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Identifying and Achieving Your Goals in a Divorce

admin — Tue, 08 Dec 2009 15:53:59 +0000

By Erica Christian

The circumstances giving rise to a divorce may be emotionally consuming making it difficult for you to think about what life will be like once the divorce is granted. It’s also easy to be overwhelmed with all of the terminology and procedures that come along with filing for a divorce.

As you begin this process, you must thoughtfully consider what your goals are in regards to the issues that will be addressed in your case. Identifying goals, both in the short and long term, is essential to developing the best strategy to obtain the results you want in a divorce.

Below is a guide that will help get you started on defining your goals and identifying how these goals can be achieved.

The Wish List

To initiate a divorce action, a party files a petition with the court asking the court to grant a divorce based on the terms he or she specifies. The Petitioner will include requests relating to all of the following: custody and placement of the minor children, financial support for the children, financial support for the party (maintenance or alimony), property division, and costs/attorneys fees. In states where fault plays a factor in the granting of the divorce or the ability to receive support, the Petitioner will include provisions, which describe what the other party did which precipitated the filing of the divorce.

The opposing party is often shocked when he or she sees everything the Petitioner is asking for. It’s important to realize that the petition is a wish list. Often, the relief requested in the Petition is unrealistic and unreasonable. However, if the Petitioner does not include everything he or she could possibly want, he or she may be barred from asking for that relief later in the process. Whether you are the Petitioner or the Respondent, it is important to begin by identifying your wish list in relation to the topics outlined above. Together with your attorney, you can later determine how realistic the goals are given your particular situation.

While engaging in this process of identifying you goals and later refining your goals with your attorney, you should be sure to keep an open mind. Depending on the circumstances leading to the divorce, you may be looking to punish your spouse, or punish yourself. To the best of your ability, it is important to look beyond the present situation. By keeping an open mind and analyzing your goals in the here and now and in the future, you will help yourself identify reasonable goals that you have a better chance of achieving.

Custody and Placement

Legal custody and physical custody are two very different concepts that are often confused into one concept of “custody.” Legal custody refers to the parent’s legal right and responsibility to make decisions for a minor child pertaining to health, education, and religion. Physical custody, sometimes referred to as placement, is the time that the child will spend with each parent. It is important for you to identify your goals relating to legal custody and physical placement at the beginning of the divorce process. Depending on your relationship with your children, the goals as to each may be different for the short term and the long term.

There are two types of legal custody: sole and joint. In many jurisdictions, there is a presumption that the parties should have joint legal custody of their children. This presumption can be overcome for a variety of reasons, including, but not limited to: lack of involvement by one parent in the child’s life; alcohol or other drug abuse by a parent; physical, emotional or mental abuse of a parent to the child or the other parent; and the ability of the parties to communicate with one another and support the other parent’s relationship with the child. Given the joint custody presumption and the burden needed to overcome the presumption, identify your goal as to legal custody and in a short sentence or two, identify why you believe this arrangement is in the best interest of your children.

Physical custody arrangements vary greatly. Physical custody also often determines who will receive child support. First, identify your ideal schedule. You may have heard of an every other weekend schedule or an equal shared placement schedule. Perhaps you and your spouse rotate placement during the school week. Simply identify the schedule that you believe is the best schedule considering your and your children’s schedules and the relationship your children have with each parent. As with the legal custody arrangement, compose a short statement describing why you believe this schedule is in your child’s best interest. Depending on your relationship with the children and the events leading up to the divorce, your ideal schedule during the pendency of the divorce may be different than the schedule you hope to enjoy with your children at the end of this process.

Financial support for the children and spouse

A thoughtful analysis of your present finances and the financial situation you and your wife will be in after the divorce is final will help you determine what your goals are in terms of support for the children and wife.

In most jurisdictions, child support is determined by a formula applying the placement schedule to the parties’ respective incomes. Even if you have an equal shared placement schedule or a majority of the placement with your children, your state’s formula may require you to pay more if there is a disparity in income between you and your wife.

