VOL. 41 | NO. 9 | Friday, March 03, 2017
Palermo praises evolution of divorce mediation
By Linda Bryant
Rose Palermo is one of Nashville’s most respected practitioners of family law. Palermo, arguably a local legend, is known as a tenacious, effective fighter for her clients. She’s loved and held in highest esteem by many, but she’s also feared for her skills.
Palermo has been awarded many honors and designated one of the best lawyers in the domestic field for many years. The Ledger sat down with Palermo in her Music Row office to talk about her 45-plus years of practicing law.
What trends are you noticing when it comes to divorce?
“There’s a really big trend involving cyber-spying and social media. There’s a lot of work for computer experts to search through computers and phones. I caution people all the time about these issues. If you are going into a divorce get off Facebook. Don’t be doing things on your computer that your spouse can get in and look at your stuff. Social media gives so much evidence.”
“There’s a trend with surveillance and cameras, but you have to be extremely careful because some of it is actually illegal. For example, there’s been a lot of attention given to trackers on people’s cars. It’s important to know that putting a tracker on another person’s car in Tennessee is illegal.
“In Tennessee, it’s legal to tape a phone conversation if one party to the call knows it’s being taped. It’s legal if you don’t tell me and I’m recording it. But if you are in another room when I’m on the phone talking to somebody and you have an intercept on the phone, that’s illegal. You can’t put a recorder in your husband’s car and pick up the conversations when he’s in the car driving.”
Mediation is now pretty standard and accepted practice. Can you comment on it?
“I was not in favor of mediation when it first started about 20 years ago because people who were doing mediations were not lawyers — a lot were psychologists and therapists. That’s great, if you are trying to help people work through issues to do with their children or personal relationships. But when it came down to dividing property I didn’t feel like they had a clue what rules and regulations applied to dividing assets. While they served a purpose, they didn’t serve the overall needs of the divorce.”
“But meditation has really evolved and much of it is geared toward the lawyers mediating. I believe your best bet is to go to a mediator who not only knows the law, but knows the judges. The crux of your case lies with the judges. Experienced attorneys who have practiced before judges and know who they are and what they can do. They can advise you. For example, they might say, “There’s no point in you going to court with this particular issue in front of this particular judge. I’ve had experience with this judge, and you are not going to win this issue.”
“It’s mandated from the legislature that you have to go to mediation if you have children. If you are not able to reach agreement you have to have at least two hours of mediation before you come into court. When you come into court you have to have a fault base for the divorce.”
“The only way you can come no fault is to get to irreconcilable differences with all issues agreed to. To get to that point the lawyers try to negotiate with each other. If that doesn’t work, then you go to a mediator. If you pick the right mediator you have a good 90 percent chance of getting your of getting your case settled in mediation, even if you go in there saying we’ll never settle.
You’ve been practicing law since the early 1970s. Can you talk about somehow getting a divorce in our culture has changed over time?
“I’ve seen massive changes. Years ago it was a presumed thing the wife got the kids and usually the house. There was no division of the husband’s pension or retirement benefits — and a lot of time it was a huge asset. The wife got the kids and the dad got every other weekend from Friday at 6 until Sunday at 6, and maybe, one night during the week for dinner and a few weeks in the summertime. That was what we used to call standard visitation.
“With alimony there’s no rhyme or reason, and that’s still the case today. There’s no formula to go to find out what a person should get for alimony.
“The main issues with alimony are need of the recipient spouse and ability to pay the spouse. That’s remained the rule. But, there have been a lot of changes over the years when it comes to how much alimony the people are getting, and more importantly, the duration of the alimony. You used to see lifetime alimony very frequently. Now the courts have veered towards transitional alimony.
“Other type of alimony favored now is rehabilitative alimony. That applies to a disadvantaged spouse who will need alimony for a period of time until they can support themselves, go to school etc. There’s been a real swing towards looking with disfavor on alimony in futuro (alimony forever). The (Tennessee) Legislature has expressed in the statues a preference for non-lifetime alimony.
“The courts are now mandated to maximize the amount of time a non-primary residential parent has with the children. If you can’t come to an agreement in Tennessee, the judge will have to make the decision. Some counties around here start off with the premise of a 50-50 (time split.) Davidson County and Williamson counties don’t do that.
“They start off, as an example, with the premise that (the time split) is going to be something like Thursday to Monday every other week and maybe one night during the next week for dinner and maybe an overnight, depending on the circumstances and then splitting the summer up equally.
“Regardless of who the primary residential parent is, the nonresidential parent should be able to make equal decisions with the residential parent. A child may stay more time with the mom than dad (or vice versa), but the dad still has a role in education and health decisions etc. If they can’t agree of course that’s a problem. They have to go back to mediation and then to court.”
How do you feel about the new trend of collaborative divorce?
“In concept it sounds great. But one of the problems, as I see it, is that you don’t go through formal discovery like you do in regular divorce. To me that means the other party would be able to flat out lie about things such as assets.
“I think collaborate divorce sounds unwieldy, but that’s just my opinion. It’s not just two lawyers trying to work it out. They bring in life coaches, therapists and financial experts. When you start adding the costs of all that together it could cost you a whole lot more than if you just had two lawyers working on it. If you can’t settle it, then go to court.”
“Of course, the collaborators are professionals and nice people. I just have a problem with assuming everyone’s going to go into the divorce process with good faith. That’s just not always the case.
“But again, it does sound good in concept. And I think, like with the growth of mediation, collaborative divorce could evolve over time as a practice. I’m not sure most people can afford it if it just goes on and on. Several people have come to me (with complaints) after being in the collaborative process. It’s just too new for me to recommend.’’