Archive for January, 2010

Your Children and My Children are Our Children

Friday, January 29th, 2010

Stepparenting happens when one person marries the custodial parent of a minor child and thereafter resides with that child.

Liberal divorce has paradoxically dramatically increased the number of stepfamilies because more than three-quarters of people who divorce eventually remarry and many acquired “ready made” families in the process. Most divorced people marry again and have additional children, natural or stepchildren, but most states do not consider stepchildren to be “‘children of a subsequent marriage’” in support guidelines.

Stepparenting and stepchildren and stepfamilies face many challenges that traditional families do not. In day-to-day living, stepparents find themselves in situations where they lack the authority (”You’re not my father”) to enforce rules, regimes and protocols necessary for the domestic tranquility.

The relationship between a stepparent and his or her stepchildren is not the same as the relationship between a parent and his or her children in that under common law a stepparent has no financial duty to support a stepchild during a marriage to that child’s natural parent. However, 20 states statutorily require a stepparent to support stepchildren, but no state requires a stepparent to support a stepchild when they no longer live as a family.

Stepparents frequently bond to the their stepchildren, and thus visitation may become a decision a family court faces. Stepparents may be awarded visitation rights based on the “best interest” standard that dominates child custody and welfare actions. Twenty-three of the 50 states statutorily authorize stepparent visitation. In ten of these stepparents are explicitly named as having the right to request visitation and in 13 other states stepparents are considered “interested third parties.” Five others permit stepparents to petition for visitation.

The rights of the natural parent and the wishes of a stepparent may come in conflict. Most legislatures and courts have ruled there is a strong presumption in favor of the natural parent in dispute over a child with a nonparent, including a stepparent. In these cases, even the expressed wishes of a child to remain with a stepparent are subordinate to the right of parent to his or her child. Parents have a constitutionally protected right to determine a child’s “companionship, care, custody and management.” Very often, however, a stepparent is given visitation rights when the custodial parent dies. Custody of the child reverts to the child’s other natural parent, but the stepparent may appeal for visitation rights. A stepparent, however, may be granted custody when the facts demonstrate that the child would “would not benefit from being the custody of the natural parent.”

A Serious Form of Marital Misconduct

Thursday, January 28th, 2010

Dissipation includes a variety of transgressions against the marriage — the wasting of marital assets through extravagant spending, high living, gambling, excessive borrowing or fraudulent conveyance to third parties.

Courts, which increasing view a marriage as an economic unit, look with disfavor on the dissipation of assets. Most consider it serious marital misconduct — more serious than, for example, marital infidelity.

Dissipation often happens when one spouse hides assets that might be shared with the other as part of the property settlement. Very often women are at a disadvantage because the husband manages the money. Sometimes these machinations become quite complicated and require a forensic accountant who can analyze financial records for evidence of secretion.

One common form of dissipation of assets is the expenditure of marital funds for a girlfriend or paramour.

Courts deal with dissipation after the fact via unequal distribution of the remaining marital assets in favor of the victim party. The most common way is to treat the dissipated assets as marital property and then distribute what is already gone as that party’s share of the marital pie. For instance, an alienated spouse who gambles away marital assets in the casinos may find the losses negatively credited to his or her share of the marital estate.

Sometimes assets improperly conveyed to friendly third parties may be ordered restored to the marital estate under the terms of Uniform Fraudulent Transfers Act (UFTA).

In dealing with dissipation, courts balance the competing goals of preventing dishonest or reckless expenditure of marital funds against reasonable use of marital funds for legitimate purposes.

Expenditures or loss associated with a valid marital purpose are more problematic. Valid marital purpose would be when one partner spends marital assets on routine living expenses, business expenses associated with a marital business, reasonable maintenance and payment of taxes on marital property.

Generally, a dissipated asset may be considered marital property if 1) the asset is lost; 2) the loss happened upon and after the breakdown of the marriage; 3) the guilty spouse controlled the asset at the time of the loss; and 4) the loss was not incidental to a valid marital purpose. Loss can take many forms. In one California case a number of years ago, an angry husband who heaved his wife’s jewelry in the Pacific Ocean learned the meaning of dissipation when the court charged the value against his share of the marital pie.

Get a Grip and Let Go!

Tuesday, January 26th, 2010

Personal property includes, but is not limited to, cash, savings accounts, checking accounts, stocks, bonds, jewelry, antiques, collectibles and pets. The personal property of individuals may be separate or marital and subject to distribution in a divorce. The term personal property does not include real estate or that which is affixed to it.

Personalty, a subset of personal property, is a person’s stuff, as the late George Carlin put it — the things people accumulate during a lifetime– chattels, including clothing and furnishings.

The spouses should divide all personalty. These goods, as economists call them, that people accumulate lose almost all value the moment they the leave the store. As a rule of thumb, almost anything bought in a mall, anything that is plugged in, uses batteries, anything for the house goes for yard sale prices when it is sold. These are the things “you do not need but cannot live without,” as one wag put it — the “unnecessary necessities,” as Mark Twain called them, that help drive America’s consumer economy.

Divorcing couples hurt and bleeding from the pain and suffering of a marital failure, sometimes foolishly battle for possession of nearly worthless items that somehow have a symbolic meaning. That warped Bob Dylan album bought during the happier times of the marriage — the one that has not been played in ten years because neither spouse owns a working stereo — takes on great symbolism because possession suggests vindication.

