GARRISON KLUECK, CFLS....BLOG!

ACCESS TO JUSTICE

2009-06-03T09:07:00.000-07:00

During a recent airing of “San Diego Living”, Board-Certified Family Law Specialist attorney Garrison “Bud” Klueck appeared to talk about people’s ability to access competent legal representation and how the amount of attorney’s fees and the way they are charged affect such access.

QUESTION: Our Board-Certified Family Law Specialist attorney Bud Klueck is here. Bud says he wants to talk about “access to justice”. Bud, what does “access to justice” mean to you?

ATTORNEY KLUECK’S ANSWER: At a minimum it means having the “keys to the courthouse door", but it's more than that. It involves whether you will be walking through the courthouse door with somebody by your side who knows what they're doing, can help you and will defend you -- in other words, a competent, aggressive, experienced attorney. On a more meaningful level, access to justice asks whether you have affordable access to an attorney to represent you and to defend you. This is particularly true if the other side has an attorney. In a very practical and meaningful way, it will be almost impossible for you to receive justice unless you have somebody to fight on your side and to seek justice on your behalf.

QUESTION: Okay you convinced us. We are all sure that it’s better to have a competent attorney with you if you’re going to court. But how can people get affordable attorneys so they can have access to justice?

ATTORNEY KLUECK’S ANSWER: Like I always say, the two favorite words of attorneys are not "pay me," but -- "it depends." When it comes to considerations of access to justice, how the person going to court obtains an attorney and for how much depends on what kind of a case it is. If you have been accused of a crime, the court can appoint an attorney for you and you will not ordinarily have to pay for that attorney at that time. We know this for certain because we all remember from the Miranda warnings, that we have heard hundreds of times in cop show scripts, "you have a right to an attorney, if you cannot afford an attorney, one will be appointed for you." These types of attorneys are ordinarily called Public Defenders. Although you have a right to have these attorneys appointed to defend you, and you will not have to pay any money immediately, you ordinarily have to pay back the state for part or all of their costs. A second kind of case is what is known as a "civil case." These are cases for money damages. For example, if someone hits you with their car and injures you, you would sue them for money damages. Ordinarily, you do not pay for your attorney up front. The attorneys receive their compensation by receiving a percentage of the damage award or settlement. However, in the kind of law that I do, family law, the person needing an attorney ordinarily pays that attorney out of their pocket and the costs ordinarily start at the beginning of the case.

QUESTION: How are the payments in a family law case arranged?

ATTORNEY KLUECK’S ANSWER: There are two components or parts to how family lawyers get compensated, the Retainer and the periodic payments. The retainer is what is paid up front to create a professional relationship between the attorney and the client. It is paid at the beginning of the relationship kind of like a "down payment." The periodic payments, as the term suggests, are the payments that are made every so often as the case progresses. Because those are the only two elements of the financial relationship between the attorney and the client, the attorney or the law firm's policy and attitudes towards retainers and periodic payments will determine whether that attorney or that firm makes access to justice easier, harder or practically speaking, impossible.

QUESTION: How these financial considerations affect a person’s access to justice?

ATTORNEY KLUECK’S ANSWER: Well pretty obviously, if you cannot afford to pay the attorney at the very threshold of your relationship, that attorney is not going to be representing you and will not be around to help give you access to justice. In my firm's view, the method that most attorneys and law firms demand for a retainer is not consistent with permitting most middle-class people to have access to justice. The size of the retainer is often a very high barrier which serves to kind of "lock the courthouse door" on them. Our approach to retainers is materially different than many or most law firms of a similar level of professional competence and sophistication. Our approach is different in two important ways. The first is flexibility and the second is size.

QUESTION: Why don't you tell us how other firms handle retainers and then contrast the way your firm handles them?

ATTORNEY KLUECK’S ANSWER: To begin with, when you are talking about attorneys, and
possibly other professionals like doctors, CPAs or dentists, you always need to compare "apples to apples." That is, attorney compensation rates are generally closely tied to their level of experience and their professional credentials. For example, I have been practicing since 1987 -- a total of 21 going on 22 years. The most important credential that attorneys can get is to have the state bar acknowledge you as a Board-Certified Specialist. As I have remarked before, Board-Certified Specialists represent only about 2% or 3% of the attorneys licensed in California. That is, 97% or 98% of licensed attorneys are Not Board-Certified Specialists. So when you are talking about attorney compensation rates, you would have to compare a Board-Certified Specialist, with about 15, 20 or 25 years of experience, with the rates of other, similarly situated attorneys with similar amounts of experience.
Those types of attorneys generally set their retainers rather high, at $5,000, $7,500 or $10,000. Those retainers generally do not change from case-to-case no matter how complex or simple the matter is. We are different. To begin with, our retainers are flexible and vary depending on the complexity of the matter we are being retained to handle. More importantly, our retainers generally are somewhat smaller than our peers--the similarly-situated attorneys.

QUESTION: You take smaller retainers? Does that mean you are willing to accept less compensation to handle a case?

ATTORNEY KLUECK’S ANSWER: Not really. We just believe strongly that those high retainers represent a high barrier to access to justice. To ask the client to come up with that much money, at the very threshold of the case, represents a huge burden and a real barrier to their finding quality and experienced representation. What we do instead is to set a lower retainer but require all of our clients pay each month for one hour of my time, at a minimum. The hoped-for effect is that, over time, both our office and the high-retainer attorneys will be paid the same. We just spread the payments out. It's kind of like layaway or time payments. There is a scene in the classic movie "It's a Wonderful Life" where the evil and rich Mr. Potter gets into an argument with the hero George Bailey. In the time period depicted, the twenties, paying for things over time was a reasonably new concept to the American economy. The evil Mr. Potter argued that people needed to save up enough money to buy a house outright while Jimmy Stewart, playing George Bailey, thought that people should be able to get a mortgage and to pay for the house over time. Our office operates similarly. We lower the initial high barrier, by lowering the retainer, and spreading the payments over time. Thus, permitting access to justice.

