The Diavorce Solutionist

Perjury in Family Court

Family Court is the most dramatic forum when it comes to people telling their stories. Everyone involved in Family Court all sudden become skilled storyteller. There is no other Court, not even Criminal Court, where the parties are prone to give the most salacious details of incidents. Exaggerated facts, animated recollection of events, etc. are all inherent in divorce and custody matters, particularly the most contentious ones. Believe or not, there are laws in place to keep misrepresentations to a minimum in court. Specifically, when the parties have sworn to tell the truth, knowingly lying in court is considered perjury in family court.

Perjury is defined as “the offense of willfully telling an untruth in a court after having taken an oath or affirmation”. (Oxford Dictionary).

Parenting Access in Child Custody

When is it Perjury?

So, there are several instances in Family Court when individuals are required to explain events, scenarios, etc. in detail. In court documents, in mediation, in conferences and in hearings/trials, opportunities present themselves to give one’s account of how things happened. Family Court is the one venue where giving testimony can seem never-ending. And there are times when an individual can unconsciously skew the facts, to get their point across.

Perjury is not a mis-telling of the facts in the court hallways, or in conversation amongst the parties with their attorneys or not, or in any other scenario where they were not placed under oath. But perjury is a skewing of the facts in court documents, in court hearings and even in depositions because in all these scenarios the party affirms that they are telling the truth. A mistake on basic personal information may not arise to the level of perjury. So, for example, an incorrect date of birth, height or weight are not considered perjury and can be corrected by amendment.

A person does not have to be a party in the case to commit perjury. Witnesses in the case can also be guilty of perjury if they make a false statement or give false testimony while under oath.

Proving Perjury in Family Court

Knowing what perjury is or is not just part of the puzzle. The other part is making a case for perjury and effectively proving it. Just because a person makes a misrepresentation in a court document or in open court does not automatically make it perjury. If the statement is misleading or nonresponsive, but true, then there is no perjury. So, if the individual really believes that they are telling the truth in their statements or testimony, again there is no perjury.

If that statement made is not “material” to the outcome of the case. If someone makes a false statement that has no bearing on an issue that is being litigated, then it is not material. Trying to prove perjury for every single misrepresentation, no matter how small, would place a tremendous burden in the court.

To prove that an individual perjured him or herself the accuser must prove that the statement is false, that they knew it was false and that it was material to the outcome. Even when all these elements are met, the courts may not penalize the perjurer too severely.

The Consequences of Perjury in Family Court

Sometimes proving that someone made false statements or misrepresentation in Family Court is best addressed by impeaching them.  Because perjury is so rampant in Family Court expecting actual punitive consequences is a stretch.

Perjury can be seen as a civil liability, as a crime or merely as a violation. Civilly the accused can be subject to libel or slander if the target of the false statements can prove actual damages, or the court can impose its own fines pursuant to its laws. Criminally, the perjurer can be prosecuted and ordered to pay fines, be imprisoned or both. Or the perjurer can be held in contempt if the court finds that he or she violated the court’s inherent principles to act with decorum. In Family Court, the consequences usually involve a charge of contempt or a ruling on an issue that is the subject of perjury. For example, if a party has been proven to have committed perjury by lying about the value of his or her assets, the judge may order an equitable share of those assets to the non-perjuring party as punishment. Occasionally the courts will impose financial sanctions, such as attorney’s fees, where perjury was proven.

In Conclusion

This article is not intended to encourage lying in Family Court or to show how to lie in Family Court successfully. On the contrary, my intention is to enlighten you on the reality of Family Court and how perjury is viewed there.

Need help in handling your Family Court case on your own? 

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

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Parenting Access in Child Custody

Family court has proven time and again that their agenda appears to be quite opposite of what many of us expect. Especially with respect to child custody and parenting time. The standard is the best interests of the child but that does not always seem to be match the outcome of court rulings. A lot of times parents think they are doing what falls in line with the best interests standards. However, to their dismay they find out that their efforts are often minimized, ignored or even, penalized by the system.

Parenting access is an improvement goal of family court. Parenting access is the time the noncustodial parent gets to spend with their child, to communicate with their child and be informed of important things in their child’s life. This article will address how Parenting access is factored in the child custody case.

