# Standard TAM advice that may harm rather than help



## Grayson (Oct 28, 2010)

In my years of reading posts here in CWI, one of the common pieces of advice that I frequently see is telling those preparing to divorce a cheating spouse to open a new bank account and separate finances as one of the first steps. Makes sense, to keep access to one's own money and not fund the other party and/or their affair.

As a pair of friends journey through divorce, I've learned that it is advisable to check local divorce laws before opening that new account. In preparing to file, one opened up her own account. As it turns out, opening such an account in preparation for divorce is illegal in the county they live in...it can be seen as hiding funds. Wouldn't have occurred to me, but on reflection, it makes sense.

Just something to keep in mind when recommending the splitting of finances before the divorce.
_Posted via Mobile Device_


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## Chaparral (Jul 17, 2011)

Was she hiding funds? Protecting one self by keeping so one from raiding your bank acct seems prudent. Not doing it is likely stupid. Besides, they would have to prove you were hiding money.


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## Wolf1974 (Feb 19, 2014)

Grayson said:


> In my years of reading posts here in CWI, one of the common pieces of advice that I frequently see is telling those preparing to divorce a cheating spouse to open a new bank account and separate finances as one of the first steps. Makes sense, to keep access to one's own money and not fund the other party and/or their affair.
> 
> As a pair of friends journey through divorce, I've learned that it is advisable to check local divorce laws before opening that new account. In preparing to file, one opened up her own account. As it turns out, opening such an account in preparation for divorce is illegal in the county they live in...it can be seen as hiding funds. Wouldn't have occurred to me, but on reflection, it makes sense.
> 
> ...


Many jurisdictions have laws That limit what you can do with financial accounts and property after the divorce process is started. That process is started once the paperwork is submitted to the court. Generally speaking before that is fair game. Now having said that if one spouce empties the others bank account and then immediately files for divorce they can be ordered to give it back.

I actually think it's very sound advice if you anticipate a divorce to get 1/2 your money out.

Was one of the tidbits of advice I took from here at a time when my head was spinning. And I couldn't think. Was nothing illegal about it cause no papers were filed with court.


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## Thor (Oct 31, 2011)

I have heard that one should take such action with bank accounts but be completely transparent. Notify your atty and have your atty notify your stbx's atty in a full financial disclosure.


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## honcho (Oct 5, 2013)

Its very dependent on how the state laws are written. In my state until papers are filed all accounts/assets are community property. Having only one name on an account is meaningless.
_Posted via Mobile Device_


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## Amplexor (Feb 13, 2008)

Also a wise idea to check local laws on such activities as installing a VAR, Keylogger or tracking software/devices.


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## Squeakr (May 1, 2013)

honcho said:


> Its very dependent on how the state laws are written. In my state until papers are filed all accounts/assets are community property. * Having only one name on an account is meaningless.*
> _Posted via Mobile Device_


To clarify I think you are meaning in terms of determining who's money it is. In such instances having only one name on the account is not meaningless as it keeps the other party from obtaining and spending the money at their own free will, which is what the idea of separating funds is in this case. Not to hide the funds, but to keep the other from spending it all on themselves, their AP, and funding paying their legal fees from the available funds. It is essentially not hiding it, but making it not easily accessible to the other party (which a good lawyer could show the squandering of funds by the WS as a defense of the action), and I see no municipality taking up such lawsuit when the party only takes the 50% they are entitled to, which is what we on TAM suggest/ recommend, 50% of the available and nothing more.


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## Grayson (Oct 28, 2010)

Wolf1974 said:


> Many jurisdictions have laws That limit what you can do with financial accounts and property after the divorce process is started. That process is started once the paperwork is submitted to the court. Generally speaking before that is fair game. Now having said that if one spouce empties the others bank account and then immediately files for divorce they can be ordered to give it back.
> 
> I actually think it's very sound advice if you anticipate a divorce to get 1/2 your money out.
> 
> Was one of the tidbits of advice I took from here at a time when my head was spinning. And I couldn't think. Was nothing illegal about it cause no papers were filed with court.


