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

 

What the Family Court Appearance Status Conference Is

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

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

 

The Goal of the Family Court Status Conference

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

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

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

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

 

Using this Family Court Status Conference Strategically

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

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

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

 

In Conclusion

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

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

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

 

The Initial Appearance

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

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

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

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

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

 

How to Prepare for the Initial Conference

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

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

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

 

After the Initial Conference

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

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

 

In Conclusion

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

 

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

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

 

Ethical Rules for Attorney Withdrawal

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

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

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

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

 

Mandatory withdrawal vs. Permissive Withdrawal

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

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

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

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

 

Method for Withdrawing

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

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

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

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

 

Client’s Course of Action Upon Withdrawal

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

 

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

 

Tips to Avoid Attorney Withdrawals

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

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

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

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

 

In Conclusion

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

 

 

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

 

 

Family Court is an experience. Once you find yourself in enthralled in the experience it is imperative that you prepare yourself.  There are often more questions than answers and this causes even more tension.  The way you speak, the attitude you present, the thoughts you share – these all play an integral part in how your case is received and how it is viewed from the court’s perspective.  So I wanted to take time to share some things with you based on the various roles I played in the family law arena. So learn these family court practical tips here:

 

Family Court Practical Tips

Communicating Effectively:

There’s a strategy to effective communication with anyone in Family Court, your ex or soon to be ex, lawyers, judges etc. The first thing, that I notice most people fail at, is LISTENING with objectivity. Way too often we focus on the lies, the put downs, etc. so we formulate a response while the other person is talking. This has been proven to be ineffective in custody and divorce cases. It’s not easy, especially when dealing with a manipulative, controlling opponent but it’s something you MUST learn to master if you want to prevail. Family law is the most volatile area of law, so it brings out a variety of emotions.  But not being able to put emotions in check can ruin any intentions of reaching your goals.  So let the lies be told, let the accusations flow and when it’s your turn you address them with a focused mindset.

One thing I do consistently to master this is anticipating the worse and practice my reaction.  I do this as often as I need to until my body gives me the sign that it’s “OK”.  It works!

 

Etiquette in the Courtroom:

Way too often Family Court litigants complain that the judge does not or did not listen to any of their major concerns when it came to their divorce or custody case. Although family court judges get the worst wrap in the judicial system, they are human. They can empathize with you if you learn to speak their “language”.  There is a decorum and protocol that should be used when dealing with the court.

Here are some key tips:

  1. Always address them with respect using “Your Honor”, “Your Magistrate”, etc.
  2. Don’t ever let your emotions cloud your judgment. (This is not the same as not showing emotions. Showing emotions can be a good thing at times.)
  3. Be persistent with the issue you are trying to get their attention on. This does not mean to ignore what the court is asking or emphasizing. It means being adamant about stating your concerns within the parameters established.
  4. ALWAYS, ALWAYS, ALWAYS show the court that you are willing to work on a resolution. Now is not the time to be insistent on things going your way. If your ex or soon to be ex is the one being difficult, let them be the one to show that to the court. You don’t have to be the one to say that they are not cooperating.
  5. If you see the judge leaning in a particular direction with a decision that is not in your favor, offer a compromise that addresses exactly what he/she is concerned about. For example, if the court has an issue with the fact that the other parent/party is not getting enough time without having overnight, then offer an extra day, more hours, video chats, etc. Do NOT disregard the court’s concerns by making excuses for not going along.

 

Presenting Your Case:

It’s prudent to give a lot of attention to HOW you present your case in Family Court because things can backfire on you in an instant.  (Read more here on what choosing your language carefully.) It is no secret that I focus primarily on strategy in my work to show Family Court Practical Tips to my clients.  So, a large part of how I help clients has to do with “packaging” their case in a way that is going to increase their chances of getting the best outcomes.

So, your concerns, your interests, your objectives all need to be carefully prepared.  Preparation, organization, formulation all plays an extremely role in how the case proceeds from beginning to resolution.

