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Lately I’ve been thinking a lot about regulation of the divorce industry, the legal industry in particular. It’s interesting to look on the New York State Attorney General Web Page to see which industries have escaped government regulation. Well you guessed it, Attorneys are one of the groups that is lucky enough to escape government regulation. But what does a government or citizen do when a self-regulated industry becomes abusive? Where do you turn when the government has washed it’s hands from regulating an industry and the industry is accountable to no one but its own opaque committees and procedures? It’s an interesting question for New Yorkers and it is the root cause of the problems of the matrimony system in New York.
Let’s look at a typical case in New York. Assume you have paid $190,000 to an attorney and you are now divorced. You are in a tenuous financial situation, your child support is running out, savings are dwindling and that $190,000 seems incredibly wasted. An emergency arises critical to the children’s well being and you call the attorney for advice. Three letters, one meeting, 1 hour in court (a one block walk for the lawyer) – a $10,000 bill. What’s your recourse? Are these reasonable fees to do mundane work?
No attorney will look you in the eye and justify this except to say that it is just the way it is. But there have never been truer words. Lawyers in New York can charge whatever they want to for divorce and courts will strictly order payment of their fees. Of course most lawyers will remind you that they never get most of their fees but in many cases their fees are so far beyond reason that they should never have been allowed in the first place. In New York we let matrimony attorneys and related professionals to pillage the assets of a family on meritless litigation and fruitless procedure. We allow this to happen by not regulating the divorce industry and allowing judges to be the muscle of this abusive industry.
We have outsourced regulation of attorneys to the Bar Association of New York and they have given us double secret offices with secret committees that communicate in cryptic, non-informative form letter and refuse to answer any direct questions about a case. It all sounds crazy but that’s what it is. As citizens we have no recourse against the legal industry. Appeals for matrimony matters, which in many cases were decided in sham, circus-like ‘trial’ proceedings with absurd verdicts, are held to the same standard as Citibank would face appealing a lawsuit from New York State. It is an impossible process for people of modest means and a desire to move on in life.
It is sad though because there is no will to change things. The New York Legislature passes pathetic divorce reform legislation that seems custom tailored to the divorce industry, the Attorney General gives the fraudulent divorce industry a complete regulatory pass, there is no civil rights protection for those denied due process or fair trial and lose all their property or their children, there are no standards or regulations for custody or financial evaluators and divorce in New York is a free-for-all where a tight-knit industry has unfettered access to a families assets and well being.
Andrew Cuomo doesn’t care about divorce reform, it’s not in his patch. Let’s hope that Cuomo will get tough against the divorce industry and end the stranglehold that they have on New York families.
Here is a link to a new Internet draft standard that attempts to provide a framework for web applications to understand emotion in a standard model. Pretty fascinating stuff. http://bit.ly/9oWFBS
It is my hope that through sharing the tremendous craziness I have experienced I am hoping to help others avoid the same. I am hoping that one person who thinks that the court will provide justice for their feelings of hurt or betrayal will realize that the New York State divorce industry is an industry to avoid. Just as you would avoid doing business with a shady contractor or industry with a bad reputation you should approach the New York divorce industry. There is no reason in the world that two people can’t decide how to split assets where there are laws the address division, child support where there are clear income guidelines and time with children when there is clear evidence that after divorce children benefit immensely from unfettered access to their parents in most cases.
With simple information you can avoid the mess of the New York Supreme Court. There is nothing Supreme about the court, in most states it would be called a district court, it is the lowest level court of New York with tremendous unchecked powers to thoroughly wreck the lives of all who enter into it. With no outside supervision, no accountability to any outside entity and procedures that even seasoned lawyers can’t navigate it is the biggest suckers game going.
So if you don’t believe me, here is what I am currently arguing about.
My ex’s lawyer misrepresented an amount of money received from the sale of our home. As a result the judgment against me is off by the amount of money he claims to not have received. In spite of a signed affidavit from the attorney who gave the checks the judge is silent. In spite of copies of the checks that clearly show what she received the judge is quiet. While the court sits quietly letter and letter is faxed off to the court. Each one costing hundreds of dollars. None acknowledged by the court and none settled. It is a virtual war with each arguing to a fax machine. One side is presenting simple documented fact, the other clear obfuscation.
When you are reduced to arguing if 2 – 1 = 1 or 2 – 1 = 1.3 it simply impossible to imagine that we are in the US.
