Last week I started a 3-part series on incorporating strategy in Family Court appearances. The goal is to show you how having a solid game plan enables you to position your case advantageously. Last week I focused on the first court appearance in custody or divorce, the Initial Conference. This week’s focus is on using the Family Court appearance that follows the Initial Conference, the Family Court Status Conference as part of creating your strategy.

 

What the Family Court Appearance Status Conference Is

A status conference, in divorce or custody, gives the parties the chance to update the court on what has occurred since additional documents have been filed, to follow up on how temporary orders are working, or to check-in whether certain conditions have been met. The court will want to know how things have been going with respect to visitation to see if things can be resolved without a trial. If at the last court appearance either of the parties was self-represented, the court will want to know if that party(ies) hired a lawyer.

If the judge ordered certain procedural things, like a drug/alcohol screening, a mental health evaluation, or a home investigation, it would follow up with whether those things have been done. Also, if a GAL has been appointed, then the court will want to know the status.

 

The Goal of the Family Court Status Conference

Family Court, like most other courts, has an interest in saving time and resources. This means that the judge will always aim to get the parties to settle their case.  Family Court appearance Status Conference in custody or divorce is slightly different than the Initial Conference. The court’s hope is that by employing the tactics or measures mentioned above, they will flush out the perceived issues from the real ones. A custodial parent who insists that the noncustodial parent is incapable of taking care of their child for more than a few hours may realize that that’s not a real concern. The court will examine resolution tactics outside of a trial, like mediation. If the court decides on an alternative dispute resolution, it will set dates for the parties to adhere to.

A Discovery plan might also be discussed at a status conference. This usually entails setting rules & restrictions on Discovery as well as a timeline for the exchange of Discovery.

The last major thing to be addressed in a status conference is overall scheduling. In addition to setting dates for mediation and Discovery, the court will also set a deadline for any motions or amendments to petitions. In addition, the court might establish a pretrial conference date and a trial date.

The process for the status conference might differ when both parties and one party is self-represented. The court will try to encourage pro se litigants to get an attorney at this stage of the case with the thinking that they’d be more inclined to settle.

 

Using this Family Court Status Conference Strategically

This is the time to use what you have gathered outside of the courtroom, because of the court’s directions, to your advantage. In other words, the orders the court issued, the procedures the judge directed, etc. all offer you vantage points that didn’t exist before. You might have had suspicions about some issues that question the other party’s “fitness” as a parent. Or questions about the safety conditions of the other party’s home. Or speculation about the mental or physical health of the other parent. Either way, the status conference is the ideal time to gauge the court’s position on these specific issues. If, for instance, you mentioned your concern about drug abuse and the judge ordered drug screenings, then this shows that the judge takes this issue seriously. How many times have you raised concerns in court that were dismissed by the judge, often I bet? But if the judge thinks the issue, you raise has some semblance of merit, they will respond accordingly.

The other strategic way to use the Status Conference is by incorporating the information you acquired to help you decide if you should settle or proceed to trial. At this stage of your case, there have been several discussions about settling at least a portion of your case. However, having the results of tests or investigations only helps you to make a much more informed decision when it comes to negotiations.

And last, if you are pro se (self-represented) you can learn a lot about the court process, the laws, and the local procedures at the status conference. You should always be on full alert, listening, watching, and taking mental notes.

 

In Conclusion

Every stage of your case offers some advantage as it progresses along. You might see going to court as a war zone, triggering all sorts of emotion, while I see it as an opportunity. Any time you are in an environment where you can learn the opposing party’s objective, you should see it as a potential advantage.

My new Pro Se Family Court Membership Program is the perfect solution to your custody or divorce situation.  Having a solid game plan that focuses on using strategy can make or break your case.  Interested in the details? Check here.

Once a divorce or custody case starts in Family Court there is usually a process in court. Unless the parties agree and filing the papers is just a formality, every case is set to proceed down the same path. The objective of that path is to facilitate the process by identifying issues, resolving issues, and getting a final determination. Each stage of the case has a specific goal and serves an exact purpose. To litigants, this process can seem confusing, unnecessary, and at times, prejudicial. But the process can be used to your advantage as a litigant if you would keep several things in mind. Strategy entails gathering information whenever and however you can, the court appearances are ideal in that sense.