“Good” and “Not so Good” Co-parenting is Still Coparenting

The Best Interests Standards in Child Custody

The best interests of the child in custody matters are the standard all the family courts use to decide what is best for children mental, physical, emotional, and intellectual well-being. There is no specific law, but each state has come up with its own set of factors to help it make its determination.

These factors examine the child’s circumstances as well as the circumstances of the parents when the issue is custody. The objective is to ensure that the child’s needs are not overlooked when weighed against the parents’ capabilities. Conversely, looking at the parents’ circumstances from a realistic perspective is just as important. For example, the parents’ mental and physical health are factored in just as the children are.

Parenting Access as a Child Custody Factor

Another factor the courts consider is each parent’s effort and participation in facilitating a nurturing relationship between the child and the other parent. This means taking measures to arrange time for the other parent to spend with the child, keeping the lines of communication open between the other parent and child and informing the other parent of major changes in the child’s life.

(See Delaware’s list of factors.)

From a practical standpoint, rearranging your schedule to accommodate the other parent, being inconvenienced by traveling a little further than usual, allowing the child to have phone or video calls and so on, are examples of fostering a nurturing relationship. Showing that you are on board with the other parent maintaining a loving relationship with your child typically carries more weight than any “flaws” they can bring up in court.

How to Use Parenting Access Factor Effectively

As I mentioned above, everything does not always work out the way we intend them to in Family Court. Unfortunately, this happens in more cases than not. (Which is exactly why my services focus on strategy more than law, learn more here.) One of the main reasons people are highly disappointed in their custody outcome is because they fail to take the time to learn the courts ‘inner workings”. They do not learn the court’s language; it is rationale for its moves or its overall goals.

The parenting access factor is an important element with respect to the court’s goals. As I mentioned, the court has an interest in ensuring that the child has a healthy relationship with each parent. At the same token, if you are not mindful of how it intercepts with the other factors it can backfire.

Parenting access is an important factor, but it is not the only one. Most courts utilize a range of 8-12 factors to determine custody. Parenting access can be a specific factor on the list or can encompass a few of them. In other words, State A can look directly at the frequency of visits the custodial parent allows with the noncustodial parent. While State B can look at a combination of things that are not as direct but within context.

(Compare Virginia’s factors with Illinois’ factors to see how they differ in language.)

Because of the differences in how the states list their factors and how the courts examine them, litigants need to understand how they impact the final custody decision. Having clear insight on how the parenting access looks in the grand scheme of things is vital.

For instance, will allowing the child more time at the noncustodial parent’s home give the impression that the custodial parent does not want the child at home? Will encouraging communication between them support the other parent’s petition for joint custody? These are just some things to keep in mind, not as a deterrent but in planning and present your case.

In conclusion

Family Court is tricky with custody cases. If you take actions from a limited perspective, you could be shooting yourself in the foot.

If you wish to schedule a FREE 15min consultation to discuss my services in your custody matter, please feel free to do that here.

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Property Division in Divorce

Property Division in Divorce

One of the major issues that often comes up in divorce is splitting property or assets. Marriage is usually as much about economics as it is about emotion so how property is divvied up is key. Consequently, parties typically pursue their entitled interests in assets and/or finances as part of the divorce. How assets or property division in divorce when they are distributed and what each party gets are all important where the parties accumulated finances and/or personal or real property.

Part 1 – Family Court Frequently Asked Questions

The Economics of Marriage

One of the basic principles of marriage is that the union would improve the economic status of the parties, and the family. Traditionally, the wife was a homemaker while the husband was employed outside of the home. This arrangement did not necessarily increase the couple’s financial status but often it afforded the parties the opportunity to establish a reputable status. Since the late 70s, however, women working outside of the home while their husband worked became more acceptable. Financial success was the objective in most cases, even though for some it was a matter of necessity.

On the other hand, women choosing to stay home to raise a family was still a preference for many. As a result, many of these women were unable to accumulate any financial security on their own since they did not earn an income. When they divorced, they were left in a much worse financial state than when they married. So, the property division laws started to develop in various states to address this.

The Economics of Divorce

It was not until the early to mid-1980s that states started to see marriage as an economic partnership. Society finally started to accept the idea that marriage was as much about economic success as it was emotional. As a result, state legislators started to enact laws that addressed how financial and property accumulation during marriage should be split upon divorce.

