Thursday, April 30, 2009

Is Your House Child Proof?

Unfortunately, I have represented individuals who are divorcing after a short term marriage. Many of these involve infant children. Exchanging custody of an infant child can be traumatic for any new parent, as well as the child, who hits so many developmental milestones during the first two years of life.

As in many other aspects of divorce, the claws often come out in an effort to gain a good bargaining position. Many new mothers automatically assume that the father of a baby is simply incapable of overnight custody. Of course, in some cases this sentiment is true and the child would be better off primarily with the mother. However, sometimes, even if a father had not been involved while the parties were together, that man usually undergoes a crash course in how to be a father and caretaker of an infant. Of course, his methods may be different than the mother, but that does not always make them wrong.

If you are a new father who is undergoing a separation or a divorce, and the mother of the child is especially bitter or antagonistic regarding your role, attempt, inasmuch as possible, to reduce the size of the target that she has against you. One excellent way to make that strike zone smaller is to immediately make sure that your home is appropriately child proof. This is especially important for men who leave the marital home and must set up shop on their own. Many times, these are the things that their wife managed.

To make sure that your house is baby and child friendly, consider the following:

1. If your child needs a crib, make sure it meets current safety standards. While it may be cheaper to obtain a hand-me-down from a friend or relative, if that crib is so old as to not meet all of the cutting edge regulations, you will only give your spouse something to raise as a strike against you.

2. Purchase all of those annoying safety latches and locks that pretty much ensure that you will never be able to open any of your own cabinets or doors again.

3. A plumber can install regulators on your showers and other faucets so that the water cannot scald a child. This may result in slightly tepid showers for you, but at least you know that your child is safe.

4. In your kitchen either remove the knobs to the stove or install protective covers. Additionally, if you have a garbage disposal, make sure you have a child proof cover on it to protect curious little hands.

5. Obtain the appropriate covers for outlets, preferably the kind that cannot be pulled out and become a choking hazard.

6. Look around the house from a kid’s point of view and make sure that you remove or keep out of reach any dangling window cords, tassels, phone cords or other dangling dangers.

7. Take a look at your windows. You may need to install guards to make sure that a child cannot fit through them.

8. Purchase the appropriate safety gates to guard your stairs or any areas that you wish to be off limits to the children.

9. Make sure any hard or sharp edges are covered with safety bumpers.

Of course, none of the above are an acceptable substitute for constant parental supervision. However, in some of my more bitter cases, I have seen parents demand "home inspections" of the other parent’s residence in order to look for dangers both obvious and hidden. With everything else in turmoil due to your divorce, do not let these types of issues get in the way of your child’s best interest.

Wednesday, April 22, 2009

Harassment by Myspace

Resist the urge to play out your revenge fantasies during a divorce . . .

Today's Asbury Park Press contains an article about an attorney who allegedly posted a video of his estranged wife on a myspace page. The video, titled, "Superdiva Meltdown," allegedly contained snippets of a deposition the woman gave in her divorce, wherein she discussed personal and embarrassing details of her life.

The estranged wife is a former municipal court judge and currently a radio personality in New York. Because she apparently had a restraining order against her husband, the attorney was charged with violating that order and was confronted by police at 11:30 pm in his home. He posted bail to be released.

The article states that the attorney denies being behind the posting of the video but since only the parties and their attorneys had access to the footage, suspicions are strong that he is behind it.

You can read the full article here.

Divorce litigation often brings out the absolute worst in people and seeking revenge sometimes is a way to release the pent up anger and emotions. However, any type of action which could potentially harm the other person (by embarrassment, loss of income, emotional distress, etc.) may rise to the level of criminal. Additionally, rather than moving things along to an amicable and final resolution, petty acts of revenge only serve to ramp up the emotional factor. Save your energy for productive endeavors.

Tuesday, April 21, 2009

Does Your Estate Owe Child Support After You Die?