QUESTION: Are you comfortable discussing what kind of money we are talking about here?

ATTORNEY KLUECK’S ANSWER: Yes and no. As you might imagine, I am not willing, and it would be unprofessional for me, to discuss my finances in detail on the public airwaves. Viewers, or their friends, relatives, co-workers or associates would have to call our office to set up a free one-half-hour appointment to discuss financial issues with our office. What I am comfortable saying is that typically our retainers are a four-figure number where the first digit is not a five or a seven but a two. Of course our retainers vary with the complexity of the case, but usually they are two-thousand something, not five thousand or ten-thousand. Again, for any more details the potential client would have to set up an appointment. However, I will add that retainers are different if you are hiring us to file a motion for you as opposed to a divorce. The retainer for a motion is generally substantially less. It is all about trying to provide folks with access to justice.

QUESTION: If you want access to justice, call Bud for any family-law-related case or topic. You should contact Bud in the firm's main office in La Mesa, near San Diego State, or any of the four satellite offices around the County - La Jolla, North County, downtown or South Bay. Just call the number (619) 448-6500 or go to the website directly at www.familylawsandiego.com or through the San Diego 6 website.

Access to Justice – Great topic, Bud, as usual.

THROWING THE BABY OUT WITH THE BATHWATER

2009-06-03T09:06:00.000-07:00

Board-Certified Family Law Specialist attorney Garrison “Bud” Klueck recently appeared on the “San Diego Living” program to talk about “throwing the baby out with the bathwater” and options for saving money on attorney’s fees.

QUESTION: Our Board-Certified Family Law Specialist attorney Bud Klueck is here. Bud says some people have a tendency to “throw the baby out with the bathwater”. Bud, how does that happen in family law?

ATTORNEY KLUECK’S ANSWER: Well, throwing the baby out with the bathwater is the time-tested cliché about overreacting to a bad situation. The person sees a bad situation to be solved or avoided, but the solution the person adopts is so extreme that it is counterproductive. The solution is worse than the problem.

QUESTION: We are all probably familiar with what the expression means, but how does it apply to family law?

ATTORNEY KLUECK’S ANSWER: Almost everybody has heard some horror story about how much their sister's or their cousin's or their neighbor's divorce cost. Or the folks have heard about the attorney’s fees and costs of some other kind of law case, like a civil case for money damages or a criminal case, like a DUI. Well, attorneys are professionals who have gone to school for a long time and have passed tough State exams, like a doctor or a dentist, and like doctors or dentists, charge their clients accordingly. However, my first piece of advice when you are listening to someone complain about their attorney bill, or their doctor bill or their dentist bill, is that you are hearing only one side of the story. There may well have been some complications in the case which the person who is telling you about the bill did not really understand or is keeping from you. But even if the person fully understood everything, which is tough whenever any of us are dealing outside of our own chosen field, and even if the description of how much the case cost was accurate, there is still a danger that hearing about it might trigger the dreaded throwing the baby out with the bath water reaction.

QUESTION: Why is that true?

ATTORNEY KLUECK’S ANSWER: Because it might tempt the listener to conclude that, if and when they get divorced, get arrested or get sued, that they will try to do it themselves - Never a good idea, just as it is not a good idea to take out your own appendix or to pull your own teeth. This is particularly true when there are so many ways to limit and save on attorney’s fees and costs. That is my real message. My message is not that you should not worry about attorneys fees. Rather, it is to take rational and sensible steps to save on fees rather than try to do-it-yourself. There is so much middle ground between letting your attorney handle everything, no matter what it costs, and trying to represent yourself in a very complex area of law. The more sensible question is how can I limit my fees or how can I save money, not how can I do-it-myself?
QUESTION: But some people can’t afford an attorney no matter what. You understand that don’t you?

ATTORNEY KLUECK’S ANSWER: Yes, of course that's true. But that doesn't mean they should not get legal assistance. There are free attorney services available for the indigent and those folks need to take advantage of that. But there are plenty of middle class people who could afford to have their own attorney, but decide not to having been scared off by the horror stories that they heard about someone else's divorce. Again, the productive focus here is how to have an attorney but limit the costs.

QUESTION: What are some ways to limit the costs?

ATTORNEY KLUECK’S ANSWER: The first thing to understand is that there is a connection between how much the spouses are wrangling or fighting and the fees they will incur. The first key to limit fees is to ask yourself – is what you are fighting about worth what you are paying to fight over it? A lot of times, when clients think it over, the answer is no. Secondly, understand that you will be charged for everything. Ask yourself, can my ex and I work out this day care problem, or do we really have to turn it over to the attorneys and have them charge us? Do I have to make that phone call to my attorney or write that e-mail because you will be charged for it if you do? Maybe you do need to make the call or to send the e-mail. But maybe you can get away with not doing it. Maybe the passage of time will lessen or eliminate the problem. The way to save fees is to be conscious of saving fees throughout the case. Thirdly, maybe the top attorney in the office may not be needed for some particular issue or task. Usually, the attorney's office will channel the various tasks to the appropriate personnel, but we are all so busy. As you are strategizing with your attorney about your case, don't be afraid to ask, could the paralegal or the associate handle that task? I would welcome such an inquiry because I may not have thought about it, and if you are right that is one less thing for senior counsel to have on his plate--cool, one less thing for me to have to do. However, the flip side of that is that if your attorney tells you why the particular task needs his attention, please let the task be handled at the level that is appropriate. Another way to save money is unbundling.

QUESTION: What is unbundling?

