Roundtable: Advancements in Family Law
Part of our Thought Leader Series, this roundtable features family law professionals Sharon Klein, Maria Cognetti, Peter Walzer, and Cary Mogerman discussing how their practices have changed over the last decade.
I’m Dan Couvrette, the Publisher of Family Lawyer Magazine and www.DivorceMag.com. This roundtable is part of our Thought Leader Series. Sharon Klein from Wilmington Trust – a member of Family Lawyer Magazine‘s advisory board – will be our host. As part of our acknowledgment of Family Lawyer Magazine‘s tenth anniversary, we’re going to be looking at the changes that have occurred in the practice of family law over the last 10 years.
Two of the family lawyers in this roundtable are past presidents of the American Academy of Matrimonial Lawyers (AAML), Peter Walzer and Maria Cognetti, and the third is the current president of the AAML, Cary Mogerman. All three are highly respected and skilled lawyers. They mainly deal with complex family law cases and high-net-worth family law cases, and they’ve seen it all when it comes to divorce involving business owners, professionals, and multi-generational family wealth.
I don’t have time to go through all the accolades and acknowledgments that these lawyers have received, otherwise, we’d spend the whole roundtable doing that. These are the top people in the field. Cary practices in St. Louis, Missouri. Maria Cognetti practices in Harrisburg, Pennsylvania, and Peter Walzer practices in the Los Angeles area.
Sharon Klein is the President of Family Wealth Eastern U.S. Region for Wilmington Trust. She oversees the delivery of all wealth management services by teams of professionals and heads Wilmington’s National Matrimonial Advisory Practice. Sharon began her career as a trusts & estates attorney and has over 25 years of experience in the wealth advisory arena. Sharon has many accolades including being featured by Forbes as one of the top 100 women wealth advisors in the U.S. She was named one of the most notable women in the financial advice arena by Crain’s Magazine in 2020. It’s an honor to have Sharon on Family Lawyer Magazine‘s advisory board.
Sharon Klein: Thank you so much for that very kind introduction. I’m really excited to be here today to moderate a discussion among three very esteemed speakers, who are current and two past presidents of the American Academy of Matrimonial Lawyers.
I am going to ask the panelists a series of questions, and I will add my own observations.
Advancements in Family Law: the Past
Sharon: Peter, let me start with you on the first topic, which is the business of family law. How has the business of family law changed over the last 10 years – for the better or for the worse – and what do family law firms need to do to adapt, evolve, and prosper in the future?
Peter Walzer: The key word is adaptability. We’ve learned that in the last 10 years, but mainly in the last two years with the pandemic. We’ve had to adjust to Zoom everything: Zoom court appearances, Zoom mediation, Zoom client interviews, no client contact, no attorney contact, no judge contact. Those adaptations have really been big changes in family law.
Sharon: Is there anything that you would add in terms of how people are working together? Before we started this discussion, you were talking about a very complicated case that you had with limited liability company interests and real estate interests, and about how teams of professionals needed to get involved to get the best result for your client. Is there anything you want to add about that?
Peter: In addition to the technological changes, the practice of family law has changed. It’s become very specialized. We need to bring in many other professionals to handle complex cases. In one case we’ve needed to bring in corporate lawyers to deal with entities that hold the properties. We’ve also had to bring in estate planning specialists to deal with the children and other stakeholders in the family businesses.
We’ve also had to deal with major tax law changes in the last few years. The elimination of the alimony deduction has caused tremendous changes in how we look at settlements, how we arrive at settlements, and how we build settlements. The tax issues are getting even more complex in the division of property. We need a team of professionals to handle complex family law cases.
Sharon: Your comments really resonate with me because I come from the wealth management perspective. I focus on putting it all together before, during, and after divorce from the financial angle – from running financial projections, to investing settlement proceeds, and more. From that financial perspective, I would heartily agree with you that the business has become more interconnected among disciplines, and there’s a greater awareness of how important it is to take a team-based approach when advising clients. That means usually having a multi-disciplinary team with the family lawyer, a financial advisor, a trusts and estates lawyer, and an accountant at every stage.