I agree that it makes perfect sense from a logical standpoint. From my understanding, since the account was opened in anticipation of filing for divorce, the laws of the county they live in make it illegal to have done so at that point. Her husband's lawyer has said that he could go after her and press charges for opening the account, but it would escalate matters, and end up being more expensive, so they're letting it slide.

So, while the suggestion to open a separate account as one prepares to divorce makes sense, I'm merely suggesting checking with one's lawyer before doing so, to be sure there's nothing about it that could put one behind the proverbial legal eight ball.
_Posted via Mobile Device_


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## Wolf1974 (Feb 19, 2014)

Grayson said:


> I agree that it makes perfect sense from a logical standpoint. From my understanding, since the account was opened in anticipation of filing for divorce, the laws of the county they live in make it illegal to have done so at that point. Her husband's lawyer has said that he could go after her and press charges for opening the account, but it would escalate matters, and end up being more expensive, so they're letting it slide.
> 
> So, while the suggestion to open a separate account as one prepares to divorce makes sense, I'm merely suggesting checking with one's lawyer before doing so, to be sure there's nothing about it that could put one behind the proverbial legal eight ball.
> _Posted via Mobile Device_


Sorry as a 14 year police veteran i find that very hard to believe. The basic element of theft, which is pretty universal, is taking something of value, not belonging to you, with the intent of permanently depriving. if you have a joint account its pretty clear that 1/2 that is yours so I seriously have no idea what you would even charge in those circumstances. Im not in any way calling you a liar I guess i just dont understand what that lawyer is talking about. Yes civil court side can mandate you give it back but not be criminally charged. 

woud you mind sharing with me the jurisdiction we are talking about here and i will look up the applicable law? if not in open forum please feel free to pm me. i would like to see how this is actually worded cause i just cant see how a criminal charge is applicable. 

hell even here in Colorado it is written in the divorce decree that once that is submitted you cant move or transfer or hide money. But even if you were served this paperwork, divorce petition, and then the spouse moved a bunch of money you STILL couldn't be criminally charged with theft because the elementts are still not met. Possibly a contempt of court charge but only under the direct of a judge would we ever do that.


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## Squeakr (May 1, 2013)

It could also be the lawyer's "creative interpretation of the law" Funny how that is the motto my wife's lawyer's firm uses and they are living up to it. Things that are black and white according to the law somehow don't seem to apply to them as they "interpret" it different. Remember lawyers can and will claim anything, but only that which can be proven in a court of law is enforceable. Many will use idle and veiled threats to gain the upperhand where ever they can of they think they can get away with it. I have been threatened with such things as subpoenas and that I will be served by the officials in the area like it means something (small town and I know everyone anyway). All it does is says I acknowledge I received the papers. Wow the threat of this action s supposed to make me react differently now how???


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## Thor (Oct 31, 2011)

Squeakr said:


> It could also be the lawyer's "creative interpretation of the law"


A well known local attorney describes his duty to his clients as keeping them as far from the edge as possible. So while the letter of the law may say you cannot do X, he advises you stay at least a few steps away from even appearing like you are doing X.

In this case the atty may be advising against moving money before filing because it kinda sorta looks like you were trying to do something which you couldn't do once you did file. By the letter of the law it might be legal but you are walking close to the edge, and the lawyer's job is to keep you far away from that edge.


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## Squeakr (May 1, 2013)

Thor said:


> By the letter of the law it might be legal but you are walking close to the edge, and the lawyer's job is to keep you far away from that edge.


I think you have a different ideal of what a lawyer is and what their job entails. They are not to be a moral compass that keeps you on the straight and narrow keeping you safe. They either strive to prove beyond a reasonable doubt that either you violated the law or to defend you against it and show that you were not in violation of said law. It is not in their bar to make sure that you steer clear of such possibilities. Some make a career of informing their clients where the line exists and giving recommendations on how to proceed without violatiing a law, but it is not their job to keep you from the edge (in fact the edge is generally where the big bucks are made and they will just keep you on that edge but on the side of not violating it.


