Section 3.  Divorce Cases

 

Subsection 3.1.  A Lawyer's Nightmare

 

According to an opinion survey, in the wildly popular television series "LA Law", the role most admired by American young people is the divorce law specialist Becker. Many students planning to study law wish to become a lawyer because they envy Becker's life style. In "LA Law" the blond and handsome Becker is a typical American yuppie. He wears expensive clothes and always follows what is current. He loves a hedonistic life and naturally also loves money. He is socially active; many of his girl friends are his former divorce clients, including his wife who he married and then divorced. This flirtatious lawyer is quite good at legal skills and tactics, but I will never recommend a friend to hire a divorce lawyer like him to handle a divorce. The reason is simple.  It is highly questionable whether a lawyer like Becker, who is mentally superficial and unstable in his private life and emotions, is able to give the client suitable and rational advice. It is particularly important in a divorce case that a lawyer remains rational and thinks always about the interest of his client.

 

In the United States, marriage law is controlled by state governments. The state laws are not uniform and difficult to explain one at a time. Here we can only discuss some commonly seen problems.  We shall use California as an example. The laws dealing with divorce or family disputes are given an euphemism "Family Law". In matters involving a divorce, two characteristics are always present:

　　

First, the biggest difference between divorce and other cases is that decision based on emotions is often more important than rationality (such as whether the child should live with the father or the mother).

 

Second, when a family is broken up, in economic matters both husband and wife inevitably lose. Further, in a divorce case, it is not easy to determine who has won and who has lost.  In most situations, a marriage failure is a suffered by both sides;  there is really no such thing as a "winner".

 

There are many kinds of American lawyers. Some specialize in divorces. I have a classmate who specializes in divorce case and is well known for being unyielding, tough, and mean in litigations.  One day she told me wistfully that several clients owed her a lot of attorneys fees, totaling almost two hundred thousand dollars.  I can imagine that she always spares no effort when she litigates in divorce case, but the work she puts in may be out of proportion to what her client can afford financially. Consequently, the litigation is won but the client is broke and legal fees cannot be recovered.  I always disapprove the approach that over emphasizes the win and loss in a litigation without regard to the financial background of the client. My classmate may have this kind of problem. 

 

Recently a friend doing small business was getting a divorce. The wife worried about losing out in property division and hired a lawyer. Then the husband and wife calmed down and discussed, and agreed to a method of dividing the assets and the custody of the children, so they thought the divorce problems were resolved successfully. But unexpectedly the wife's lawyer insisted on appraising the market value of the husband's business and hired an accountant to audit the husband's accounts, consuming unnecessarily substantial energy, time and legal fees.  Finally, the wife realized that something was wrong and dismissed the lawyer, but only after several thousand dollars attorneys fees had been wasted.  However, the wife was still rational because she knew that if the situation dragged on, the husband's small business would close and he could not pay alimony. Then who would support the two children younger than ten years old?

 

The lawyer representing the wife specializes in divorce cases and is known for being aggressive in litigation and is a typical divorce lawyer. In the United States, when a divorce is involved, in addition to fighting for custody rights of the children, the other priority is division of assets. When it comes to money, both sides may try their best to hide private property. The divorce lawyer often has to aggressively dig up the "bottom line" of the opposite side, sometimes requiring the service of a private detective.  When that happens, the money both sides spend will resemble a bottomless pit.

 

"Even an incorruptible judge has problem deciding family matters" is a Chinese saying that applies equally well in the United States. Divorce cases are sometimes the nightmare of a lawyer. While he may take care of affairs for the client rationally, the client in one or both sides in the midst of a stormy divorce often cannot resolve issues because of emotional upheaval, and even acts very irrationally. Particularly in the United States, where gun ownership is rampant, family disputes and tragic divorces easily lead to violence or even deaths from gun violence. The victims sometimes include the lawyers.

 

Many years ago, one of my colleagues represented a client of Japanese descent in a divorce.  After a difficult and very intense debate, he finally won from the judge the custody right of the two children for his client. The day after the court issued its ruling, the former husband of the client found her and gunned down the two children and the wife, and then killed himself. My colleague felt guilty to some extent about this family tragedy;  he never took divorce cases again.

 

Generally speaking, divorce cases are not the most glamorous cases in the legal profession, because the responsibilities are heavy. Particularly in areas where moral support and rational advice are involved, mature attitude, substantial experience and stable feelings are very much needed. Thus my advice is: it is best not to have a divorce; if unfortunately it becomes absolutely necessary, try to resolve problems calmly and unexcitedly and not become reckless, otherwise both sides will lose, adding misfortune to an already unfortunate marriage.

 

Subsection 3.2.  Sexual Harassment and Family Disputes

 

Since the 1990's, there has been a rapid increase of sexual harassment cases in the entire United States. With this influence, as long as there is some kind of hint, a little twist here and, there and easily a sexual harassment case emerges. Child molestation and sexual abuse become more and more frequent major issues in divorce cases.

 

One day I received a call from a former client, saying that his brother was going home after work but discovered that his wife and two children had disappeared and did not know what to do.  After talking with the client and understanding a little bit about the situation, I found out that he and his wife had not been on good terms. So I suggested that he reported to the police immediately. The police would treat it as a missing person matter. The client hesitated, because he found that some clothing and furnishings belonging to the wife and children had also disappeared, so possibly the wife had taken the children back to her old home in another state. Was reporting to the police making a big deal out of a small matter? I pointed out: first, before ascertaining how the wife disappeared it was prudent to report to the police; second, as a husband and a father, was he being indifferent to the safety of his wife and children?