You have to start before the marriage with a team working together to prepare asset statements so everything is clear and properly disclosed before the marriage takes place. Then you have to work on a pre-marriage plan, which may include a trusts & estates attorney drafting an asset protection trust in collaboration with a family law attorney drafting a prenuptial agreement, which usually requires working with a financial advisor to get a complete asset picture.
When divorce is pending, that same team can position clients advantageously at the negotiating table with the financial advisor running sophisticated projections that can back up your claims, and the whole team maneuvering through complicated tax and planning issues, like the case you just mentioned, Peter. These financial issues can have costly effects when going through divorce. If they hadn’t been addressed properly, they may have cost tens of millions of dollars and destroyed that estate.
We, as financial professionals, often work with family lawyers in looking at creative financing options, if, for example, one spouse has to buy the other out of a business interest or other illiquid asset. Then as you’re maneuvering through divorce, you generally have to update all of your estate planning. To the extent you can, planning should be updated while divorce is pending. Whatever you can’t do while divorce is pending, because there may be restrictions depending on your state’s laws and the type of asset involved, you should update when divorce is final. You want to be sure to have your financial advisor in place to invest the settlement proceeds when the divorce is final to make sure that the proceeds are invested in a way that’s going to sustain a desired lifestyle. You should also have an accountant involved in order to advantageously position clients for their tax filings.
Clients and their advisors are really now attuned to how a team approach can best position them for success, and that’s a really welcome development.
Peter: That’s so true. Because the parties have their assets in trusts and in corporations, the tax consequences to the family lawyer are not always clear. You don’t know for sure what is going to happen and whether pulling them out of these entities will cause a tax effect. We need the expertise of tax lawyers, forensic accountants, tax accountants, real estate specialists, and more.
Cary Mogerman: It’s an interesting discussion. A lot of the topics we are discussing bleed into each other. They’re all interconnected: the way we run our offices, the substance of family law and how it has changed in the last 10 years, and the business end of it. How we do it all is quite fascinating.
Maria Cognetti: I would look at the business of family law from a different approach. Bear in mind, that I come from the perspective of a small- to medium-size firm. When we talk about what’s changed in the last 10 years, I think about how we ran our practices and how relatively easy it was to find qualified people who were actually looking for work. In the last couple of years, staffing issues have become crazy, and frankly, I’m struggling to find both paralegals, who are the upper level of staff, and regular clerical people. A lot of what we’re going to talk about in this roundtable is going to focus on the last few years because a lot of the changes have come about because of COVID.
People got used to working from home and developed a whole different lifestyle. When you work from home, you have to be at your desk at eight or nine o’clock, but you can kind of roll into work once you get out of bed. You don’t have to dress up for work. Now I see that not only clericals and paralegals but even the attorneys that you want to hire have trouble being on time. They have trouble dressing appropriately. They have trouble putting in a whole day’s work because they aren’t used to having to come into the office every day on a timely basis.
The other issue that we spoke about in a prior discussion was that with the emphasis changing over the past few years into now working from home, those choosing to come into the office find that the office can seem like a ghost town.
I recently had an associate who asked me if she could work from home, as she had done so for a couple of years. I tried to explain to her that you can’t build interpersonal relationships and really get to know your clients when you work from home. Right now, we give people the option. I like them to come in. I like when they come into the business, see the office, and see what we do here. Otherwise, they’ll never really feel like part of a team.
I’d like to stay at home, too, but my job is to be here in my office and keep the business running. Hopefully, over the next 10 years, we will see the change back to where it was before so that people do want to come to work, be active lawyers, and be part of a team.