Additionally, if there is a disparity in income, you or your wife may be able to seek spousal support, also referred to as maintenance or alimony. However, spousal support in most jurisdictions is not automatic simply because there is a disparity in income. Most states have a variety of factors that the court considers in determining whether or not a spouse is entitled to spousal support including, but not limited to: the length of the marriage, the earning potential of each party, the contributions of each party to the marriage giving appropriate weight to homemaking contributions, contributions of one party to the other party’s earning power, and possibly marital misconduct. Generally, the longer you were married and the bigger the difference in earnings, the longer you will pay maintenance or the larger the payment may be.

Given this basic understanding, identify your goals relating to spousal and child support. If there is a large disparity in income, you should also identify goals that would increase the earning power of the spouse earning less.

Asset and Debt Division

In order to come up with goals related to your assets and debts, you need to identify all of the assets and debts of the relationship. Each state varies in determining what assets and debt are individual and which are marital. Some states treat assets and debts acquired prior to the marriage as individual property; others count all assets as marital unless the asset was acquired by gift or inheritances.

For starters, identify what assets and debts you believe may be considered individual assets or debts. Then, of the marital assets and debts, define what your goal is as to division. Many states have a presumption that assets and debts are to be divided 50/50. However, there may be exigent factors that justify deviating from an equal division of the assets and debts in a relationship including, but not limited to, contributions to the marriage and marital misconduct.

What’s Possible and What’s Probable

Given the wish list is complete, the next step is to meet with your attorney and allow him or her to discuss what goals are possible and what goals are probable. The reasonableness of your goals will be largely dependent on the laws of your jurisdiction. Applying the law to the circumstances in your case will project what the probable results could be if your case went to trial. Notice I did not say what would happen in your divorce. An attorney with the ability to predict the future would most certainly be a force to be reckoned with. However, considering no attorney can predict the future, your attorney can only base his or her analysis of the probability and possibility of achieving your goals on his or her knowledge of the law and past experiences before the judge assigned to your case. Your attorney will then develop a strategy for your case keeping these goals in mind.

Achieving Your Goals

Now that you have a list of realistic goals for your case, the next step is negotiation or adversarial proceedings, which will realize these goals.

You and your wife are free to settle your case anytime you both choose so long as it is prior to the conclusion of a trial. This agreement may be the product of negotiations between the attorneys, direct negotiations between you and your wife, or the product of mediation. Direct negotiations are not advisable, especially in cases with complex issues. You should consult with your attorney prior to entering into any direct negotiations with your wife. To facilitate settlement, you and your wife may agree to mediation. Mediation is an alternative dispute resolution process using a neutral third party, the mediator, to facilitate negotiations. Not all mediators are attorneys, but all mediators are trained in techniques to promote dialogue and realistic bargaining between the parties, which helps them reach a resolution by agreement. You may decide to have your attorneys present at the mediation, especially in situations with complicated issues.

If you and your wife cannot come to an agreement on the terms of your divorce, you have a right to have your issues litigated. At trial, you present evidence in favor of your terms, your wife presents evidence in favor of her terms, and a Guardian ad Litem may be appointed to present evidence in favor of terms that would be in the best interest of the children. At the conclusion of the trial, the Judge makes a ruling on all of the contested issues of the divorce. The difficulty with trial is the uncertainty of the end result. If you and your wife agree on some issues, but not all, you may be able to submit a partial agreement and have a trial on the remaining contested issues.

Prior to agreeing to any settlement, you should refer back to the goals you defined. After meeting with your attorney and analyzing which goals are being met through the agreement, you can then determine whether or not you should agree to a settlement or proceed with trial.

Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

Article courtesy of DadsDivorce.com

4 Strategy Tips for Child Custody Battles

admin — Mon, 05 Oct 2009 15:30:22 +0000

Great insight from an attorney’s perspective.

Courtesy of James J. Gross

Sometimes in a child custody battle, a client will ask me, “What’s your strategy for my case?” I have to think about this for awhile because frequently I do things by intuition. That’s because through experience I know what has worked and what has not worked in prior cases. So here are some strategy tips for child custody battles.