 

The Initial Appearance

The Initial Conference itself is usually a brief meeting. Although all parties are required to appear, the way you appear is up to the court (via phone, video, or in-person.)

A final determination of anything asked for in the petition or motion is unlikely unless the parties agree to it. However, there are instances where temporary orders are issued depending on the parties’ requests, the immediate need, etc.

The Initial Conference is your first opportunity to gauge what the “real” issues of the case are. When crafting your strategic game plan, one of the principal elements is that you gain an understanding of where the opposing party stands. What this means, is that you need to know what their strengths and weaknesses are. You might think you know what they are, but you will get confirmation at the initial conference. The judge will want to know what the issues are and will more than likely, give some hints as to which issues are “real” issues.

In addition, the Initial Conference is your chance to familiarize yourself with the court process, the key players, and the judge’s demeanor. These are all key elements to focus on when creating your game plan too. Your case is not just about the parties, the law, and/or the lawyers. There is an entire process that and that entire process has a significant impact on the outcome of your case.

And last, you are giving the court to make its impression of you. You get to determine that. So many people are intimidated by the court process when you get to dictate how it goes. You must learn to be calm, focused, and prepared as you only get one chance to make a first impression.

 

How to Prepare for the Initial Conference

Preparing for the Initial Conference efficiently is important. However, being intentional in how you prepare is critical to the strategy for your case. In other words, plot every step or tactic you intend to use at the actual conference. Review the opposing party’s petition or motion to look for key things to focus on. You want to focus on these specific things to watch for credibility in statements, to check for consistency throughout the process, and to make notes for Discovery requests.

Next, you want to do as much research as you can before the actual conference. Research the laws, the procedural rules, the attorneys, and the judge. You might not find exactly what you expect, but you should look to see what’s out there.

And last, you should have a set of questions in your mind. You might get a chance to ask specific questions and that’s fine. But you should pay attention because although your questions might be unasked, you might still get answers to them.

 

After the Initial Conference

Once the conference is over, you should have a much clearer picture of what you need to do next. You should feel confident, determined, and empowered, not defeated. Remember, this is your opportunity to determine the direction you want your case to go in. Not let the antics of the opposing party distract or discourage you.

You should be able to fill in some key parts of your game plan.

 

In Conclusion

Too many litigants overlook the opportunities to take control of their case presented in the Initial Conference. They allow their emotions to take over and lose sight as a result. Every interaction, encounter, etc. is an opportunity to gain leverage. Take advantage of it.

 

My new Pro Se Family Court Membership Program is the perfect solution to your custody or divorce situation.  Having a solid game plan that focuses on using strategy can make or break your case.  Interested in the details? Check here.

I am always approached by individuals who are forced to be pro se because their attorney withdrew from the custody case. Attorneys usually withdraw for failure to pay, but also withdraw for other reasons that have nothing to do with money. A client that makes it impossible to represent them, who constantly refuses to cooperate, who habitually ignores court orders, etc. are all reasons attorneys can withdraw. No matter the reason, there are some things pro se litigants should keep in mind when they find themselves in this predicament.

 

Ethical Rules for Attorney Withdrawal

Most states have adopted some form of the American Bar Association’s Model Rules for the ethical practice of law. This means that every one of the fifty (50) states has its own set of rules that dictate how an attorney should behave professionally. One issue that is covered in all the states’ rules is the method attorneys must employ when they want to withdraw from representation. The ABA Model Rule (1.16(b)) states:

“a lawyer can withdraw from an engagement without cause only if it will not result in a material adverse effect on the client’s interest.”

This means that the lawyer must show “cause” for their withdrawal. In other words, they must have a “compelling reason” to be let out of your custody case.

