Supervised Visitation

May 18th, 2015

Supervised visitation permits contact between a non-custodial parent and his or her child/ren in the presence of a third party who observes the visit and ensures the child’s safety. In family court cases, particularly those involving domestic violence, courts prefer supervised visitation by a neutral, professional third party to visits voluntarily supervised by friends and family because the latter can be dangerous to both the child and the monitor.

Supervised visitation works in situations where the non-custodial parent is trying to improve his/her parenting skills, struggles with a drug or alcohol abuse problem, becomes abusive or has had trouble controlling anger, has been absent from the child for a long period of time or has never spent time with the child, or in cases where the parent have been involved in inappropriate sexual behavior with the child.

Courts order supervised visitation to ensure children’s safety when divorced or separating parents are in high conflict because despite parental friction, children do best when they have reliable, ongoing relationships with both parents, but with their emotional and physical safety protected.

Supervised visitation can happen in the presence of a neutral third party, for example, friends of the family, a grandparent or other family member, neighbors, child care provider and in the presence of the custodial parent, which works a child is very young. Parents who choose to provide supervision in this manner must work extremely hard to ensure that their child is not exposed to conflict. Supervised visitation can happen at a neutral location where the visit is monitored by professionals and with a mental health professional trained in post-divorce issues.

The professional enforces effective safety measures. In most communities, social service agencies, victim service and child welfare organizations both private and governmental, and private individuals provide these services, which range from one-on-one supervision with a monitor continuously near enough to hear and see the parent/child interaction, to visits in large rooms supervised by several monitors.

The visit may take place at the parent’s home or in a designated visitation facility, such as a child care center. Supervised visitation ensures that parents have an opportunity to maintain contact with children in a structured environment that is both safe and comfortable for the child.

In supervised visitation, the visiting parent reports to the designated visitation center to visit with the child or the judge arranges for the child to be delivered to the parent’s home. In both routines, the judge specifies the supervisor. Many times, a counselor or social worker supervises contact and ensures that the parent visits with the child in a controlled setting.

The court may order supervised visitation temporarily or indefinitely when there are allegations of abuse or domestic violence.

Once a judge decides custody and visitation and issues and order, it remains in place until a parent demonstrates that there has been a change in circumstances. The parent who wishes to change a visitation order must return to court and request that the agreement be modified to reflect a change in circumstances This can be a parent’s decision to move, a parent’s successful completion of rehabilitation or counseling, or other changes that impact a parent’s suitability.

Supervised visitation protects children, while allowing parents to maintain contact with them. Parents whose visitation is supervised should strive to demonstrate their fitness to a judge. In the case of allegations of parental misbehavior, the accused should cooperate with any investigation ordered by the court.

Guidelines for the provision of supervised visitation services vary from state to state, including the guidelines for the training of the professionals. High quality initial training and continuing education are important for the professional and the families, courts and larger communities served.

The Servicemembers Civil Relief Act Protects Servicemembers

April 16th, 2015

The Servicemembers Civil Relief Act protects soldiers, sailors, airmen, Marines, Coast Guardsmen, commissioned officers in the Public Health Service and National Oceanic and Atmospheric Administration, from being sued while on active military service of their country and for up to a year after active duty.

In a divorce, SCRA protects active duty military personnel who may request a stay or postponement of the divorce.

A military defendant may enlist SCRA to postpone the case against him or her for the duration of the military service plus 60 days. Generally, however, in cases where the defendant is in the military, “the court must stay the proceedings for at least 90 days (upon application of the Service Member or his or her attorney or on the court’s own motion)” when the court determines there “may be a defense to the action and defense cannot be presented without the presence of the Service Member.”

In order to apply for these protections the servicemember must be a party to the suit. The provision applies to civil lawsuits, suits for paternity, child custody suits, and bankruptcy debtor/creditor meeting; however, it does not apply to administrative hearings, criminal trials, child support proceedings, actions where the service member is a material witness, and situations where the “service member has leave available and has made no attempt to use his/her leave to attend the proceedings.”