Sharon: There have been a lot of changes through COVID that have affected every industry. I agree with you that COVID has affected that culture, spirit, and connectivity. Hopefully, we will be able to adapt and come back to at least partially where we were in the past.
One other thing that I wanted to mention before we move on is something that you mentioned, Peter, which has caused a lot of additional planning, and that is the elimination of alimony payments as tax-deductible. That’s another area where working with a team could really be helpful, because that change in the law can be a trap for the unwary.
We know that the advantageous tax-deductible treatment is grandfathered for people who got divorced before 2019. But if people signed prenuptial agreements before 2019, those agreements are likely not grandfathered. So, even if a prenuptial agreement was signed on the basis of and premised on the assumption that the alimony is going to be deductible, that’s probably not going to be the case, and that’s a big deal. A collaborative team of advisors is much more likely to identify and tackle important issues like that.
Peter: Of course, you also 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. In addition to your professionals, you need a cooperative judge who’s going to make an order and recognize the change in the law.
Sharon: Cary, how has the practice of family law changed over the last 10 years for better or worse, and what needs to change in the practice of family law as we look toward the future?
Cary: There are positives and negatives to everything that changes. 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.
There are a lot of reasons for this, but it’s good for clients because if we’re not trying cases, we’re settling them, and that usually means that the client has a say and participates in the negotiation of the ultimate accord that’s reached between them. That’s good.
Trying fewer cases is also a reflection of enhanced predictability as to the application of the law. We’re all legatees of maybe 40 years of jurisprudence in our state. It’s an equitable distribution act in our states and most of the dark corners and ambiguous areas have been litigated and passed upon by our appellate courts. That’s good as well.
The bad part of it is that we’re seeing a diminution in trial advocacy skills and opportunities to gain that experience because of it. Trying disputes in the court is always going to be part of what we do, and the profession is suffering a little bit because of that diminution.
Another thing we’re seeing a lot more of is a loss of collegiality and personal contact. Ten years ago, email was on a rocket to becoming the default mode of communication. It’s there now, and there’s no question that it is efficient, but one problem is that emails don’t contain warmth and inflection. Frequently, people talk past each other in emails when a telephonic conversation between two professionals can often be much more productive – not only in terms of enhancing the relationship between the professionals, which will enhance their ability to resolve disputes in the future, but when you’re on the phone with someone actually working through a problem and responding in real-time, that’s a real plus for the client that the advent of email as our standard method of communication has taken away.
Today, we’re seeing much more of an interest for the commoditization of what we do. We have legislatures every year trying to pass laws that remove the trial judge’s discretion and put these disputes into a series of boxes that can be checked or not checked. It would be efficient if that could be done, but what family lawyers do is by its nature inefficient, and there’s no way to change that. I’m not advocating for inefficiency in how we do things, but when a client wants a well-considered opinion about an issue, or you’re working on a question of law with opposing counsel, sometimes you have to ruminate. Rumination takes time. Discussion takes time, and it’s inefficient, but it’s part of what we do, and we’re losing some of that every year with legislative action.
Sharon: When you talk about the lost art of the telephone call, it reminds me of a cartoon that I used to have pinned up in front of my computer. The cartoon shows someone asking a young person in a law firm if they reached someone. The woman says, “I tried emailing him. I tried instant messaging him. I tried texting him.” The other person finally asks, “Did you call him?” And there are cobwebs on her telephone.
Advancements in Family Law: the Present
Sharon: From my perspective, the practice of family law has become more complex partly because asset analysis has become more complicated. We have an increasingly sophisticated technologically advanced society. We’ve got assets like cryptocurrency, non-fungible tokens, and a myriad of other complexities. Net worth analysis has become more complicated, so it is now key for financial advisors to help clients understand the nature and tax characteristics of assets and provide sophisticated analytics to inform decisions about how best to divide assets during divorce. More and more, people are relying on the sophisticated analytics we provide that delves into how assets are likely to perform in the future, the risks associated with owning them, and the tax characteristics of owning or selling them. People are increasingly relying on that kind of analysis to best position themselves – both at the negotiating table and then afterward in formulating a long-term investment strategy.