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## Thor (Oct 31, 2011)

Squeakr said:


> I think you have a different ideal of what a lawyer is and what their job entails. They are not to be a moral compass that keeps you on the straight and narrow keeping you safe. They either strive to prove beyond a reasonable doubt that either you violated the law or to defend you against it and show that you were not in violation of said law. It is not in their bar to make sure that you steer clear of such possibilities. Some make a career of informing their clients where the line exists and giving recommendations on how to proceed without violatiing a law, but it is not their job to keep you from the edge (in fact the edge is generally where the big bucks are made and they will just keep you on that edge but on the side of not violating it.


A lawyer is not a moral compass but should provide guidance on what may be a legal problem. Not all laws are black and white. If the parking meter says I am out of time, I have clearly violated the law. But other laws have grey areas depending on circumstances, interpretations, which judge you get, etc.

A good lawyer will tell you where the danger is. Sometimes the danger is the grey area, especially when the cost of defending yourself far outweighs the potential benefits of getting into the grey in the first place.

A good lawyer will keep one from needing his services to defend against charges in court.

This particular lawyer is very active in gun rights, and he is a preeminent defense lawyer. He will quote the written law and provide case law. Then he will tell you where the grey area is, and advise you what the "thumbs down" factors are. While one may be completely justified in taking a particular action, "thumbs down" factors prejudice prosecutors, juries, and judges. Sometimes "thumbs down" factors are completely out of our control, e.g. the cop in Ferguson who shot a black man. Race was an overriding thumbs down in that case even though all the evidence clearly shows the cop was well within the law and well within moral standards.

Other times, thumbs down factors are within our control. If the law prohibits moving money after filing D papers, and one moves money in the morning just before filing for D, it could be a thumbs down factor in that jurisdiction. A good lawyer would advise to not do that if the potential legal hassles are significant.

A bad lawyer would let you walk to the edge of the precipice and then charge $500 per hour to defend you in court.


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## Squeakr (May 1, 2013)

Thor said:


> A lawyer is not a moral compass but should provide guidance on what may be a legal problem. Not all laws are black and white. If the parking meter says I am out of time, I have clearly violated the law. But other laws have grey areas depending on circumstances, interpretations, which judge you get, etc.
> 
> A good lawyer will tell you where the danger is. Sometimes the danger is the grey area, especially when the cost of defending yourself far outweighs the potential benefits of getting into the grey in the first place.
> 
> ...


These are your ideals and not i keeping with your original statement that a "lawyer is there to keep you far away from the edge."

Lots of businesses and people only make the money when the risks are taken. Just as all laws aren't black and white (well most are, but a good lawyer can grey them enough to protect a client).

You can't judge whether a lawyer is good or not based upon whether they keep charges from being filed. A good lawyer is the one that keeps their client from suffering the effects of the law to the highest level or even any level. Criminal law and civil law are too completely different institutions so you can't judge all the lawyers in the same light. Losing in some are not as big an issue as it may seem.

Think about the anti-trust laws. The lawyer advises you were the grey areas are and the possible repercussions, so rather than avoid them you delve into them as the rewards versus the risk are worth it. You can bet that when Google and Apple entered into anti-trust agreements they knew the laws and what they were violating, yet they knew that the return would be immense compared to the reprimands. Think of the billions that were made off of unfair non-compete contracts with their employees versus the 380 million they were fined? So the lawyer that would have advised them to not do it is a better lawyer than the one that advised them they could make billions and receive a slap on the wrist. In business sense, they will take the second lawyer everytime.

This brings me back to my original claims that some make their living off of advising, but they are there to defend (or prosecute) but not to be a moral compass and keep you "far" from that edge as you contend.


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## vellocet (Oct 18, 2013)

honcho said:


> Its very dependent on how the state laws are written. In my state until papers are filed all accounts/assets are community property. Having only one name on an account is meaningless.
> _Posted via Mobile Device_


I concur.