ATTORNEY KLUECK’S ANSWER: It is the short-hand term for what is often referred to as discrete-task representation. That is a situation where you can hire attorney to handle a particular discrete task. For example, you essentially are representing yourself, but you hire the attorney to go to court for this one particular hearing. Or the case has settled, through mediation perhaps, and you hire the attorney to review the final marital agreement. Maybe you do try to represent yourself, but you hire the attorney as a paid consultant and you go to consult with the attorney on an "as needed" basis from time to time, as the case progresses. You only pay for the limited services that the attorney does for you. Now you are still technically representing yourself, but you are not out on a limb trying to do something you were never trained to do in a field that you don't know much about. You have someone, who has been trained and is sophisticated in the field, to help you in your self-representation. Then there is the A-bomb of attorney fee saving.

QUESTION: What is the “A-bomb of attorney saving”?
ATTORNEY KLUECK’S ANSWER: Mediation. We have talked about that before. You hire the attorney to act as a neutral. The attorney doesn't represent husband or represent wife. The attorney acts as a neutral who uses his or her skills, training and experience to help the parties resolve their disputes. Not only are there usually less fees in bringing the case to a conclusion but the attorney, because he is a neutral, can prepare the documents for both sides. That is usually a big savings.

QUESTION: I assume, because you brought them up, that your office is able and prepared to help folks with all of these money saving methods?

ATTORNEY KLUECK’S ANSWER: Yes, of course. When people hire us, one of the documents that our clients receive is a handout on how to save attorney’s fees. We are among a minority of law firms willing and eager to do unbundling or limited representation. And I am a credentialed mediator. I got my first mediation training in the mid-90s and have been mediating ever since. I have a full credential from the National Conflict Resolution Center--few mediators in family law have that kind of credential.

QUESTION: Kind of weird, but refreshing - An attorney who is all about saving you attorney fees. If you want to talk to Bud about saving attorney’s fees for any other family-law-related case or topic, you should contact Bud in the firm's main office in La Mesa, near San Diego State, or any of the four satellite offices around the County - La Jolla, North County, downtown or South Bay. Just call the number (619)-448-6500 or access the web site directly at www.familylawsandiego.com or through the link at the San Diego 6 website.

Saving attorney’s fees. Great topic Bud, as usual.

AGGRESSIVE ATTORNEYS

2009-06-01T13:03:00.000-07:00

Recently, on the show “San Diego Living”, Certified Family Law Specialist Garrison “Bud” Klueck appeared to talk about commercials advertising an attorney’s “aggressiveness” and how that distorts the reality of what clients need from their lawyers in the courtroom and practice of law.

QUESTION: Our Certified Family Law Specialist attorney Bud Klueck says some commercials he’s seen recently got him thinking. Bud, what commercials are you talking about?

ATTORNEY KLUECK’S ANSWER: It's those commercials that we see all the time, for a local law firm that does pretty much exclusively criminal defense work. I understand that they do some bankruptcy work too--pretty much just criminal defense and bankruptcy work. My concern isn't with what they do but with their commercials. I hope we all know the commercials we are talking about because they are all over the air waves--they are ubiquitous--that's a good word isn't it--ubiquitous--they are all over the airwaves. It's that law firm that has the name of an ocean in its name. I don't really have a quarrel with their commercials themselves or with their marketing plan. It's a free country; they can do what they want. What got me thinking is a word they use in, I think, all of their commercials--"aggressive." Sometimes the folks on the screen almost growl the word--aggressive.

QUESTION: Well, shouldn’t a person want an aggressive attorney?

ATTORNEY KLUECK’S ANSWER: They surely don't want a wimp and clearly it depends on what you mean exactly by aggressiveness. What you really need is an attorney that knows how to be aggressive, very aggressive, when the situation calls for it, but also knows when to back off when that will advance your interests. Someone who is sophisticated enough and has been doing it long enough to know the difference. That's why they call it the practice of law--it's more of an art form than a science. You need to know the law pat, but you also need to know the personality, the behavior and the emotions of the opposing party, the opposing counsel, the judge and your own client. It is a very complicated chess match or poker game. Many family law attorneys are, in fact, good poker or chess players. Because they know that many factors affect what would be the appropriate action in a court room or negotiation.

QUESTION: So being aggressive is just one approach that might work, depending on the circumstances, right?

ATTORNEY KLUECK’S ANSWER: Exactly right! Aggressiveness is just one weapon at your disposal; one particular arrow in your quiver. Please understand that I can be pretty aggressive when the situation calls for it. It always amuses me when I hear feedback from the other side about my aggressiveness. Our website paraphrases the name of a well-known rap album from the 90s entitled "As Nasty As We Wanna Be." We say, on our website, that we are as nasty as we gotta be. That is, we generally are not the first ones to throw mud. But if you throw mud at our client, you're going to get a dump truck full of high-grade topsoil dumped on your head. Or to use another metaphor, if the situation calls for it I will rip open the opposing counsel's chest with my bare hands, take out his still-beating heart and take a bite out of it.

QUESTION: Sounds pretty aggressive, doesn’t it?

ATTORNEY KLUECK’S ANSWER: Oh you bet! It is not that aggressiveness isn't frequently called for when asserting your client's interests in a court of law. Aggressiveness is often exactly what is required big time. What I wonder about the advertising campaign, for the other law firm, is the unspoken assumption that aggressiveness is always the best approach or the right tact to take. It is not necessarily, if you know what you're doing. The key is that you have, as an attorney, a fiduciary and an ethical obligation to advance your client's interests. It is always your client's interests that come first--not your ego-driven need to kick the other attorney's butt. Sometimes you can advance your client's interests by being very aggressive. Sometimes your client's interests are advanced by being mister nice guy. Sometimes they are advanced by being the smartest person in the room. Sometimes they are advanced by acting a little dumb. It all depends on the circumstance and the problem I have with the advertising campaign is that it assumes that one attitude, and only one attitude--that of aggressiveness, always works.

QUESTION: Thinking that way would be a little counter to or against what we know about human nature?

