Advancements in Family Law: A Roundtable with the Current and Two Past AAML Presidents
Sharon Klein: I’m excited to moderate this discussion with three esteemed panelists: the current president as well as two past presidents of the American Academy of Matrimonial Lawyers, Cary Mogerman, Maria Cognetti, and Peter Walzer, respectively. Let’s start with the business of family law. How has it changed over the past 10 years – and what do family law firms need to do to adapt, evolve, and prosper in the future?
Peter Walzer: Adaptability is key. We’ve learned that in the last 10 years, especially in the last two years with the pandemic. We’ve had to adjust to Zoom everything: court appearances, mediation, client interviews. In addition to the technological changes, the practice of family law has become very specialized, and we need to bring in many other professionals to handle complex cases. For example, we’ve had to bring in corporate lawyers to deal with entities holding limited liability companies and estate planning specialists to deal with the children and other stakeholders in the family businesses.
There have been major tax law changes in the last few years. The elimination of the alimony deduction has caused tremendous changes in how we look at, build, and arrive at settlements. The tax issues are getting even more complex in the division of property. We need a team of lawyers to handle a complex family law case.
Sharon: The elimination of tax-deductible alimony payments can be a trap for the unwary. That advantageous tax treatment is grandfathered for people who divorced before 2019. But prenuptial agreements signed before 2019 are likely not grandfathered. Even if a prenuptial agreement was signed with the assumption that the alimony would be deductible, that’s likely not going to be the case, and that’s a big deal.
Peter: That’s so true. Of course, you need the cooperation of the judge who’s going to issue the alimony order and recognize that it would need to be adjusted for the non-deductibility of alimony.
Sharon: From a financial perspective, there’s a greater awareness of how important it is to take a team-based approach when advising clients. That means having a multi-disciplinary team with the family lawyer, a financial advisor, a trust and estates lawyer, and an accountant at every stage. The practice of family law has become more complex – partly because asset analysis has become more complex. We have cryptocurrency, non-fungible tokens, and a myriad of other complexities. It has become critical to understand the nature, tax characteristics, and how best to divide assets in the event of divorce. Clients and lawyers are attuned to how a team approach can position them for success, and that’s a welcome development.
Peter: If the assets are in trusts and in corporations, the tax consequences are not always clear to family lawyers. We need the expertise of tax lawyers, forensic accountants, tax accountants, real estate specialists, and more to help us engineer these transfers. And when people have their assets in irrevocable trusts, it’s much more difficult to divide them – and the divorce court may not even have jurisdiction over these assets.
Cary Mogerman: A lot of the topics we are discussing are interconnected: the way we run our offices, the substance of family law, the business end of it, and how all of that has changed in the last 10 years.
Maria Cognetti: In the last couple of years, staffing issues have become crazy! I’m struggling to find paralegals and regular clerical staff. People are now used to working from home and have developed a whole different lifestyle. During COVID, you still had to be at your desk at 9:00 a.m., but you could go straight from bed to work in seconds. You didn’t have to dress up. Now, I find that attorneys I’ve hired recently have trouble being on time, dressing appropriately, and putting in a full day’s work. They aren’t used to coming into an office. Over the next 10 years, I hope we’ll get back to people wanting to come to work, be active lawyers, and be part of a team.
Sharon: There have been a lot of changes during COVID that have affected culture, spirit, and connectivity.
How has the practice of family law changed over the past 10 years, and what needs to change in the practice of family law as we look toward the future?
Cary: There are positives and negatives to all change. If we’re talking about the craft of lawyering and representing people in the dispute, we’re trying fewer cases today than we were 10 years ago – which is good for clients because if we’re not trying cases, we’re settling them. Trying fewer cases is really a reflection of enhanced predictability as to the application of the law; most of the dark corners and ambiguous areas have been litigated and passed upon by our appellate courts.
The bad news is that there is a diminution in trial advocacy skills and opportunities to gain courtroom experience. Trying disputes in court is always going to be part of what we do, and the profession is suffering because of that diminution.
We’re seeing a loss of collegiality and personal contact. Ten years ago, email became the default mode of communication. Unfortunately, emails can’t convey warmth or inflection, and people frequently talk past each other in emails. When you’re on the phone working through a problem and responding in real-time, that’s a real plus for the client that email can’t deliver.
