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

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.

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.

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 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.

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. 

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. 

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.

15 Minute Free Consultation

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.

Co-parenting

Co-parenting can go as smoothly as the parties allow it to.  It doesn’t have to be complicated or have a lot of conflict. However, it does not mean that when parties disagree on issues that it is unsuccessful.  Co-parenting simply means that parents communicate effectively and collaborate on important decisions regarding their child(ren).  Disagreements, confusion, etc. are not necessarily nonexistent when parents co-parent successfully. Judges understand the nuances involved when faced with the challenges of coming up with a workable co-parenting agreement.


Long-Distance Co-Parenting


Signs of “Good” of Co-parenting

There is an underlying concept of what “good” or “favorable” co-parenting looks like and it’s based on several principles.  The principles center around maintaining the best environment for the mental, emotional, intellectual and physical development of the child(ren).  To ensure that these principles are given the utmost consideration there are some vital tips parents should keep in mind.

  1. Maintain clear boundaries. This means that each parent should keep in mind the things they have control over and those they do not.  Know your limits and have reasonable expectations.
  2. Set & keep a predetermined schedule. The more precise and exact the time, location, etc. the parenting schedule is the better it is for all involved.
  3. Be flexible. Setting a precise schedule does not mean that you need to firm and uncooperative when it comes to emergencies or unexpected/unforeseen events.  Life is full of these sort of things so it is important to remember that when co-parenting.
  4. Extend courtesies to each other. You don’t have to love each other anymore but treat the other parent the way you want them to treat you.  (In my Michelle Obama voice “they go low, you go high”.)
  5. Keep the kids out of it. This means the child(ren) should not be relaying messages, made to choose sides or witness any negativity about either parent.
  6. Communicate, communicate, communicate. Talking, texting, emailing, using an app, etc. whatever means or method you choose you should definitely communicate.  You don’t have to respond, especially if you’re tempted to respond negatively, but you should definitely include the other parent in the important things.
  7. Attend events without tension. You can share events, occasions, etc. without conflict.  (Of course if there’s a history of any sort of violence this may not be the best thing.) You can go in shifts, agree to stay in a certain area or similar, but you don’t have to anticipate tension when attending an event at the same time.
  8. Respect each parent’s role. Each parent has a role in their child’s life.  Never mind what you think of it, how important it is or how meaningful it is, it exists.  You should respect the other parent’s role no matter what.
  9. Check yourself. You have an obligation and a duty to keep yourself in line when it comes to co-parenting.  If you each do this then the other does not need to.
  10. It’s about your child(ren), not either of you. This is self-explanatory.

“Not So Good” but Effective Coparenting

As I stated above, effective co-parenting can still exist despite all of the elements mentioned.  Of course, studies have shown that low conflict co-parenting rears emotionally and mentally stable children.  However, children are not doomed because they were not raised by “ideal” co-parents.

I want to highlight the fact that I am not referring to “parallel parenting” where each parent don’t communicate and raise their children in two separate households with hardly any interaction with each other.  That is very different from the “not so good” co-parenting I am referring to.   That being said, let’s explore co-parenting situations where all the elements I discussed are not present.

  1. You won’t agree on EVERYTHING. And it’s perfectly ok.  How many times did you actually agree when you were together?
  2. Things happen. It’s life, surprises come up that should not turn your entire world upside down if you have to change things around.
  3. Biting the bullet, so to speak, won’t kill you. Choose your battles wisely, some things are best left unsaid or not responded to.  There will times when the other parent tries to ruffle your feathers, be the bigger person.
  4. Keeping a record of interactions is wise. It is not problematic to keep some sort of diary/journal of all interactions like pickup and/or drop off just to maintain some organization.
  5. Short conversations or exchanges are not antagonistic. Being civil sometimes means keeping the conversations to a few words or phrases and that’s it.
  6. Different parenting styles is acceptable. No need to parent the same way, in fact, it’s more beneficial if you don’t.  You should have the same intentions but don’t have be identical in your means of acquiring them.
  7. You are are not obligated to feel comfortable being in their presence. It is not wrong if you opt out of attending certain events because you don’t want to be in the same room.
  8. Sharing is not always caring. Keeping some things, that are not important, between you and your child and/or your new significant other is not detrimental.
  9. Having a new significant other is not a bad thing. Many people think dating or having a live-in paramour looks bad to the other parent and/or the court.  This is not necessarily the case as long as they don’t pose a risk to the child(ren).
  10. Your kids having issues with either or both of you it totally fine. Kids can be manipulative and controlling, so they will push your buttons this should not affect your co-parenting.