With my first meeting with my attorney, he told me to create my own account once she was served with papers. Everything to that point is marital and if there was large amounts of money being "hidden" by one party, the offending party will owe the other their half.

So if my wife would have drained a bank account and spent it all, my attorney assured me that he'd get my half of it one way or another, even if that meant that much less she gets in retirement, etc. I asked him this because she threatened to close the account. I told her that I kept daily records of the balances.

Only way she would not owe me the money is if she could prove she spent it on necessity. Like paying down a marital debt or something.


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## Wolf1974 (Feb 19, 2014)

Thor said:


> A well known local attorney describes his duty to his clients as keeping them as far from the edge as possible. So while the letter of the law may say you cannot do X, he advises you stay at least a few steps away from even appearing like you are doing X.
> 
> In this case the atty may be advising against moving money before filing because it kinda sorta looks like you were trying to do something which you couldn't do once you did file. By the letter of the law it might be legal but you are walking close to the edge, and the lawyer's job is to keep you far away from that edge.


Well this is possible. Trying to keep you so far from harm. My educated guess is that what he was actually saying is that civilly you can be ordered to give the money back and if not charged with contempt of court. Again he would be overreaching the reality of what could and would happen but may be saying that in the best interest of the client.


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## Thor (Oct 31, 2011)

Squeakr said:


> These are your ideals and not i keeping with your original statement that a "lawyer is there to keep you far away from the edge.".


I actually stated that the lawyer said his job as a criminal defense lawyer was to keep his clients far away from the edge.


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## honcho (Oct 5, 2013)

Squeakr said:


> I think you have a different ideal of what a lawyer is and what their job entails. They are not to be a moral compass that keeps you on the straight and narrow keeping you safe. They either strive to prove beyond a reasonable doubt that either you violated the law or to defend you against it and show that you were not in violation of said law. It is not in their bar to make sure that you steer clear of such possibilities. Some make a career of informing their clients where the line exists and giving recommendations on how to proceed without violatiing a law, but it is not their job to keep you from the edge (in fact the edge is generally where the big bucks are made and they will just keep you on that edge but on the side of not violating it.


We are talking about divorce where guilt or innocence really isn't an issue. Whether we like it or not divorce actions do have the "beauty contest" aspect to it. If a judge feels you not doing things on the up and up, your hiding assets etc or the lawyer makes constant drama out of every little thing most judges don't look favorably on that.


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## Squeakr (May 1, 2013)

Thor said:


> A well known local attorney describes his duty to his clients as keeping them as far from the edge as possible. So while the letter of the law may say you cannot do X, he advises you stay at least a few steps away from even appearing like you are doing X.
> 
> In this case the atty may be advising against moving money before filing because it kinda sorta looks like you were trying to do something which you couldn't do once you did file. By the letter of the law it might be legal but you are walking close to the edge, and the lawyer's job is to keep you far away from that edge.





> I actually stated that the lawyer said his job as a criminal defense lawyer was to keep his clients far away from the edge.


Quoted the original above and somehow don't see the second quote anywhere in the original quote. Please point it out to me, as this is the statement we were discussing. There is a difference between duty and job, and they are interchangeable terms as you are claiming they are. He has a job but he also feels (describes) that he has a duty to his clients. Two people doing the same job may see themselves as having different duties. as it pertains to the job and responsibilities there in.

Also you never mentioned criminal defense in the original either, so stop changing the terms of the original after the fact as you made a sweeping generalization.


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## Squeakr (May 1, 2013)

honcho said:


> We are talking about divorce where guilt or innocence really isn't an issue. Whether we like it or not divorce actions do have the "beauty contest" aspect to it. If a judge feels you not doing things on the up and up, your hiding assets etc or the lawyer makes constant drama out of every little thing most judges don't look favorably on that.