Couples should stand back and get a grip — and let go. Possession of these relics of a failed marriage vindicates no one, and paying a lawyer to fight for a useless record, or the fourth set of dishes that have been stored in a rental box since they displaced the third set, dissipates money both spouses need to start a new life.

Finding the Missing Spouse

Wednesday, January 20th, 2010

Sometimes people marry and then drift apart, not only emotionally but also physically, and one spouse loses track of the other. This is not a problem until one or the other wants to marry again and therefore must divorce the first missing partner.

Courts do not allow a person to get a divorce without his or her spouse knowing it. The divorcing spouse must make a good faith effort to locate his or her missing partner. In most jurisdictions, a good faith effort means a constructive service of process, usually the publication of a newspaper advertisement that legally puts the missing spouse on notice that he or she is being sued for divorce. Generally, this advertisement must be published in a newspaper approved by the courts, and it must appear as many as four times over a period of four consecutive weeks.

But before the divorcing spouse can publish the notice of divorce, in most jurisdictions, he or she must demonstrate to the court that an exhaustive effort has been made to locate the missing party. This includes checking last known addresses, employers, family, friends, the military services, and, in some jurisdictions, making an Internet search.

When these efforts are fruitless, the divorce spouse may petition the court for permission to publish a notice in a newspaper, often one published in a location where the missing spouse is likely to see it. Some jurisdictions are very meticulous about service by publication. Wyoming, for example, specifies that the notice be published in a newspaper that has “a paid circulation of at least 500, and each page must be at least 10 inches by 12 and 1/2 inches.”

After the notice appears, the respondent has a certain number of days to file an answer. If he or she does not — and this is almost always the case — the court permit the divorce to move forward as default. Jurisdictions require proof of good faith efforts, along with proof of publication, before the divorce moves forward as a default action — one where the respondent failed to file an answer.

Finding the Right Divorce Lawyer

Monday, January 11th, 2010

Very often by the time a divorce is over, the spouses end up hating not only the other party’s lawyer but his or her own. That’s because the divorce action itself in one very sharp blade in the emotional meat grinder of a marital collapse.

Divorce litigation, unlike other types of civil litigation, carries with it considerations that make selecting a lawyer very difficult, even as the consequences of selecting a bad lawyer are drastic. Unlike other types of litigation, divorce litigations allows for a concept of fundamental fairness in the distribution of a couple’s marital estate, and judges recognize that the letter of the law must be applied in the context of a human event of considerable pain and suffering for all involved.

Some people, reeling from the pain and suffering of a separation, hire attack dog lawyers whose cutthroat, no-holds-barred tactics have given them a reputation in a given community. These are the lawyers who believe in the attack, who badmouth the client’s spouse, and who promise victory even before the action has begun. When the client’s spouse also retains an attack dog lawyer, the odds increase dramatically that the case, which might have been settled through joint negotiation, will now end in a divorce trial, the worst possible outcome for a couple ending a marriage. There is no doubt that bad lawyering in divorce actions draws out the process even as it increases the cost because bad lawyering always mean unnecessary lawyering, not to mention the emotion wear and tear of all litigation.

Divorce books contain checklists of objective considerations in hiring a divorce lawyer. Generally, considering a family law specialist is a good first step. But a lawyer who takes the high road, one who is assertive without being aggressive, is a far better bet than a hired gun who will willingly turn the action into a bloodbath.

If a person hires a lawyer who, while mindful and attentive of his or her client’s interests, also works to try to bring the action to settlement outside of the courtroom, who treats his client and client’s spouse respectfully and who is mindful of the welfare of the children, the divorce can move forward with less cost and less anguish.

Another Spin of the Roulette Wheel of Romance

Wednesday, January 6th, 2010

A vast majority of the men and women who divorce remarry within three years and as they walk down the aisle toward the altar these men and women brings with the wisdom of experience that gives them an advantage first-time couples do not have. These battle-scarred veterans, the conventional wisdom holds, have learned from their mistakes; they are “older and wiser.” This time, the promised land is in sight because she has found Mr. Right or he has found Mrs. Wonderful. So goes the conventional wisdom. Alas, the conventional wisdom is wrong: about 60 percent of all second marriages end on the rocks — a rate even higher than first marriages.

The odds are poorer for that second (or third) spin of the roulette wheel of romance for a number of reasons. Sometimes, divorced people, reeling from the pain and suffering of a failed first marriage, jump into a second, rebound marriage, and in a surprising number of cases, marry a person who is very much like the person just divorced. This puzzles their friends who see the similarities that escape the betrothed. When he asked why he always married small Mexican woman who looked (and acted) very much alike, the actor John Wayne said, “You pick your poison. I’ll pick mine.”

Hope springs eternal, but leaping into a second marriage without figuring out why first failed is like NASA firing a new rocket before finding out why the last one exploded. Instead of honest soul searching that includes an honest inventory of vices and virtues, people become convinced that the marital promised land includes a Mr. Right or Mrs. Wonderful who is everything (good) the first partner was not.

Second (and subsequent) marriages mean the unfinished business of first marriage (or previous) marriage — children. And partners drawn from a pool of people whose first marriage (or previous) marriage ended on the rocks. That means stepchildren and stepparenting. And second (and subsequent) marriages mean pinched finances. These can be overcome, of course, but climb is often steeper, and the plunge more often fatal.