Archive for December, 2012

Grandparents’ Visitation

Thursday, December 27th, 2012

Divorce does not just affect parents, or children but extended families as well. Grandparents often wonder if they even have rights to their grandchildren now that the parents have divorced. Living with the loss of not being able to see their grandchildren is unimaginable.

The Supreme Court case dealing with the issue of grandparents’ rights is Troxel v. Granville 530 U.S. 57 (2000). The Court in Troxel, asserted that parents have the exclusive legal right to raise the children and determine their children’s relationships with any third parties, including grandparents. In other words, parents cannot be forced to allow grandparents’ visitation except in special circumstances.

Taking parents to court will do very little to resolve any ongoing conflict that resulted in the estrangement in the first place. Mediation is an option if the custodial parent is not willing to agree on visitation for grandparents. A third party attempting to gain visitation should be able to prove that visitation is in the best interest of the child. Grandparents might be required to show that the child will suffer harm if visitation is taken away.

Suing the child’s custodial parent for visitation is not a decision to be taken lightly; feelings get hurt and even in the best possible outcomes, hurt feelings can mean a hardened heart. It is always best to try to work it out with the parent if at all possible.

Communication sometimes is best facilitated with a mediator. Additionally a mediator may be able to facilitate a resolution that all parties agree to and feel comfortable with. Positive communication not only works toward resolution of the instant litigation/visitation issue but also establishes healthy relationships between the parties and children.

Filing for Divorce

Tuesday, December 11th, 2012

Anyone filing for divorce must become familiar with the documents required in the jurisdiction where the action happens. Every state has somewhat different paperwork requirements. The best way do start is to check the county’s family court website, speak to the court clerk or consult with a family law attorney, and learn what documents must be filed. Uncontested actions lend themselves to pro se filing.

The route to an uncontested divorce is normally much shorter and smoother than one where one spouse files a reply contesting the action.

Many divorces that begin contested become uncontested as the action proceeds. While the names of the documents may vary, here are the documents that a normally filed in a divorce action:

> The Petition. The petition starts the action. The petitioner (who may be called the plaintiff) states the grounds for the divorce based on the state’s law. Often, in on-fault actions, the grounds are “irredeemable breakdown” or “incompatibility.” The petition also authenticates that the petitioner meets the residency requirement of the jurisdiction. It may include terms for the division of property, spousal and child support, and visitation. In some places, both spouses can file the divorce petition as part of a summary action.

> The Summons. The summons informs its respondent (who may also be called the defendant) of a scheduled court hearing in which attendance is expected, or gives him or her time to respond the petition. Usually when a party files a divorce petition, he or she also provides a partially completed summons, and the clerk fills in information such as the case number and the date of the hearing. Unless the petition was filed jointly, the filer must serve a copy of the petition and summons served on the other spouse in accordance with the service of process laws of the state.

> The Answer. Normally, the respondent – the party who receives the petition – files answer, which is sometimes called a reply. In the answer, the respondent agrees to the terms of the divorce or contests them. The answer serves to let the court no that he or she has received service and, in the event of a contest, that there is disagreement about the divorce, which must be settled according to the court rules and procedure.

> Financial Disclosures. After an answer is filed, the case may be slated for a variety of hearings. Pending this, both the petitioner and the respondent complete forms detailing individual and joint assets and liabilities, income and expenses. Financial disclosures determine the marital estate and to aid in its division. The format of these forms varies from one jurisdiction to another, but they normally require a variety of papers, such as tax returns, pay stubs, credit card statements and bills. If minor children are involved, even more documents may be required.

> Motion for Temporary Orders. The spouses and their attorneys may begin negotiations with each other, and one may ask the court for temporary rights, such as child custody or alimony, while the action works it way through the courts. This required motions requesting these specific temporary orders. The family law division of the court provides forms for these purposes; a family law attorney can also help draft them.

> Marital Settlement Agreement. Eventually, the couples reach an accord, which is called the marital settlement agreement. This spells out the terms and condition of the division – the division of the marital estate, spousal and child support and visitation. The marital settlement agreement is the agreement between spouses and becomes a court order. The court may have a form for this document, or it can be drafted separately.

What Do We Fight About Next

Wednesday, December 5th, 2012

According to Herb Guggenheim (who advanced the idea in a Mensa newsletter), there are only two social strategies that people use to negotiate: reciprocal altruism, which is an application of the Golden Rule to dispute negotiations, and what he terms “I’m Only in It for Myself,” which explains itself.

The reciprocal altruists abide the French saying, “You send the elevator up to me and I’ll send it back down to you.” The “I’m Only in It for Myself” are social Darwinists who “believe that while the inferior, weak people are busy being nice to each other, they will swoop down and take what they want, when they want, no matter what the consequences may be.”

In the strum und drung of divorce negotiations, the altruist and the Darwinist war within a party even as he or she negotiates with his or her partner.

In a divorce, a couple (and their lawyers) must at some point negotiate the terms and conditions of the settlement – the division and distribution of property and liabilities, alimony and child support, custody and visitation. Couples who can negotiate with each other save a great deal of time and money because negotiations conducted by lawyers become very expensive very quickly. Courts normally approve any settlement that is fair and reasonable.

That said, divorce negotiations often have a very low ignition point. Ideally, a couple negotiates when each spouse’s emotional temperature is equal; that is, both have accepted the divorce. Negotiations are not the time for assigning blame for the marital failure.

During negotiations, the spouses do well to remember the wisdom of a Pennsylvania family court judge who said that a fair settlement is one where neither party comes out happy. Another version of this is a fair settlement is not where neither party is happy but both can live with the result.

Sometimes, despite a person’s best effort, he or she becomes locked into foolish positions. For example, it makes very little sense to argue about a set of dishes that have been locked up in self-storage bin for years.

“If both parties use Reciprocal Altruism, the divorce can be settled rather handily,” writes James G. Gross, a Maryland lawyer. “If both are using I’m Only in It for Myself, then it seems they are destined to have a long and costly litigation. What happens if they are each using a different strategy? It seems to me, the I’m Only in It for Myself strategist will walk all over the Reciprocal Altruism strategist and end up with the better part of the marital assets.”