Take the time to carefully, I mean carefully map out how you will present your case.  It takes knowledge, guidance, and persistence to be able to do this correctly.  Come up with a strategy and stick to it.  Be sure to include how you will carry out every step of the strategy.  You can’t anticipate EVERYTHING, but you can keep an open mind and be ready to react when necessary if your strategic plan is rock solid.

 

In Conclusion

There are tons of tips I can give that will help you get better outcomes in your case. I can focus on explaining the law but that’s not going to help you as much as giving tips on strategy.

 

If you would like a FREE 15 min consultation to discuss strategy in your divorce or custody case, click Here.

A lot of people think stay-at-home moms are a thing of the past.  There are certainly tons of people who have no idea that dads stay at home too.  The decision to stay at home can be based on a variety of reasons but the main one is financial between the parents and divorce. The costs of daycare have skyrocketed in the past decade, making it more logical for one parent to stay home than pay. There are a lot of things that should be taken into consideration when the family makes this decision.

 

The Impact of Divorce On Stay at Home Parents

There are several things that come up in divorces, but particularly in one where one party was the stay at home or homemaker. Finances is a major issue in households with one wage earner when it comes to divorce.   Alimony or spousal support, child support and property division are all common topics that require attention when a divorce action is started.  The stay-at-home party usually needs some financial support to continue while the wage earner usually disagrees.

  1. Alimony or Spousal Support

Most states have a law that allows litigants to sue the other for financial support.  Each state differs in what it considers but some factors are pretty much across state lines.  For example, the duration of the marriage, the employability or work history of the parties, the financial resources, just to name a few.  Most states limit alimony to a set number of years based on the duration of the marriage, the age & health of the parties and the number of years it would take for the non-wage earner to become gainfully employed.  Some states, particularly community property states, do not have any laws for alimony.  Community property states that ALL property acquired during the marriage is subject to equal distribution.


Property Division in Divorce


The stay-at-home parent who was never employed or has no employable skills, due to being out of the workforce, has an advantage. The “employability” of that party is a major factor to consider in how long alimony should go on for.  As does their financial resources, the time it takes for them to find a job and the standard of living they enjoyed during the marriage.  These are all the factors specifically relevant to stay at home partners or homemakers.

  1. Property Distribution or Division

Property is subject to be divided in the divorce when it was acquired during the marriage. Property division laws follow one of two principles.  Some states have “equitable distribution”, while others are “community property” states.    Equitable distribution laws look at what is “fair” to the parties based on a few factors.   Those factors can include the contribution each party made to the acquisition of the property, the length of the marriage, an award of alimony (it is amount and duration) and the loss of health insurance benefits because of the divorce.  In community property states, however, the marital property is divided equally no matter what if it is considered marital (as opposed to being classified as separate property.)

  1. Child Support

Child Support is determined by the state’s guidelines (statute) and is therefore usually straightforward with respect to calculations.  The problems come up when the wage earner is self-employed, works “off the books”, gets high commissions and bonuses or something similar where income is difficult to determine.  So, with respect to stay at home party in the divorce, the only issue that is highly relevant is if the guidelines allow for deviation from the calculations.   Deviating from the state’s guidelines usually requires that certain elements be present in your case.  For example, in New York the courts are allowed to deviate from the Child Support Standards Act (“CSSA”) if the combined income of the parties is $154,000 or more.

So, if the wage earner in your case makes a reported income of at least $154,000, the court can look at each parent’s finances; educational needs of the parents; the income differences between the parents; the lifestyle if the family had remained intact-these factors are relevant in stay-at-home situations.   Although each state has their own guidelines, they may have similar provisions for considering the stay-at-home parent’s circumstances.

  1. Child Custody

When it comes to child custody, it is conceivable that the stay-at-home parent would be in the better position to gain custody of the children.   However, the best interests’ factors help the court determine who should have custody, physical and legal.  (Read here for the best interests’ standards.) The parent that stayed at home with the children is not automatically the more “fit” parent or the one that will be more likely to fulfill the children’s mental, emotional, physical, and intellectual needs. Parents who work outside of the home can be considered as “fit” or as suitable to provide a safe, loving, and nurturing environment as the homemaker parent.