First, property must be identified. Property acquired during marriage needs to be ascertained to ensure fairness.
Next, estimating time of acquisition of the property is important. Property acquired before marriage is usually considered separate property. Separate property (property acquired before marriage, by inheritance or gifts) is often excluded from division in divorce. (Although there are instances where separate property may be subject to distribution based on your state’s laws.) And last, a clear understanding of how your state splits assets determines the final award.

Part 2 – Family Law Frequently Asked Questions

Property Division Laws

States use one of two principles with respect to property division, either community property or equitable distribution.

Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. These states laws indicate that property acquired by either spouse during the span of the marriage is considered marital property and subject to be divided equally. (This may not apply to separate property or property either party possessed before the marriage.) Each state may have exceptions what they consider marital, how it is to be split and so on.

Equitable Distribution states are the other 41 states. The equitable distribution states are of the belief that marital assets are to be divided “equitably” or fairly, which is not necessarily equally. In these states the parties may receive a percentage of the overall value of marital property as opposed to actual splitting down the middle. In addition, the parties can wind up with a variety of assets and liabilities as property division in equitable distribution states.

Scenarios for Property Division

A. Wife inherits a farm ranch a year before she marries Husband. The parties move onto the property after they wed. Husband works on the farm and increases its value over the course of their 14-year marriage. In the divorce he asks for half of the value of the property based on his contributions. In a community property state, he would probably not be entitled to anything. But in an equitable distribution state, he might be entitled to some percentage of the increased value that accumulated during the 14 years.

B. Husband receives a $120,000 gift from his parents during marriage to Wife. Upon divorce, Wife seeks to have this gift included in the property division part of the case. In either community property or equitable distribution, she would not be entitled to any portion of the money. However, if she contends that the money was meant as a gift to both, then she has a chance to prevail.

C. Take Scenario B, Husband deposits the cash into the couples’ joint account. In an equitable distribution state, this is considered “comingled” assets and subjects the money to property division.

D. Take Scenario B, Husband buys a vacation home that has both parties’ names on the deed. Again, this is considered “comingled” and subjects the property to division.

In Conclusion

It is important to understand the consequences of divorce upon financial success or property acquisition. Not that you should have these thoughts before marriage, although there is nothing wrong with this thinking that is what prenuptials are for. But keeping these things in mind before divorce can help you prepare better. In addition, for purposed of negotiating having some insight on property division is extremely helpful.

If you wish to discuss your divorce and how I can help please feel free to schedule a free consultation Consultation

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Frequently Asked Questions in Family Law-PART TWO

family law
Family Law FAQs

As promised, I am working on Part Two of Frequently Asked Questions for family law-related matters. Every single day the family law community is faced with scenarios that look similar but have their own nuanced characteristics.  So, although some questions are asked repeatedly, how and if they apply to a particular set of facts vary greatly.

I encourage my audience, and the family law population at large, to ask question after question in an effort to maintain a basic understanding of what is at risk in their divorce or custody.  It does not matter if you refer to several sources, or even if the responses differ.  It is important to gather as much information from various sources when enmeshed in a divorce or custody matter.

One of the things that I do daily encourage my audience to ask questions.  As a result, what I have noticed is that there is a lot of misinformation being circulated.  In addition, I realized that people tend to have the same concerns regardless of their location, status, or position (in their case).  So, I have decided to dedicate this week’s blog to those common questions, providing some clear answers.

Frequently Asked Questions

 1. Should we try to resolve all issues ourselves to save time and money in divorce or custody?

 An Uncontested Divorce is one where the parties either have no disagreement or have resolved/settled all issues so there are no disputes. In some instances, a divorce can start out as Contested (where there are disputed issues) and wind up in settlement early enough to be considered Uncontested.  This is different than a divorce that settles via mediation, although some courts will allow mediated divorces to proceed as Uncontested. This saves tons of time and money depending on the issues involved.  With respect to custody, resolving the disputed issues can also get the case over within months as opposed to years.

  1. Does joint custody mean that you cannot get child support?

In most states, court-ordered child support is determined by statutory guidelines.  One of the factors is typically included in the guidelines is custody.  In cases where joint physical custody is awarded, child support is apportioned according to the time with each parent. For example, in 50-50 cases, in some states, neither parent pays child support to the other. However, in some states, the financial obligation of each parent is calculated based on their income (and other factors) and then the parent who has the highest obligation may be ordered to pay the other the difference in both of their child support award amounts.