1. Get the Facts First

Most clients are not lawyers. They are scattered and harried by their case. That means you have to get them to settle down and give you the facts. Then you have to check the facts because they give them to you only through their own filters. Finally you have to organize the facts.

2. Develop a Theory of the Case

Boil it down to one sentence that the client agrees with and can carry as a big flashing neon sign in the back of their head. This will inform their testimony at deposition and trial and help the lawyer present their story to the court. It will also help you separate the good facts, the ones that support your theory, from the bad facts, the ones that support the other side’s theory.

3. Be Constructive

Don’t make the theory of the case that the other party is the bad parent and you are the good parent. Play up your positives instead of the other parent’s negatives. Instead of, “Mom never helps little Johnny with his homework” say, “I am more consistent in helping little Johnny with his homework.”

4. You Can’t Fight City Hall

The Family Court System may be terrible, but we are not going to change it overnight for your case. Accept it the way it is. It is never going to be the way it should be. That means I can’t get the Judge to disqualify herself, I can’t get the Custody Evaluator or the Guardian Ad Litem replaced, so you are going to have to get these people on your side. If that means you have to get your own therapist or acting coach to tell you how to do it, then that is what you have to do.

Child custody battles are the worst kind of litigation. The stakes are high and emotions run wild. Who wants to lose their kids? But stay calm, use these strategic tips, and you will successfully navigate your child custody battle.

Article courtesy of Maryland Divorce Lawyers

Can I Use Erratic Behavior Of Ex To Obtain More Custody?

admin — Tue, 29 Sep 2009 12:25:49 +0000

Ask The Lawyer

Question submitted:

My ex and I have a four year old daughter, and my ex has now been evicted from two apartments with in 3 months. Now she is planning on moving in with the next door neighbor which she just met about three weeks ago. She is also behind on the daycare payments, which part of my support is supposed to pay for. How do I use this erratic behavior and irresponsibility to get more custody of our child?

Answer:

A parent’s inability to maintain a stable home environment for the child is one significant factor in any reassessment of custody arrangements.

The specifics of her changes in residence and any explanations she gives, as well as the benefits of your home environment, would be factors for a court to consider in making changes in the custody arrangements. The terms of your current custody arrangements and the specific requirements of the laws of your state as to timelines and criteria for custody reviews would need to be reviewed.

If the failure to pay the daycare results in your child being improperly supervised, that issue may also be relevant to the custody arrangements. However, the debt to the daycare would usually only impact the amount and nature of the support arrangements. You would need to review these issues with an experienced domestic litigation attorney in your state.

Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois. Courtesy of DadsDivorce.com

How Can I Stop Ex-Wife from Filing For More Child Support?

admin — Thu, 20 Aug 2009 17:34:37 +0000

Ask the Lawyer

Question Submitted:
My fiance has a previous court order and when his ex feels like she needs more money, she petitions the courts.

Here is the situtation: my fiance and I have a daughter who is autistic. He has a 16-year-old child from a previous marriage.

Now, she lives with her boyfriend who she went with before the marriage broke up (my fiances best friend ). My fiance and I have been together 9 yrs and our autistic daughter is 7.

It seems like when his ex’s life seems uncomfortable she petitions the court for child support. My question is now that we have a child who is autistic, can he put a stop to her lying madness? She has lied to the courts and now his son is 16. There are expenses on his order he shouldn’t be paying, like child care.

He was told to go and file a petition but wasn’t guaranteed his order wouldn’t go up. Here is the hook: she only works 2 days a week. Her child is 16. He works and makes more than his dad every week. She sits home 5 days a week and collects on this kid. Here at home, we have 2 kids 7 and 8. He only makes $10.00 a hour.

The last time in court, when it was called to the judge’s attention that she only works 2 days a week, the judge was addressing this until her lawyer (who was a public defender) changed the subject so it was dismissed. What can the defendant do and what are his rights if he has a child from a recent relationship that is disabled.

