- How Lawyers Lie Dec. 2014
- December 10, 2014
- Law Firm: Henry Lung - Mineola Office
- How Lawyers Lie To Their Own Clients (as well as lie to the Court) and By Doing So, Cause Anger and Confusion and Waste Time and Everyone’s Money
This might come as a massive shock, but lawyers often tell lies not only to their own clients but also to the opposing lawyer and sometimes even the judge. By doing this, these lawyers churn their own clients’ money and also cause their client’s adversary to spend more money on attorney’s fees. Both clients lose money due to missed days from work. Lastly, the court’s valuable time and other resources (money for clerks’ and court officers’ salaries) are wasted. Basically, nothing good is accomplished by these lawyers who lie and play games while engaging in difficult litigated lawsuits such as contested divorces, Family Court cases, and the area known as ‘commercial litigation.’ Unfortunately for you the client, you must try to look for this quality right away in your own lawyer and not bury your head and allow your feelings about your adversary consume you. If you stick in your head in the sand (so to speak), you are giving your lawyer a blank check to rip you off.
I have never seen this gamesmanship take place more often than in the area of divorce cases and Family Court practice, also known as ‘domestic relations law’ or ‘matrimonial law.’ Take my word that there is nothing ‘matrimonial’ about getting divorced or going to Family Court. This area of law is about as Anti-marriage and tumultuous as it gets. No lawyer can say that he/she comes across an example of egregious ‘lawyer-lying’ every single day, but recently I came across an excellent example of this:
My client is the father of three (3) children, one of whom is already emancipated. In NY, your child becomes emancipated when he/she turns 21 OR if any of a short list of events takes place before your child’s 21st birthday. I will ‘emancipation’ at the bottom of this article. Remember that in NY, a non-custodial parent will not see his/her child support obligations terminate automatically upon a child becoming emancipated. For parents who are making payments directly to NYS Child Support Enforcement, if you want to end your payments, you must be ready to file the proper paperwork in the Family Court in the county where your soon-to-be-emancipated child lives right after he/she turns 21 or if any of the emancipation-triggering events takes place. It is true that a non-custodial parent can get an Order terminating a child support obligation in Supreme Court (where your divorce case was filed), but I highly recommend filing your Petition in the appropriate Family Court. I have seen that the general public does not have a complete understanding of how effective Family Court can be. In comparison to NYS Supreme Court, the Family Courts are generally faster in scheduling your case for Court, along with being a most cost-effective Court to navigate and more favorable towards pro se parties. If a Motion of any kind is filed in Family Court, generally the judge will issue a Decision faster than if that same Motion was filed in Supreme Court.
My client waited until his middle daughter turned 22 before filing to terminate his child support payments for her. For his middle child, I filed his paperwork by ‘Order to Show Cause’ (which is the term that refers to a Motion in NY that is filed on an emergency basis) because I was hopeful that the Court would immediately reduce his child support obligation for his middle daughter upon the filing of the Motion, meaning even before our first date in Court. It was worth a shot and my client agreed. The judge did not grant that relief, which is a type of ‘injunctive relief,’ but at least the judge assigned a very quick return date for the 1st court appearance. You can see from pp. 1-2 that I filed the ‘Order to Show Cause’ on Sept. 10, 2014 and the Court assigned the date of Sept. 26 for our first court appearance.
To the amazement of my client and I, his ex-wife hired a lawyer who said that she intended to oppose this very basic and common-sense application. It is true that in some divorce settlements, the non-custodial parent will agree to provide financial support for the child(ren) past the age of 21 and the reasoning is that the parents want the child(ren) to be provided for until a four (4) year college education is completed. A divorce agreement, called a ‘Stipulation of Settlement’ in NY, can be in written form or placed ‘on the record’ in Court but however it is done, it is a valid contract and each of its terms are enforceable if the other party is in breach. Since my client and his ex-wife never agreed to raise the age of 21 for emancipation (for any of their children) when they got divorced, he was fully entitled to file this Petition when his middle child turned 21. Instead, he waited until their oldest child turned 22 and he did the same thing for their middle child.
