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

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The Best Interests of Your Children

By Deborah Moskovitch

While conducting some research for an upcoming book within The Smart Divorce® series I had an interesting conversation with a child protection lawyer about the best interests of the children.

From this lawyer’s perspective and what I see in my consulting practice and watching what goes on around me, we agreed that people often talk about it, don’t necessarily do it – that is put their children’s best interests first. What does this really mean? Is it fitting your schedule into your children’s or the other way around?

Defining Children’s Best Interest

There are many definitions as to what best interest means. The Geneva Convention defines it as acknowledging that every child has certain basic rights, including the right to life, his or her own name and identity, to be raised by his or her parents within a family or cultural grouping and have a relationship with both parents, even if that means they live in two different households.

It sounds straightforward, but it isn’t necessarily that easy because divorce is complicated by emotions. And – these emotions if not managed, can impair your parenting skills – causing you to think you are putting your children’s best interest first, but many parents are not! This can happen when parents are overwhelmed with their own emotions causing their parenting skills to be weakened.

Simply put, the best interests of the children means doing what is best for your children. How do you achieve this when you might be feeling raw and bitter? You need to:

• deal with your emotions (use your support network for help such as a therapist, clergy, support groups, friends and family)

• Put your emotions on the shelf so that you can be the best parent for you children.

• Let your children participate in activities and do what they would normally have done if you were married.

Children should not be punished because an activity falls on one parent or the others time

While a parent might be supportive of an extra curricular activity, they just don’t let the children participate because it falls on their time – thinking that it is punishing the other parent, when actually it is the children who suffer.

You need to recognize, that children are not possessions. They are not “my children, not your children”- they still have 2 parents, you need to reframe your thinking into these children being our children.

Deborah Moskovitch is a divorce consultant and educator, and author of The Smart Divorce: Proven Strategies and Valuable Advice from 100 Top Divorce Lawyers, Financial Advisers, Counselors and Other Experts. Deborah has become an opinion leader in the media and has shared her insights and research on television and radio to explain that divorce can be managed in smarter ways. To learn more visit TheSmartDivorce.com

Copyright ©2009 The Smart Divorce® and Deborah Moskovitch
All rights reserved. No portion of this material may be reproduced in any form without the express written permission of Deborah Moskovitch and The Smart Divorce.

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Ask The Lawyer

Question Submitted:

When does it end? Court order by Cambridge court that a father gets visitation for the week of Christmas – a week in March and the month of July. The month of July is if the child wants to stay with the father during that period of time.

The mother each and EVERY time interferes. The child (14 yrs in the coming august) has said the mother writes things down on a piece of paper and tells her what to say. The child then says when she does not say what is written the mother gets very angry. The child is now being told she CANNOT come in July.

This is now the second year I have had to deal with this. Of course, the easy solution would be to take it back to court. But, the decision was already made by the Judge. How do we proceed?

Answer:

Your description of the situation leads to the conclusion that the mother’s conduct will not change without court intervention. The law of your state will dictate the process for enforcement or modification of the court order setting the visitation. The preparation for a court review may require your daughter to be interviewed by an attorney appointed to represent her (sometimes referred to as a child’s representative or a guardian ad litem), a court appoint psychologist, or even the judge to allow for a determination of the situation free from the direct influence of the mother. You should consult a qualified family law attorney in your state to review your legal options.

Submit a questions to sdladvice@singledadlife.com

Courtesy of  DadsDivorce.com

Divorce for Men Before. During. After.

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.

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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

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Ask The Lawyer

Question Submitted:

My wife quit her job the day after I asked her for a separation. We are going to court soon and I am worried that the court rule in favor of her due to her unemployment in this current economic situation. We always agreed we would both work and support our children, now she wants to be a stay at home mom. Does the court recognize this situation when it comes to alimony and child support? Will I now be the sole person who is financially responsible?

Answer:

Consult your state’s laws or guidelines concerning child support calculation. Many times it is possible to impute income to a parent if they are unemployed, especially if she left her job for no good reason. Imputing income to a parent does not force that parent to get a job at that level. It merely sets the amount of child support as if the parent were earning that income. The parent can then decide whether he or she needs additional income.

Also, find out if your state has alimony or if they call it maintenance. The “current economic situation” is not relevant to your situation. Her attempts to find employment are far more relevant.

Erik H. Carter is a Senior Attorney of the Cordell & Cordell, P.C. office in Indianapolis, Indiana as well as the Litigation Manager of both the Indianapolis and Pittsburgh offices. Mr. Carter has practiced since 1993 as an attorney. He is licensed in Illinois, Indiana, Pennsylvania as well as the Northern District of Indiana and the Southern District of Indiana. Courtesy of DadsDivorce.com

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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

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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

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Question:

My daughter (15) has repeatedly expressed an interest in living with her mother 100 miles away. Her mother is open to it. I received custody because her mother was going through some pretty serious depression. Since our divorce my ex has really improved. I would miss my daughter, but I respect her need to have her mom. My gut tells me to sit down with my daughter and tell her how I feel about it and let her go with an open-door policy on my end.

My question is whether or not I am setting myself up for child support which I really can’t afford to pay, problems with the court, and the danger that I might be seen as abandoning my child. Everything seems fine with mom now, but she has a history of not thinking clearly. I’d hate to have my daughter miss the opportunity of getting to know her mom but want to be careful. Any advice as to how to proceed?

Answer:

Proceed cautiously.
If your daughter moves in with her mother, you will be obligated to provide financial support to your ex-wife. This may not happen immediately, but it will happen. Child support is your daughter’s right and most states will not allow parents to unilaterally waive support without cause. Even if you and your ex-wife were to agree that support would not be exchanged in consideration of the custody change, your ex-wife would be well within her legal rights to come back and petition the Court to modify that order at a later date.