ATTORNEY KLUECK’S ANSWER: That's exactly right! We do know that about what is usually referred to as "real life." When we were kids we learned that sometimes getting mad gets us what we want; sometimes being nice gets us what we want; sometimes being devious gets us what we want. We know that from childhood but somehow, when we approach a court of law, we seem to think that only one kind of behavior would work. Why would we think that when we really know better. After all everybody involved in the court process are human beings, just like the clients and the parties. Judges are human beings. Court reporters and bailiffs are human beings. Attorneys are human beings. I know you might get some argument about that last one but believe me it is true. And all that we have learned, over the years, about human nature applies in the courtroom like everywhere else. We know from life that one attitude is not appropriate in all situations. But very often people forget that in shopping for and selecting attorneys. Some people actually do seek out the most "aggressive" attorney they have heard of and it often results in bad things happening to them.

QUESTION: What kind of bad things happen?

ATTORNEY KLUECK’S ANSWER: Well sometimes being aggressive can be counterproductive. One thing that can happen is that, you have thought you have done the right thing by hiring Mr. or Ms. Aggressive, you have high hopes when you go to court, and when you get bad results you are doubly disappointed. Disappointed because of the bad results and disappointed because you thought that you had taken care of your court problem by shopping for and hiring the most aggressive attorney you could find. What you really want to do is find an attorney who can be really aggressive when it is appropriate and really helps your case, but will switch gears to some other tact or approach when the alternative will better advance what you want to achieve. The other bad thing that can happen is your amount of attorney fees. Aggressiveness, in a court case, may or may not get you good results depending on the circumstances. But aggressiveness almost always will result in a higher attorney fees bill--most often for both sides. You cannot always count on the results of aggressiveness but you can almost always count on your bill being higher.

QUESTION: Well, if simply shopping for the most aggressive attorney does not always work, what should people be looking for when they shop for attorneys?

ATTORNEY KLUECK’S ANSWER: Excellent question and there are some excellent answers. Look for all the usual commonsensical stuff. Look for experience, particularly in the field of law and the type of case that you have. Look at their website. See if they have won many awards or other distinctions as an attorney. See if they are a Board-Certified Specialist, because only 2% or 3% of the attorneys licensed in the state at California are Board-Certified Specialists. Set up an appointment. Many or most attorneys provide initial consultations for free or at a substantially-reduced cost. Our office has the policy of providing people with a one-half hour, free consultation. During that consultation, determine if you have professional faith in this attorney, are you comfortable with him or her and do you get a vibe that they will assert your interest in a sophisticated, and if need be, aggressive manner. Aggressiveness is great at the proper time and place to get the most possible for your client. There are times, after leaving the courtroom, that I am sure the other side asks "who let the Bud out?"

QUESTION: Who let the Bud out? If you want the pit-bull Bud on your side, for any other family-law-related case or topic, you should contact Bud in the firm's main office in La Mesa, near San Diego State, or any of the four satellite offices around the County, La Jolla, North County, downtown or South Bay. Just call their number (619)448-6500 or access the web site directly at www.familylawsandiego.com or through the link at the San Diego 6 website.

Aggressiveness, when to use it when not to use it. Great topic, Bud, as usual.

FAMILY VACATIONS

2009-06-01T12:55:00.000-07:00

During a recent appearance on the “San Diego Living” TV Program, Certified Family Law Specialist Garrison “Bud” Klueck joined Psychologist Dr. Keith Kanner to share some insights on the emotional and legal aspects of Family Vacations, and how parents should go about planning for them.

QUESTION: Our Certified Family Law Specialist Bud Klueck has some thoughts about family vacations from a legal point of view. Bud, what insights do you have for us?

ATTORNEY KLUECK’S ANSWER: There are 4 Main Points I want parents to consider. Number 1 – Get started with planning early; Number 2 – Don’t sort out the details of the trip until you are certain the legalities have been arranged; Number 3 – Be Specific; and Number 4 – Practice and expect cooperation from the other parent but get your understandings formalized in writing. Don’t put yourself in the position where your having a successful vacation depends on getting the late-in-the-day cooperation of your co-parent, because you might not get it. In which case, and I’m going to use a technical, legal term here - you’re “screwed”.

QUESTION: “You’re screwed”. That’s a technical, legal term?

ATTORNEY KLUECK’S ANSWER: Yes, I can say it in Latin if you like.

QUESTION: That won’t be necessary. But back to your four points to remember. The first one was to “get started early”, is now too early to start working on family vacations?

ATTORNEY KLUECK’S ANSWER: No, it is a good time. For Dr. Kanner and myself this is a good time to discuss this topic because the first day of Spring was just last week. It is time to start thinking about summer vacation. In many post-divorce families sharing minor children, the court orders very often say that either parent may take the children on two weeks of non-consecutive vacations. That is the usual starting point coming out of the child-custody mediation at court. The point is, according to child development theory, a longer-than-one-week absence from the other parent is not good for the child. That is the general approach. But parents usually have a sense of what their particular child can tolerate. Parents sometimes can negotiate longer vacations than just one week--but two, non-consecutive one-week vacations with each parent is the usual starting point. And the court-orders usually specify that vacation time trumps or takes precedence over the usual court-ordered child sharing plan.

QUESTION: Once you have the length of the vacation fixed, what is the next step?

ATTORNEY KLUECK’S ANSWER: Communicating in writing, with great specificity, what the vacation plans are. What are the ideal dates to take your vacation? However, do not, unless there are external considerations demanding that you have those specific dates, don't fixate on those exact dates yet. Retain some flexibility because there may be considerations, coming from your co-parent that you don't know about yet. An ideal example of date requirements coming from the outside would be family reunions. If tens or hundreds of your children's relatives are meeting in Missouri, over the second weekend in July, you obviously don't have a lot of flexibility. But understand that your co-parent may also have those kinds of outside pressures as well. Those things go both ways. If you seek flexibility, be prepared to give flexibility. You cannot ordinarily change the weekend of the nation-wide family reunion but you can possibly change the dates for the trip to the Grand Canyon. The Grand Canyon will still be there and still be just as spectacular a couple of weeks later.