Although states might differ on the language they use, there is a consensus on what constitutes a “compelling reason.”  It is NOT simply disagreeing on some issues in your custody case, although there are times when this is sufficient grounds. Compelling reasons are usually ones where the client is continuously involved or engaged in criminal activity. Other instances are where they fail to pay their fees or where a conflict of interest is present. These are just a few, the list of instances where withdrawal would be justified is long.

 

Mandatory withdrawal vs. Permissive Withdrawal

There is a difference between when an attorney can withdraw and when they must withdraw.

The instances where an attorney must withdraw are not as extensive as when they can. That is because the litigant’s right to have continued representation is paramount to an attorney’s desire to leave the case whenever they want.

Circumstances, when an attorney can withdraw, outnumber when they must because of the interests of the client. Lawyers are held to a standard that requires them to consider the legal harm in almost any situation.

Do not be fooled though, attorneys are very skilled at creating a scenario where must takes precedence, or a justified can more likely prevail.

 

Method for Withdrawing

In all cases, attorneys must follow a specific procedure when they seek to withdraw. No matter what, when, or why, there are procedural requirements in place for attorneys who opt to end their representation.

Most states have a formal requirement where the attorney must file a motion in court seeking the court’s permission. The specifics, however, with respect to the format, timing, in person or in writing argument may vary among the states.

Litigants have the option to object or oppose the attorney’s withdrawal, except where the client is the one requesting the withdrawal. If they can prove that there is undue prejudice or harm to their case that will result from the withdrawal, then they have a chance.

In Family Court, the standard of proof is “preponderance of evidence” which means that a party must provide evidence of at least a 50% value to support its argument. But when it comes to an attorney seeking withdrawal, this standard is automatically shifted to less than 50%.

 

Client’s Course of Action Upon Withdrawal

What are your options if this is your current predicament? Should you object, or should you consent, or something else? These are the questions you need to ask yourself. But more importantly, should you or could you do anything to prevent this from happening in the first place.

 

Your options are to let the attorney go; try to compromise or settle your issues or flat out dispute they’re trying to withdraw. If you let them go then you are forced to either hire another lawyer or represent yourself. When you do this, you are more likely to have fewer headaches dealing with the court. The court would much rather you concede than have you fight to keep an attorney that does not believe they can or should continue. If, however, you choose to try to settle your differences, the attorney will have the discretion to choose if they will continue and to set the conditions for doing so. And last, if you choose to fight the withdrawal, chances are you are going to create more problems for yourself, with the lawyer and the court.

 

Tips to Avoid Attorney Withdrawals

You can try your hardest to prevent the attorney’s withdrawal, which is always an option. This starts with having a clear understanding of your financial means before hiring them. You should not rush to hire an attorney when you have no reliable means to pay them to manage the entire case. I see people get desperate and hire a lawyer just because they think they should. This is a setup for disastrous consequences.

Another way to avoid involuntary withdrawal is to have an express understanding of what your responsibilities are as a client. From the moment you sign the Retainer Agreement, you should be aware of all that is expected from you. At the same time, your attorney should explain to you in detail everything you can expect from them.  You can also learn tips to work with them more effectively.

And last, you should always keep the lines of communication open. I know that most litigants’ major complaint about their attorney is their lack of communication. However, this does not release you of the obligation to facilitate discussions about your concerns, your questions, etc. with them.

Although being pro se is not the worst situation you can find yourself in, it is not the only option or best option for everyone. (Read more here on being pro se in Family Court.)

 

In Conclusion

At the end of the day, an attorney who does not want to collaborate with you anymore knows how to get out of your case. Even with the rules set to favor you as the client, the courts are not inclined to force continued representation.

 

 

If you wish to discuss your options as a pro se (self-represented) party, please feel free to visit here.  If you are interested in our unique Pro Se Family Court Membership program, please find out more here. 

 

 

So many people have been asking about pandemic parenting, co-parenting, custody, or visitation.  The real issues arise when one of the parties, or child, comes up with a positive test result.  Up until recently the thought of positive test results for many, especially children, was illusive.  But now with these new variants, that’s more of the reality for many.  Regardless, these times we are currently experiencing can’t compare to any other such time in our living history.  So the courts, like its constituents, are still trying to make sense of all of it.  Things like, to vaccinate or not vaccinate, to allow virtual school or in-school sessions, to enforce visits or suspend them…are all examples of issues plaguing the Family Court.