Where Child Support & Custody Intersect

  1. What can I do if I do not know where my ex or soon to be ex is living to notify him/her of the case?

Once you file your initial petition for divorce or custody, it is your responsibility to “serve” the other party with a copy of the petition.  This is how they are put on notice of the pending case.  If you are unable to locate them, you must follow your jurisdiction’s procedures in either locating them or serving them another way. Most states will allow an alternate means for service.  So instead of having the party served at a physical address, for instance, the court may allow the petitioner to place an ad in the local newspaper. The newspaper ad is considered “service by publication” as it puts the other party on notice of the suit.

  1. Should I consider mediation or some other alternative to litigation?

 There are alternatives to divorce or custody litigation, that do not entail the burden and overwhelm of trial in court. More than half of all family court cases settle, with only a small fraction making it to trial. Those options are mediation, collaborative divorce or Do it Yourself.  Mediation is the option most often used, in some states it is mandatory. Mediation prices range from $2000 up to $10,000s.  The costs associated with mediation makes it most attractive to many, but so does the quicker turnaround than litigation.  If you want to explore least expensive options to divorce and custody, be sure to seriously consider mediation.

  1. Do we need a Parenting Plan for our child(ren) if we already have a schedule that we work with?

Some states have their own form of a parenting plan, parenting agreement, etc. If there is a custody case pending, then the parties will be required to enter into such agreement to make it an effective order. If there is no court case pending, then the parties are free to create one that works for them. The difference in the two, is in the former if either party chooses to change terms of the agreement, the other can seek Contempt. In the latter, neither party is obligated to stick to the plan because there may not be any consequences for them choosing not to.

(Feel free to sign up for our newsletter to get your FREE Parenting Plan template.)

Finding & Using Resources

Although there are tons of free resources on the internet, knowing which question to ask can make these resources useless.  When you are enmeshed in a legal battle, particularly in Family Court, it is critical to have the right information.  It is not advisable to trust your friends, family or even strangers to give you the appropriate answers to your legal questions.  Having gone through the process helps, but it does not qualify them to give you legal advice since each case is quite different.

I always recommend getting at least three (3) consultations from qualified attorneys in your jurisdiction so that you have a solid foundation to start your journey.  Most family law attorneys will provide a free consultation so cost should not be a deterrent.

In Conclusion

 Always, always, always ask questions and seek answers.  At the same time, use discernment to decide if the source is reliable.  There is an overwhelming amount of information relevant to divorce and custody, so filtering is important as well.

If you wish to schedule a consultation to discuss how I can help you, please feel free to do so here.

Need help in handling your Family Court case on your own?

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

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Family Court Frequently Asked Questions

Family Court
Family Court Frequently Asked Questions

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As many of you know, I am quite active in the online space with my audience.  This is very helpful for me personally and professionally, as it allows me to stay current on the issues like the family court matters that are most important to my community.  On a personal level, I am able to connect with people from all over the world, which is rewarding itself.

One of the things that I do daily is encourage my audience to ask questions.  As a result, what I have noticed is that there is a lot of misinformation being circulated.  In addition, I realized that people tend to have the same concerns regardless of their location, status or position (in their case).  So I have decided to dedicate this week’s blog to those common questions, providing some clear answers.

Parent Education in Divorce or Custody Matters

Frequently Asked Questions

 1. Should I file a divorce or custody petition first?

Read my blog on this topic but the short answer is, it depends.  If you are seeking divorce on specific “grounds” like adultery then you should file first.  However, if your circumstances meet the requirements for a “no-fault” divorce, then it may not matter.  In situations where there is property and you are concerned that your ex/soon to be ex will hide it, then you may want to file first.  However, filing first does not guarantee better success, it may just afford you the opportunity to better prepare.

  1. Is there a difference in shared custody vs. joint custody vs. 50/50 custody?

Shared custody can be anything where the child(ren) split their time at both parents home.  However, that split can be anything above or below 50%.  Joint custody usually refers to joint legal but can include physical too. 50/50 custody usually means that the child(ren) spend equal time between both parents homes. I covered this topic at length here.

  1. How should I prepare for filing for divorce?

Preparing for divorce, whether you are filing or waiting to be served, should start as early as possible.  This does not mean that you should rush to give up on your marriage but it certainly means that you should start to take the necessary steps the moment you’re convinced that divorce is impending. Gather documents, i.e. deeds/lease agreements, financial statements, credit card statements, receipts, etc.; contact all providers i.e. medical/health, schools, insurance, etc.; change passwords; inventory possessions; records, etc.