QUESTION: What if you send your proposed dates and your co-parent doesn’t respond - Yes or No? How can you make plans?

ATTORNEY KLUECK’S ANSWER: Excellent question, because that does happen. What the parent should do is what the lawyers do. That is, in the writing to the other parent, write that they have two weeks to suggest any problems with the specified dates after a certain date, typically two weeks from the sending of the letter or e-mail, or else the dates will be considered accepted. Silence, for more than the specified time--usually two weeks--will constitute acceptance. Silence means acceptance--that the dates are OK. That is the way around the no-response problem.

QUESTION: After your vacation dates are set up, what is the next step?

ATTORNEY KLUECK’S ANSWER: Well that is the time that is apparently safe to buy those non-refundable airline tickets and to book the hotels or motels. The horrible problem is that always the opposite occurs. That is, people book the tickets before clearing the dates with their co-parent, sometimes because they dread dealing their ex-spouse who caused them heartache and aggravation during their marriage. But you’ve got to do it. Or get someone else to do it. Although it is a little weird to bring attorneys into discussions of vacation planning, believe me, it is not unprecedented. We have done it. One way or another this negotiation of dates has got to take place--before the tickets get bought or the reservations get made.

QUESTION: What was your third point again?

ATTORNEY KLUECK’S ANSWER: In your writing, be specific. When you are dealing with people who used to be married to one another, any ambiguity or area of possible confusion can potentially cause problems. Specificity is the antidote to these problems. Don't just say "the second week of July, but specify Sunday, July 7th at 6 am to Saturday, July 13th at 5 pm. Be specific as to dates, times and child exchange details. The more specific you are the more you can protect yourself against down-the-line problems. Those down-the-line problems can be very irritating and potentially expensive with possibly having to cancel non-refundable tickets or reservations and, maybe even attorney’s fees if you go to court to straighten out the whole mess.

QUESTION: You also had a point about flexibility, what was it?

ATTORNEY KLUECK’S ANSWER: Co-parents should expect flexibility and give flexibility. But your expectation of flexibility should never be a wishful-thinking substitute for getting highly specific understandings written down. But if your co-parent wants an extra day so that the kids can see some relative who could not make it to the reunion with everybody else, be flexible.

QUESTION: You always give us both learned and very practical, everyday advise. If you have questions about any of the numerous perplexing issues in family law, call Bud at (619)448-6500 or access his web site directly at www.familylawsandiego.com or through the link at the FOX 6 web site.

Bud, thank you, again.

LEGAL OBLIGATIONS TO ADULT CHILDREN

2008-02-26T22:03:00.000-08:00

Recently, Certified Family Law Specialist Garrison “Bud” Klueck appeared on the “San Diego Living” TV program, seen locally on FOX Channel 6 and shared some insight into how and when a parent’s legal obligation to their adult children ends.

QUESTION - Certified Family Law Specialist Garrison Klueck is here to discuss when and how a parent’s legal obligation to adult children ends.

ATTORNEY KLUECK'S ANSWER - We are talking mainly about child support when we discuss parents’ legal obligations to their children. If the child is disabled, particularly if the child has mental challenges, a parent’s obligation to pay guideline child support may extend well into their adulthood, perhaps for the rest of the party’s life. There was a Court of Appeals case, a few years ago, concerning an adult disabled child and guideline child support. In that case, the mother had died and left a trust to pay so much per month for the child’s care. Two of the variables in the California mathematical child support guideline calculation are Mom’s income and Dad’s income. Dad told the court that since Mom is deceased, and therefore can have no “income”, guideline child support ends. The court in that case ruled that the monthly “allowance” from the trust set up by Mom could be used as Mom’s income, along with Dad’s actual income, to calculate the support amount. So in that particular case, a parent’s obligation to support their adult-disabled child extended beyond the actual death of a parent.

QUESTION - The majority of children are not disabled. Absent some kind of disability, does a parent’s obligation to support the child end when the child turns eighteen?

ATTORNEY KLUECK'S ANSWER - Yes, if the child is no longer a full-time high school student. So if the child has graduated from high school already or has dropped out, child support ends at eighteen. But if the child is a full-time high school student, child support can extend beyond their eighteenth birthday up to as late as their nineteenth birthday. The latest that a state-imposed child support obligation can extend is the month of the child’s nineteenth birthday. Excepting, of course, disabled children as we previously discussed.

QUESTION - To clarify then, it isn’t simply that the child turns eighteen and child support ends?

ATTORNEY KLUECK'S ANSWER - No, there are three events which potentially could end, by operation of law, child support. Those three events are: the month the child turns eighteen, if the child is already a high school graduate or drop-out; the month the child graduates from high school, if the child turned eighteen prior to graduation; or, the month the child turns nineteen if the child has remained a full-time high school student between the eighteenth birthday and the nineteenth birthday.

QUESTION - You keep saying “the month the child turns eighteen” or “the month the child turns nineteen.” Doesn’t the child support end on the child’s birthday?

ATTORNEY KLUECK'S ANSWER - No, the court system doesn’t pro rate months. The person paying child support has to pay child support for the full month even though the birthday may have been on the second of the month or the high school graduation day on the third of the month. The full month will be charged; but the payor can know that the last day of the month will be the last day that he or she has to pay child support by operation of law.

QUESTION - You keep using the phrase “by operation of law.” Is there another way that child support can end?