We’re also witnessing the commoditization of our practice. Legislatures are trying to pass laws that remove the discretion of a trial judge by attempting to put disputes into a series of checkboxes. Checkboxes might seem efficient, but family law is inefficient by nature. When a client wants a well-considered opinion about an issue, sometimes you have to ruminate, and rumination takes time.
Maria: Ten years ago, we didn’t have technology in our courtrooms; now, it’s a rare courtroom that doesn’t have it.
Unlike Cary, I’m actually doing more litigation. I do a lot of custody litigation, and COVID really highlighted the parenting differences between co-parents. They have some serious issues – like whether or not to vaccinate the kids – and a lot more of those issues are ending up in court.
Another big change is a marked increase in sloppy lawyering. I’ve felt embarrassed for opposing counsel when they show up to Zoom court in a t-shirt and shorts.
Sharon: Let’s talk about clients. How has your clientele changed in the last 10 years, and how do you see it changing in the future? Are they more informed now? Are they more confused now, more peaceful, more anxious? How would you describe it?
Maria: They’re more difficult. When email caught on, clients started to expect a fairly quick response. But now they text you day and night. I had someone who texted me all day on a Sunday, and each text would say, “Please respond in 10 minutes.”
I had another client – a large, complex case – and 99% of the time, we were always available and gave her the best service. One day, she wanted something done immediately, and the person handling it was out sick with a very serious medical matter. I told the client as much as I thought she needed to know, and she responded, “I don’t care.” I suggested that we weren’t the firm for her if that was her attitude about this person who had worked faithfully for her.
Ten years ago, when someone didn’t like you, they might post a nasty comment on Facebook. Now, they can give you a bad review on Google and it is there for all time.
Sharon: It’s across all industries. Everyone’s careful not to slam the door on their Uber car because nobody wants a bad rating. Divorcing people are going through a very emotional time, and they are looking for advisors who are sensitive to that. I believe clients want to know how much you care before they care how much you know.
Peter: We are a concierge service. We charge a lot of money, and our clients expect the immediate return of a text, email, or call. If one team member is out of commission, another will step forward. We’re like emergency doctors – there for them when they need us.
I want to address social media from an evidentiary point of view. Clients are posting evidence of what they’re doing to each other on Facebook, TikTok, Instagram, and messaging, texting, and WhatsApping. I say my client didn’t do something, and the opposing counsel presents Facebook posts showing they did. Of course, lawyers have to distinguish between what’s real and what’s fake; the authentication of texts or posts on social media has become critical.
Cary: There will always be intransigence in family law clients; it is worse at the moment, and I hope it gets better. Some cases are real marathons, which takes a lot out of people. I’ll run into a former client a couple of years later, and they now recognize how helpful we were and how much support we provided at a difficult time. It takes a special person to do this work, and we’re all that kind of person. You have to be able to power through the difficulty while providing your best work for the client.
Sharon: Family lawyers are really champions for their clients. It does take a very special professional to help people through this difficult time when their judgment may be clouded and they may be unable to make good decisions. I see that all the time and I really admire family lawyers for what they do.
Sharon Klein, senior vice president and head of National Matrimonial Advisory Practice, Wilmington Trust was selected by Forbes as one of the Top 100 Women Wealth Advisors in the U.S. and featured on Crain’s inaugural list of the Most Notable Women in Financial Advice. www.wilmingtontrust.com/divorce
Cary Mogerman is a principal at Carmody MacDonald, P.C. Based in St. Louis, Missouri, Cary is the current president of the AAML (2021-2022) and a past recipient of the “Roger P. Krumm Family Law Practitioner of the Year Award” of the Missouri Bar Family Law Section. www.carmodymacdonald.com
Peter Walzer is the founding partner of the Southern California law firm Walzer Melcher & Yoda, LLP in Woodland Hills. He served as president of the AAML (2018-2019) and is the past chair of the Los Angeles County Bar Association’s Family Law Section. www.walzermelcher.com
Maria Cognetti is a partner in Cognetti Law Group in Harrisburg, Pennsylvania. She is the past president of AAML (2013-2014) and past Chair of the Pennsylvanica Bar Association, Family Law Section. Maria is alo the Chair of the joint state Domesitc Relations Advisory Committtee on Custody. www.cognettilaw.com
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