  1. Should I work with an attorney?

Having a lawyer represent you in your divorce or custody case is not an absolute must.  In certain circumstances you should certainly have an attorney represent you, but even in these instances the extent to which they provide representation should be considered.  If there is a dispute over custody, alimony &/or property distribution then having a lawyer on your side can certainly help.  However, be wise about whom you choose to work with and be sure they are familiar with the nuanced issues of your case.

Note: Visit here to read more about alternative options.

  1. Can I use text messages, emails, etc. as evidence in my hearing or trial?

This is a very common question and requires as much attention as possible.  Yes, text messages, emails, etc. can be used in court for evidentiary purposes.  Although each state has their own rules with respect to how these are admitted, they are generally allowed to be used to prove or defend your position in court.

Note:  I did a video on this topic on my Facebook business page.

Finding & Using Resources

Although there are tons of free resources on the internet, knowing which question to ask can make these resources useless.  When you are enmeshed in a legal battle, particularly in Family Court, it is critical to have the right information.  It is not advisable to trust your friends, family or even strangers to give you the appropriate answers to your legal questions.  Having gone through the process helps, but it does not qualify them to give you legal advice since each case is very different.

I always recommend getting at least three (3) consultations from qualified attorneys in your jurisdiction so that you have a solid foundation to start your journey.  Most family law attorneys will provide a free consultation so cost should not be a deterrent.

In Conclusion

 Always, always, always ask questions and seek answers.  At the same time, use discernment to decide if the source is reliable.  There is an overwhelming amount of information relevant to divorce and custody so filtering is important as well.

If you wish to schedule a consultation to discuss how I can help you please feel free to so here.

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Parent Education in Divorce or Custody Matters

Parent Education
Parent Education

I’m a big advocate for parents improving their knowledge, skills, aptitude to be the best parent they can be. Parent education comes in various forms and numerous methods. Some are much more advanced than others, but it doesn’t hurt to participate in the basic ones.

What is Parent Education?

Parent education is the training, informing, or preparing parents for the challenges of raising children. Although parent’s education is available to any parent at any point in their parenting journey, they don’t typically seek help until they are embroiled in a child custody battle.

Parent education can help parents learn to communicate more effectively; use positivity more often; discipline without harshness and so on. Parenting education can address everything from emotional/behavioral techniques to financial skills, they vary.

Parent education can be delivered in the form of in-person classes, live stream workshops, recorded webinars, even self-study programs. They vary in their duration as well, some are several weeks while others can be as long as three months. (Read more here on the different types of parents education programs.)

Divorce Therapy and its Implications

Parent Education and Divorce or Custody

In many states, the courts require that parents participate in parent education programs when a divorce is filed or a Custody proceeding commenced. Approximately seventeen states have mandatory parent’s education when divorced is filed, whether contested or uncontested. (NJ, for example, has enacted the Parents Education Act, N.J.S.A. 2A:34-12.1 to 2A:34-12.8).

The courts have an objective in mandating or encouraging participation in parents education. They want to minimize conflict amongst parents and to ensure that the children receive adequate support from the parents during the very emotional process.

From the court’s perspective, there are advantages to the parents and the children of divorce where parenting education is incorporated. For the parents, they learn to resolve conflict on their own and not involve the courts. In addition, parents get a better understanding of their respective obligation to provide for their child(ren)’s financial needs. As for the children, they usually do better academically, transition to their new life easier, and behave appropriately in their environments. The court has a vested interest in children dealing with the divorce appropriately. Again, it keeps the parents out of court for Contempt or Modification petitions.

In some custody battles, it is advisable to parent education courses whether it’s mandatory or not.  In a case where one parent has a history of questionable discipline tactics, for instance, presenting evidence of parent education completion can allay the court’s concerns on this topic.

The Mechanics of Parent Education Programs

There is usually a fee the parents have to pay for the parent education program. The fees typically range from $25 to $100. (These fees can be waived in some instances.) Nonprofit organizations and associations are most often the providers of these programs. Each state has its process of accepting or approving the parents education programs.  However, most of them have clear requirements that the programs must meet to meet the standards for approval.