But guilt and innocence do play a part here as well (especially in fault states). If hiding assets is illegal, then doing so even in D court is illegal. Just because a judge feels you are doing something they don't agree with, doesn't mean that they can be used or held against you. The state laws determine what the outcome is, so as long as you operate within them, then actions can't be used against you, no matter the appearance. If you can't be proven to have done anything against the law, that would prove you a bad parent, spouse, etc, then those things can't be used against you in a divorce and custody proceeding. Thats is why divorce is so nasty as it becomes a slanderous affair, which in the end generally never matters (unless it broke a law).


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## 2ntnuf (Jul 14, 2012)

What about opening a new account, but making sure one half of all bills is deposited in the new account to pay for expenses? Maybe you are just considering that only one spouse is working? Checking on this with the local, county, and state laws is prudent. I do remember something about when it was done being a factor.


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## wilson (Nov 5, 2012)

In general, secretly recording conversations that you're not a part of is almost always illegal. In some states it's legal to secretly record a conversation as long as you are part of that conversation. But it would generally be illegal to hide a recorder in your spouse's car (even if you own the car).


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## Thor (Oct 31, 2011)

Squeakr said:


> Quoted the original above and somehow don't see the second quote anywhere in the original quote. Please point it out to me, as this is the statement we were discussing. There is a difference between duty and job, and they are interchangeable terms as you are claiming they are. He has a job but he also feels (describes) that he has a duty to his clients. Two people doing the same job may see themselves as having different duties. as it pertains to the job and responsibilities there in.
> 
> Also you never mentioned criminal defense in the original either, so stop changing the terms of the original after the fact as you made a sweeping generalization.


You need to step away from the coffee pot.


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## Dogbert (Jan 10, 2015)

Thor said:


> You need to step away from the coffee pot.


Start spinning Mjolnir around and release it to break his coffee pot.


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## SpinDaddy (Nov 12, 2012)

Grayson said:


> In my years of reading posts here in CWI, one of the common pieces of advice that I frequently see is telling those preparing to divorce a cheating spouse to open a new bank account and separate finances as one of the first steps. Makes sense, to keep access to one's own money and not fund the other party and/or their affair.
> 
> As a pair of friends journey through divorce, I've learned that it is advisable to check local divorce laws before opening that new account. In preparing to file, one opened up her own account. As it turns out, opening such an account in preparation for divorce is illegal in the county they live in...it can be seen as hiding funds. Wouldn't have occurred to me, but on reflection, it makes sense.
> 
> ...


Hummm, there is a significant distinction between “Illegal” and being “ ‘seen as’ effectively perpetrating a fraud upon the marital corpus.”

Similarly, the use of recorded conversations often generates a legal distinction between “illegal” or “admissible in a court of law as evidence.” Again, depends entirely upon the law of the state in which you reside.

And then, going back to marital assets there are legal distinctions between “community property” and “common law” jurisdictions and then even within those two distinctions there are distinctions depending upon the jurisdiction.

Always the best advice and that which I see most often on TAM is . . . . consult a lawyer ASAP. They’re kind of like plumbers – nobody loves them until the toilet is plugged full of crap and then they are gods!


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## EleGirl (Dec 3, 2011)

Grayson said:


> I agree that it makes perfect sense from a logical standpoint. From my understanding, since the account was opened in anticipation of filing for divorce, the laws of the county they live in make it illegal to have done so at that point. *Her husband's lawyer has said that he could go after her and press charges for opening the account,* but it would escalate matters, and end up being more expensive, so they're letting it slide.


Who told her this? Did her stbx tell her? 




Grayson said:


> So, while the suggestion to open a separate account as one prepares to divorce makes sense, I'm merely suggesting checking with one's lawyer before doing so, to be sure there's nothing about it that could put one behind the proverbial legal eight ball.


What state/county do you live in? I'd love to see that law that says that a married person cannot open an account in their own name.


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## EleGirl (Dec 3, 2011)

Thor said:


> A well known local attorney describes his duty to his clients as keeping them as far from the edge as possible. So while the letter of the law may say you cannot do X, he advises you stay at least a few steps away from even appearing like you are doing X.
> 
> In this case the atty may be advising against moving money before filing because it kinda sorta looks like you were trying to do something which you couldn't do once you did file. By the letter of the law it might be legal but you are walking close to the edge, and the lawyer's job is to keep you far away from that edge.