 

Pandemic Parenting

Pro-vaccination vs Anti-vaccination Parents

It is no secret that most judges are very conventional in their view on vaccinations, the Covid vaccination is no different.  So in the past when a Family Court judge was presented with the issue of whether a minor child should be vaccinated when one of the parents opposed, the outcome was almost always predictable.  Judges would almost always override the opposing parent’s authority by ordering that the child gets a vaccination, except in rare instances. The reason judges have always been mostly pro-vaccination is that they relied on science, data & statistics to support their position.  The only exception was when the child’s treating doctors recommended against the vaccinations for medical reasons. Even then, the level of scrutiny was always above the norm.  Judges are almost in agreement that Covid vaccinations are the safest bet for all involved.

 

Virtual School vs. In School Session

This issue is a new phenomenon to some degree.  If either parent has sole legal custody, then this is not an issue, that parent gets to decide.  The only exception is if the other parent seeks to change or modify the sole legal custody order. In that case, the issue of in-school vs. virtual can actually serve as the basis for the modification. In the past, the issue that most resembled this one was homeschool vs. in school.  The courts in those cases were inclined to rule in favor of in school.  This started to change in the past few years when homeschooling became a viable option.  When the data showed that homeschooled children were actually doing better academically it became easier to influence the courts.

However, the issue with Covid is a little different.  Academics is not really the focus in these pandemic times, it’s about safety.  This makes this issue very tricky because it’s not necessarily the safety of the target child but of the entire school population.  Judges are forced to consider whether the parent’s “right” to send the child to school should be trumped by the safety of the public (school). Although judges are still obligated to apply the best interests factors (which vary from state to state) to help it make its determination.   But even with that in mind, they can’t ignore their duty to keep the public’s safety in mind even if they don’t state it.

 

Covid Positive: Suspend Visits vs. Enforce Visits

This is where things get very volatile.  If a parent (or their paramour) or a child tests positive, should the child stay where they are, return home, or do something else.  Better yet, what happens if the child is in a blended family and one of its members tests positive, how should visits happen then?  These are all very likely scenarios and have been happening a lot.  The courts are all over the place with this issue.  In New York, for instance, the courts are ordering that custody orders be exercised no matter what anyone’s (or their family members’) Covid status is.  This means that if the child has Covid or the parent who is supposed to have visited has it, the visits are to happen regardless.

The other scenario is whether a positive child who was exercising visits with a non-custodial parent should return to their home. Either way, the rationale is that both parents still have rights to their time with the child.  The courts have always taken the position that parents can take care of their sick child during their respective visitation times.  And them testing positive for Covid doesn’t change that.

The CDC, on the other hand, suggests quarantining and so are doctors who are treating the Covid positive parent/child.  They are recommending that the child not expose anyone else to the virus by leaving their environment.  So who should influence the judge more, the rights of the parents or the medical community? This is not really a “best interests” issue, as much as it is a public safety issue.  The child’s well-being might be affected if visits are suspended because of either way someone is missing out on their time.  But the time can be made up once the positively tested party is cleared.

 

Theory vs. Practice

In a practical sense, the only issue that might be worth going to court over is school.  In theory, to vaccinate or not to vaccinate is disputable. But what if the other parent gets the child vaccinated before court involvement?  You can’t unring a bell, meaning you can’t unvaccinated the child. So the issue then becomes one of Contempt.

The same with the visits, if the disputing parent decides to proceed to court it might be too late.  By the time the case gets in front of a judge, the visiting time has already passed.  So, again, the issue presented to the court would be about Contempt, Modification, or both. Either parent can conceivably seek to modify a current custody order based on how this issue was handled. The way the other parent exercised judgment, for example, deciding to ignore the doctor’s recommendations, can be considered in a modification case.

