Child Friendly Divorce

August 25th, 2015

Parents can foster their children’s long-term adjustment to any major change in the family.

Relationships must be nurturing and supportive. The children need to know they can depend on the parents. Parents can buffer children from many of the blows that come with a divorce if the provide the right environment.

Parents cannot prevent or protect their children from all stress, particularly not when divorce fractures the family, but they can reduce the stress the children receive so they can tolerate and overcome it. This fosters the resilience children need.

There are four key ways to do this. These involve building good relationships with your children, developing open communication with them, stabilizing the home environment and limiting the amount of change in children’s lives. The third, stability, is by far the most crucial to their long-term adjustment.

Here is a checklist for parents to help foster children’s long-term adjustment to divorce:

> Build good relationships with the children. This means spending time alone with the children, showing them empathy and respect, reassuring them. Parents must be interested in their activities and support their relationship with the other parent.

> Maintain open communication with the children. Parents must listen to the children and put themselves in the children’s place. This means listening to the children, particularly about divorce related questions.

> Create a stable home environment. This means regular, organized routines and established rules and limits.

> Limit change in children’s lives. This means giving children six months before making additional changes, and making changes slowly.

Children often emerge from their parents’ divorce with greater psychological strength. Research shows that the most effective easy to foster that resilience is not to shelter them from stress, but to allow them to encounter stress in doses that are moderate enough for them to handle and overcome successfully. This resilience serves them throughout their lives.

Both spouses may experience feelings of guilt during a divorce, but they do so at different times. The leaver may feel guilt over leaving the marriage, no matter how unhealthy it was. In fact, the longer the co-dependent marriage goes on, the more each party is locked into an existing role. The giver becomes accustomed to always putting others’ desires and interests before his or hers. It may be agonizing for that person to suddenly put his or her mental well being ahead of doing for others. On the other hand, the spouse left may do a lot of hand wringing over various “if only” issues– if only he had been a better provider, lover, caregiver, companion.

The shock numbs with time, as the sufferer accepts the fact of the major life change is permanent. Guilt can be addressed in joint counseling, or counseling for closure.

Some ways to ease the divorce process, may be to:

> Listen to your child;

> Put yourself in your child’s place;

> Tune into divorce related questions;

> Accept their feelings;

> Use emotional regulation to help yourself and your child;

>Encourage them to talk

> Engage your child in an activity;

> Stay available;

> Share some of your own feelings;

> Use a children’s book to give them information about the divorce;

> Seek out other support people for your children;

> Resolve the issues of custody and placement as quickly as possible;

> Take children’s developmental needs into account;

> End parental conflict;

> Support children’s relationships with their other parent;

> Encourage your child to assume age-appropriate responsibilities;

> Resolve the reconciliation question quickly;

> Get counseling for your child if necessary;

> Make changes gradually;

> Allow six months between major changes;

> Continue familiar routines;

> Give children time to prepare for changes;

> Provide a positive focus.

Planning for Transgender Couples in Marriage

July 9th, 2015

Transgendered people face thorny legal issues with regard to marriage. Although marriage is not yet a legal option for gay or lesbian people in all jurisdictions, it is already an option — and a reality — for many who are transgender.

Transgender people are often able to enter into a heterosexual marriage after undergoing sex-reassignment. A transgender person may also be married to a person of the same sex, which happens, for example, when one of the spouses in a heterosexual marriage comes out as transsexual and transitions within the marriage. If the couple chooses remain married as many do, the result is a legal marriage in which both spouses are male or female. Alternatively, in jurisdictions that do not allow a transgender person to change his or her legal sex, some transgender people have been able to marry a person of the same sex. To all outward appearances and to the couple themselves, the marriage is a same-sex union. In the eyes of the law, however, it is a different-sex marriage because technically speaking, the law continues to view the transgender spouse as a legal member of his or her birth sex even after sex-reassignment.

In short, marriage is a very real option for a variety of transgender people in a variety of circumstances; in practice, however, the legal validity of marriages involving a transgender spouse is not yet firmly established in the great majority of jurisdictions.

Transgender people who are married must be aware of their potential legal vulnerability and take steps to protect themselves. Married transgender people should certainly act accordingly and should not hesitate to exercise their rights as legal spouses, including, for examples, the right to file married tax returns, the right to apply for spousal benefits or the right to have or adopt children as a married couple. At the same time, however, it is also important to create a safety net in the event that the validity of the marriage is challenged.

Although there are many benefits and protections that arise exclusively through marriage that cannot be duplicated through any other means, there are also some basic protections that can be safeguarded and secured through privately executed documents and agreements. At a minimum, a transgender person who is married should have:

> A last will and testament for both spouses;

> Financial and medical powers of attorney in which each spouse designates either the other spouse or another trusted person to be his or her legal agent in the event of incapacitation; and

> A written personal relationship agreement including a detailed account of each spouse’s rights and responsibilities with regard to finances, property, support, children and any other issues that are important to the couple.

The agreement should acknowledge that the non-transgender partner is aware that his or her spouse is transgender to avoid any later claims of fraud or deception. Ideally, the couple should draft those documents with assistance from an attorney and supplement them with any other legal planning documents that are appropriate for their specific circumstances.

With those basic documents in place, transgender people who are married can at least ensure that the spouses can inherit each other’s estates and retain control over their own financial and medical decisions, even if the validity of the marriage is challenged. In many cases, the safety net created by extra legal planning will never have to be used. In others, the presence of that extra protection will shelter the transgender person and his or her spouse from devastating emotional trauma and financial loss.