 

Before the client even settled down, by the next day he was served at his work place a petition by his wife to the court seeking a divorce. What most shocked the client was that in the petition, one accusation was that he had molested his own son, and that for the sake of the child's safety and future, the wife not only asked for the custody of the two children, she asked the court to take away the husband's visitation rights.

 

Just as I expected, the wife had already planned to divorce him and only after serious preparation did she suddenly "break out". The poor man was totally in the dark.  Fortunately he reported to the police. Otherwise in the divorce court, the judge or the jury may believe that he was indifferent to his wife and children. That would adversely affect him in the decision of his custody rights.  

 

In American divorce cases, using sexual molestation as a reason to attack the other side is becoming more and more popular phenomenon. The old concept of "not washing dirty laundry in public" has been overwhelmed by "life or death" divorce disputes. One example is the divorce between the famous director Woody Allen and Mia Farrow. Although both are celebrities, in a divorce dispute the intense and reckless fight is just shocking. The most sensational issue in the case was when Mia accused Woody Allen to have molested their own son;  she asked the police to arrest him.  Consequently Woody Allen was really prosecuted by the district attorney.  Although he was found not guilty after trial, his reputation, personal well being and finances were seriously hurt.  So my conclusion is:  sex is the most important weapon.

 

In passing, it may be mentioned that during the divorce case Woody Allen publicly disclosed the love affair between him and the daughter of Korean descent adopted by him and Mia together. The adopted daughter was already nineteen years old and was an adult. There was nothing Mia could do legally about their relationship. If Woody Allen had been living in certain other countries, he might have been already sent to prison. The Chinese have a saying, "when in a different place, ask about what is forbidden". Today, the saying is replaced with "when in a different place, ask about the law". There are different laws in different places and require special care.

 

Section 4.  The New Rising Litigation -- Sexual Harassment

 

While having lunch with a lawyer friend I have not seen for a while, I asked him how business was.  This lawyer, who specialized in traffic accidents and personal injury cases, said, "The American legal profession is at a low ebb, but I am still very busy. Only the income is less than before.  In the past year, the insurance companies and juries have been less generous than before; the damages won are much smaller than before".

 

I laughed and said, "I think you better change your specialty to sexual harassment cases!". The friend spoke in jest, "Yes!  Let us get rich together.  You harass your secretary sexually and then refer her to me to represent her in suing you!".  I said, "Okay!  But I must first increase the amount of my insurance coverage before implementing the plan.  Then when you sue me, I appear in court and admit everything. The insurance company has no choice but to pay!".

 

The above conversation was of course just a joke between lawyers and we were laughing in stitches.  However, it does reflect the trend of sharply increasing sexual harassment litigations.

 

Subsection 4.1.  The Sexual Harassment Law that Shocks American Men

 

The problem of "sexual harassment" has a long history in the United States, and laws about sexual harassment have always existed.  However, if not the for 1991 public hearing in Congress in which Professor Hill accused Thomas, the nominee as Justice in the United States Supreme Court, for having harassed her sexually ten years before, the public would not have been too conscious.  The hearing led to nation wide attention. Everyone began discussing what constituted sexual harassment. The law drew wide spread attention.

 

"Sexual harassment" is within the scope of "sexual discrimination" law.  The law against "sexual discrimination" was based on Title VII of the Civil Right Act, passed in 1968.  Among litigations that have been brought based on this Act, there are two most common categories: One is a female employee suing the employer for discrimination;  the second is her suing the employer or superior for sexual harassment.

 

In the first category, the more common situation is a female employee suing the employer for denying her the same terms of employment and opportunity for promotion as her male counterpart. There was a female employee suing Texaco Oil Company for discriminating against her because she twice failed to receive promotion. She sued, and the jury decided she won, and assessed a "unitive damage" on the employer in the amount of 20 million dollars.  Later the judge did what was "in the interest of justice" by reducing the award amount to just over two million dollars.

 

In the second category, the "sexual harassment" cases, the most typical situation is the female subordinate suing the male employer or male superior for abusing the authority of their positions, and compelling her to submit to his sexual demands. If the female employee does not yield, she is either fired or denied promotion, and so on. The woman confronted by this situation but is unwilling to submit to pressure of enticement has no option except to complain to the government agency or to the court against the male employer, invoking the sexual harassment law.  In 1986, the United States Supreme Court sexual harassment case precedent expanded substantially the scope of "sexual harassment".  Based on this case law, even if a female employee has not been subjected to any actual action of harassment, as long as she is oppressed by a hostile work environment, there is reason for holding the male employer or male superior liable for sexual harassment.

 

Based on other case precedents, covering the office or work place with sexual calendar girl posters, or male colleagues in casual conversations use profane language or smut, and jokingly calling a female college "honey" or "sweetheart" and so on, can all count as expression of contempt for women.  Even if a woman colleague's belief that there is an intolerable act of intimacy can be deemed a violation of the law against sexual harassment.

 

In a famous case in California, a female fireman accused her fire department, demanding that it banned her male colleague from bringing "Playboy" magazine to the work place to relax and read, because that made her "uncomfortable". Although the court ruled that the male colleague had a right to bring "Playboy" for his private perusal, from this litigation one can have an idea about the wide scope of sexual harassment cases in the United States.