The school issue, on the other hand, is always a relevant one.  It’s the only one of these issues that can change at any time.  So, in other words, it hardly ever becomes a moot issue.  The judge’s decision has the propensity to take into account things that might happen in the future.  So it’s best to get the court involved at any time when Covid, or any other issue, has a direct impact on academic performance.

 

Final Thoughts on Pandemic Parenting

The courts are still all over the place on some pandemic parenting and other pandemic-related issues.  So I strongly urge Family Court parties to get a consultation from a local family law attorney.

A lot of people are under the impression that some states are “mother states” or states that prefer mothers over fathers in custody matters.  This point of view infers that there are also “father states” where fathers are favored. These terms really annoy me because there are way too many factors that go into a custody determination, for either Moms or Dads to hang their hat on how the case will turn out.

 

Constitutional Safeguard vs. Having Father or Mother States

So way before all of the female liberation movement and such, women staying home to take care of the family was a “thing”.  Not that it is not now, but before the 1970s, it was much more widespread.  As a result, if there was a custody dispute, women were much more likely to get custody because of their role as the primary caretaker. At the same time, there were no challenges to the Constitutionality of laws that were gender-biased or courts that imposed gender bias on families.

However, today most father and mother states have custody laws that do not explicitly favor one over the other.  If they did, they would be challenged on the basis of sexual discrimination. Laws that explicitly discriminate against any gender are a violation of the Fourteenth Amendment of the US Constitution.  This, however, does not mean that some states’ laws are not discriminatory, it just means that they are indirect with it. So what they typically do is to lay out the criteria or pretexts that are “easier” to satisfy for one gender over the other.  For example, if one of the state’s primary best interest factors lists the availability of one parent to stay home and care for the child, this can certainly be viewed as discriminatory against fathers.

 

The Neutrality of the “Best Interests of the Child” Standard

Every father and mother states has its own set of factors that makes up what it considers the “best interests of the child”. The best interests of the child’s overall objective are to take a neutral position with respect to which parent should obtain custody.  It looks to which parent would provide for the child’s mental, intellectual, physical, and emotional well-being.  And although some father and mother states’ have factors that are partial to either parent, the underlying basis focuses on what’s best for the child.


Best Interests of the Child Custody Each State


States that do not have specific factors leave room for courts to interpret them the way they see fit.  This means that they have more latitude in how they consider which facts are more pertinent to meet the objective of the best interests of the child.  In these particular instances, they are able to favor one parent over the other.  So from the litigant’s perspective, it can appear to be a father or mother state.

This can be a very dangerous proposition, though, because either parent cannot focus on being the most “fit” parent because of their assumption.  The belief that you have the upper hand may actually cause you to be “lose” custody.

 

 Joint Custody as the Presumption

Some states have a presumption of joint custody being in the child’s best interests.  This negates the whole idea of mothers or fathers getting a favor, particularly in such father or mother states. The presumption of joint custody being the best route for the children puts the burden on either parent to make a case otherwise.  So, if the mother wants sole custody, while the father is fine with joint custody, the mother has the burden to overcome the presumption.  She must do this by showing that joint custody is not in alignment with the child’s well-being. She must prove that sole custody is better to meet the child’s emotional, intellectual and physical needs more than joint custody would.

Joint custody neutralizes the idea that either parent has an advantage over the other, and that’s exactly the legislature’s intention.

In Conclusion

The best way to prepare for a custody case is to do all the necessary research into your jurisdiction’s way of ruling.  However, this does not mean to presume anything will go in your favor based on facts that have nothing to do with the best interests standard.  Be prepared for the unexpected particularly where someone tells you that you’re in a “mother” or “father” state.

 

 

 

 

 

 

 

long-distance co-parenting

Co-parenting can be challenging when both parents live within the same state or certain distance of each other. However, during long-distance co-parenting, it can complicate things ever more so. Particularly when the parties have joint custody, mainly joint legal, it can cause major problems with enforcement.

Co-parenting Agreements or parenting plans for long-distance parents usually look different than for those who within a 50 mile radius of each other for example. Between scheduling time, facilitating visits, staying on the loop amongst a few things, the agreement needs to address all of these things in more detail.