Best Interests of the Child Custody Each State 


Only some states have specific best interests’ factors, while others have more like guiding principles. The states that have set out factors have implicitly left out the financial resources of each parent as a top of the list consideration.  However, some states have factors that have a more direct impact on the circumstances of stay-at-home parents.  Factors like, the need for continuation of a stable home, adjustments to school and community and parenting ability to provide a safe, nurturing environment.  These factors can have a negative or positive influence on custody since the financial means of the stay-at-home parent will be disrupted.   Maintaining a connection within the community the children are most familiar, staying in the home they are most familiar with, and parenting ability are all indirectly (or directly).  Stay at home parents must make huge adjustments, mainly because of finances, that will cause some inevitable disruptions for them and their children.

 

In conclusion

Deciding if either parent should stay home to raise the children and be a homemaker is a decision that requires the undesirable thought of its implication on divorce.  Although it might suit the family’s circumstances at the time, it can definitely create issues later on.

 

If you wish to discuss our services and how they can help you in your family law matter, please feel free to schedule a FREE 15min consultation.

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

 

Legal Separation

Although most states have some form of “no-fault” as grounds, there are still instances where a legal separation is the best route to go when heading towards divorce. “No-fault” means that the parties do not need a “reason” to divorce, they can just allege irreconcilable differences (or some variation of) and that suffices. This negates the need to rely on a separation in a legal way as the reason to divorce. However, there are still some instances where a separation is advantageous no matter what grounds exist.


Divorce Therapy and its Implications


Legal Separation vs. Separation

There is a difference between a legal (formal) separation and just the parties merely living separate and apart. A legal separation is a when you have a written agreement (in some states it must be filed in court) stating the terms of your separation.  It usually includes provisions with respect to property division, spousal support and custody too.

A separation done legally does NOT end the marriage, it puts the world on notice that you are no longer identified as a married couple for financial, medical or other reasons.

When parties are just living apart with NO formal, written agreement there is no such notice and so the IRS, the Social Security Administration, and the like, will consider you married.

 

The Advantages of a Legal Separation

The main reason couples opt for separation in a legal way is take advantage of the financial benefits. They are the following:

  1. The parties can still file jointly when filing taxes.
  2. Any assets &/or debts that accumulate from the date of legal separation, will not be considered marital. This means each party will keep their assets and be responsible for their own debt.
  3. Either party may be qualified for social security benefits by meeting the 10 year requirement. Certain military benefits can remain intact.
  4. Health insurance benefits can continue for the parties.
  5. May meet certain religious requirements.

Such separations do not have an inherent end date.  They can remain intact until one or both parties die. However, reconciliation or actual divorce terminates the agreement.  The terms of the legal separation may be incorporated into the final divorce or the parties can agree to modify the terms upon divorce.

 

When it is NOT Advantageous

Sometimes the legal separation creates more problems than proceeding straight to divorce.  Also, unlike a divorce, this kind of separation may not get the same acknowledgment in a state different from the state it was created.

  1. Entering into a sexual relationships with another while there is a legal separation may arise to the crime of adultery in some states.
  2. Some states do NOT allow you to “incorporate” or “merge” it into the divorce. A separate action for divorce is necessary.
  3. Enforcement of legal separations can be an issue for either Family Court or Civil Court. Depending on which issues are sought for enforcement, either court may be more favorable. (Florida, is one of those states since it does not acknowledge it.
  4. The costs for filing it can be duplicative if a divorce follows.
  5. Mental and emotional anguish can be inevitable. Some parties feel like they are in limbo until an actual divorce happens.

The bottom line, have all of the information and facts before proceeding to legal separation. Although it is viewed as a step short of divorce, the parties should prepare as if they are actually going right to divorce.

In Conclusion

Explore all options when trying to decide which route to take when splitting up.  Gather info, research laws, speak with professionals, etc.