Help! She’s taking him for a ride and the judge is believing her. We know for a fact she works under the table and isn’t telling the courts. She also says that she is going to college but it’s only one night per week! Every chance she gets, she petitions the court to bring him back, even when he is not late with a payment. She calls and complains and then they contact him and he has to go whether he is late or not, and misses a day of work which sets us back and they seem not to care about whether or not he has a major obligations. Help please.

It’s getting too deep and my family is suffering. If asked to move, we have no where to go. At this rate, the judge seems to be giving the mother her way. It’s not just her child first they should be looking out for, but the welfare of all the kids in question and they are not.

Answer:

I am not licensed in the State of Penn and therefore I cannot answer your question specifically to the laws of that State. I will attempt to give what response I am able to provide.

If the judge was inclined to be concerned that she is only working two days a week, his attention needs to remain focused on that issue. You want to impute her income. Often courts will impute the underemployed person their present wage at 40 hours per week in a situation as you describe.

You also appear to want the court to deviate from the support guidelines due to your child’s illness. In my jurisdiction, that is unlikely as we have a first family preference. The reasoning is that your fiance knew he had a support obligation toward two children and should have considered that fact before having additional children. However, if the ex-wife would attempt to raise his child support he could use the cost of your children to help prevent an increase.

If you believe that the mother is working for cash, look at locations where it is advantageous for her to claim her income is higher. This would be situations such as applications for credit cards, car loans, home loans or rent applications. Subpoena these locations. You can also look at her bank records and attempt to show the amount she deposits exceeds her claimed “on the books” income.

Courtesy of DadsDivorce.com
Submit questions to sdladvice@singledadlife.com

What Every Single Parent Must Do Before Taking Their Child On Vacation

admin — Mon, 10 Aug 2009 16:16:10 +0000

By Jennifer Doncsecz

Ever since January of 2007 when the government made it mandatory for every US citizen flying to the Caribbean, Mexico and Canada to now have a valid passport, single parents have felt much more at ease when taking their custodial or non custodial child out of the country.

However, just because you carry your child’s passport doesn’t mean you no longer have to get a notarized letter of permission to travel by your child’s other custodial or non custodial parent.

In most circumstances, airlines will ask where the other parent is. If you are traveling to a heavily used route for single parents to “disappear ” with their non custodial child (Mexico, Dominican Republic, Aruba) you will be asked to produce a letter that is signed by the other parent and notarized.

This letter should include the other parents name, the dates of travel, the locations you are traveling to, the other parents phone number and signature with a notarized seal. If you do not have this, the airlines could refuse you board the planes or even worse, you could get to your destination only to find that customs/immigration will make you turn around and not enter the country.

Many of my clients sometimes call the airlines ahead of time to check to see if this is necessary, however, the airlines do not operate customs/immigration and may tell you the wrong information.

Play it safe and always have the other parent sign this very important letter. Even if you have joint custody or full custody and the court awarded you ownership of your child’s passport, customs wants to know that both parents are aware of the child’s leaving the country.

In some cases where bad feelings are present between the parents, this can prove to be a bit tricky, but isn’t it better than spending thousands of dollars on a vacation on a beautiful island and being turned away from entering the country?

If your child’s other parent is deceased, it is also a good idea to bring a copy of the death certificate. I once had a client, who in a panic, had to call their in-laws for a copy of the obituary of their deceased spouse to be faxed to the airline’s counter because they were being denied boarding.

In the ever present world of parents abducting their children and taking flight, the airlines are being held under much more scrutiny. So, don’t get burned before you even arrive at your destination–be prepared and know what is required!

If you want more information on single parents vacations, please feel free to email me at Jennifer@travelbyvip.com

Jennifer Doncsecz
President
VIP Vacations Inc
www.travelbyvip.com

#1 in the Nation for Group Sales to Sandals and Beaches Resorts!
Winner of the Caribbean Tourism Organization’s Romance in Travel Award in 2007!
Fox Philadelphia’s Travel Expert. Tune in each Friday to Good Day Philly and learn about the latest travel news!
Look for my new show on the Travel Channel every Sat. night at 10:30 pm-Cruises We Love!