Divorce after Adoption

June 23rd, 2015

In the happier times of a marriage, divorce isn’t the ending that any parent envisions when they begin the journey of adoption. However, divorce undoes families with adopted children the way it undoes families with biological children. When adopted children are in the picture, however, a parent may feel extra guilt because the trauma of divorce now compounds the dislocation of adoption, thus inflicting an additional sadness on a child with a history of loss.

In a divorce involving an adopted child, the parent who chooses to demonstrate a good ending to a bad situation sets an incredibly important example. The adopted child needs to be guided through his or her own pain and confusion. When a parent displays emotional leadership, the adoptee learns there is life-after-loss.

Whether a couple’s divorce is amicable or acrimonious, the emotional needs of the adopted child must be a high priority for at least the year after the divorce. Parents must remember that divorcing spouses are the marriage role models that children internalize and replicate.

Divorce triggers an adopted child’s loss issues. It is an opportunity to identify and talk about the core issue of loss, validate feelings, offer empathy, and help build a child’s resilience with coping skills. An adopted child’s awareness — that divorce equals abandonment — is an enormous canyon he or she must cross to successfully deal with the stress of this major life change.

Ethical Problems in Family Mediation

June 11th, 2015

Often used in a divorce, mediation is a voluntary, non-binding process where a neutral third party helps the spouses reach a mutually beneficial resolution of their dispute. The mediator facilitates communication, promotes understanding, assists in identifying and exploring issues, interests and possible bases for agreement and compromise. Sometimes he or she helps the parties evaluate the likely outcome in court or arbitration if they cannot reach settlement through mediation.

Ethical issues in mediation are typically associated with confidentiality and conflict of interest, according to Trip Barthel, the Founder and Executive Director of the Neighborhood Mediation Center in Reno, Nevada. Sometimes, however, the mediator faces situations that tax the give and take of the process. For example, sometimes mediation moves toward a very unbalanced proposal, or, worse, threatens the well being of parties “not at the table,” such as children in a custody dispute.

Mediation is a fluid and flexible process. JAMS (formerly Judicial Arbitration and Mediation Services), which is a national mediation service, have established guidelines to guide mediators facing an ethical conflict. National in scope, the guidelines are not intended to supplant applicable state or local laws or rules. All JAMS mediators know applicable state statutes or court rules. In the event that these guidelines are inconsistent with such statutes or rules, the mediators complies with the applicable law.

> The mediator must make sure everyone knows about his or her role and understands the terms of the settlement. If a party is unable to give informed consent because of, for example, a physical or mental impairment, the mediation should stop until such informed consent has been obtained from the party or the party’s duly authorized representative.

> The mediator must protect the voluntary participation of each party. The right of the parties to reach a voluntary agreement is central to mediation. Court-ordered mediation can imply reluctance. A mediator should assure the parties that although they have been ordered to attend the mediation, a settlement could be reached only if it is to their mutual satisfaction.

> The mediator must be competent to mediate a problem. A mediator should have sufficient knowledge of relevant procedural and substantive issues. A mediator should refuse to serve or withdraw from the mediation if the mediator becomes physically or mentally unable to meet the reasonable expectations of the parties.

> The mediator must maintain the confidentiality of the process. The parties must understand confidentiality before the mediation begins. The mediator should explain (a) any applicable laws, rules or agreements prohibiting disclosure in subsequent legal proceedings of offers and statements made and documents produced during the session, and (b) the mediator’s role in maintaining confidences within the mediation and as to third parties.

> No confidential information should be disclosed without permission of all parties or unless required by law, court rule or other legal authority. A mediator must not use confidential information acquired during the mediation to gain personal advantage or advantage for others, or to affect adversely the interests of others. If the mediation is being conducted under rules or laws that require disclosure of information, a mediator should so notify the parties prior to beginning the mediation session. In addition, a mediator’s notes, the parties’ submissions and other documents containing confidential or otherwise sensitive information should be stored in a reasonably secure location and may be destroyed 90 days after the mediation has been completed or sooner if all parties so request or consent.

> The mediator must be impartial. A mediator should disclose any information that reasonably could lead a party to question the mediator’s impartiality. A mediator may proceed with the process unless a party objects to continuing service. A mediator should withdraw if a conflict of interest exists that casts serious doubt on the integrity of the process.

> The mediator should refrain from any conduct involving a party, insurer or counsel to the mediation that reasonably would cast doubt on the integrity of the mediation process, absent disclosure to and consent by all parties to the mediation. This does not preclude the mediator from serving as a mediator or in another dispute resolution capacity with a party, insurer or counsel involved in the prior mediation.

> The mediator should exercise caution in accepting items of value, including gifts or payments for meals, from a party, insurer or counsel to a mediation during or after a mediation, particularly if the items are accepted at such a time and in such a manner as to cast doubt on the integrity of the mediation process.

> A mediator should not recommend other professionals. If a mediator is unable to make a personal recommendation without creating a potential or actual conflict of interest, the mediator should so advise the parties and refer them elsewhere.

> If it becomes appropriate to discuss the possibility combining mediation with binding arbitration, the mediator his or her role and relationship to the parties has altered, as well as the impact such a shift may have on the disclosure of information to the mediator. The parties should be given the opportunity to select another neutral to conduct the arbitration procedure.

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.”