There can be consequences for either parent’s failure to participate or complete the parent’s education. Of course, where they are mandatory the consequences are harsher. Failure to adhere to the court’s requirements, depending on the reason, constitutes violating a court order. Sanctions for such violations range from a change in parenting time to delaying the final judgment or order of divorce.

In conclusion

Parents education resources are not hard to come by. In all instances where parents feel they can benefit from the insight they provide they should be sought out. The advantages of the programs far outweigh the costs in almost every case.

If you wish to speak to me about your custody or divorce please feel free to contact me for a FREE 15 min consultation.

Need help in handling your Family Court case on your own?

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

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Divorce Therapy and its Implications

Divorce therapy
Divorce therapy

Are you looking for divorce therapy?

May is Mental Health Awareness Month.

Therapy is something often recommended in divorce, and certainly custody matters. Therapy can take place in many forms and settings, but the focus should be on mental and emotional support. Whether you go to divorce therapy, family therapy, co-parenting therapy or individual therapy (for your and/or your children) it helps to have professional support along the way. (Divorce coaches are another option many are using to help get through the emotional and mental strife that accompanies divorce.)

Child Custody & Abandonment

Types of Therapy in Divorce

There are stages of grief in divorce that include anger, sadness, guilt, fear, depression and shock/disbelief.  (Read more about divorce grief here.)

Having an experienced professional can help you stay focused on the important issues while managing your emotions.  Furthermore, you’re more likely to accomplish your goals if you have someone to help you to see things for what they really are. A lot of truths about yourself are likely to be discovered in therapy.

Individual therapy is usually the route divorcing parties opt for. Individual therapy allows you address pre-existing mental health issues adequately.  Additionally, it allows you to concentrate on your own feelings without feeling obligated to consider your spouse’s needs. To many this is much more beneficial than trying to candidly  discuss feelings while the source of those feelings is present.

Couples therapy is another option in divorce. This route is more laser focused than individual therapy. However, couples divorce therapy can lead to individual therapy if the parties choose. Couples therapy entails both parties talking about and working through their concerns with respect to their divorce. Child custody, visitation, property distribution, as well as communication, disagreements, etc. are all valid topics to discuss here.

Both parties have the opportunity to express their feelings openly to help them understand what happened, to prepare them for post divorce and to help the children get through it successfully.

Family therapy provides a unique opportunity for intervention for the entire family.  Family therapy can take place during or after divorce/custody. It allows the children to express their own feelings and concerns about the break up of the family. Children usually have their own range of emotions to deal with, including guilt, fear, etc. and can benefit from dealing with them in a family therapy setting.

NOTE: This article is limited to therapy in divorce actions, not specifically for custody cases. The topic of therapy and custody will be explored in the upcoming weeks.

The Implications of Therapy in Divorce Court

Although therapy has its advantages, the courts’ perspective on therapy varies greatly. Therapy can a help or hindrance as far as the court is concerned.

Procedurally, having the parties actively involved in mental health services can place a burden on the court’s agenda. Most courts give their cases a time allotment for it to remain on its active calendar. Depending on the depth of Therapy services the parties receive, the case can drag on longer. Also, depending on what the parties are treated for, their ability to comprehend everything that is going on can be jeopardized.

Substantively, the parties receiving therapeutic services  may affect the court’s decision with respect to fault (or grounds), alimony (employability) and certainly custody. (Therapy and custody will be discussed in the upcoming weeks.) With respect to fault, if you are not in a no-fault state (most are no-fault) and use emotional distress or mental cruelty as the basis for Divorce participating in therapy can substantiate that. As for alimony, most states have factors that include the emotional &/or physical health to determine the amount and duration. Same with property distribution (especially in equitable distribution states) a factor that many courts take into consideration is the parties’ wellbeing.

Either way, these things should not deter you from getting help. If you are having trouble working through your emotions, or a hard time understanding what’s going on or can’t seem to focus on your objectives then you should certainly work with a mental health professional.

If you are interested in learning more about how I can help you prepare or defend your divorce or custody case for success in Family Court, feel free to contact me to schedule a FREE Consultation. 

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Surrender vs. Submission in Divorce Negotiations

Divorce Negotiations
Divorce Settlement

In divorce there is often a lot of pressure to settle cases instead of proceeding to trial. Judges, lawyers and even parties persist in attempting to get cases resolved in divorce negotiations.  Approximately 5-10%, of divorce cases make it to trial. (The proportion of custody cases is higher). The remainder of the cases are settled amongt the parties, attorneys, through mediation or at settlement conference with thr judge’s influence.