Service personnel who become parties to an unwanted divorce use SCRA’s protections to contest it. Often the servicemember’s commander writes a letter to the court and the opposing party’s attorney stating that the servicemember cannot attend the proceedings. The member should not have an attorney draft the letter to the court because a letter could be considered an appearance by the service member and could subject the service member to the jurisdiction of the court.

SCRA was formerly called the Soldiers’ and Sailors’ Civil Relief Act of 1940. Despite the act’s official date of 1940, its antecedents go back as the Civil War when the Congress passed a moratorium on civil actions brought against Union soldiers and sailors. This meant that any legal action involving a civil matter was put on hold until after the soldier or sailor returned from the war. Examples of civil matters included breach of contract, bankruptcy, foreclosure or divorce proceedings.

Congress’ intent in passing the moratorium was to protect both national interests and those of servicemembers. First, Congress wanted servicemembers to be able to fight without worrying about problems at home. Secondly, because most soldiers and sailors during the Civil War were not well paid, it was difficult for them to honor their pre-service debts, such as mortgage payments or other credit.

The Act may now be found in the Appendix to Title 50 of the U.S. Code, Sections 501-596.

Dissipation and Marital Debt

April 1st, 2015

As a rule, debts incurred during a marriage are marital, but not all debts incurred during a marriage are marital.

Courts look with disfavor on dissipation of marital assets. Depending on the situation, debt incurred through gambling, high living and reckless investment may not be a joint responsibility, even when the obligation occurred during the marriage. Courts consider this dissipation and debt caused by dissipation of assets is not marital.


Long-Term Separation

March 18th, 2015

For the poorest of Americans, divorce remains a luxury item.

Long-term separations are the alternative for poor couples who cannot afford to legally end their marriages, according to research presented tot the American Sociological Association.

In the longitudinal study conducted by Ohio State University and published in August 2012, researchers surveyed more than 7,272 people on a regular basis from 1979 to 2008. Most people in the study who separated reported getting a divorce within three years of the break up; however, about 15 percent of the survey participants who separated did not get a divorce within the first 10 years of their separation. Primarily, researchers found, finances reinforce the decision to enter a long-term separation: the couples simply could not afford to divorce. The married-but-indefinitely-separated group generally had only a high school education, were black or Hispanic and had young children.

The cost of divorce was one of the most significant reasons behind couple’s decision to remain separated. Depending on the jurisdiction, even the simplest divorce generally costs at least a few hundred dollars in court fees, and any complicating issue raises the cost significantly.

Moreover, there are also financial benefits to remaining married that couples, especially those with children, hesitate to forego. These include shared health care coverage and joint tax returns, among others. In addition, older couples may not want to lose their retirement benefits or claim to their shared real estate. “Those with young children may find it difficult to support themselves and their children if they divorce,” said Zhenchao Qian, study co-author and professor of sociology. “Divorce may not protect them because their spouse may be unwilling or unable to provide financial support.”(While there are some financial benefits to long-term separation, there are also risks in remaining legally married, such as being liable for a spouse’s debt or having to share earnings from windfalls like a lottery win, which are considered marital property.)

In the past, separations were usually linked to strict divorce laws that required one spouse to prove the other did something wrong — they could have cheated or abandoned their partner. But today, as laws around “no-fault” divorces have become more lenient, researchers from the study suggested long-term separations are mostly done to avoid the financial stress of going through a divorce.

Things to Consider When Hiring a Divorce Attorney

March 4th, 2015

Hiring a divorce attorney is a very important decision. The following are a few important considerations when hiring a divorce attorney.

> The experience of the lawyer. Any divorce attorney should have substantial experience in handling divorce case; he or she should practice primarily in the field of divorce law. An experienced attorney knows what to expect of the judges in his or her jurisdiction and should be able to use this to a client’s advantage.

> Client Testimonials. Former clients are a good source of insight into the attorney. An attorney should be willing to provide client references.

> Communication skills. One of the most common complaints about a divorce lawyer is that clients are unable to communicate with him or her. A divorce attorney must be accessible and prompt in responding to phone calls, emails, and requests for meetings. This is another area where prospective clients can best assess the divorce attorney by hearing what former clients have to say.