Last month the Superior Court of Pennsylvania issued an Opinion that resulted from a great deal of squabbling when a divorced father died and his ex-wife sued the Executor of the Estate.

The parties had divorced in 1993 and negotiated a settlement agreement. Pursuant to that agreement, father was to pay $700 per month per child for support until each child reached the age of 18. Language in that agreement also noted that the settlement was binding on the heirs, executors, administrators, successors, and assigns of the parties. Additionally, the settlement agreement included language that "husband does agree to contribute to each child’s college education pursuant to and in accordance with the agreement of the parties or applicable law."

Husband died in 2002 and at that point, the minor children lived with his ex-wife. His ex-wife sued the estate to continue the child support payments. However, the Estate objected, noting that, as a result of father’s death, the children each received social security benefits in the amount of $929 per month. The ex-wife argued that the $929 per month that the children were receiving was above and beyond the child support and was a windfall to which they were entitled.

The case wound its way through the trial court where an Order was issued in 2007 and eventually to the Superior Court where an Opinion was issued in March 2009. Obviously, the death of this father continued a path of litigation that had apparently not terminated with the divorce agreement, way back in 1993.

The Superior Court looked to the actual settlement agreement and because the parties had agreed that the terms of the agreement were binding on the heirs of the parties, found that although Pennsylvania law does not normally require child support past the date of an obligor’s death, in this case, father had agreed to continue his obligation. However, the court credited father’s estate with the social security payments that came from the government and since those social security payments exceeded the amount of child support, found that father’s estate did not owe support. Additionally, the court reviewed the language with regard to college tuition and found that there was no enforceable agreement that father or his estate would pay those expenses.

Notably, the language with regard to the agreement being binding on heirs is common included in many settlement agreements and is what is known as "standard boilerplate." This Opinion reminds us that all language in an agreement can have significant and monetary consequences so each aspect of an agreement must be thoroughly reviewed.

The sad part of this case is the ongoing, and most likely expensive litigation which ensued for years and years. You can read the full Opinion from the Superior Court here.

Monday, April 20, 2009

Personal Property

Dividing personal property in divorce such as furniture, mementos, photographs, artwork and other accumulations of a life together can be the most tedious and heartbreaking task of dissolving a marriage. Generally, personal items have more sentimental than monetary value so courts are reluctant to step in to referee. Lawyers also counsel clients to attempt to divide these items between them, without incurring more attorneys fees that can exceed the value of the property divided. Unfortunately, when emotions become inflamed, argument over personal property can overwhelm other issues.

In the movie, "When Harry Met Sally," the film makers included an excellent scene regarding the frustration that Billy Crystal’s character experienced in dividing the accumulations of his marriage, and the cost. Here is the clip.

To make the division of personal property as cost effective and efficient as possible, be prepared. Have records and lists so that you can clearly outline your property requests, and have backup for your position as to the property that is accumulated. Making a list can be a useful tool, but it is not really evidence. Documentation of the property will be your best defense. One way to document is to take pictures.

In addition to the convenience of a digital camera to capture life’s memorable moments, those in the midst of a separation or divorce can use that same instrument to inventory their property.

1. Start at the top of your house and go to the bottom and systematically snap pictures of every room from several angles.

2. Open drawers, closets, shelving units, storage bins and doors under the stairs. Take a photo of everything.

3. Get a close up shot of serial numbers, makes, models, and other identifying information. Make sure your pictures have a time and date stamp.

Once you are finished you can save hard copies of the photographs. Additionally, save a digital copy on your computer as well as email a copy to yourself. You can even store one on a remote photo site. That way, if there is ever a fire or a burglary, or your spouse goes through and disturbs your files, you will hopefully still have a safe back-up copy.

So take a hint from Billy Crystal and avoid a melt-down over the dishware. Do some legwork on your home so you do not have to pay the law firm of "this is mine, that is yours" to divide your knickknacks.