Picture courtesy of Alex

What You Can Do When Your Ex Moves Away With Your Kids

admin — Fri, 07 Aug 2009 19:22:17 +0000

Virtual Visitation

What can you do if your children are not living in the same city? There are times your kids are even living in a different state. Not being able to see your children on a regular basis can be heartbreaking.

Due to the changing face of technology, single dads now have some tools to help you ease the pain. Seeing your children’s face is totally different than talking on the phone.

This presentation, courtesy of Dadsdivorce.com, provides a terrific overview of how to use internet technology, such as the web-cam, to close the distance gap between you and your kids.

What Is The Best Way To Fight For Custody?

admin — Mon, 03 Aug 2009 17:18:08 +0000

Question Submitted:

My step daughter wants to live with her father and me, but the mother says absolutely not. She is 12 years of age and has terrible grades. What is the best way to begin our fight for custody, or is it a waste of time/money? We think we can make a difference in her future for the better.

Answer:

Only an attorney in your jurisdiction can provide you with an accurate analysis of your chances of prevailing on a motion to modify residential custody, but I can make a few general observations.

A twelve year old girl is not always the best judge of her own best interests. Laws in most jurisdictions support the idea that a child’s desires should not be the sole basis for determining custody. While your stepdaughter’s choice may be taken into consideration, she is still very young and I don’t think her wishes will be very persuasive in Court.

It does appear, however, that there may be some objective cause for concern as it relates to your stepdaughter’s current schedule, particularly in light of her poor grades. Talk to the school. Your husband should be an active participant in all parent/teacher conferences and should be vigilant of her studies and demanding of information from the school, even if he is not the custodial parent. Do not rely on your stepdaughter’s mom to do the work for you.

Changing residential placement is difficult to do and is often the equivalent of hitting a thumbtack with a hammer in the eyes of some judges. If schoolwork is the most pressing issue, can you request more time during the school year and relinquish more time in the summer? Can your husband carve out time to accompany your stepdaughter to tutoring? Can you request an additional evening or afternoon to increase contact and communication with your stepdaughter and monitor her schoolwork and socialization? Start small and be creative. If you can not work out a compromise then work with a local counsel to weigh your options.

Courtesy of DadsDivorce.com

submit questions to sdladvice@singledadlife.com

Jill Best is the Litigation Manager for the Cordell & Cordell, P.C. office in Overland Park, Kansas. She practices exclusively in the area of domestic relations. She is licensed in the state of Missouri, the state of Kansas, the U.S. District Court for the Western District of Missouri, the U.S. District Court of Kansas and the United States Court of Appeals for the Eighth Circuit.

My Ex-Wife Displays Contempt For Rulings On Visitation – What can I do?

admin — Wed, 29 Jul 2009 03:40:11 +0000

Question Submitted:

We received a new court order for unsupervised visitation and my ex-wife did not show up with my son for my visitation. I went to the local police station to file a report and the police told me I had to go back to the judge who issued the revision. My lawyer said “No, that’s not the way it’s done.”

So now I’m confused and not sure as to who is telling the truth? So in effect, I’m not sure if I can trust my lawyer. I want something done! This is not the first time she has displayed contempt for the court rulings! What can I do?

Answer:

Both your lawyer and the police officers may be correct. Your attorney is correct that an order from the Court providing you with parenting time is an order just like any other and should be enforced like any other order. However, police officers are often hesitant to become involved in child custody exchanges and some departments even have developed policies which prevent officers from becoming involved in situations such as yours.

In short, I think absent assistance from your local police department, you should find an attorney who will file a contempt action against your ex-wife asking her to be held personally accountable for her failure to follow the Court’s orders. You may ask for attorneys fees, sanctions and compensatory (ie: make-up) parenting time depending on your jurisdiction.