If you would like to discuss your divorce or custody case, please feel free to reach me.

Contact Us

Divorce Settlement Agreement

The divorce settlement agreement constitutes 75% or more of the contested divorce cases. Courts are set up to encourage litigants to settle all issues including property distribution, child custody, child and spousal support. Pretrial conferences, settlement conferences and mediation are all part of the program aimed to settle. Divorce settlement, however, does not always take enforcement into consideration. Enforcing settlements are usually another huge piece of the pie.


Dating During Divorce 


Divorce Settlement Agreement Strategies

From the filing of the first pleading, usually the complaint, the process proceeds on the settlement track. The complaint, ideally, lays out all of the details of the case some of which are not really material. The rules of procedure affords great latitude with respect to making allegations in the complaint. Then the opponent has the opportunity to respond with defenses and/or denials that the court can “strike”. This particular phase sets the stage for settlement when the case gets to initial conference.

From this point on, each meeting is pretty much centered around resolving anyboutstsnifng issues. In fact at times the judge will use persuasion to encourage the parties to settle. The judge will give a hint of suggestion of how he/she will rule should the case go to trial.

Also, the time lapse between conferences is strategically designed to give the parties the opportunity to negotiate settlement.

Pitfalls of Settlement

Although the courts maintains an environment conducive to settling, it’s not always the best way to proceed. Although it’s usually cost beneficial for all involved, it can set either of the party up for failure.

Negotiated settlements have inherent flaws, as much as they have advantages. First off, it’s imprudent to enter into settlement talks if discovery is not complete. The discovery phase is always tricky in divorce cases. One or both parties are often apprehensive about turning over financial, personal and health information to the other. It’s a rare instance where both parties fully disclose every fact, document or authorization related to the issues in divorce.

Second, as I mentioned above, sonetimes judges strongly urge resolution for reasons unrelated to the particular case. This can unduly influence either party to give in to these suggestions regardless of how fair they are.

Third, unavoidable distractions can also affect how successful settlement talks can go. Emotional and mental volatility are often the source of uneasiness

Enforcing Settlement
It’s no secret that coming to an agreement is entirely different than getting both sides to stick it. Especially in family law, people often find reasons to justify deviating from the terms of their settlements. Financial changes, remarriage/new baby, debt obligations etc. to name just a few reasons.

More than half of divorce settlement agreements wind up being hauled into court for enforcement, modification and/or contempt. The agreements do not come with a gatekeeper to monitor it’s execution so at times they are not worth the paper they are written on. Lawyers, mediators, parenting coordinators etc may try to help facilitate the execution of the agreement but they’re efforts are often futile.

Enforcing settlement agreements requires court intervention more often than not. Rarely is there ever an incentive for the violating party to voluntarily comply. So the opposing party must employ the court if they want to the terms of the agreement implemented.

In conclusion

A forced settlement is not better than any settlement at all no matter how much pressure you’re under. You would be cutting of your nose to spite your face. Coming to an agreement is not always a bad thing, it just requires a rational mind and tempered emotions.

If you would like to discuss how my consulting, coaching or Unbundled services can help you on your divorce or custody please schedule a free 15 minute consultation.

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Contempt in Family Court
Making the best decisions

I’ve touched up contempt in family court several times in the past. But what is or is not contempt in family court matters is worth a lengthy discussion. It is defined as “the offense of being disobedient to or disrespectful toward a court of law and its officers…”.  (Wikipedia) This covers orders, rulings, decisions issued by a judge of court.  So basically when a party to an action is ordered or directed to act or not act and they do the opposite, they are acting in contempt.


Change to Child Custody Arrangements during Covid


Family Court Order vs Other Court Order Violations

Family court orders typically come about by examination of a confluence of things.  Laws, statutes and regulations are just a part of what comes into play. Social norms, public policy issues and bureaucratic influences also have a significant impact in family court decisions.  In other courts, criminal court for instance, the application of the law has a much bigger influence.  And as a result, acts of contempt are generally more explicit.  The court order is usually clear with respect to consequences for disobeying it.  Violating a criminal court order usually entails a fine and/or incarceration because the violation is usually against the court itself or public policy. In family court, on the other hand, no such clarity exists.