I agree with this. 

With modern banking record keeping it's easy to move some money, 50%, into an account in one's own name and to have very clear records of the source of the money and where it is. Thus eliminating the appearance of doing anything underhanded.


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## EleGirl (Dec 3, 2011)

2ntnuf said:


> What about opening a new account, but making sure one half of all bills is deposited in the new account to pay for expenses? Maybe you are just considering that only one spouse is working?


Divorce laws are at the state level, not county. So I'm confused about this idea that a county has a law. Now it could be a court in a particular county in which a judge interprets state laws in a particular way.

What is not liked by the courts is when one spouse grabs control of all money and leaves the other with no access. That's a different issue than simply separating and leaving both with 50%.



2ntnuf said:


> Checking on this with the local, county, and state laws is prudent. I do remember something about when it was done being a factor.


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## 2ntnuf (Jul 14, 2012)

EleGirl said:


> Divorce laws are at the state level, not county. So I'm confused about this idea that a county has a law. Now it could be a court in a particular county in which a judge interprets state laws in a particular way.
> 
> What is not liked by the courts is when one spouse grabs control of all money and leaves the other with no access. That's a different issue than simply separating and leaving both with 50%.


Yeah, state laws which are interpreted in county courts. 50%, yes. I didn't word that so well. I made sure there was enough to pay for 50% of the bills in our joint account, while she and I kept other income, or the rest, in individual accounts. There was no problem as long as there was enough to pay the bills. I suppose there could have been, since all the money is legally both of ours? Not sure about that, but it seems that's what the law actually could mean. We never combined our incomes in one place. She wanted it that way and it was likely because she was trying to set precedence that her income was her's and mine was mine. I didn't see an issue with it.


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## Squeakr (May 1, 2013)

Thor said:


> You need to step away from the coffee pot.


Right. I prove you wrong using your own exact quotes and it is my problem. Maybe if you'd stop making claims that your words don't back up when people challenge your thoughts.


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## Thor (Oct 31, 2011)

Squeakr said:


> Right. I prove you wrong using your own exact quotes and it is my problem. Maybe if you'd stop making claims that your words don't back up when people challenge your thoughts.


Duty vs job, really? When a person is doing their job they are executing their duty. My lawyer's job is to guide me away from trouble. His duty is to do his job competently, which he defines as keeping me far away from the edge.

If you have a problem with what I wrote, I can give you this attorney's name and phone number in a pm so that you can discuss with him whether he is doing his job or his duty.

Sheesh.


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## Squeakr (May 1, 2013)

Thor said:


> Duty vs job, really? When a person is doing their job they are executing their duty. My lawyer's job is to guide me away from trouble. His duty is to do his job competently, which he defines as keeping me far away from the edge.
> 
> If you have a problem with what I wrote, I can give you this attorney's name and phone number in a pm so that you can discuss with him whether he is doing his job or his duty.
> 
> Sheesh.


He is doing both. What you don't understand is duty is not the same to everyone as that has a judgement and moral obligation to it. The job is the minimum requirements that one must meet and perform for their given profession. Duty is a drive from within. A lawyer has no "duty" to keep you from the edge, that is something above and beyond that they choose to deal. This is why lawyers will deny taking cases that they don't morally agree with. The job requirements say they are to defend their client, but their duty tells them that they can't do it to the best of their abilities so they decline the case because of the moral objections.

That is what I am saying. The words aren't the same and interchangeable. Although all lawyers have the same job/ profession requirements they don't all share the same duties (as that is their moral obligations). So any lawyer is always serving their own particular job and duty, but they aren't necessarily serving the same duty as another lawyer (even though they are still doing the same job).

Sheesh is right. Can't understand basic differences between words you are using.


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## Thor (Oct 31, 2011)

Guess I'd better sue the school system.


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