In conclusion

Co-parenting may look different for each family, this is totally acceptable.  Every single family has it’s own set of issues, expectations, etc.  So if your co-parenting relationship seems unique because of any of these reasons it’s ok. Try to focus on your overall objective, that is to ensure that your child(ren)’s well-being is paramount.

If you would like to speak with me about the services I provide please feel free to schedule a FREE 15 min. consultation here.

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Grandparents Rights

Since 2000, grandparents’ rights to visitation and/or custody has been ruled “unconstitutional” in many states.  This landmark case (Troxel v. Granville) established that state laws that mandated grandparents rights to visitation & custody violated parents’ rights to due process.  As a result, although most states have some laws on the books granting grandparents rights, some of these same states are reconsidering these laws.

There is nothing more fundamental than having the right to raise your family without interference. Of course this can be debated, given the expansive authority states have to remove children from their homes without “proven” abuse.  However, from a legislative perspective the right to rear your family without being forced to allow others access is priority.

Consequently, most states that allow grandparents access to their grandchildren condition that access upon the family being not “intact”.  In other words, unless the parents divorce or separate, die or get their rights terminated grandparents have no grounds to get visitation.  Custody is an entirely different beast, unless the parents give up their rights or they are both deceased, grandparents have a harder time getting custody.


Best Interests of the Child Custody Each State


A Breakdown of States’ Visitation/Custody Laws

 States have an interest in implementing some means of allowing grandparents access to their grandchildren, despite the debate about constitutionality.  Since the 1970s states have acknowledged the significance of grandparents (and caretakers) in the lives of children and have enacted laws accordingly.  However, since Troxel, many states have tailored their laws or principles around the finding that grandparents’ rights to access to grandchildren was not a fundamental one.

Arizona, Arkansas, Connecticut, Idaho, Kansas, Kentucky, Maryland, Montana, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, Wisconsin and Wyoming-all allow visits as long as they are in the best interests of the child or if they served in a parental role with the child.  The status of the parents is not a consideration.

Alabama, Indiana, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, Ohio, South Carolina, South Dakota, Utah, Vermont   -there are conditions to grandparents being able to sue for visitation, mainly that the parents are divorce/legal separation (or going through one), deceased. Minnesota, New Mexico, Pennsylvania & West Virginia adds a provision that allows visitation where the child lived with the grandparent(s) for at least one year and the child is removed by a parent.  Missouri adds all of these conditions as well as if they were denied visits by the parents. Texas courts require all of these conditions, plus if the parent(s) is (are) incompetent or incarcerated.

Alaska,  there are conditions to grandparents being able to sue for visitation, mainly that the parents are divorce/legal separation (or going through one), deceased or their rights being terminated.

California, Colorado, Georgia  if the family is intact then grandparents have no rights to visitation.  *Some states have exceptions.

Delaware, is the most liberal in that it’s law allows “anyone” to sue for visitation.

Florida, passed a law in 2015 that allows grandparents visitation in very limited circumstances.

Hawaii, Washington and Tennessee courts have both ruled that grandparents rights statutes/laws are unconstitutional.

Illinois is distinct in that the grandparents must show that “unreasonable visitation” with children under 1 year old.

Iowa and Louisiana, limits actions for grandparents visitation to instances where the parent of the child (the grandparent’s child) is deceased.  This allows the grandparents to stand in the deceased parent’s shoes so to speak.

Maine has the “Grandparents Visitation Act”, where grandparents can seek visitation if one of the child’s parents is deceased.

Maryland, grandparents can seek visitation if they can prove either parent is unfit or if there are exigent circumstances.

Mississippi, the grandparents have to be the parents of the noncustodial parent, a deceased parent of the child or of a parent whose had rights terminated.

Virginia is unclear.

In Conclusion

Grandparents who want to pursue some sort of visitation with their grandchildren should almost opt for maintaining a relationship with the parents.  Not that they don’t have a chance in court with getting a favorable decision regarding visitation.  The reality is that the criteria they must meet can be almost insurmountable where the parents object.

If you wish to schedule a free consultation with me to discuss your grandparent’s rights, please feel free to do that here.

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