Thursday, April 09, 2009

Don't Get Cute!

It has long been a basic tenant of child support law that, generally speaking, the duty of child support cannot be waived by the custodial parent. The right to have the benefit of the support belongs to the child. Accordingly, child support remains modifiable, based on the circumstances and cannot be waived by a parent. Additionally, custody of a child remains modifiable, based on the circumstances and the child’s best interests. Therefore, despite a negotiation as to child support and custody, or a court order as to child support and custody, the arrangements can be modified, unlike many other contracts. On the flip side, certain other agreements or orders in family law matters are non-modifiable. Examples include equitable distribution of assets and debts or alimony that the parties decide will be non-modifiable.

Usually, parties in family law matters will negotiate one thing for another. The give and take helps the parties to work out the best arrangement for their family. Of course, when the parties come to an agreement, those agreements will generally be made into court orders, so long as the terms do not violate public policy. However, generally, when making an agreement into a court order, a court will generally not review the terms for fairness. Therefore, before agreeing to anything, you should have a complete understanding of your rights and responsibilities and have an attorney, who is well versed in family law matters, review the agreement for you.

While a little give and take is necessary in negotiation (you get the dog, I get the cat; you get the dining room set, I get the living room set; you get the vacation house in the mountains, I get the vacation house at the shore; etc.), it is important that you are not trading apples for oranges. A huge mistake I often see in mediated agreements, when one of the parties is not represented by an attorney, is that they may give up something that constitutes an enforceable agreement, for something else that is not enforceable.

For example, I had a case once wherein the father agreed that in equitable distribution, the mother would retain the parties’ home. The home constituted the majority of the marital estate and it was a significant burden for father to give up his share. However, because he wanted to make sure the children had some type of continuity, he agreed. Since he had to buy a new house, the only way he could afford it would to be relieved of his child support obligation. In light of his agreement to forego his interest in the marital home, the mother stated that she would not pursue child support. However, some time later, she changed her mind and petitioned for support for the children. The father attempted to use as a defense that he had given her the marital home. However, because child support (and custody) are always modifiable based on a change in circumstances, the mother was awarded child support and the equitable distribution agreement regarding the house was not changed.

The above story is an excellent example of giving up something that is non-modifiable, for something that is modifiable. Father gave up his rights in equitable distribution - and equitable distribution is generally non-modifiable. In return, he received a promise from mother that she would not seek child support. However, the custodial parent cannot waive child support and therefore, this promise was not enforceable.

I titled this article "Don’t Get Cute." Many people attempt to get around the various quirks and nuances that are unique to family law, and different from other types of contracts, by creative drafting. By way of example, in the above-referenced scenario, perhaps father and mother could have drafted comprehensive language in their final agreement, stating that the only reason father was waiving his interest in the marital home was to be relieved of paying child support. That would be a "cute" way of getting around the modifiability of a child support arrangement. However, no matter how careful the drafting, or how elaborate the language, there is no guarantee that, later, upon petition of the other party, that type of agreement would be upheld. In fact, in most instances, the waiver would not be valid. Additionally, and most importantly, no one has a crystal ball and knows the future situation of either the custody or financial needs of the children.

Recently, the Superior Court of New Jersey addressed a case wherein husband would have had a right to receive alimony from wife, who happened to be the custodial parent of the children. Of course, husband would owe a duty of child support. The parties agreed that husband would waive his alimony in return for an "absolute" agreement that he would not have to pay child support. In addition, he also gave wife a greater share of the equitable distribution, relying on the fact that he would not pay child support. Unfortunately, circumstances changed and husband ultimately obtained custody of one of the children. He then sought child support. Wife, who still had custody of the other child, filed a cross petition for child support for the child in her possession. Husband protested, relying on the absolute "agreement" that he would not have to pay child support. The case wound its way through the trial court and to the Appellate Court.