If your ex-wife persists in a pattern of willful disobedience of the Court’s orders, you may also eventually have grounds to seek primary custody of your son.

Jill Best is an attorney with Cordell & Cordell, PC, a family-law firm focusing on men. She writes for DadsDivorce.com

My Ex-Wife Uses A Daycare I Don’t Approve Of. Do I “Have” To Take Him There?

admin — Wed, 29 Jul 2009 03:39:25 +0000

Question Submitted:

My ex-wife uses a daycare that I don’t approve of and she has a contract with this provider. When I have my son, do I “have” to take him to that daycare also or can I use my current babysitter? Do i have to follow her contract with the daycare since I didn’t sign it and do not approve of them?

Answer:

The short answer is no, you do not have to take your son to this daycare if you disapprove of it. However, the inconsistency in your son’s schedule that results from bouncing from a babysitter to a daycare and back again may have more negative effects than attendance at the daycare alone.

Are the only options mom’s daycare or dad’s babysitter? Can you propose a third option in which you and your ex-wife research and consider another child care provider?

If you and your ex-wife have already gone back and forth in this regard or do not get along well enough to communicate as I have suggested, then I predict the current daycare situation will be the first of many significant parenting disagreements you experience. An eventual return to Court may be your only other option.

Jill Best is an attorney with Cordell & Cordell, PC, a family-law firm focusing on men. She writes for DadsDivorce.com

Did Wife Kidnap Kids? Dad asks for legal advice

admin — Tue, 21 Jul 2009 12:45:53 +0000

Question:
My wife just left with our 3 daughters. She is an unfit mother and when I told her that I was getting a divorce because she is negligent and constantly endangering the lives of our kids, she waited until I went to work and left to go to her Mother’s house. Or at least that is where she says she is going. I called her Mom and she knew nothing about this. This seems like kidnapping to me. What should I do to correct this situation?

Answer:
If it is your wife’s intent to remove the children from your custody and purposefully fail to disclose her whereabouts and the whereabouts of the children in an effort to deprive you of access to the children, then it is possible that you have a kidnapping case on your hands. To correct this situation, you should first contact the police and advise them of the situation if for no other reason than to document your wife’s actions. Further, you should make arrangements to follow through on your concerns about the custody of your children by filing your petition for divorce and seeking temporary custody orders if they are available to you in you jurisdiction. As your litigation progresses, I would caution you against unnecessarily sharing information with your spouse or advising her of your future plans until you have consulted with your attorney.

Turning to your more substantive concerns, it appears that your wife stays home to care for the children alone while you are away at work. I am concerned that your allegations that she is unfit and negligent may be somewhat diluted by the pattern of conduct you appear to have established, namely, that you allow her to watch the children unsupervised on a regular basis. My clients often tell me that they have left their child(ren) with a spouse whom they claim to be unfit at the time of the divorce because the family could not afford daycare. While I am sympathetic to that situation, your children’s safety should come before all other considerations, financial or otherwise. Find alternative childcare.

Question:
I want to see my kids. My ex and I separated (never married) and she will not let me see my kids I cannot afford to pay for a court case. I have been having a hard time and I was in jail for a time and I am behind on support. I am trying to get back on my feet and I will pay her for support as fast as I can. She will never allow me to see them willingly. I have never been acused of any abuse and everyone knows I am a loving father. I do not have a place nor money. I want to see them and work to be a provider again, My kids are the most important thing in the world to me and I will do anything to be a dad again. Where do I start?

Answer:
Without an order providing you with custody rights, you can enforce visitation with your children. Although most jurisdictions do not allow a custodial parent to refuse the non-custodial parent access to the parties’ child(ren) because the non-custodial parent is behind on child support, you must first have an order establishing your custodial rights. If you do not have the funds to seek a private attorney, your city or state may provide free or reduced rate legal aid services for qualified applicants.

Jill Best is an attorney with Cordell & Cordell, PC, a family-law firm focusing on men. She writes for DadsDivorce.com

Submit your questions to sdladvice@singledadlife.com