's saying summer baseball, you know. And you know, what I'm saying is it's what it does is it sets up a crash-together that I'm trying to prevent, and crashing together over enjoyable activities, forcing the child to choose their loyalty, or it's just a train wreck. 

So no, it's not the real world. It's not normal life. It's, I say, stick to your side of the fence. If the other side writes that, okay, that's fine. You can schedule, we can schedule that on summer baseball will be fine. If it's going to impact the other parent’s parenting time, get their consent in writing. 

I think the court order should say it’s required to get their consent in writing so that one parent doesn't just bulldoze the other side with their, with their plans, which just chops the other’s parenting time into ribbons.

BARRY  15:07

So well, here's another solution that sometimes occurs. Although I think that some, some may find a problem with it, which is that the parents can reserve the issue of extracurriculars, I'm thinking again, in the specific instance of the very young child. And so, the parents say that they will decide that when we get to it.

KEVIN  15:28

This hand was five fingers, it was for five minutes (laughing)… for our listeners, Barry and I are at different locations where we're looking at each other on video. So I'm holding up five fingers. And he thought it was the “stop” sign. No, this was a “five-minute” sign. Sorry!  

So Barry, but what I don't like about your approach is you're saying, let's put off the day of reckoning till later. And everything in my DNA is about fix it now. Make it right. 

And don't leave a sponge in the patient, sew them up and say, “You know what, we'll deal with that sponge later. Yeah, we left a sponge in, and there's a little bump on the skin, but we will deal with it later.” 

And I think that sending him out with an unfinished or maybe we'll negotiate it later, is sort of like that, leaving a sponge in the patient, it's going to fester, it's going to be problems, hey, we'll deal with it later. Now, it is a standard in the industry to work to not worry about that too much. I mean, we'll deal with it later. That's fine. That's why we have professionals. But my goal is not to be needed later. You know, whatever analogy you want to use, painting the line down the highway, making it clear where the rights are, or using a fence that's actually made out of wood, instead of some flexible plastic.

BARRY  16:41

I'm going to use another example, (painful!) where the dentist… where the dentist says “I'm going to give you a filling now. But be prepared, you may need a crown in the future”. So the dentist is not going to give you a crown now, because he's going to give you the filling, the temporary.  It's a temporary fix, because that's appropriate for the moment. And I think that that that kind of fits where they are now, parents are not fighting about it. And I as the attorney, I'm not looking to start a fight. I'm just saying, hey, if you don't want to deal with it now, let's just deal with what we're about. And we're not going to bring up anything that’s not an issue.

KEVIN  17:16

Wait, tell me what you mean by “reserve it for later.” Are you saying there will be no provision regarding extracurricular activities? And they say …it’s kind of like saying, “Well, the parties will work it out later”. Is that what you're saying?

BARRY  17:29

Well, in the court proposed parenting, there are court forms, which have a proposed plan and on the court form, it indicates on the section regarding extracurricular activities, then the choices are one parent makes the decision, both parents make the decision, or it’s reserved.  So that means that the parents say “Courts, we don't want your involvement in that part of our decision making.  We'll decide that on our own”. 

KEVIN  18:03

Okay, good. 

BARRY  18:04

I have had parents who have done that. And now whether or not I mean, two-year-old child if, if it blows up 10 years from now…

KEVIN  18:14

No, look...

So that's a different animal, because that says there's no requirement of any consent to, to giving up your time. And so actually, I'm fine with that. That's just like leaving it off entirely. But that's I mean, because what I'm up against is when it says one parent, with the help of the child, convincing the child, put their arm around the child. “See, Bobby, do you want this? Do you want summer baseball? Do you want every weekend swimming?”… and then bulldoze the other parent’s parenting time, when all they simply want is to see their child on a predictable, regular basis with no interference. And it becomes nearly impossible when you punch holes in their weekends and say they got to go… now, this is pre- COVID. 

Maybe, maybe this pandemic won't last forever. We'll be back to delivering our kids to different activities. But yeah, so I'm all for predictability. 

And so, well, in summary, then as we as we wrap this up, for our listeners, are there any basic ideas that they should keep in mind when presented with an agreement. And they're on their own. They don't have an attorney. And this agreement is being written by an experienced attorney. And it's being presented here. “Here's the deal. Why don't we settle?” Can you think of some basic ideas they should… If we summarize, what should they keep in mind?

BARRY  19:33

We may have touched upon this in a prior podcast, but I believe that for someone who's not represented by a lawyer, that if you don't understand the provision, then you don't sign off on it. 

So, I think you want to understand it, at least get a consultation, I would say so that you “understand what you're signing”. I think what I would recommend to anyone looking at really any contract. But I think short of that, I think kind of “Use common sense”. I think there's a tendency in the example I've given you from the beginning, I think that the tensions are kind of high for parties who have just separated. And what's at play there? You know, is there… is there some peacemaking going on? And is there some attempt: “Well, I'm going to sign this because it will please the other parent” (Right).  . So I think that some common sense has to be used. Insofar as, what does this mean for me? And to me?

KEVIN  20:39

…all right, and if I summarize, my basic principles would be if you use the analogy of, you know, you have your yard next to your neighbor's yard, do you know where your time begins? And where it ends? Is it very clear, 

Don't have: 

“the party should equally divide Spring Break. The parties shall equally divide the winter break”  

Nothing that says, 

“One party shall get three weeks in the summer to be worked out later” 

I really think you know, “June 30, to July 15”, you know, pick your days and people might… I get pushback. People say “Well, but I don't know when my summer vacation should be.” 

“Well, now you will, you'll know a year in advance, you can book that Cabin in the Woods a year in advance, because you'll know”, and the beauty of having definite times and days is on June 30, when you know your summer is beginning, you've got your… maybe your flight is booked for July 1, but you have like… the other side doesn't produce the child. 

Now, if you've been careful to cultivate a good relationship with the police, you can walk in, don't call, walk into the local police station and say “Hi, it's me again, I've got my schedule here. It's my day, I can't find my son, I know he's with his mother”, then you can ask them to help you and try to get your son back because you got a definite day. 

But if it says you should get “three weeks in the summer,” nobody can help you. 

And that's why definite things… While you never want to use the police if you can avoid it, if it came down to that, or if you had to go to court to enforce your rights, you have a definite thing, definite days, right? 

Like, I even like to try to avoid 

“every other weekend” --that phrase-- 

and have it be “second and fourth” or “first and third”. So that's my principle, we can vary. If you don't understand a paragraph and you're forced without an attorney to decide, then just take a ruler and cross out that paragraph. And if he says, 

“Well, we need that paragraph!”   

“Well, what does it mean? I don't understand it. I'm not going to agree to something I don't understand”. So this is out. And that might be okay.

BARRY  22:40

Kevin, I think that's good advice. And we're coming to the end now… Yes,

KEVIN  22:44

I think we've reached the end. Thank you. So, thank you very much for joining us for this episode—20, I believe it is. And I'm Kevin Johnson…

BARRY  22:53

I'm attorney Barry Boykin…

KEVIN  22:55

We'll see you later!