Archive for November, 2009

Smokers May Butt Out

Friday, November 20th, 2009

Courts have increasing been asked to consider the presence of a cigarette smoker in a child’s home — be it a parent, stepparent, or third party — in determining the best interest of the child in custody and visitation cases.

These cases typically involve situations where what is called “secondhand” smoke in the home poses a health hazard to children who have respiratory problems.

Courts have said that presence of secondhand smoke is one of many factors that may be considered in custody cases. In an 1999 Alabama case, an appeals court upheld the decision a lower court to transfer physical custody of a child to the father because his mother continued to smoke in the child’s presence despite the child’s history of asthma and severe respiratory infections.

Courts have also ordered parents to refrain from smoking in the presence of their children. In a 2002 Ohio case, In re Julie Anne, the court heard extensive evidence that the custodial mother and her live-in boyfriend exposed a child who had no pre-existing health problems that would be worsened by secondhand smoke. On its own motion, the court ordered that both the mother and the father not to smoke or allow “anyone else to smoke in the presence of the child.” In this case, the court found three separate authorities for its order: 1) the doctrine of parens patriae, which is the idea of the state as parent; 2) the best interests of the child; and 3) the United States Supreme Court. “[A] smoker has a right to privacy to treat his health in whatever manner he chooses, but this right does not include the right to inflict health-destructive secondhand smoke upon other persons, especially children who have no choice in the matter. A man’s home is his castle, but no one is allowed to hurt little children — even in his castle,” the court stated.

Courts now consider the smoking habits of parents in determining the best interest of the children, but at the same time have said that the mere fact that a parent smokes is not determinative. Instead the courts have ordered parents not to smoke in the presence of the children.

When the Spouses Agree, an “Easy” Road Out

Wednesday, November 18th, 2009

If you and your spouse can come to a meeting of the minds about the terms and conditions of your divorce, you may want to consider a pro se divorce. Pro se means “for yourself.” In a pro se divorce, each of you represents himself or herself in court, and sometimes, depending upon the jurisdiction, it is not even necessary for both of you to even appear.

When you can make it work, pro se divorce cuts the cost of a divorce because it eliminates, or at least dramatically reduces, the involvement of lawyers, who are a considerable cost in adversarial legal actions.

All states permit pro se filing. Some states have websites offering all the forms needed for a simple or simplified divorce action where one or both parties does the filing normally done by a lawyer. Many states now permit summary divorce actions, where both you and your spouse file as copetitioners, or a default divorce, where one of you files and the other spouse does not respond. When both of you are in agreement about everything, you file for an uncontested divorce, and rest of the action moves administratively through the court system.

Pro se lawyering particularly appeals to young couples ending a short-term marriage with no children, both spouses working, and easily distributed assets and debts.

A few caveats are in order. Pro se filing does not work in divorces where one of you wants to punish the other for the failure of the marriage. Pro se lawyering should not even be considered if one of you has retained a lawyer, or the divorce is contested, or the two of you cannot even sit down at the same table to talk about ending the marriage. Pro se filing does not work if one of you wants to use litigation as a way of punishing the other. But it can work very well in cases where both of you agree that neither of you is at fault, that neither of you will contest the action, and that revenge and selfishness benefit neither of you.

Because it costs less, both of you end of with more money, which you will need when you start anew as single people. Pro se divorce can work for you if you and your spouse can unmake your marriage and each go your own way, if not as friends, then at least not as enemies.

Domestic Violence May be a Consideration in Property Division in Divorce

Friday, November 13th, 2009

In 1994, Congress enacted the Violence Against Woman Act “…to treat violence against women as a major law enforcement priority, to take aim at the attitudes that nurture violence against women, and provide help survivors need.”

For family law practitioners, domestic violence, particularly spousal and child abuse, remains an important consideration in custody/visitation, mediation and property division.

In some states, domestic violence is a specifically enumerated factor in the division of marital property. In these jurisdictions, spousal abuse by itself is a relevant factor, and the courts consider that the abuse need not be egregious. The courts assume that the abuse is the cause of the marital breakdown. Other states consider spousal abuse economic misconduct because it results in increased medical bills and diminished employment opportunities. In some states, fault — even the abuse of a spouse — may not be considered at all.

The Uniform Marriage and Divorce Act requires that assets be divided without regard to fault or marital misconduct, but even in UMDA states, economic misconduct is a permitted consideration in the division of property, thus opening the door to consideration that domestic violence has an economic impact.

When domestic violence is a consideration in the distribution of property, the most common result is that the wife, who in the abused spouse in 95 percent or more of the cases, receives a larger share of the marital estate than she would normally receive.

Child Relocation Remains a Difficult Facet of Custody

Wednesday, November 11th, 2009

One of the most difficult and complicated issues to resolve in child custody cases happens when the custodial parent wants to move a child away from an easy visitation distance of the noncustodial parent.