Dear Senator Oppenheimer,
My civil right to due process as guaranteed by the 14th amendment has been severely violated in NY State Supreme Matrimony Court. As a result I have lost all of my assets, I was denied a fair trial or representation and I have been turned into a criminal. The Supreme Court ‘precluded’ me from presenting financial evidence as pro se when I couldn’t afford an attorney and as a result I cantn’t pay tax liabilities to NY State, my home nearly foreclosed and now I am penniless and in dire straits.
While I have lost all my property in an unjust court I know of others who have completely lost access to their children in similar situations. It is truly criminal what New York State does to ordinary citizens who are constitutionally bound to Supreme Court to settle matrimony issues.
Current divorce reform completely misses the mark. While you argue esoteric legal issues like fault or maintenance formulas you have lost the forest for the trees. As a citizen who has been criminalized by this unjust court, and as someone who has seen many people lose their children to the unjust court here are my suggestions for reform.
1) Regulate the Divorce Industry. We have a billion dollar industry in New York in divorce that has less regulation than hair dressers. Lawyers are allowed to charge whatever they want and the court will back them up with draconian measures. How do we allow any industry to bill beyond the liquid assets of their customers for mundane work that is created by the State? Imagine a contractor that walked into your house, ripped down the walls and then started billing you at $350 an hour until they owned your house and had a court that back them up? This is what we have in divorce. Residential Real Estate attorneys used to bill hourly and now they bill flat fee in New York, why can’t matrimony change? We need laws that force attorneys to bill at rates commensurate with their customers ability to pay and the court needs to enforce this. How can a court order an attorney bill of $85,000 when a citizen has less than $10,000 of assets? We are forced into this court, it can’t be a suckers court where we allow a wild west mentality to permeate.
2) There is currently no state registration for custody evaluators nor are there any standards for who these people are. Custody evaluators are chosen by attorneys and judges, hence, their relationship to attorneys takes precedence over their commitment to citizens. This misalignment of interests destroys families. Custody evaluators should be assigned randomly, not based on golf-course politics. They should register with the State, like a hair dresser has to, and they should be licensed with clear guidelines of education. Their reports should be standardized and there should be an anonymous, automatic peer review process when there is a recommendation of complete removal of a parent in a children’s life. Currently the onus is on the wronged parent to disprove an evaluators report and this is nearly impossible. This is hugely expensive and since evaluators need both lawyers to hire them one day they are more concerned with upsetting attorneys than uncovering the truth. A forensic report can cost upwards of $7,000 and easily exceed $15,000. A parent who can’t afford this faces the loss of their children. We need to realign the interests of the evaluators to work for children and not attorneys.
3) There is huge economic discrimination in the supreme court. The poor or under-employed are denied access to supreme court if they can’t pay retainer fees. They are forced to settle their differences in family court, ignore the courts or go to flat-fee divorce mills. People who run out of money in the process of divorce and are forced pro se are completely screwed under the current system. The New York State constitution forces us into a court without representation that is impossible to navigate as a citizen and dolls out punishments that far exceed many criminal punishments.
4) We need to legislate the end of hourly billings for divorce and we need courts to enforce reasonable and just fees. We need automatic public assistance for those in jeopardy of losing their children or all of their property or we need an alternate venue for those who can’t afford the court. Mediation is not the answer. Mediation offers no costs savings since it requires three attorneys who bill at $250 – $700 an hour. Collaborative Divorce is similarly expensive. Both of these mechanisms are half-hearted attempts by the legal industry to help families, however, they ignore the central problem that the legal industry is destroying families with ridiculous billings. We need protection from predatory billing of divorce attorneys in New York.
5) We need to institute a system that verifies statements of net worth. Why spend $50,000 or more in discovery and endless court time on the statement of net worth when a simple credit report and income verification would suffice? New York State clearly has the ability to do this as they do with taxes, why can’t the same technology be applied to verify the statement of net worth? We suffer tremendously because the courts refuse to look at basic evidence that is easily available and rather relies on representations of attorneys rather than simple fact.