I also help prepare a lot of wealthy families for the possibility that the marriage might end in divorce. This preparation is becoming much more acceptable; prenuptial planning and prenuptial agreements are becoming a much more routine part of the regular planning process in preparation for marriage. In fact, prenuptial agreements may now even be perceived as romantic! Who knew? Because people understand more and more that a prenup allows a couple to start a marriage with open communication, transparency, and a shared understanding of their financial future.
In fact, I write a monthly tip column for Family Lawyer Magazine. The monthly tip for February, Valentine’s day month, was titled “Candies, Flowers, and Prenups” – because what is more romantic than starting a marriage with shared understanding? In terms of the theme of where we’ve been and where we’re going, prenups don’t typically now evoke the negative connotations that they might have triggered in the past, and that’s a very positive change.
Cary: We’re seeing a lot more of them now, too, in the cases that we have. Twenty-five years ago, we were just starting to think about prenups, but now we’re using them, and they’re being enforced and considered in the actual case. I see them much more frequently in an actual dissolution of a marriage case than I ever used to even 10 years ago.
Maria: Cary’s last point really rings true. I don’t know about everywhere else, but in Pennsylvania, 10, 20 years ago, prenups were looked at with a very difficult, tough eye. We now totally accept the concept of prenups. That is a huge change in the practice in the last 10 years.
If I may, I want to circle back to discussing technology. Technology is one of the things that has changed the most. When we think about technology, we think about how it affects the business and practice of law. Technology in the courtrooms has changed so much that you must either get on board, learn how to deal with it, and look like a hero or – as I’ve seen recently with some lawyers and even some court personnel staff who don’t know how to run it – cases can end up in a catastrophe. It behooves us all to get with the times because this is an easy one. Ten years ago, we didn’t have technology in our courtrooms, and now it’s rare that a courtroom doesn’t have it.
Cary, I’m going to disagree with you a little bit on trying less cases, but that’s also perhaps a regional thing. I find that we are actually doing more litigation. The COVID effect has made us more irritable, and the more irritable spouses are, the less inclined they are to settle. That brings about more trials.
Trials and hearings may now be more economical for the client. For one reason they’re not paying us to travel. It has become a little bit less expensive to travel from the perspective of the client. I am happy that at least around here we are getting back to live trials because that’s the only way an actual testimonial event should take place.
Finally, and maybe this is because I do a lot of custody litigation, COVID seemed to highlight the differences in parenting between the parents involved in a custody case. Those differences may previously have gone unnoticed. Now some serious issues have come to the fore, like a vaccine for kids. A lot more of those issues are ending up in court. The final thing I’d say about the difference in practicing is I see a lot of sloppy lawyering. Sometimes I’m very embarrassed by some of the lawyering I see. We’ve all had examples where a lawyer will actually get on a Zoom with the court wearing a t-shirt and shorts. That’s the worst change we’ve seen in the last few years.
Sharon Klein: A little bit of dignity goes a long way. Peter, can I ask you to chime in with your thoughts here?
Peter: Let’s go back to prenups. Prenups are a fabulous financial planning device if used properly, but we see a lot of prenups where the person with the money is asking somebody without the money to sign an agreement, and there’s no sense of a plan. Bringing in a team for the prenup is worthwhile, especially a financial planner. Prenups don’t have to be fair, and sometimes what happens is that the spouse without the money will sign a prenup without really knowing what’s on it. Then, 10, 20, even five years later, the spouse without the money realizes they signed something that they shouldn’t have signed.
A prenup is like any other legal document. They’re enforceable and they can be devastating. We do see a lot more prenups, but we also see a lot of bad prenups that are really not taking care of the parent who may be out of the workforce and raising the children. Family lawyers are extremely important and need to be watchful and even insist that they will not cooperate in signing an agreement that does not take care of the spouse without the funds.