Parent Education in Divorce or Custody Matters

Divorce Negotiations 101

1. Analyze your position. This means understanding that your.

Best source of power is your ability and willingness to walk away and take another deal.

2. Know the process.

Try to carefully negotiate how you will negotiate in advance. Discussing these issues will help keep the focus on the important issues.

3. Listen actively.

Once you start discussing substantive jssues, resist the urge to prepare in your head the next thing you’re going to say next while your counterpart is talking. Instead, listen carefully to her arguments, then paraphrase what you believe she said to check your understanding. Acknowledge the other person’s feelings, emotions and thoughts.

4. Prepare your questions in advance.

You can gain more by asking lots of apprpropritate question. Try to avoid asking “yes or no” questions and leading questions. Instead, craft neutral questions that encourage detailed responses.

5. Be mindful of valuable tradeoffs.

Try to identify issues that your opposing party cares deeply about but that you value less. Then propose making a concession on that issue in exchange for a concession on the issue you value highly.

6. Stay away from anchoring bias.

Tons of research shows that the first things mentioned in a negotiation, has a powerful influence on the negotiation that follows. You can avoid being the victim of the anchoring bias by making the first offer and trying to anchor talks in your preferred direction. If the other side does anchor first, keep your desires at the back of your mind.

There are other valuable tips that help making negotiating settlement more effective. These are just a few that will make sure you are not cheated out of what is fair and equitable.

Waiving vs Settling

In divorce negotiations one key thing to keep in mind is to not give up more than you need to. In other words, it is important to maintain as much balance in what you forego and what you persist on.  There is a difference in surrender and submission in negotiations, the main one being you feel in the end.

In negotiations, surrender is when one gives a concession without receiving a corresponding benefit . Negotiation should be a two-way street, both sides giving up something while receiving something at the same time. When one surrenders they usually give up their power or authority to someone else. Oftentimes this power they give up is not voluntarily, but by some form of force.. Because of this giving up,, surrender can leave you feeling defeated, cheated and/or devalued. Even when you think you’re doing the “right” thing by avoiding worthwhile negotiations, giving in without a fight can render negative results.

Submission, on the other hand, is not about giving up power, authority or control. Submission is making an informed decision to give in. In negotiations when a party submits, it is with a knowing and understanding of all involved. The stakes, the benefits, the process etc. are all taken into consideration when one submits. The submitting party usually feels much more optimistic than one who surrenders because of the knowledge and awareness.

In conclusion

You should choose wisely in all divorce settlement negotiations. No one can make the decision for you but it can certainly help to have some skilled players to help you in the process.  If you follow the tips for negotiating you are more likely to gain valuable insight on what’s most important for you.

If you would like coaching through your divorce settlement please feel free to schedule a FREE consultation today. 

Need help in handling your Family Court case on your own? 

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

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Hidden Assets in Divorce: Is it Worth It

Hidden Assets in Divorce

It is not unheard of to discover that parties in a divorce lied about some important things.  Divorce brings out the worse in even the most decent human beings. It’s almost as if the moment divorce discussions start, that the parties anticipate games of deception, defamation and trickery to ensue. Wives accuse husbands of hiding assets, while husbands accuse wives of making up allegations of abuse.  Either way, there’s almost always a high level of pointing the finger and mistrust of each other and enjoy the hidden assets in divorce.

When Legal Separation is the Better Route

The Obligation to Disclose

All civil actions, including divorce, have what is called the “discovery phase”. Discovery is typically part of pre-trial stage of a case. It gives each side the opportunity to gather and acquire information to prepare for asserting or defending it’s position in trial. In addition, it helps to “level the playing field” so that each side has pertinent information to better negotiate settlement. During this phase the parties can request and exchange material information that has to do with the finances, assets, health and personal etc.  Each party has an obligation to respond and has the right to demand answers to questions, to produce documents, to admit certain things and to be deposed.  Failure to disclose can lead to punitive consequences in some cases.