6) We need outside regulation of attorneys. The only way to complain about an attorney now is to file a complaint with other attorneys. Since the attorneys all know each other and even work in the same office buildings and floors how can we get justice when we are wronged by an attorney? We need discipline committees that are NOT run by attorneys and are NOT in the same locale as the attorneys. We need MANDATATORY responses by the complaint boards with time limits on responses and details of punishments. We need clear punishments for violations of ethics by attorneys, not an opaque process with zero punishment or response to complainants. Furthermore, we need these boards to have punishments with teeth. We allow attorneys to ruin the lives of New Yorkers and then we let them off free. We take contractors licenses, we close down dirty restaurants yet we allow this industry to self-police and operate with impunity? We can call the better business bureau to find out about a contractor or business yet we can’t see how many complaints have been filed against an attorney. Consumers who are forced to attorneys from an immensely complex system have no transparency as to who they are dealing with.
7) We need to alter the NY State constitution to change how matrimony judges are appointed. The current system is completely broken, the terms are too long and there are no consequences for unjust behavior. Judges ignore laws, ignore due process and issue unjust punishments and are not held accountable. The only accountability is an appeal or toothless judicial complaint. Appeal is a ridiculous option for a person of modest means. Citizens are bound by judges who make up rules as they go along and have no recourse whatsoever. Besides changing how judges are appointed we need a similar disciplinary committee for judges that is not made of peers. Peer disciplinary systems clearly don’t work for judges and attorneys and this needs to stop.
We need a change in the New York constitution that removes matrimony issues from the supreme court system. Clearly family issues do not deserve the same treatment as commercial issues yet when trying to appeal matrimony issues we are forced to the same procedure that Goldman Sachs or Citibank would be subjected to in appeals court. By creating a separate entity for matrimony that falls outside of the supreme court system we could greatly reduce costs to New Yorkers, increase access to the system to include the poor and middle class and we could seriously disrupt the unregulated divorce industry.
9) We need to quantify the true costs of the current system. You can’t hide behind budgetary woes to avoid change that will disrupt the divorce industry. You have no idea of the true costs of divorce and speaking with your office this is immensely clear. You simply have no clue what the current system costs New Yorkers and New York state. Sure, you know how much you budget for the court but here are some questions to ask. What is the cost to the system when you raid a college fund to pay an attorney that you can’t afford, yet have no choice to do so? What are the costs when your house slips to foreclosure because of attorney’s fees that are ridiculous? What are the costs when you force a citizen to take money from an elderly parent or relative to pay ridiculous lawyer bills? These loans are largely off the books and supreme court fully supports this, so long as the boys are paid it is your problem how you come up with the money. How can you quantify a cost of the emotional pain on a child that loses their parent? How much do we spend in school counseling and other problems that come up down the road from draconian measures when there is immense evidence that removing a child from a parent is massively detrimental to emotional health? What are the costs to New York when a pension is raided to pay an attorney that is charging a ridiculous rate? What is the cost when a parent needs public assistance because they lost all assets to attorneys or unjust rulings? These costs are immense yet you justify the current state of virtual inaction by turning a blind eye to the true costs of our current system.
I hope that you will read my documents and see past my emotion as there are real ideas here. I appreciate the opportunity to meet with you or your staff to discuss in more detail. We won’t fix this problem unless we think outside of the box. We need to massively disrupt the legal industry to see change and it will be a helluva fight to counter their wealth and power, but it must be done. This is an industry that has no propensity to self-regulate and it’s time to force some real, substantial changes for the benefit of the citizens and children of New York.
You’ve just lost your kids, you are locked out completely until they turn 18. You have lost all of your assets and are strapped with payments beyond your income. You are near jail for contempt for expenses that you couldn’t possibly pay. What do you do?
Unfortunately stories like this play out in New York every week and unless you are extremely wealthy there is nothing you can do about it.
An appeal is virtually impossible for all but the rich. Even the cost of obtaining the full case record is several thousand dollars and there is no other route to clarity. Judges and lawyers in supreme court are unaccountable for their behavior to anyone but their own secretive governing bodies. You are fighting a completely opaque billion dollar industry as a private citizen looking for common sense.
As pro se one of the first questions that I asked during my divorce debacle was about the relevancy of the US Constitution to my divorce proceeding. The fifth and fourteenth amendments of the constitution prevents individuals from being deprived of life, liberty, or property without “due process of law.” Due process extends to all persons. Then we have the first amendment that guarantees freedom of religion and freedom of expression.
So given these facts…. (not all these things happened to me, btw)
How is it that New York matrimony courts enforce kosher dietary laws and other religious observations?
How can it be that a court can rule that religious practices must be upheld?
How can our government force a parent to represent themselves in a custody trial against a team of well-financed lawyers? (Of course the parent who was forced to represent themselves lost complete access to the their children).