Best Interests of the Child Custody Each State 


Sharing Information in Long-Distance Co-Parenting

The Agreement or plan should go in depth about how the long-distance parent can stay informed of doctor visits, medical decisions, school events, school reports, etc. So using email, co-parentings apps, text messages etc. are a good means. In addition, the noncustodial parent should have the contact information for school personnel, medical providers and whomever has regular contact with the children with respect to education, health and extracurricular activities. The custodial parent should provide these to the other parent without any lapses.

Communication

Video chatting and phone calls should also take place on a different schedule than if both parents live close by. The actual schedule for these should take into consideration any time differences as well as the parties schedule. Of course the age of the child should be considered but allowances should be made for the circumstances as well.

Scheduling

Travel may be a huge obstacle for the noncustodial parent when it comes to exercising visits. So when it comes to planning visits the logistics of travel should be priority. Inclement weather, means of transportation, costs to travel etc. should be factored in when creating the Agreement or plan.Also work and school schedules can certainly make long-distance visits formidable. Careful planning is necessary with respect to choosing vacation, mapping out school breaks and such. It is important to stick to schedules as much as practicable so that other planned visits are not thrown off.

Flexibility

The one thing that is paramount to any long-distance co-parenting relationship working is parties flexibility.  Things happen when parents are local let alone when there is distance between them. As I mentioned above, weather, schedule conflicts, sickness etc. can interfere with even the well planned out visits.If the noncustodial chooses not to exercise their visits or maintain contact that’s one thing. On the other hand, when exercising visits is out of their control the custodial parent’s willingness to work around will be looked at favorably by the court.

Making it Work

With today’s technology there’s no reason why long distance co-parenting should be near impossible. Between apps for communication, note taking, calendaring and so there’s a plethora of ways to make it happen smoothly. In addition, Skype, social media, text messaging makes staying in touch a feasible task.The parties should make an effort to discuss and agree on which tools will be used. Exploring what works for both parents based on their family’s specific needs is the key. The tools chosen should be included in the agreement but again flexibility is necessary.

In conclusion

“Normal” co-parenting is not impossible when parents live some distance apart. With careful planning, consistency and flexibility co-parenting with distance in between is doable.
If you would like to discuss how we can help you in your co-parenting, custody or visitation case please feel free to schedule a free 15 minute consultation.

best interests of the child

Each state has some sort of guidelines when it comes to deciding the best interests of the child.  The best interests of the child is the standard courts use to determine custody & visitation.  Even though these standards follow basic principles across all states, the factors used to make this determination varies from state to state.  This explains why the outcome in your case may look significantly different than the outcome in a case very similar to yours, both within the same state and across states.

Best Interests of the Child Standard Defined

Although there is no definitive standard definition of “the best interests of the child” there is a general principle.  That general principle is “…fostering and encouraging the child’s happiness, security, mental health and emotional development.” Currently, every state has specific factors to help its courts make custody determinations. However, how the courts uses and weighs these factors varies from state to state.

Specific Factors: Mandatory vs. Discretionary

The states’ specific factors all center around these principles, they all have a variation and/or an extension of the following:

  1. Emotional ties and relationships between the child and their parents, siblings and family members;
  2. The parents’ capacity to provide a safe home, with adequate food, clothing and medical care;
  3. The mental and physical needs of the child;
  4. The mental and physical health of the parents;
  5. The presence of domestic violence

Some states require that some or all of their specific factors to be considered, leaving little room for discretionary guidelines. Other states, on the other hand, have rules that give them permission to use discretion in applying their specific factors in addition to factors not expressly stated.

Variations of Statutes’ Definition

Most states have “shall” in their statutes, which makes adhering to the specific factors a requirement.  Like Virgina, for example, every one of its ten factors must be considered by the States with statutes that state “shall” with respect to consideration of its specific factors leave the courts with little discretion.  The courts have little wiggle room to consider factors outside of the specified factors, unless the statute says so.