Hiding Assets in Divorce vs. Refusing to Disclose

Some people think that merely refusing to disclose (or respond to discovery) is within their right.  Even though there are some limits inherent in discovery demands, flat out refusal to respond can be detrimental.   If a party believes that the information requested via discovery goes beyond the scope of the issues in the case, there is an appropriate remedy.   The way to refuse is to object based on the procedural rules imposed by the jurisdiction.   Each jurisdiction have a set of evidentiary rules that sets forth the grounds to object and the methods to do so.

The hidden assets in divorce, is entirely different. There is no “proper” or “acceptable” grounds for intentionally hiding property.  If a party really believes that they are within their right to omit information concerning property, again they must object on evidentiary grounds.  There is no justification for intentionally deceiving the other side, and essentially the court, by not disclosing vital information.

The Ramifications of Hiding Assets

Objections to discovery requests are not surefire, they can be disputed.  In the event that objections are dispute, the judge usually makes the final decision either way.  Refusing to turn over information with the intent to deceive the other side though, has a different set of consequences.  As I stated above, there is an obligation to provide information, share documents or show up for depositions in all divorce proceedings.  Being honest with the discovery that is provided is also a must.  Although there are consequences for failure to disclose, the sanctions for lying (hiding assets is in fact lying) can be catastrophic.

Perjury, unfavorable court decision in custody or property distribution and/or monetary sanctions are all possible consequences for hiding assets.

If you think the other side is intentionally misrepresenting their net worth, it is your duty to prove this.  Methods like subpoenas, depositions, asset searches, investigations, etc. are all useful tactics to reveal this to the court.

If you wish to schedule a FREE 15 min. consultation, please feel free to schedule one here.

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Child Custody & Abandonment

Child Custody & Abandonment

In child custody & abandonment situations (and child support too) biological parents can have their rights terminated by court. Even though the right to being a parent in the USA is a fundamental one , pursuant to the Fourteenth Amendment, states have the power to infringe on those rights. Of course Due Process, also afforded by the Fourteenth Amendment, applies making it a requirement that laws & procedures are fair.

Where Child Support & Custody Intersect

What is Child Custody & Abandonment?

Abandonment, with respect to custody, is when a parent voluntarily fails to have any sort of contact with their child and fails to provide financially for the child for a specified period. It is NOT parental alienation, which is willful interference with the non- custodial parent having contact with their child.

Abandonment can only occur when the biological parent is aware of the child being born. So a parent who seeks Abandonment where the other parent is unaware of the child even exists will have to first prove otherwise. In some states, the period of abandonment only starts from the moment the parent is made aware of the child’s existence.

Proving Abandonment

 Proving abandonment is not easy feat, not by a stretch. The courts are not sweet on the idea of depriving parents of such a basic right under most circumstances. The burden is on the parent seeking termination to prove that all the elements are met upon a preponderance of evidence.

Those elements include:

  1. That the non custodial had noticed of the child; and
  2. That they willfully chose to withhold contact; and
  3. They failed to provide any financial support; and
  4. Set period of continuous non-contact & support; and
  5. Termination is in the best interests of the child; and
  6. That a stepparent is ready to adopt the child.

These requirements vary from state to state.

Objections or Defenses to Abandonment                                          

Non-custodial parents may have some valid reasons for being absent or not providing for their child. As I stated above, instances where the custodial parent intentionally interferes with contact is one of them.  There are others, like lack of notice of the petition, having no knowledge of the child having been born or if he can prove that termination would not be in the child’s best interests.

A child born out of wedlock, where the father never acknowledged paternity or where paternity was never established, may also be a defense. Most states require that paternity be established first. If the father’s location is unknown, the court may require that the mother incorporate “due diligence” methods  in locating him.

Also, if there is not a “fit” stepparent ready to adopt the child, then chances are the court will not order the termination.

A Finding of Abandonment 

If all of the elements are met and the court believes that termination is in the best interests of the child, then the biological parent no longer has obligation to support the child.  Emotional, physical and financial support are no longer the responsibility of the terminated parent.  However, there are some exceptions with respect to the child’s rights to that parent’s entitlements, property, estate, etc.  In some states, adopted children may have legal rights to the possessions of their biological parent in the event of that parent’s death.

It is advisable to discuss, in depth, the legal ramifications of termination with all parties involved.

In Conclusion

Child abandonment is a very complicated issue and requires the assistance of an experienced attorney.

If you need assistance with your child custody matter, please feel free to contact me for a FREE 15 min. consultation.

Need help in handling your Family Court case on your own?

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

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