ATTORNEY KLUECK'S ANSWER - Well, the real question is whether there is way that child support can continue, beyond the age of nineteen, if the child is not disabled and the answer is that there is. Parties not infrequently agree, in their marital settlement agreements, to have the Judge order college-age child support. Some states even have college-age child support by law. There have been proposals for California to adopt college-age child support, but they have never passed the legislature. One of our near-by sister states, Oregon, has a complicated system of college-age child support that demands that the child go to an accredited college, have a certain grade point average, and then Mom has some obligation, Dad has some obligation and the child herself has some obligation. I understand New York has child support until age twenty-one, period. But in California, child support ends at nineteen, by operation of law or automatically--unless the parties contract differently in their divorce agreement.

QUESTION - If the parties do contract for college-age child support, will the Judge go along with that?

ATTORNEY KLUECK'S ANSWER - Yes, if Mom and Dad contract for college-age child support in their marital settlement agreement, that agreement ordinarily gets incorporated, or rolled, into a Superior Court Judgment that is a court order and is enforceable, like any other Superior Court Judgment--including by wage assignment or garnishments or by contempt of court actions.

QUESTION - Speaking of wage garnishments, once child support ends, does the wage garnishment end also?

ATTORNEY KLUECK'S ANSWER - That is a good question because the answer is no. Nothing much happens automatically at court. Although having the child turn eighteen or nineteen gives the payor the right to end any wage assignment associated with that child, the ending of the wage assignment does not happen automatically. You have to get a new court order that recognizes that the payor no longer has an obligation to pay for that child. You need a new court order and new garnishment paperwork to get the matter fixed.

QUESTION - If you, or someone you know, has any further questions, about child support, or any of the hundreds of other issues in family law cases, you can contact Attorney Klueck at (619) 448-6500 or through his website at www.familylawsandiego.com.

HOW JUNO GOT IT WRONG...

2008-02-13T10:26:00.000-08:00

During a recent appearance on the San Diego Living@ TV program, Certified Family Law Specialist Garrison “Bud” Klueck shared some thoughts on what a very popular movie’s script said about divorce and why the filmmakers did not get it quite right.

QUESTION - Certified Family Law Specialist Garrison Klueck would like to discuss a popular recent movie’s portrayal of divorce and how the filmmakers got it kind of wrong. Which movie are you talking about?

ATTORNEY KLUECK ANSWER - the movie is titled “Juno” and it just passed “Sideways” as the highest-grossing indie film in movie history. For those of you who have not seen it, the main plot line involves a very bright and funny 16-year-old girl who becomes pregnant. She decides against having the baby aborted and instead, will be permitting the baby to be adopted by this kind of yuppie couple who really want a child. Well, about eight months into the pregnancy, the husband announces that he is leaving his wife and wants a divorce. As an attorney who handles divorces, and all other areas of family law, my ears perked up when the movie characters started to talk about their divorce. Of course, from my perspective, as a legal specialist, the film folk got it all wrong.

QUESTION - Do you find most movie discussion of family law subjects accurate?

ATTORNEY KLUECK ANSWER - No, in fact, this situation falls into “Klueck’s Ironclad Rule.” Klueck’s Ironclad Rule says that the more that a viewer knows about how a situation is handled in real life, the less that movie or TV portrayals of that same subject will be believable. We can more easily believe that movies and TV are being accurate about activities that we don’t know much about. But when the viewer knows a lot about a given subject, the movie or TV version of that subject will seem all wrong.

QUESTION - What was wrong about what the characters said in “Juno?”

ATTORNEY KLUECKS ANSWER - Early in the film we are introduced to an attorney who draws up the paperwork for the adoption of the teenager’s baby by the yuppie couple. Later on in the film, when the husband says he wants a divorce, he tells the wife that he has already talked to this same attorney and “she can represent us both in a process called collaborative divorce, it’s all the rage.” Wrongo—Bongo! That’s just not correct.

QUESTION - Isn’t Collaborative Divorce “all the rage?”

ATTORNEY KLUECKS ANSWER - Collaborative Divorce is popular and becoming more popular. The part of what the husband said that I have real trouble with is not the popularity of Collaborative Divorce, but the notion of the one attorney “representing” both spouses. That can never be the case. There is an obvious conflict of interest. The answer to a lot of questions about the law is, “it depends.” But, this is not one of those situations! One attorney can never represent both spouses in a divorce. Sometimes, I am the only professional in the room with both spouses, but that is when I am acting as a mediator. When I am acting as a mediator, I am there as a neutral and I specifically do not represent either spouse.

QUESTION - How would you, as a collaborative professional, describe how the collaborative process actually works?”

ATTORNEY KLUECKS ANSWER - Collaborative Divorce is essentially a team approach. The team consists of five or six professionals. Unlike what the “Juno” script says, each party has their own attorney. Husband has his attorney and wife has her attorney. Each party also has their own mental health professional who serves as their “divorce coach.” These people may also be therapists, in other areas of their practice, but divorce coaching is much more concentrated and focused. The focus is to get the person through the divorce process in one psycho-emotional piece. The process teaches the party to communicate better with the other spouse and to deal specifically with divorce-related issues. If you want to delve into childhood traumas, that may be appropriate--but it is done elsewhere. Divorce coaching is much more focused on the immediate here-and-now of what is happening during the divorce.

QUESTION - In addition to the two attorneys and two divorce coaches, who are the other professionals on the team?

ATTORNEY KLUECKS ANSWER - Where there is a minor child or children, the team would include a “child’s specialist.” The child’s specialist is a specially-trained mental health professional who helps the child or children process what is happening to them as their family is re-forming itself, Additionally, the child’s specialist brings the child or children’s concerns “to the table” when the grown-ups are negotiating. This aspect is a big advantage over the traditional litigated model because, although a child’s world is being greatly affected by the parent’s divorce, they ordinarily have no say in the process itself. In Collaborative Divorce they do have a say through the child’s specialist.

QUESTION - Who is the sixth and final member of the Collaborative Divorce Team?