In Virginia, for instance, the courts MUST consider all ten of its factors when making custody determinations. So in other words, every custody case in this state will be scrutinized using every single one of its 10 factors no matter what. This means that a case where parents are making allegations of medical neglect, educational inadequacies, inappropriate living conditions that the courts do NOT have to consider these allegations when applying the factors because these are not explicitly listed in the state’s statute.


Code of Virginia – Best Interests of the Child


However, in Connecticut, it’s  Gen. Stat. Section 46b-56( c) lists 15 factors. It reads in part “…the court shall consider the best interests of the child, and in doing so, may consider but shall not be limited to, one or more of the following factors.”  Some of the factors are the temperament and developmental needs of the child; the wishes of the child’s parents; the willingness and ability of the parents to coparent, amongst several others.  So even though it lists specific factors, the courts are not obligated to make its determination based on these factors. Connecticut courts can use factors that are NOT even on the list at all.

Impact on the Judge’s Determination

The weight of the factors, the use of the factors and the discretion with respect to both renders different outcomes for every case.  The states where courts have more discretion in considering its factors are more likely the ones with inconsistent decisions.  This can be an advantage to some, and a nightmare for others.

If you know for certain what factors the judge must consider, it is easier for you to prepare your case.  However, where the judge is not mandated to follow any specific guidelines, it is much harder to pre-determine what to focus your attention on.

In Conclusion

It is imperative to conduct thorough research before filing for custody.  If you can get a list of factors with an understanding of how they apply, then you are sure to put yourself in a much more advantageous position.

Feel free to contact me to discuss options for your divorce or custody case.

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trailing spouse

Up until recently, with Covid-19, people had to physically go where the job or career opportunities were plentiful. (Since Covid-19 the need to physically move has stalled with the influx of the work at home options). And although, women are increasingly becoming the breadwinner in marriages, they still outnumber men when it comes to following their spouse to the new location for work.  Women are more inclined to give up their job/career, friends and family, and all levels of security, to follow their man across the country or globe.  A spouse who follows their spouse to a new relocation for the promise of a better life are referred to as “trailing spouses“. Divorce is more likely in trailing spouse cases than not.

 


When Legal Separation is the Better Route 


What is Trailing Spouse

Trailing spouses is when a spouse follows their spouse to a new location for that spouse to pursue career opportunities.  Unfortunately, however, marriages suffer at a rate of almost 50 % from the effects of the stress and strain presented by these circumstances. Depression among the trailing spouses skyrockets causing major breakdown of the marriage. Loneliness, disappointment, sadness, etc. all play a major role in the mental and emotional distress many experience. 

Divorce is imminent in trailing spouse cases, which in turn leads to issues with custody, support and property distribution. I would like to explore how these issues play out in trailing spouses cases.

Trailing Spouse and Custody 

A trailing spouse that relocates for their spouse’s job or career advancement may have a legitimate argument for relocation back to their hometown. Relocation custody cases are one of the most litigated aspects of child custody. Albeit, deciding the general terms of custody can be quite intense, making a ruling with respect to relocation can be more of a challenge. The courts use “the best interests of the child” factors to determine if relocation should be granted. These factors include the physical, mental and emotional well being of the child; the child’s relationship with each parent; any special needs of the child, just to name a few.

However, with respect to relocation the best interests standards vary slightly. The major consideration is the imposition relocation would put on the noncustodial parent-child relationship. 

One significant factor considered in trailing spouse divorce relocation cases is the support system the custodial parent would have in the proposed city or state.  A support system for the parent is a support system for the child, which presumes mental & emotional well-being and social stability. So a custodial parent seeking to go back “home”, assuming a familial & social circle exists there, has a better chance than if they chose a random “start over” location. 

Trailing Spouse and Alimony 

Alimony, or spousal support/maintenance, is awarded in divorce in an effort to “balance” the parties economic position. It’s purpose is to minimize the deleterious effects of going  from a stable economic status to one of uncertainty due to divorce. Data reports that almost half of women experience a huge economic disadvantage upon divorce. And 

although men can get alimony too, their ability to “catch up” post divorce is greater.  Trailing spouse situations are apt for alimony demands based on this and other factors. 