Sharon: I agree with everything that you’ve said. It’s so important to have the right advice from the very beginning. You have to have the right advice from your team at the beginning to be successful in the end.
Advancements in Family Law: the Clients
Sharon: Let’s talk about family law clients. Maria, in terms of your clientele, how have your family law clients changed in the last 10 years, and do you see them changing in the future? Are they more informed now? Are they more confused now? More peaceful? More anxious? How would you describe it?
Maria: More difficult. Not all of them, but a good number of them have become much more difficult. In discussing this with my paralegal who’s a bit younger than me, she says it’s a millennial issue. That may be because she’s raising a millennial right now – but again, as I keep circling back to this, it may be more of a COVID issue.
We’ve been talking a lot today about technology, and technology is really the major factor here with clients. Going back to the Dark Ages, when many of us on this call started practicing, clients could call you or send you a letter when they wanted to communicate with you. You could maybe duck the call. You could take your time answering the letter. Ten to 20 years ago, email really caught on; then clients started to expect a fairly quick response. But now they text us anytime, day or night. And now they’ve got our personal phone numbers because, when we were all working from home during COVID, I wasn’t able to put office phones in all of our locations. We were talking to clients from our personal phones, hence they got our phone numbers – and now they’re never going to give them up.
That being said, the ones that incessantly call after hours on the weekends or late into the night are what I call the “special” clients. Unfortunately, from our perspective, the first time you respond to that text or that off-hours communication, you’ve now encouraged that behavior. With that in mind, whether we are now meeting our client’s expectations really depends on the client’s understanding of what is appropriate.
Sadly, I’m one of those people who always reply to that darn text. I had someone who texted me all day on a Sunday, and when I finally said that I have to get on a Zoom committee call and that I’d be unavailable for an hour, I got texts from that client throughout my Zoom call – and the text would always say, “Please respond in 10 minutes.”
If you choose not to respond to that communication when it’s off-hours like that, and the client gets upset by that, that’s the time to tell the client that maybe they need new counsel. The bottom line is, they want everything done immediately.
I had another client who had a large, complex case. 99% of the time, we were always available to her and gave her the best service. In fact, she was serviced by one of my best people. One day she wanted something done immediately, and the person handling it was out sick on a very serious medical matter. I told the client as much as I thought she needed to know, and her response was, “I don’t care.”
At that point, I suggested to that client that perhaps we weren’t the firm for her if that was her attitude about this person who had worked faithfully for her.
That type of behavior is new to me. I go back 45 years, and I don’t remember ever feeling this way about clients being so needy, so must-have.
I had a client just today who emailed me a number of times, and before I could even get back to her, her last email was, “By the way, I want a name change immediately.”
She called me up and I said, “Your name change is not on the top hundred list of things that we need to do immediately.” I chuckled and she chuckled. There’s a client with the right attitude. But we don’t see a lot of that. It’s a lot of tough clients.
We also have the realm of social media that’s totally changed in the last 10 years. Before, you might have had someone who didn’t like you, and they’d post a comment on Facebook. Now when they don’t like you, it goes way beyond Facebook – it’s way more immediate and far-reaching. Whenever you Google someone, all of this stuff about them comes up: you’ll see their website and any relevant pages, as well as their Google rating.
Your client can go on Google to leave a bad review, not even leave their full name, and it’s there for all time. You could have 10 people give you five-star reviews, but one client gives you a one-star review and you drop way down. When we’re dealing with clients in day and age, as a small firm owner, I am constantly aware of trying to make sure that nobody in my office ever upsets a client such that they think, “Ha, I’ll go give you a bad review.” That’s the way that clients get back at you.