ATTORNEY KLUECKS ANSWER - The last professional on the team provides an element that clients in the collaborative process often find most appealing. That is the joint financial specialist. You know that the so-called “financial pie” has not gotten any bigger, although it is now expected to support two households. There needs to be immediate, short-term planning, medium-term planning and long-term planning. The couple that has been planning to grow old and retire together is not going to do that now. In addition, financial language can be even more confusing than legal language to a lot of people. The joint financial specialist can go over those weird terms with the clients and explain what they mean.

If you, or someone you know, could benefit from Attorney Klueck’s expertise built up over twenty years, about Collaborative Divorce, or any of the hundreds of other issues in family law cases, you can contact Attorney Klueck at (619) 448-6500 or through his website at www.familylawsandiego.com.

Child Custody Issues

2008-01-27T20:04:00.000-08:00

Family Law "Specialist," Bud Klueck, discussing the legal aspects of child custody fights like the Britney Spears and K-Fed fight. Bud, what would cause a court to change custody from one parent to the other like what happened to Britney Spears?

ATTORNEY KLUECK’S ANSWER-- Well, like the Britney case, it takes "grown-ups behaving badly." In particular, drugs or alcohol are big concerns because not only is such behavior extremely bad role modeling for the child, it is hard if not impossible for a parent to concentrate on the child’s needs when that parent is under the influence.
Brintey Spears appears particularly out of control, for example driving without a license with the kids in the care, driving with the kids on her lap, lots of very public bad behavior. The issue is one of degree- with Britney we have an extreme example but the legal substance of Britney’s case is not that unusual. What has made this case a bit unusual is the special procedures that we have seen. We sometimes see judges handle things a little differently when dealing with celebrities. In the Britney case the judge conducted the hearing in chambers, or, "in camera," rather than in open court which is how hearings usually are held. The judge also ordered that there be no transcript of the proceedings and this raises the possibility of a First Amendment challenge under the public’s right to know.

HOST’S QUESTION-- Under what circumstances are child custody orders or arrangements changed by court orders?

ATTORNEY KLUECK’S ANSWER-- Well, generally things need to be pretty out-of-hand before the court will change an existing order. The thing you have to understand is that public policy # 1 is children’s safety. The courts are always looking at the "best interests" of the children, not the interests of the parents. The courts place great value on the doctrine of "stability." Child development experts have found that children cling to and are comforted by what is familiar to them. Before the court will disrupt the stability of children, there needs to be a threshold showing of a significant change in circumstances. That is, something has to be real different than the last time custody orders were made. In the Britney case, there is so much going on– criminal arrests, driving without a license. Britney has done so much and done it out in public. It is probably not hard to prove that there has been a change in circumstances. Also, it might not have been hard to prove that K-Fed is a better parent here, but we will never know because the record has been sealed.

HOST’S QUESTION-- What could a parent who lost custody, like Britney, do to get it back?

ATTORNEY KLUECK’S ANSWER-- You know, in some ways the court system is kind of like church–very redemption oriented. You admit your wrong doing or "sins" and take steps to change your life. In court, "sins" are "exorcized" by taking classes. For parents, this means taking parenting classes. The court system itself has parenting classes and there are many fine parenting classes outside the court system. Here in San Diego County we have the Parent’s Turn and Kid’s Turn Programs. There are continuing education programs available at Community Colleges and high schools. There are twelve-step programs that can address whatever the parent’s issues are-- work the steps and bring proof of attendance to court. The court really does celebrate when the "lost lamb" has returned to the flock– for example, "drug court" holds graduation celebrations. The system is similar in Family Court.

HOST’S QUESTION-- If someone has a question about child custody, or any Family Law concern, how can they get in touch with you?ATTORNEY

KLUECK’S ANSWER-- They can reach me at The Law & Mediation Offices of Garrison Klueck, 619-448-6500 or by email at garrisonklueck@yahoo.com or they can visit our websites at www.familylawsandiego.com.

What’s All This Stuff About Mediation?

2008-01-27T19:59:00.000-08:00

QUESTION--Bud, we hear a lot about this process called “mediation.” We understand that you are a “mediator.” What is mediation and what does a mediator do?

ATTORNEY KLUECK’S ANSWER--Mediation is part of alternative dispute resolution, or “ADR.” So what does that mean? Alternative to what? Well, the answer to that is alternative to court resolution, ADR procedures are alternatives to resolving matters in court. The courts favor ADR because our courts are very crowded and ADR helps to relieve some of that congestion.

Research has shown that parties, who resolve their dispute through mediation, rather than going through the courts, are more content with the outcome of the dispute than those people who go through the full course of litigation. One of the reasons for this higher level of contentment is that with mediation the parties themselves have much more control. Someone who is a party to a dispute obviously has a much greater personal “investment” in the result than a judge. The parties to the dispute are the ones that are going to have to live with the outcome. In mediation, unlike in traditional litigation or lawsuits, the parties can create “customized” outcomes that judges do not have the power to order. The parties can fashion a creative solution that meets their individual needs and goals. The courts lack the time and power to do so. I think we can all agree that we are much more content when we feel like we have some control over our affairs. Mediation is really about allowing the parties to the dispute to have a greater degree of control over the outcome while still providing safeguards to ensure that a party with a “smaller” voice still has a fair chance to be heard.

QUESTION--Bud, in addition to “mediation” we hear a lot in the media about “arbitration.” What is the difference between mediation and arbitration?

ATTORNEY KLUECK’S ANSWER--Both arbitration and mediation are very popular forms of alternative dispute resolution. But they are different and it is important to differentiate between them. In arbitration, the arbitrator is like a mini-judge. He or she is a neutral third party who makes the decision regarding the dispute, just as a judge or jury would in a traditional lawsuit. However, arbitration is less formal and less expensive than going to court. The rules regarding evidence and procedures are more relaxed. For example, in arbitration the arbitrator can consider a doctor’s report without actually having the doctor physically present. In court, in order for the judge to consider that same doctor’s report, that doctor would generally have to be physically present. Paying for an expert to come to court can obviously be a big expense!