States differ in how they decide alimony. The Uniform Marriage and Divorce Act is the federal statute states use to base their alimony laws on. Each state uses the federal statute to come up with factors to consider in alimony determination. Those factors include the payee spouse’s earning potential; the standard of living enjoyed while the parties were married; the separate property of each party; child support obligations; the duration of the marriage and the ability of the payor spouse to support him/herself. 

Trailing spouses can  certainly make a case for alimony based on at least half these factors. For example, if the spouse developed depression as a result of the uproot, this can certainly impair their ability to become self sufficient. Depending on the specifics, underemployment or unemployment are definitely possible consequences of depression. Or, in instances where the trailing spouse is willing to give up the marital home and/or to forego other marital assets (i.e. pensions, vehicles,etc), this would be factored in as well. The overall focus is on what the trailing spouse gave up in order to move away to support their spouse. 

Conclusion

In conclusion, trailing spouses sacrifice quite a bit and deserve to be compensated for their efforts. The courts don’t have explicit rules for cases like these, although they probably should, there are ways to argue your case accordingly.

What did you give up as a trailing spouse? What did you gain?

*Pt. II of Trailing Spouses and Divorce will be posted next week.

Family law attorney gets the worst wrap in the legal field. Let’s be honest, they can be the most difficult to work with in divorce and custody cases. They often Family Law Attorneycome across as unemotional, they barely recall important facts, they fail to communicate effectively and they totally ignore your wishes at times.

Data reports that more than half of family law clients are disappointed in their attorney’s services. Also, with respect to the overall profession, family law attorneys are hated more than any other specialty.  Despite these statistics though, working with the right attorney on your divorce or custody case can get you favorable results.

You have Rights as a Client

You get to dictate how your case is handled. That’s right you have the right to determine which moves your attorney makes on your behalf. I bet you did not know that huh. Well…technically you do but there’s a caveat.  Most competent attorneys will not give you complete authority, afraid that you make foolish decisions. They do have ethical obligations to give you the necessary legal information to make informed decisions. And when they do, and you insist on deciding against it, they can withdraw from your case.

So although it is your right, it may not be the wisest thing to do. Why, you ask, would an attorney take issue with his or her client exercising their right? Well because the attorney’s job would be pointless if they didn’t. Attorneys have egos and a client who goes against their own lawyer’s advice bruises their egos. Just kidding. The real reason is multifaceted but the bottom line is they have an obligation to you, the system and the bureaucrats that oversee the legal process.


What You Say in Family Court Matters 


Your Attorney Expects Things of You

Most attorneys have objectives that go way beyond providing you with the best representation.  Of course it’s important that do their best to get you the results discussed.  But it doesn’t end there attorneys have ethical obligations, professional aspirations, track records to establish & maintain, etc.  So if they anticipate anyone or anything that will interfere with these, they might think twice.  In plain English, you have a responsibility to your lawyer too.

At the top of the list is honesty, you owe it to yourself and your case to be honest with your family law attorney. If you can’t be candid with your divorce or family law attorney then you can’t be trusted. Your divorce attorney has the fate of your future in their hands so it’s imperative that you tell the truth about everything that matters. Cooperation is next, you must be willing and able to work as a team with your lawyer to see favorable results.  Communication is also important, keeping the lawyer in the loop with what is going on helps them to prepare for the necessary next steps.

Meeting in the Middle

To get the help you need you need to understand what your rights are but also what your responsibilities are too. It’s extremely important to find the right lawyer for your situation, there’s no doubt about that. However, you put all responsibility on the lawyer, you must do your part too.  It is prudent for you to have a clear discussion about the expectations, the process, the outcome, etc.  Although this discussion should be had very early in the attorney-client relationship, all is not lost if it happens any time after.  The point is, be upfront, ask questions, be clear, be cooperative.

In conclusion

How your divorce or custody case proceeds in court is up to you. Don’t be so quick to blame your lawyer for what goes “wrong” in your case. Before you “hate” or badmouth them for what they are not doing, ask yourself if you did your part.  It takes teamwork to get through these sort of situations.