As American society becomes increasingly mobile, as more and more women attain positions in the work force where transfers are frequent and indeed likely, and as more and more noncustodial parents find themselves saying goodbye to children, no jurisdiction has escaped the need to address this thorny custody issue. Courts, recognizing the effects a move has on children, struggle to craft evenhanded arrangements that are fair to both parents.

The relocation of children by the custodial parent (who is often the mother) to places removed from easy visitation by the noncustodial parent (who is often the father) has given rise to movements known as “fathers’ rights” — men who believe they are getting the short end of the stick in the arrangement.

Very often in these cases, the custodial mother asks a court for permission to relocate for the best of reasons — a new job or the prospects of a new marriage. The United States Supreme Court has long recognized that citizens have a right to travel in the nation, and many courts have been guided by this in deciding that a custodial parent has the right to relocate with a child. In many jurisdictions, therefore, the burden of proof is on the noncustodial parent, who must argue that the move is in bad faith. Many courts lean toward the custodial parent on the thinking that what is good for her (in most cases) is also good for the child.

In general, states evaluate relocation requests in ways that range from granting the relocating parent the right to move, to requiring that same parent to prove that the relocation is in the best interest of the child, to a combination of both. In dealing with relocation, some courts seem to be moving in the direction of the best interests standard.

Divorce in the Golden Years Requires Planning

Monday, November 9th, 2009

Divorce among those approaching their so-called “golden years” is much more common than it used to be, but spouses who decide to ride to the sunset on separate horses should consider the timing. These considerations make the drafting of prenuptial agreements for those over 50 more challenging.

The remarriage penalties that come with Social Security should always be remembered. A person receives Social Security 1) based on his or her contributions to the Social Security System and 2) as a spouse of a contributor receiving what is termed “derivative benefits.” After a divorce, a spouse can receive benefits based on the contributions of a former spouse as long as the marriage lasted 10 years. When this is the case, the spouse whose marriage is approaching the 10-year mark should at least consider delaying the divorce. This is often a consideration for the stay-at-home mother who left the work force early in life to be a homemaker. If she remarries, derivative benefits are not available from the contributing spouse. If the dependent spouse has married more than once and each time for 10 or more years, the derivative benefits come from the contributing spouse with the higher benefits.

Derivative Social Security benefits may be available if the former spouse predeceases the dependent spouse. This are widow(er) benefits. The couple need to be married at least 10 years, and the surviving spouse need be only 60, or, if disabled, 50. A dependent spouse in this situation would do well to reconsider if he or she plans to remarry before turning 60. In this case, the surviving spouse receives 100 percent of the benefits, instead of the 50 percent if the former spouse is alive.

Very often alimony awards assume the dependent spouse becomes eligible for Social Security at 65. However, it is important to remember that full benefits apply at different ages: 65 is the normal retirement age for those born before 1937, but after that, the age of normal retirement increases by two-month steps for those born between 1938 to 1960. For those born in 1960 or later, normal retirement is 67. However, reduced benefits are available at 62. The reduction is 20 percent. When a divorced dependent spouse takes benefits at 62, the reduction is 25 percent. Medicare benefits do not begin at age group until 65.

What is means is that any alimony reductions contemplated at 62 should be weighed carefully because it means a significant lifetime loss of benefits, and that provisions must be made for medical benefits until normal retirement.

Pensions provide for a joint and survivor annuity to be paid to the surviving spouse after the death of the participant. If the pension with a joint and survivor annuity is in pay status, there are two assets: the payment to the participant and the joint and survivor annuity.

Collaborative Divorce, A Wise Choice

Friday, November 6th, 2009

Adversarial divorce often brings out the worst in two people when they realize they just cannot live together anymore. But there is another way. Let’s say that because they have small children, a couple knows their best long-term interests require that they end their marriage in a decent, if not amicable, way. They must cross the bridge of divorce, so to speak, but not burn scorch the earth around it. Each spouse knows that after it’s over, each of them is going to need everything they have to start live anew as separated, single people. And both know that if each can give a bit, the marriage can be ended without further hurt to the children.

This couple should consider a collaborative divorce, a voluntary method that requires the consent of both parties and is not appropriate if one spouse is not open and honest about income and assets or other facets of the marriage. In a collaborative divorce, the lawyers for both spouses act as negotiators, and the parties, the two spouses and the two lawyers, work in face-to-face sessions to come to an agreement about the terms and conditions of the property settlement and spousal and child support. In collaborative divorce, the case must be settled, or the lawyers must withdraw.

A collaborative divorce costs much less than an action that goes on and on, or one that ends in a court trial.

In a written agreement, both spouses work together to end the marriage. That means there are no contested hearings or motions, no formal discovery, no “attack letters” between battling lawyers cheerleading their clients into a battle. Both parties agree to make a voluntary disclosure of all relevant financial information and when possible to use alterative dispute resolution methods.

Forthright divorce lawyers know that divorce litigation does damage that lasts a lifetime. Make no mistake, divorce is never easy; collaborative divorce is not fun. But it does offer a couple at the end of the road a way out of a marriage at less cost and with less emotional turmoil.