> Attorney Costs. Some attorneys do brief initial consultations for nothing; however, most experienced divorce attorneys will charge between $100 and $200 as a consultation fee, and much more for their normal hourly rate. It is a good idea to ask about the attorney’s hourly rate, what the up front retainer is, whether any portion of the retainer is refundable if it is not used, and the billing cycle, if any.

> Comfort Level. A client must have a comfort level with a divorce attorney. A divorce case is too important to entrust to someone who does not inspire complete confidence.

Remarriage after Divorce

February 20th, 2015

According to statistics, some 80% of divorcees marry again; however, the numbers for divorces from the second and, even third, marriage get worse and worse. Very often when a marriage flounders, one or both partners blame the other. “Because, they do not see themselves as responsible for the previous marriage ending. Generally, they are more likely to believe their partner’s behaviors caused the divorce, and minimize the influence of their own actions.”

People who can accept their part of the responsibility for the marital failure of the first marriage have a better chance making the second marriage work. Before a second trip to the altar, a person should take a look – a hard look — at his or her behavior in the last marriage. It doesn’t matter what the former spouse did; no doubt he or she played a part. By facing the faults of the face in the mirror, however, a person who can do this can be a part of the group whose remarriage is successful.

Some of the faults may have been a reaction to a spouse’s personality; some faults are going to stress a marriage no matter what the other person’s personality might be.

Many people believe that divorce is too easy and the ease of divorce reflects “a disposable culture where everything from water bottles to cars gets thrown away.” The culture of extreme individualism encourages the cult of self. “Individualists promote the exercise of one’s goals and desires and so value independence and self-reliance while opposing most external interference upon one’s own interests, whether by society, family or any other group or institution, according to the dictionary. ” Individualism says “It’s all about me”; a successful marriage says “It’s all about us.”

The Personal Things a Divorce Lawyer Needs to Know

February 4th, 2015

In a divorce action, lawyers need to know everything about their clients. Everyone has secrets and in divorce secrets have a way of percolating to the surface. In a divorce, particularly an angry contested action, nothing is sacred, or secret.

Things that even a close friend may not know — a torrid affair, for example — have an uncanny way of coming out in a divorce. The secrecy of these little tidbits — embarrassing, illegal, or wrong things that many people have done — allow people to look at others with a straight face.

With luck, these will not be launched into the cyber-world by the other spouse, or come up in a custody evaluation, or play out in the courtroom; when custody is in dispute, everybody and everything seems to be fair game. A client needs to anticipate that a secret will not remain so, and trust his lawyer with the skeletons in the closet. A lawyer need to know about any past or present illegal drug use and/or addiction issues; the use of any anti-depressants or mental health diagnoses or treatments; romantic involvements; childhood trauma, such as molestation, or a juvenile delinquency history; any income tax evasion; any unusual sex desires; any criminal acts and what the spouse knows about them spouse knows about them.

To be effective, the divorce lawyer needs to help the client properly characterize these items and not let them be used to obscure the merits of a legal position. The last place lawyer wants to hear about any of thee transgressions is from someone other than his client. Without a good rebuttal, the case may be lost.

Younger Children Feel Lasting Effects of Divorce

January 26th, 2015

Young children have a more difficult time establishing close relationships with their parents later in life, according to new research.

The research, which was published online June 28 and in the September 2013 issue of the Personality and Social Psychology Bulletin, concludes that children whose parents divorced when they were between birth and 3 to 5 years old had a greater level of parental insecurity than children whose parents divorced when they were older.

“A person who has a secure relationship with a parent is more likely than someone who is insecure to feel that they can trust the parent,” said R. Chris Fraley, associate professor at the University of Illinois at Urbana-Champaign and co-author of the study. “Such a person is more comfortable depending on the parent and is confident that the parent will be psychologically available when needed.”

Fraley and graduate student Marie Heffernan completed two studies that analyzed the effects of divorce on children’s relationships with their parents. They surveyed 7,735 people about their personalities and close relationships, and more than one-third of those surveyed came from homes of divorce.

Fraley explained the importance of these findings in determining how people form close relationships after witnessing the end of their parents’ marriage.

