Archive for December, 2014

Fighting Relocation

Tuesday, 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.

Disposition of the Family Home

Tuesday, December 23rd, 2014

For most couples the place they called home can be emblematic of the marriage. In the emotional tsunami of divorce, couples often act out melodramas of vindication that makes the house the symbol of the home, which now moves into the realm of a bittersweet memory of what was but is no more.

Letting go the house means letting go of the past, and that can be very difficult when a person’s world seems to be unraveling. The disposition of the family home can be charged with emotion, particularly for the wife who makes the home a nest for child rearing. Both home and house refer to a place of dwelling but differ in psychological and emotional affective connotations. A house is a building of bricks and mortar, wires and pipes, wood and tile; a home is a state of mind and a habit of the heart. People invite loved ones and friends to make “make yourself at home” and speak of nursing homes; members of Congress meet in the House of Representatives.

A modest bungalow where a loving couple nurtures each other is a warm and loving home; a McMansion occupied by a loveless husband and wife is just a big house. A home is an abode that provides peace, comfort, happiness, security and confidence — qualities not expected in a house of bricks and mortar. A home creates emotional attachment because of the feeling of ownership and shelter if provides its members.

A family living in a house for a time accumulates emotions and memories associated non-rationally with the abode that is their home, so when divorce shatters the status of the family, the home itself seems at emotional risk.

The affective connotation of the word home can steer a divorcing couple down a cul de sac to financial trouble. The decision to keep the house that had been the marital home demands both long-term and short-term thinking.

Many times, women who keep the marital home find themselves house poor, and a woman should throw a cold eye on a settlement that gives her the house, particularly if the settlement is short on liquid assets on her side. Judges are very inclined to award the house to the wife so that school-age children experience the least disruption (particularly in states where the courts enjoy discretion in the equitable distribution of property). This means that the equitable distribution of property may result in the marital home going to a mother, but the person awarded the marital home should be certain that he or she can afford to keep it. A house is a barren asset that pays nothing until it is sold and costs money to maintain.

For many couples, the home is their most valuable asset, so sale is often the only option if both parties are to receive an equitable share in the distribution of joint assets. In general, therefore, couples have three choices. They can 1) sell the house and split the proceeds; 2) agree to have one spouse buy out the other’s interest as part of the overall settlement; or 3) continue to own the house jointly. Each of these approaches has advantages, depending upon the situation of the divorcing couple.

Selling the house, the most common course, raises possible tax considerations, the problems of renting versus buying, and getting a new mortgage. At the least, both parties should know the basis for the property — the original cost, minus improvements. Under current tax laws, each spouse may exclude up to $250,000 (or $500,000 as couple) from any capital gains tax if they have lived in the house for any two of the last five years.

A buy out by one spouse requires that the house be appraised independently. In this routine, after an appraisal, some couples dividing marital property often use a property settlement note. In this arrangement, one spouse pays the other a sum for a negotiated length of time at current interest rates.

A buy out gets one spouses name off the title, but it normally leaves his or her name on the mortgage. This may have an impact on a party’s credit rating.

Joint ownership often appeals to spouses who want to keep their children in the same house until they finish school. In this arrangement, when the divorce happens, the couple become tenants in common, which means they each own half the house. Normally, the couple works out arrangements whereby one party, the one who stays in the house, pays the mortgage, while all other costs are split evenly. When the children finish school, the parties sell the house and split the proceeds.

If the house must be sold, the provisions of the sale should address how, when, by whom and in what manner that sale is to happen.