Sharon: Dealing with families and multi-generational families all the time, my view is that despite all the changes, the technological advances, and the impact of the pandemic, clients maneuvering through divorce still feel that it’s all about relationships at the end of the day. No matter how much things have changed, one thing I find is timeless is that divorcing people are looking for advisors who are sensitive to the fact that they are going through a very emotional time. I believe clients want to know you care before they care how much you know, and that sentiment really withstands the test of time.
Peter: I agree with that. We are a concierge service. We charge a lot of money. Clients do expect the immediate return either of a text, an email, or a call, and we try to provide that to them as best we can. We are also a team. If one of the people on the team is out of commission, another person will step forward. It’s what we do. We’re emergency doctors. We’re there for them when they need us. That’s why people are paying our hourly rates, which are probably the top for each of us in the geographical area where we practice. Communication, whether it’s a text or phone call, is always there, but I don’t mind it so much.
I want to address the social media end from the evidentiary point of view: clients are also putting everything on the internet and communicating, texting, WhatsApping, and posting on Facebook, TikTok, and Instagram. The evidence of what they’re doing to each other, with each other, and with the child is out there. I’ve had children being posted on TikTok and the other side seeking a restraining order. I’ve had a lot of social media evidence coming out. I’m saying, “The client didn’t do this,” and then you see the Facebook posts that show they were out on the town.
That’s really changed over the last 10 years, where evidence is immediately present and somebody just has to show their text to the judge and say, “Look at what he or she said.” Also, fake evidence is out there too, so lawyers have to distinguish between what’s real and what’s fake. The authentication of documents has become critical, and they’re not documents in the sense that they’re pieces of paper: they are electronic texts or posts on social media.
Sharon: Cary, do you have any observations you want to throw in the mix?
Cary: I agree with almost everything that’s been said. I will tell you that I could count on the fingers of one hand the number of people who have abused having my cell phone number. That may be situational, though. I’ve never really regretted it, but I have many colleagues who won’t give it out. But the one time that it is used, it’s usually pretty important, and they need to talk to somebody right away. Much of this is situational.
There will always be intransigence in family law, but it is more difficult at the moment. I have found almost uniformly, you get to the end of a case and sometimes it’s a real marathon for the client. You’re not always as great as you were early in the case or in the middle of the case. It takes a lot out of lawyers, and I can’t even imagine what it takes out of our clients. But then I’ll run into a client a couple of years later, and I can tell that they now realize what a difficult time it was, how helpful we were, and how much support we provided.
It takes a special person to practice family law, and we’re all that kind of person. You have to have broad shoulders, you have to be able to power through the difficulties, and you have to continue to put your best foot forward with the client. It’s a challenge, and we all enjoy the challenge or we wouldn’t be doing it.
Sharon: I agree in terms of the relationships I’ve seen that clients develop with their family lawyers. They’re really champions for their clients, and clients might realize that after they’ve been through a very difficult time. Usually, what I see is immense gratitude because it does take a very special professional and a very special lawyer to help people through this very difficult time when their judgment may be clouded and they may not be able to make decisions very easily. They appreciate having someone there to help guide them through and to give them that sense of satisfaction at the back end that they’ve had someone who has been able to champion their cause. I see that all the time and I really admire our family lawyers for that.
Dan Couvrette: I want to add my thanks to the guests who joined us today. It was a treat for me to be a fly on the wall and listen in on your conversation. I appreciate your sharing your wisdom and taking the time to talk with us today.
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Sharon Klein, executive vice president and head of Wilmington Trust’s National Matrimonial Advisory Practice, was selected by Forbes as one of the Top 40 Women Wealth Advisors in the U.S., by Crain’s as one of the Most Notable Women in Financial Advice, and has been inducted in the Estate Planning Hall of Fame. www.wilmingtontrust.com/divorce
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 Pennsylvania Bar Association, Family Law Section. Maria is also the Chair of the joint state Domestic Relations Advisory Committee on Custody. www.cognettilaw.com
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
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