Tuesday, May 29, 2007

Kids, Schedules and Holidays

What kind of holiday schedule works best for you?

Negotiating custody agreement sometimes involves lots of time and heartache. Once the difficult decisions are behind you (who has primary custody, where will the children live, what is the day to day schedule), a holiday and vacation schedule must be coordinated.

Since this is sometimes the last step in the process, it can get shortchanged. Some people slap any old holiday schedule together, thinking the other parent will be flexible when the time comes.

The Memorial Day Holiday weekend reminded me of some of the hurdles that separated families face. For example, if your holiday schedule simple says "alternate and rotate holidays" does that mean that you see your child only for Memorial Day or for the entire weekend?

Be ready for this step in custody negotiations by first listing the major holidays and how you usually like to celebrate. For example, if you go to the shore every Memorial Day Weekend, you may want to define your holiday as the entire weekend, from Friday through Monday evening, rather than just the Monday holiday.

Do you celebrate Christmas Eve dinner with your family or a big Christmas Day extravaganza? How does your family celebrate Passover? Do you always go out of town for Thanksgiving so that your Thanksgiving holiday must be defined as Wednesday after school through Sunday evening?

If you ask yourself these questions now, and give yourself time to mull it over, you will be ready to negotiate a holiday schedule that fits with your way of life. Additionally, once you map it out, you may realize that some holidays simply are not important to you -- and you can give them to your spouse, in exchange for something more important.

So start by listing ALL public holidays (even ones you normally do not celebrate, like three day weekend school holidays) and then list ALL religious holidays that are important to you. Do not forget your birthday, your child's birthday and Mother's Day and Father's Day. THen, jot down your wish list so you have a starting point.

Most people like to alternate and rotate by even and odd years. For example, in odd years, Mom gets Thanksgiving and Dad gets Christmas. Sketch it all out on a calendar so you can see how it falls throughout one year.

By being prepared, you can better your chances of getting a schedule that fits your life, and make the whole separation process a little less unpleasant.

Tuesday, May 22, 2007

Dividing Personal Property: Furniture, Books, Pictures and the Other Stuff of Life

LIVE - LAUGH - LOVE - because the most important things in life . . . are not things.

Keep that saying in mind when you are going through a divorce -- it helps to keep your eye on the big picture.

Divorce is all about dividing stuff: houses, income, retirement accounts, dishes, furniture, pictures, keepsakes . . . and absent an agreement, dividing stuff costs money. Some people choose to argue over everything down to the last dinner fork - but the cost of that level of dispute can sometimes exceed the cost of the items that are the subject of the battle.

Certain things are worth the fight: irreplaceable heirlooms, valuable artwork, family photographs, treasured keepsakes, to name a few. But most things are just that: things. And the way we value things for the purposes of divorce is usually their present day, fair market value. So even if you paid $5,000 for your dining room set a few years ago, its value for the purposes of divorce is what you can get for it today, at a tag sale or by putting it on Craig's List. And if you cannot agree on a value, you may have to hire an appraiser to set the price -- another cost on top of an already expensive process.

So be realistic about dividing your stuff, and try to work it out with your soon to be ex-spouse as much as possible. Sometimes, it is cheaper (and less emotionally taxing) to just buy new stuff - before paying your lawyers to fight over the bedroom set you bought at IKEA. Dividing "in-kind" is also usually an efficient and economic solution - you take the DVDs, I'll take the books, you take the family room furniture, I'll take the kitchen set.

Save your energy and money for the more important aspects of life . . .because the most important things in life, are not things.

Thursday, May 17, 2007

Should you blog about your divorce (or any legal issue?)

I keep in touch with virtually all of my clients, even years after the main part of their case has been resolved. Some out of necessity - if you have children a family law case usually does not officially end until the children become adults. For some clients, I have become their "general counsel" and have assisted with small business matters, tax problems, civil suits and real estate transactions. Some clients simply keep in touch for the sake of keeping in touch – if I was their divorce counsel, I was most likely one of the key figures in their life at a very rough time.

One of my clients recently told me about some of the divorce process from her perspective — the sharpness of the pain when her marriage was ending, the shame she felt, the fear of not being able to cope, the confusion when you become responsible for things your spouse used to do (house repairs, shopping, bill paying). While these emotions and thoughts are a huge part of the divorce process, it is not always economical, efficient or wise to spend your lawyer’s time on these issues. So while I am generally aware of what clients are feeling, I am also trying to manage an efficient and effective divorce process.

My client suggested that I tell my clients to write a blog as a therapeutic outlet for the emotions. Now this client knows me well because she immediately also said, "Legally, lawyers would probably prefer that their clients remain mute while the divorce is underway and that makes sense." Truer words were never spoken. In the internet and cell phone age, I have spent much time and energy trying to fix something that a client posted on a myspace account, sent in an email or left on a voicemail. Think Alec Baldwin! So - the thought of a client posting a blog with their innermost thoughts during a divorce process makes me shudder. However, I recognize clients need an outlet for their thoughts, frustrations, disappointments, and general anxiety during divorce litigation.