How can litigants who can’t afford representation at $350 an hour be FORCED to trial by the court and then lose ALL of their property against a well-financed legal team?
Why are petty criminals offered court assistance when they are defending minor punishments while the rich-poor are left to fend for themselves as they face the loss of their children and all property in New York matrimony courts?
How can a court make a ruling on assets without having any idea of what assets actually exist as they do regularly in New York matrimony courts?
How can a judge allow a seasoned divorce attorney to abuse the legal system, lie during trial and violate major ethical standards of conduct against a pro se litigant slapped with a preclusion order?
As an ordinary citizen of New York who has lost all property to the court, without affordable recourse, I am shocked that New York divorce outcomes have not been challenged by the ACLU or other civil liberties protection groups. It is easy to find cases such as I mention, however, they primarily exist in upper-middle-class communities because the Supreme Court of NY matrimony part is off-limits to the poor. If you can’t pay the cost of attorney retainer, typically $10-15,000 in the metro NYC area, then you are forced to duke it yourselves, and many do, and end up in family court or in the ultra-shady fixed price divorce industry. The other option for the poor is to try to proceed pro se, but this is guaranteed failure simply because of an unchecked, corrupt court system that favors insiders over justice. No matter how good of a job you may do as pro se you can’t win in a court that does not follow due process and denies your rights to attorney solely based on your economic status.
Many rulings of custody and property division issued in New York matrimony courts defy any sense of logic in relation to the US Constitution, especially in regard to the concept of Substantive Due Process as defined in the 14th amendment. However, we, the citizens of New York blindly accept this situation. We allow our politicians to ignore rampant violations of our civil liberties and we spend hundreds of millions of dollars a year funding a corrupt court that carries out these injustices. We argue about meaningless fault statutes without fixing the problem of a rampant divorce industry that is in desperate need of regulation and outside oversight.
One major catalyst to change this state of affairs can be to challenge the constitutionality of the practices of the Supreme Court of New York matrimony part as related to the first and fifth and fourteenth amendments of the US Constitution, certainly with regard to Substantive Due Process. Look at cases where children were barred from seeing or speaking to a parent and the parent was pro se. Look at cases where litigants lose greater than 100% of their assets and were pro se. There are thousands of cases to choose from.
How can it be justified under the US constitution that a court rips children from parents who can’t afford legal representation as happens frequently in New York divorces?
How can it be justified under the US constitution that a court can deprive you of all o your property without legal representation and due process of discovery?
How can it be justified that divorce attorneys can bill beyond the assets of a party? Is it really that hard to divide custody time and property? Most States have ended this ludicrous practice long ago and decide on cold fact or simple arithmetic. As New York debates even more complicated methods for computing maintenance in the divorce reform act of 2010 it is clear that the only driver for increased complexity is the divorce industry. Certainly a more complicated formula for spousal maintenance, that is not even mandated into law but recommended, is not going to help anything. The New York State legislature is paralyzed by the divorce industry and the end result of citizens is no longer tolerable.
While attorneys have babbling, apologetic answers for these outcomes, no one is questioning the basic common sense of the end-result decisions. We can debate process until time ends but the utter obscene outcomes that the NY Supreme Court Matrimony Part inflicts on its citizens defies common sense. This is a specific goal of the concept of substantive due process and hopefully one day an actual lawyer with money will work on behalf of the citizens of New York to instill some real change.
I have posed these questions to lawyers and I can say that it is so outside of the box for most of them that they are mostly speechless or rambling. Few, and certainly not I, understand constitutional law and to the best of my knowledge the constitutionality of New York divorce court outcomes has not been challenged in federal courts. Few can afford this and most of us want to move on and pick up the pieces after the courts deprived us everything, however, I hope that in my rants the Internet will bring a person who could possibly make such a fight happen.
In speaking with Senator Oppenheimer’s office I continually hear the ludicrous argument that the New York Matrimony court system can’t be changed. Somehow a system that requires participants to pay hundreds of thousands of dollars to exit a simple contract, bankrupts families and devastates the emotional lives of children and families is defensible by Senator Oppenheimer and the New York State legislature. A system that creates verdicts that strips parental rights of law abiding citizens, has eschewed the constitution and is so clearly corrupt is indefensible. There are no logical constructs that one can use to defend the status quo of New York because in the end you are justifying a system that is completely broken.