First off, making a “finding” that contempt actually happened is not as clear cut.  Non-compliance is usually the court’s finding, which is very different from contempt.  When someone violates a family court order by not paying child support or spousal support, not following a custody/visitation order or ignoring provisions in a divorce judgment they are not necessarily in violation against the court itself.  Their defiance is against the other party. Next, family court violations need to be examined in context, not on isolated bases. This too, makes them privy to being viewed as less egregious as criminal court violations.  And last, family court orders tend to include lots of provisions where execution is conditioned upon other provisions being executed.

Actual vs. Perceived Contempt in Family Court

As I mentioned, what may be thought of as contempt may in fact be viewed as violations, non-compliance, etc.  Although by definition there is no distinction, what matters is how the court views it.  The court is the factfinder and it will determine what rises to the level of contempt using a different level of scrutiny than it would in any other court.

Let’s examine a few scenarios to get some insight on how the court views violative behaviors.

  1. Court order directs that the non-custodial parent (NCP) pays the custodial parent (CP) $500 per month for child support.  After 3 months of missed payments, late payments or partial payments the CP seeks contempt against NCP.
  2. Court order states that the NCP is to exercise their visits with the child every Fri. eve at 6PM until Sunday afternoon at 4PM. In the past several months, CP repeatedly shows up to drop off an hour or two late.
  3. Court order, by way of Divorce Decree, orders that the Defendant is to turn over all personal property in their possession within 30 days of the Decree. 90 days have passed and Plaintiff still has not received any such property.

Although all of these scenarios clearly exhibit some violations, non-compliance and/or disobeying court orders, they rarely arise to the level of “contempt” in a family court setting.  However, when these acts are considered in context, reviewed in light of other issues in the case, a finding of contempt is possible.

Strategy
Strategy

Making a Case for  Contempt in Family Court

Although the elements of contempt are usually spelled out in some form, the courts usually use a less stringent standard of proof in family court.

The key to getting the court to make an actual contempt ruling requires a strategic approach.  You need to look at the violative behavior in with a look at the entire case. This means looking at past behaviors, considering the judges position of related issues, social norms, local practices, etc.

So when you are faced with a repeated nonpayment of support it makes sense to consider the NCP parent’s track record with paying, if there is an issue with ability to pay because of a change in employment, if the court had to reprimand NCP previously for nonpayment and so on.  Additionally, you should ask yourself “what is your judge’s history with this particular violative act”.

When the issue is with late drop-offs or early pickups, consider things like quality of visits, ability to makeup for lost time, the harm done to the children, etc. Again, what your judge’s views are on this issue, what the judge would say or do in this situation, etc. are also very important.

When you are faced with making a case for contempt, one great source to refer to is the actual order itself. Review it over and over again if necessary, to see if there are any “gray” areas of interpretation.  Read it from the other party’s perspective to see if there are any viable potential arguments they can make.  Read it to with a view from the judge’s viewpoint to see if their intent was clearly stated.

Sum it Up

In conclusion, understand that what you may perceive as a clear case of contempt may not be considered such by family court.  It is a good idea to think, plan and strategize on what your next move should be in the event of violations of your court order.

A step or blended family is a family that consists of parents and children who are not biologically related, the parents are remarried or cohabitating with someone other than the biological parent. Blended families make up almost half of all families in the US, according to Stepfamily.org. That means that a large amount of children are being raised in a home with one or more non-biological adult and children. This arrangement raises several family law related concerns, moreso than the mundane issues. Let’s take a look at how the various legal concepts apply to step families.

Coparenting in Step or Blended Families

Coparenting within a step or blended family is a little different than coparenting amongst solo parents.  Although coparenting amongst solo parents poses challenges, co-parenting amongst step families takes on a different set of challenges.  