We have an extremely permissive legal system in New York. This means that whatever ridiculous court filing a lawyer wants to make (a meritless appeal, a Motion that is a waste of time, a request for ‘discovery’ that is irrelevant to the merits of the case, etc.), the judge is virtually guaranteed to allow it to take place. If you are in federal court and your lawyer is engaging in gamesmanship, there is a much greater chance that the judge will lash out at your lawyer. In my Family Court case, the ex-wife’s lawyer filed a Motion alleging that ‘[t]he case law is clear on this issue’ and wrote that ‘[w]hen child support has been ordered for more than one child, the emancipation of the oldest child does not automatically reduce the amount of support owed under an order of support for multiple children’ and that lawyer went on to cite 2 cases.
When this lawyer made this argument at our Sept. 26 court appearance, the judge himself said that he was not aware of this case law. When I looked up these 2 cases, I saw that neither of them supported the opposing lawyer’s argument. But the more forcefully that a lawyer goes about defending a certain point of view, even if the lawyer is making no sense at all, if that lawyer’s client is gullible or even worse, consumed by hatred and a desire for revenge against the opponent, the client will not see what his/her lawyer is doing and this will continue to waste time and money This lawyer’s nonsensical ‘Affirmation in Opposition’ is on pp. 3-5 of the attached documents.
This lawyer lost and he lost badly. I am not posting this article to beat my own drum because I would much rather have resolved this case on Sept. 26 or on the next court date. Instead, the judge, in his Decision that granted my client’s application, ordered that we all appear on Dec. 3 (pp. 6-8) and on that day, the judge issued a ‘Temporary Modification of an Order of Child Support’ that lowered my client’s child support obligation from the high $900s by several hundred dollars. In all divorce and Family Court cases, there are ‘Temporary’ Orders that are issued pertaining to child support as well as ‘maintenance’ a/k/a ‘spousal support’ a/k/a alimony (all 3 terms mean the same thing) and other issues. These ‘Temporary’ Orders are almost always an excellent predictor of how the judge will rule on those issues, if the case goes to trial. I have seen this happen again and again.
For argument’s sake, let’s say that once this case ends, the judge determines that my client’s permanent child support obligation (for their youngest child who is still unemancipated) is $675.00 ‘bi-weekly, which means for each 2 weeks. If the judge issues this ruling on Feb. 15, the new (‘modified’) child support obligation will be retroactive to the date that I filed the ‘Order to Show Cause’ for my client (the week of Sept. 10, 2014). All the filings of Motions and Petitions seeking child support and/or maintenance in divorce and Family Court cases are retroactive to the same week that the Motion/Petition was filed. Since my client continued to have the amount of $900+ garnished from his paycheck by his employer all the way to our Dec. 3 court date, he is entitled to a credit for all the weeks that the old child support amount was garnished from his paycheck.
The ex-wife’s lawyer is so stubborn (and the ex-wife herself is so blinded by everything) that we are still going back to Court. It is obvious that the judge wants this case to be over, but it is rare for a judge in any state to call out a lawyer who is manipulating his/her client. This is just not how judges normally act in the United States. This is why I always enjoy appearing before a pro-active and vocal judge, especially in a Family Court or divorce case.
This is a clear-cut victory for my client but then again, this issue should never have been litigated in the first place. Here are the grounds for emancipation: your child turns 21 years or, prior to turning 21, A) your child gets married, even if your child becomes divorced or the marriage is annulled or voided or if the marriage is ‘voidable’ and your child still has not turned 21 yet; B) your child enlists in the armed forces but the emancipation lasts for only so long as your child is in the armed forces (and has not turned 21 yet); C) your child begins working full-time, keeping in mind that once he/she stops working full-time, your under-21 child once again becomes unemancipated; D) your child moves away permanently from the custodial parent, except that living at summer camp, boarding school, or college is not considered a ‘change in permanent residence sufficient to constitute emancipation.’
Regarding item ‘D,’ if your child establishes a permanent residence but then moves back with the custodial parent (all before turning 21), then you, being the non-custodial parent, should get those child support payments ready. Of course there are nuances and ‘what-ifs’ to the above conditions precedent, but the list above should give you a general idea.
Lastly, if an under-21 child who once lived in NY moves out of state with the custodial parent to a state such as Georgia where the law states that child support has to be provided only to the age of 18, the non-custodial parent must continue making child support payments until that child becomes ‘emancipated’ as per the laws of NY and not of the new state where the child lives.