I always suggest a qualified therapist. Some people prefer to speak with their priest, rabbi, minister or pastor. Some people are lucky enough to rely on family and friends. However, family and friends have their limits - you do not want to be known as "that person who always talks about their divorce." Additionally, family and friends may be biased and not be able to give proper advice.

My client suggests a blog as an outlet. As she says:

"There are tons of divorced women blogs out there, women at all stages of the process. They assume they are all alone and are so relieved to find that they are not the only ones who freak out when the kids are with the ex for the weekend, or feel at a loss as to what to do when the faucet starts dripping or the porch roof collapses, or are terrified of dating again, or feel trapped in an abyss of misery and figure there must be something wrong with them. They are so relieved to hear from others who learn to find something to do when the kids are gone, or have learned what’s where in Home Depot, or that the abyss is just a place you have to spend some time, but then after some months, or years, you get to climb out. And you sometimes end up back there again, but that things get better…. "

But I am a lawyer and I cannot just advocate that anyone put their thoughts out there for anyone to see (especially your ex-spouse, children or opposing counsel.) So if you choose to blog - do so anonymously – but remember - nothing is truly anonymous.

So be careful exposing yourself in cyberspace . . . because the last think you need is your therapeutic tool coming back to haunt you.

Wednesday, May 16, 2007

Will my spouse have to pay for my attorney?

I pay, you pay, we pay . . . . who pays?

The Divorce Code of Pennsylvania provides, in certain situations, for one spouse to pay the other's reasonable attorney fees and costs. However, in reality, shifting of attorney fees is a rare occurrence. In most cases, absent compelling circumstances, each party will be responsible for their own fees.

Whether parties come to an agreement to settle their divorce and related matters, or the court orders a resolution, many people wonder who will pay if the other party breaches. For example, if your spouse is ordered to pay you a certain amount per month, or refinance the house, or pay you a lump sum, what happens if he or she breaches that arrangement? You are not only out your money due under the agreement or court order, but then you are forced to incur more attorney fees to chase down the other person. In other words, you find yourself in the positions of spending more money to recover money that was yours in the first place.

Many agreements and court orders contain provisions providing that the breaching party pays attorney fees. That means that the party who does not live up to the terms of the agreement should pay the other parties fees and costs for enforcing that agreement.

Unfortunately, even that type of provision does not safeguard everyone. Recently, the Superior Court of Pennsylvania addressed a case where a wife incurred $2,931.99 in fees to compel her husband to pay monies rightly due to her under their divorce agreement. Despite a provision that the breaching party had to pay attorney fees, the trial court only directed the husband to pay $1,200. The Superior Court affirmed the decision. Read the case here. (You need Adobe Acrobat Reader to view opinion.)

The lesson here is to never assume that the other party will be directed to pay your fees. Courts in Pennsylvania tend to shy away from shifting attorney fees. Be judicious in your choice of a lawyer and your legal expenses because, more likely than not, the bill will be your responsibility.

Saturday, May 12, 2007

Child Custody Problems of US Soldiers

When single parent soldiers are deployed overseas, what happens to their children?

When a single parent is deployed overseas, their children may stay with the other parent, a relative or a friend. The single parent soldier most likely intends this to be a temporary arrangement --- when they return from serving their country, they anticipate that their children will be returned to them, and they will pick up where they left off.

Expecting your children to be returned to you after fighting for your country does not seem to be an outlandish request. In fact, at first glance, it would appear to be the right thing to do. If you are making the ultimate sacrifice by fighting for the USA, custody of your children should not be in jeopardy.

However, the standard for determining custody is what is in the child's best interests. During the parent's time away from home, that child might settle into a new neighborhood, lifestyle, school, group of friends, household and routine so that going back to live with the parent who had been away on military duty might be another disruptive transition that does not necessarily serve the child. Whoever the child is staying with (the other parent, grandparent, well-meaning relative, close friend) might decide to fight the parent for custody and the whoel matter ends up in court. That is a horrifying twist that many parents simply do not anticipate. Then, a judge, custody evaluator or other professional might decide that the status quo should remain, and deny the returning parent their request for full custody. Of course, in most instances (but not all), parents' rights are preferred over other individuals, such as relatives or friends. However, if you left your child with the other parent, just because you previously had custody, you are not necessarily in a superior position.

Prior to relinquishing custody of your child in any situation, you should consult with an attorney, familiar with family law in the jurisdiction where you live, to learn about your options. because child custody agreements can be modifiable based on the child's best interests, you may not be able to come up with an iron-clad contract. However, you may be able to construct an arrangement that preserves as many of your rights as possible so that you are in a better position than if you had just blindly hoped that everything would return to the situation in place before you were deployed. For more information, read this newspaper article.

Soldiers are not the only parents that voluntarily relinquish their custody rights. If you are ever in a position wherein you decide that your child should reside with someone else, even temporarily, consult with an attorney regarding all of the benefits and risks.