You can’t argue that our current system is good for children. We place the outcome of our ludicrous custody laws in the hands of unlicensed custody evaluators who have no standards of reporting, no employment standards and no judicial or governmental oversight. Custody reports are a ‘free-for-all’ for lawyers and evaluators, and since the lawyers choose the evaluators in conjunction with a judge there is massive chance for collusion. The system of custody evaluation is completely skewed to the rich. Poor people can’t afford law guardians or the $250/hour that a typical evaluation costs and there is no public assistance for such evaluations. The system is entirely set-up against common sense outcomes with many conflicts of interest. Appealing custody evaluations is ridiculously expensive and since each report is a creation unto itself with no standard of court instructions, reporting or peer review process you are really rolling the dice with a new evaluation – not to mention out of $15,000 or thereabouts.
You can’t argue that our current system is a divorce deterrent. Divorce is a part of the human condition. A large section of Jewish Law deals with divorce which clearly proves that this has been part of our society for at least 2000 years. People will always divorce regardless of religious doctrine, state laws or community standards. It’s a fact of life, deal with it. New York had over 52,000 divorces in 2008 (NY Department of Health Divorce Statistics) so clearly if our broken laws are a deterrent, they suck at it.
You can’t argue that our current system is fair. Outcomes in New York Supreme Court are largely determined by who can outspend the other. Courts encourage this and, in fact, order it. Courts demand that family members help the less fortunate and if you are truly broke against a monied party (legally or illegally), forget it, you are done. Judges have absolutely no incentive to discourage this behavior and for unknown reasons they encourage it. The system is not fair
The only logical conclusion that I can derive is that this is a system completely set-up and controlled by the divorce industry. The system works against the tax payers it is supposed to serve and creates the high costs that have led to legislative paralysis. There are billions of dollars spent every year with no outside oversight of any piece of the divorce industry from judges to lawyers to ‘experts’. In democracy one branch of government is supposed to check the other, however, when the legislative branch is unwilling to check the judicial branch and there are beaucoup bucks available with no regulation the party never stops. What this means for ordinary people is that once you are in the system you can’t get out, you are trapped. Your only remedies lay within the system (i.e. appeals) and the system has set itself up against you. The current system creates massively complex and expensive processes that may be fine for reviewing commercial cases but are utterly ridiculous for family matters. A system that is entirely subjective in the beginning attempts to become entirely objective in the appeals process and the results are often disastrous.
The first step in fixing the system is in evaluating it’s true costs and this is impossible today. Hence, the first step to fixing this problem is laws that require divorce professionals to report their billings as part of court record. The legislature should now how much each divorce costs the participants in legal fees, custody evaluations, financial evaluations and ancillary fees. We need a serious effort to enact laws that require such reporting because it is currently unavailable for any source.
The next step is to make custody evaluators register with NY State. Evaluators should be randomly assigned to cases by computer. New York State needs to adapt a standard of custody evaluations and mandate its usage so that there can be some objective review of the process. A peer review board must be set-up to review recommendations before they are submitted to the court. There should be public assistance available to parents in jeopardy of losing all access to their children. There should be laws that remove this extreme remedy except for the most extreme cases.
The next step is to update the Statement of Networth standards and require third party verification and make lying a crime. Even a verification process that costs thousands of dollars would be well worth it considering the ridiculous costs involved in legal discovery. The process is so arcane it is ridiculous. There is no computer entry of numbers, no cross-checking with easily available records like a credit report and zero use of technology in general. New York has applied civil case procedures to families and the results are disastrous for litigant with ridiculous amounts of lying and omissions. It is logically impossible fora judge to make an equitable decision with the current statements that are totally unverified.
No one reads this blog and I realize that it sounds like a rant but there are good, workable ideas in the rant.
So I met another person who was bilked by the mediation scam on New York. See, in New York a mediator can’t actually do anything. They can’t advise each party and each party needs their own lawyer. So they are just pure overhead adding virtually no value. They will create a divorce settlement document based on what you agree on but in general they are a complete waste of money. One of the many scam industries of New York divorce.
There are simple formulas to divide assets, compute child support and split custodial responsibilities. If you have two lawyers committed to not destroying your finances you can settle things without any mediator. Don’t waste money, avoid mediation, it is a complete scam.
Here is an interesting blog post about divorce reform in New York. Interesting comments by readers. http://nyti.ms/c7LUkF
NY Divorce Consultants