In contrast to arbitration where the arbitrator makes the decision, in mediation the mediator is a neutral third party who assists the parties in reaching their own decision. The mediator can help each party to hear the other’s point of view, explain what the relevant law is and that sort of thing. The big difference in mediation though is that it is the parties, and not the mediator, who make the decision.

QUESTION--So, in mediation during the process is it just the mediator in the room with the parties?

ATTORNEY KLUECK’S ANSWER--Mediation is a very flexible process and the parties make the decision as to what format they will use. Sometimes just the parties and the mediator are present in the room. Sometimes the parties and their attorneys are all in one room along with the mediator. Other times the parties and the mediator might be in the room and the parties will consult with their attorneys who are behind the scenes, perhaps standing by via telephone.

I myself have worked many different types of mediation and worked in pretty much every role, I’ve acted as the mediator in many cases, consulted as an attorney in others. I am credentialed by the National Dispute Resolution Center.

QUESTION--So if our guests want to get in touch with you, about mediation information or any family law matter, how can they reach you?

ATTORNEY KLUECK’S ANSWER--As always, you can reach my office at (619)448-6500 or visit our website at www.familylawsandiego.com.

QUESTION--And now for something a little more serious—Bud we understand that your Dad passed away recently and that you wanted to say a few words about him.

ATTORNEY KLUECK’S ANSWER--Yes. Thank you for the opportunity. My Dad passed away on November 2, which Christians call “All Souls Day” or “El Dia de los Muertos” in Mexico. Dad passed away peacefully at Grossmont Hospital surrounded by his family. I just want to say that he was never in TV or radio, unlike his son, but he was a remarkable man who read more books than anybody I ever met outside of academia. We attended lots of Aztecs games together and I will miss him every day of the remainder of my life. Thanks you for the opportunity to talk briefly about my Dad.

UNHEALTHY PARENTS

2008-01-16T14:44:00.000-08:00

Recently on the "San Diego Living" TV program, seen locally on FOX 6, attorney and Certified Family Law Specialist Bud Klueck shared some information about how the legal system addresses the problem of psychologically "unhealthy parents" and the impact that they have on their own children.

QUESTION–Recently, there have been several heartbreaking stories in the media about parents with serious psychological problems. Certified Family Law Specialist Bud Klueck has some information to share regarding what the legal system can do to protect children from the effects of "unhealthy parents."

ATTORNEY KLUECK’S ANSWER–There are two primary principles that are applicable in this unfortunately common situation of "unhealthy parents." The first principle is that the California State Code says that protection of children is the most important goal of the State government. The second principle is that the court system, particularly the family court system, is kind of like church in that it is very remedial. The court system, like a church, wants the person with problems to succeed and improve, if they truly desire to improve.

QUESTION–Is the most important issue is the desire to improve?

ATTORNEY KLUECK’S ANSWER–Yes, as folks say in all the twelve-step/anonymous programs, the first step always is to acknowledge that the person has a problem. In church they call the problems "sins;" In court they are called "issues." If the person acknowledges the problems and resolves to take steps to correct or improve on them, the system is behind them. The system offers resources to assist the parent that wants to improve.

QUESTION–What resources are available?

ATTORNEY KLUECK’S ANSWER–In serious cases, as Dr. Kanner has suggested, there is counseling. There is a Family Code section that permits the court to order counseling for up to one year. In very serious cases of "unhealthy parents" there can be more long-term therapy. The children themselves may need some help in the form of counseling and the courts would order that the parents cooperate and provide the resources to have their children in counseling or therapy.
QUESTION–Are there other resources besides individual therapy or counseling?

ATTORNEY KLUECK’S ANSWER–Yes, there are parenting classes. Many community colleges have specialized parenting classes, different classes for the care of infants, for example, and different classes relating to the parenting of teenagers, School districts’ Adult Education Departments have parenting classes, often at little or no cost. There is a wonderful program called "Kid’s Turn," for kids whose parents are divorced or separated. Kid’s Turn, as the name implies, actually involves the children, from I think as young as three years on through teenagers. Parent’s Turn, organized by the same group, is focused just on the adults.

QUESTION–Is sending them to counseling, therapy and classes the only things that courts can do with "unhealthy parents?"

ATTORNEY KLUECK’S ANSWER–In very serious cases, where the parent does not acknowledge that there are problems, or that parent represents real risks to the children, judges can order so-called "supervised visitation." Even in this most serious of cases, there are still various levels of court-ordered supervision. The levels of supervision range from a kind of "supervision light" where supervision is provided by family members, often grandma or grandpa, through paid-for visitation where trained professionals are present to monitor the visit, and even on through high-level security supervision. In some cases where there has been serious estrangement between the parent and the child, there can be therapeutic visitation where the only contact between the child and the parent is in the office of a therapist.

QUESTION–Can judges appoint an attorney to represent the children themselves?

ATTORNEY KLUECK’S ANSWER–Yes, the law permits the appointment of so-called "minor’s counsel." In order to qualify to be on the appointment list, an attorney needs to have a certain level of experience and must complete special training. I went through the training and was put on the appointment list many years ago and over the years our office has been appointed many times, by many different judges, as minor’s counsel. They were all difficult cases.

QUESTION–Has your office had its share of exposure to family law cases with "unhealthy parents," as a lawyer for the children and otherwise?

ATTORNEY KLUECK’S ANSWER–Yes, I have been practicing law for more than twenty years and we have had to handle many cases involving "unhealthy parents." Custody and visitation or access to children are important issues whenever there are children involved in divorce or paternity cases. Having one or more "unhealthy parent" makes the process infinitely more complicated and challenging.

QUESTION–If you or someone you know wants to avail themselves of Bud’s expertise built up over twenty years, about "unhealthy parents" or any of the hundreds of other issues in family law cases, you can contact Attorney Klueck at (619) 448-6500.