The Appellate Court reviewed the case law and statutes with regard to the modifiability of child support, as well as the court’s preference to uphold settlement agreement. However, the court ultimately found that husband indeed owed a duty of child support for the child in the custody of wife because wife did not have the authority to waive that support on behalf of the child. However, the Appellate Court reversed and remanded on husband’s argument as to his right to alimony. Even though he had originally waived it in exchange for non-payment of child support, he now clearly owed child support. Accordingly, the Appellate Court sent it back to the trial court for a hearing to determine whether he should now receive alimony.

In this case, it is clear that the parties attempted to draft around the modifiability of child support. Clearly, neither party had envisioned, perhaps even in their wildest dreams, that husband would eventually have custody of one of the children. However, decades of case law and overflowing family courts bear witness to the often ongoing evolution of divorced and separated families. Even though it appears that husband in this case may be able to get alimony even though he theoretically waived it and said waiver would, in other circumstances, be non-modifiable, the litigation costs (both emotional and financial) will certainly not outweigh the eventual monetary outcome. Accordingly, in negotiating a settlement agreement regarding assets, debts, custody and support, parties should not only be concerned about the financial ramifications, but also the enforceability and non-enforceability of individual sections, and come to a resolution that will not later be grossly unfair.

The New Jersey case referenced here is Anello v. Anello, Docket No. A-2405-07T3. This Opinion was not released for publication and therefore does not have the precedential value of a published decision. However, non-published decisions can give us guidance as to a court’s thinking and this cautionary tale should give pause to anyone negotiating agreements.

Monday, April 06, 2009

Credit Card Woes

Think carefully before agreeing to be jointly liable for a debt! Whenever you agree to share responsibility for a debt with someone else, your contract is with the creditor. Therefore, there is little you can do, or you and your joint debtor can do together, to nullify that contract with the creditor, unless the creditor agrees. The creditor expects its loan to be paid and will not absolve you of responsibility just because you and your debtor come to some type of an agreement between you with regard to who will pay.

If you and your co-debtor marry and divorce or break up your business or otherwise become uninvolved, it really makes no difference whatsoever to the creditor. The debt must still be paid. If you have a joint debt with someone, whether it is a spouse, business partner or friend, an agreement between the two of you or even an order from a court as to who should be liable for the debt does not affect the creditor’s rights.

Unfortunately, during a divorce, many people think that if a divorce order or agreement states that one person will be liable for joint debt, the other person is relieved of that responsibility. However, since the creditor was not a party to the divorce, from the creditor’s perspective, both people still owe the money. This type of liability is called a joint and several liability, which means the creditor can collect from each individual, or collect the entire debt from either one of the parties.

If you are forced to pay a former spouse’s debt, and your divorce agreement indicated that the spouse was supposed to pay it, you may have an action against that spouse in court. However, that is an expensive way to go about relieving yourself of liability. Therefore, you should be proactive about removing your name from all paperwork as a responsible party.

Whenever a relationship is dissolved, whether it is a marriage, business relationship or friendship, and those involved have joint accounts, the joint accounts must be closed and all debts must be paid or, if one person agrees to be responsible for the debt, that balance must be transferred to their individually held account. Do not share a joint liability with someone unless you are prepared to pay the entire debt if they default

Friday, April 03, 2009

Organize Now - Less Headaches Later

The paperwork inherent in a divorce can be absolutely overwhelming. Reviewing assets and debts, gathering documents and providing it to the lawyer or other party adds frustration to the ordeal of breaking up a marriage. Trying to get a handle on it at the beginning of the process can save some heartache later.

A.A. Milne, the writer of Winnie the Pooh, said it best:

Organizing is what you do before you do something, so that when you do it, it is not all mixed up.

For more information on how to get your financial life in order, review my blog post from January 2009. Beginning this type of project can be the most difficult part of the process but knowing that you are saving yourself stress and anxiety later should help get you kick-started.