Depending on how the custody agreement arose, whether it came to be as a result of a settlement (verbal or written), a court order or negotiations, the way coparenting happen looks different.  It is not uncommon to overlook custody provisions that specifically address stepparents’ rights and responsibilities. It’s obviously not because stepfamilies are rare.  Stepparents are not discussed in custody agreements because the courts don’t have jurisdiction over persons who are not parties to the action.  However, some parties are savvy enough to ask that specific provisions be included, making the parties themselves responsible for their partners compliance. One of the ones I see often is a provision that speaks to if and when the child can call the stepparent “Mommy” or “Daddy”.


What You Say in Family Court Matters


Additional provisions that may be included in custody agreements are; whether and to what extent the stepparent can discipline the child, if they can consent to medical treatment, if they are allowed to access school records or attend events, etc. Even if some of these NOT covered in the actual custody document, federal and state laws govern the rights of stepparents with respect to health and education. Stepparents cannot consent to medical treatment of a stepchild, even in emergency situations. They can transport the child to the hospital or medical appointments but need written consent to do more than that. Consent to treatment requires written consent from the parent/spouse who must have joint custody or legal custody.   

Same with respect to accessing school records or attending school events, consent (although written consent is not required it is recommended) from the parent/spouse is needed.  As for discipline, no specific laws address stepparent rights in the event the custody agreement fails to mention it. However, the extent to which a stepparent can discipline a stepchild relies solely with the biological parents (as long as it is within the legal confines of their state). Whatever rules the parents agreed to also extends to stepparents. Nonetheless, it is prudent to cover stepparent discipline in the custody agreement. Stepparents should be viewed as authority figures, of course, and should step into that role with confidence but boundaries should be established and maintained.

Custody/Visitation in Blended Families

There is a difference in step parents rights and responsibilities in sole custody arrangements.  In sole custody households, the biological parent does not have to confer with the other when making major decisions.  However, in joint custody, shared custody or 50/50 arrangements, this is not the case. (For a detailed explanation of the difference in custody arrangements go here  http://www.thedivorcesolutionist.com/will-the-court-award-sole-custody).  When consent is required in joint custody arrangements, there are times when that consent can be trumped by the other biological parent.  However, situations that do not need consent, still make copaStep or Blended Familyrenting amongst stepfamilies difficult. The issues that directly affect custody/visitation are communication, pickups and dropoffs, attendance at special events, household rules, etc. For the most part, stepparents are to adhere to the provisions of the custody agreement even though if they are not mentioned in the agreement.  Furthermore, stepparents should not meddle in communications or discussions between biological parents except in exigent circumstances. Particularly in high conflict custody arrangements, stepparents should keep their input or involvement to a minimum. Maintaining boundaries should be paramount to ensure coparenting goes smoothly.

Child Support or Financial Obligations in Blended Families

Child support guidelines applies to biological parents but can bring stepparents into the fold. The purpose of child support is to ensure that children have the benefit of maintaining the same or similar standard of living as if the parents were still living in the same household. However, this principle gets tricky in its application when children have the addition of a stepparent and their income. Although the courts cannot obligate stepparents to provide for children that are not biologically theirs (except in adoption) they cannot ignore the windfall uncalculated income provides. A payor non-custodial solo parent should not have to give up more than his/her proportionate share of income to a payee custodial remarried parent who has the financial advantage of another income in the household.  

What happens with child support in stepfamilies? Well, most courts will not “add” the stepparent’s income into the formula.  However, what they are permitted to do is to “consider” the stepparent’s income when deciding if they should deviate from the child support guidelines.  And where there a huge disparity in income, and thus standard of living, they will try to balance them out by applying its discretion. 

Conclusion

In sum, stepparents should take every aspect of the new family dynamics into account before taking on the role in a step or blended family.  Although having a custody agreement in place helps a lot, it is nearly impracticable to follow every provision to the letter.  Emotional bonding, physical conditions and financial limitations can make implementation even more challenging.