If your ex-wife lives in a different state or county, you could be facing some procedural nightmares in the future. Depending on various factors, including the time your daughter lives with her mother and whether or not you choose to move, your case could be transferred to a different court. The new court will not have the “history” of your case and may have less favorable laws with respect to child support and parenting time.

I do not believe you will be perceived as “abandoning” your child, however, I wonder if you have considered all of the ways your own relationship with your daughter will change if she lives 100 miles away? Clearly you have been a stable and loving father to your daughter. A fifteen year old girl is not always the best judge of her own best interests, especially when she is desperate to receive the love and acceptance of her mother. I presume you have many rules in your home regarding things like clothing, music, food and curfews. I also presume that while your daughter may voice her opinion about these restrictions, you are ultimately the one who makes the decision. Custody is no different; you are her father and are in the best position to continue making decisions about your daughter’s well-being.

I will leave you with this thought: supporting a relationship between your daughter and her mother is not an “all or nothing” proposition. Before you consider such a monumental change in your daughter’s life (changing schools, removing her from her community, moving her from her peer group), consider the comparatively small but important step of increasing your ex-wife’s involvement in your daughter’s life. Invite her to extracurricular events and conferences. Keep her apprised of your daughter’s doctor’s and dentist’s appointments. Encourage her to be a part of decision-making when it comes to extra-curricular activities, birthday parties and house rules. Perhaps you can experiment with longer periods of parenting time between your daughter and her mother. The bottom line: move slowly.Question category: Legal Strategy

Question:

I have been divorced about a year. In my decree it states that anything we don’t agree upon will be settled with mediation. I have tried to get her into mediation without receiving a reply. I don’t want to go back to court, but I would like to modify the current situation as there has been a substantial change of circumstances. I moved within two blocks of the children, and I now live in their school district and I have had them over and above the set “visitation.” So I need to modify the custody (seeking 50/50) and also need to modify the child support (not applicable any longer) but how do I do that without getting back into the court? I am not fearful of the court, just don’t like the animosity and expense that comes with it.

Answer:

You should file a motion with the Court requesting a modification of your current schedule based upon a change of circumstances. You may also ask the Court for an order directing you and your ex-spouse to attend mediation prior to the hearing. You will need to ask the Court to set your motion for a hearing if mediation is not successful.

I should also note that even if you and your ex-spouse agree upon a parenting time change, you may not agree upon a change in child support. Although having a 50/50 or “shared” custody arrangement may entitle you to an adjustment of your support, shared custody may not entitle you to stop paying child support all together.

Although the two issues of parenting time and child support are intended to be handled separately by the Courts, the issues are often intertwined during negotiations between the parties. The parent seeking an increase in parenting time may be accused of doing so to reduce his/her share of child support and the party objecting to an increase in the other parent’s parenting time may be accused of doing so to avoid a reduction in his/her support. The underlying financial motivation of each party (either real or perceived) can sometimes complicate what should otherwise be a straightforward conversation about your children’s schedule. Be prepared.

Submit your questions to sdladvice@singledadlife.com

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

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By Peter Ehrlich
Special to Single Dad Life

They say it takes a village to raise a child. That is true, but 50 per cent of any village is made up of men and a good percentage of those guys are daddies.

I don’t think anyone would disagree with the primal assumption that fathers need to play a part in raising their children. If they all got up and left their children alone in the village, it would create a river of tears.
The women would be crying not because they feel sorry for themselves, but because they know their children are in pain. Good mothers are incapable of seeing their children suffer.

But the mothers in the village can only cry for five minutes because they won’t have time to figure out how to be a single mom. It’s more like, “Abacadabra, I have to be a single mom now for the sake of my children and fill in as the father the best I can.”

The children will be crying because they’ll think it’s their fault their dad left. They can’t possibly understand how he could abandon them. It goes against everything that is natural and right. And they’re 100 per cent correct, of course.

Unfortunately it seems some men in the Village of Toronto (Huron word for “place of meeting”) don’t “meet” their children often enough or at all.

Why is that? Research is unequivocal that few fathers abandon their children voluntarily. Most fatherless children result from fathers being forcibly separated from their children by the court system.

I’m not going to open that can of worms here. Not yet. It’s too big a can.

But I will say this: The family court process of determining who should have the right to see the children and when can be a horrific one.

I can understand how some of you fathers feel you can justify not being part of your children’s lives, however misplaced the thinking is. You may feel:

The legal system has left you exhausted, broke and cynical so what’s the point?

You got screwed by the courts, getting too little access to matter, so what’s the point if you show up at all?

Since your ex met another guy and he seems to have assumed the father role, what’s the point? (This cannot happen unless you want it to. Your children will never replace you, even if you see them but one moment a week, because you’re their father. Blood is blood. There’s only one condition. You need to be a good, loving father to gain your child’s loyalty.

There is no excuse for not playing a big part in your children’s lives, and deep down inside your naturally good heart you know that.

Your children need you so they can be the best well-rounded, happy people they have the right to be.

And how else are they going to know how to choose a loving partner or create a healthy relationship if they’re missing 50 per cent of their role models?

Regardless of what you’ve gone through, you have to climb up high on the mast, stick your face into the teeth of the hurricane and scream, “You call this a storm?”

Your children deserve your courage.

There’s an old Hebrew saying: “Whoever saves one life, saves the world entire.”

If you’ve been away from your children for too long, there’s still time to save them (and yourself), and consequently, make our world a better place. There’s no excuse for anything less.

Feel free to contact Peter via his website - www.geronimocode.com or directly via peter@geronimocode.com

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