“People’s relationships with their parents and romantic partners play important roles in their lives,” Fraley said. “This research brings us one step closer to understanding why it is that some people have relatively secure relationships with close others whereas others have more difficulty opening up to and depending on important people in their lives.”

Marital Debt

January 15th, 2015

Just as a divorcing couple must divide what they own, so they must divide what they owe. The piper must be paid.



Credit card companies are not bound by a divorcing couple’s property agreement. In all jurisdictions, joint credit card debt is jointly owned because each spouse has joint and several liability for the obligation. Even when one spouse agrees to take on a debt, if it has the other spouse’s name on it — or in some cases, even it does not — the creditor has the right to come after both spouses for payment.



When debt cannot be paid off, it must be divided. The classification of debt, like the classification of assets, is a preliminary to the distribution. Most jurisdictions hold that the debts must be allocated between the spouses. In distribution, courts consider who incurred the debt and who benefited from it; which spouse is better position to pay it off; and the debt’s relation to a particular asset.

As a rule, secured marital debts must be offset by the value of the asset they encumber. Unsecured marital debt is allocated so that each spouse receives an equitable share of the net balance of the estate. 

Generally, only marital debt is divided, which means any debt incurred for the joint benefit of the parties during the marriage. Joint benefit does not necessarily mean joint use. Debts incurred in the hope of creating marital property are marital.

Debt division depends upon whether the divorcing couple lives in a community property or equitable division jurisdiction. In a community property state, a spouse is responsible for debts incurred during the marriage and it does not matter whose name is on them. In an equitable distribution state, debts in one spouse’s name are his or hers alone, but a spouse is responsible for debts taken in his or her name, even those without his or her consent.

Fighting Relocation

December 30th, 2014

Since the laws governing parental relocation vary from jurisdiction to jurisdiction, a parent trying to block the relocation of his or her children must understand and follow the detailed rules to prevent that relocation. The custodial parent who fails to follow the rules can loose custody. State laws may stipulate:

> The custodial parent seeking to relocate must modify the noncustodial parent well in advance. Many state laws specify the timelines for notification. Those same laws also provide specific instructions regarding the information included in the notification. In states that require notification, the other parent may also usually file an objection to the relocation or file a motion to prevent the relocation.

> Some states require not only notification, but consent of the other parent. In the event the both parents do not consent, the parent seeking to relocate must bring a motion seeking permission of the court. This often would include a request for a change in custody.

>In disputed cases, courts decide based on legal presumptions and burdens of proof. The particular legal presumptions and burdens of proof in each state dictate how a case should be presented and provide clues into the potential success or failure of a motion to relocate.

The noncustodial parent who maintains consistent contact of his or her children is a better position to object to relocation of a child by the other parent. The parent who remains actively involved in his or her child’s life – his schooling, medical care and extracurricular activities — can use these facts in support of his or her claims. A parent with limited involvement has a greatly diminished chance to contest the relocation.

The presumption whether to allow or disallow a relocation may depend and change based on the custodial situation.

For example, in many jurisdictions, when the custodial parent with primary physical custody seeks to relocate, the noncustodial parent faces a rebuttable presumption that move is permitted, but demonstrating that “the detrimental effect of the relocation outweighs the benefit of the change to the child” may rebut the presumption.

Detrimental effects include a diminution in the noncustodial parent’s from what it had been. As a result, for the noncustodial parent, involvement before the requested relocation can be critical. For noncustodial fathers, who often feel at a disadvantage in relocation battled, the fight may be in gaining joint custody from the outset. Every agreement that diminishes his role may have significant impact later in fighting relocation.

In a divorce, each parent’s intentions for the future should be established, particularly whether they have any intention of relocating. If it is established that the best interests of the children to remain in a certain school district as part of an initial divorce order, relocation may be significantly impaired in the future. Such restrictions must be considered in any divorce decree because a failure to address this issue may leave a parent exposed to potential relocation.

That presumption may change, however, if the parents share physical custody. In such cases, the presumption that exists is often to deny the relocation. Again, presenting evidence that the relocation is in the child’s best interest and that it will not interfere substantially with the nonmoving parent’s relationship to his or her child may rebut that presumption.