Dividing Pensions

Examiner.com has posted an article by a Virginia attorney that rightly criticizes the Virginia family court system for its inconsistent and sometimes downright unjust treatment of family law litigants in general, but particularly military personnel. Without addressing the accuracy of his specific claims, because I have no way to verify his allegations, I wish to comment on the family law concepts that the article brings to light.

1) The author claims that Virginia forces military personnel to split their pensions with their spouses even after the end of a short-term marriage. In Oregon and other equitable distribution states, of which Virginia is one, a short-term marriage of less than 10 years’ time would compel a court to award each party what he or she brought into the marriage plus an equal share of what was accumulated by both parties during the marriage. Those calculi are not absolute, but they represent general principles. The degree to which people have become financially intertwined, and thus one is more dependent on the other than he or she otherwise would be, determines the amount of the more well-off spouse’s assets, if any, that the court may tap in equity to meet the self-sufficiency needs of the receiving spouse.

2) The author goes on to allege that Virginia courts order the pensioner to surrender half of his or her pension at the earliest possible retirement date, even if the pensioner does not retire. I would propose several alternatives, and I encourage these approaches in my mediation office. One option is to divide the pension as of the date of the dissolution, with the payoff beginning at age 62 or 65, with interest that has accrued between the dissolution and the age at which the Husband and the Wife have agreed. The second option is to do the above but to divide the pension as of the date of the pensioner’s retirement, which avoids the untenable circumstance of the pensioner being required to make monthly payments that their military salary cannot support.

Family Time with Your Kids and Your Ex

In a May 22, 2009 article, actress Denise Richards is interviewed about the dinner she recently had with her ex-husband, Charlie Sheen, their two daughters, Sheen’s new wife, Brooke Mueller, and the twin boys of Sheen and Mueller. It had seemed to many observers that Sheen and Richards could not stand the sight of each other and could not bear to be within earshot of each other.

However, Richards visit with Sheen demonstrates several healthy principles of co-parenting after divorce. It allowed their children to see that they still got along and could be civil to each other. Children are the link that binds a husband and wife together, even after they have divorced. Parents may not always be spouses, but they will always be parents if they have children in common. Spouses can be divorced from each other, but parents are never divorced from their children. My mom has always been able to tell my sister and me with a straight face that she will always love my dad because he gave her the two things most precious to her.

The only drawback to a visit such as the one Sheen and Richards had is one that can easily be managed and avoided. After you’ve gone through a divorce, particularly one as contentious as the one Sheen and Richards endured several years ago, you don’t want to send your kids the conflicting messages of “we’re divorced” and “we hang out together.” You need to make sure it’s clear that you are divorced and will stay that way, but that you can also do things as a family from time to time. If the kids were a little other than Sheen’s and Richards’ kids were at the time of the divorce, they might wonder, “Why did you put us through the trauma of a divorce if you don’t have any trouble getting along?” Obviously, that’s an oversimplification in adult terms, but it may be exactly what’s running through a kid’s mind.

All in all, I’m a huge proponent of children getting to spend family time with both parents as often as it makes sense, so I think it was very big of Sheen and Richards to put their children’s happiness ahead of whatever animosity they still harbor against each other.

Arranged Marriages Aren't Necessarily Happy

As we approach Memorial Day, a reminder of the struggles of our troops to secure the cause of freedom, it is especially relevant to contemplate how many countries around the world do not have the liberties that we take for granted in the United States of America.

I just read an article from the Tehran (Iran) Times Women’s Desk. Putting aside the possible oxymorons (concern for women + Iran) and (Iran + free press), I want to address the logic-deprived argument in an article from May 25, 2009.

The article claimed that 90 percent of “love marriages” in Iran end in divorce, compared with only 15% of arranged marriages. I have a few problems with these premises, and maybe I’m the only one who doesn’t understand this stuff, but I doubt it.

1) I thought a “love marriage” was a “marriage.” Yes, certain people enter into marriage without the loving bond that they should have, or with some ulterior motive. But in general, marriages are predicated on love. For a country to differentiate between marriages of love and marriages not based on the love between the two spouses – and then to condemn the ones based on love – is beyond me.

2) The article tries to imply that arranged marriages are a better idea because they fail less often. That’s like saying marriages were stronger in the 1950s because not as many people got divorced. Nonsense. There were crappy marriages in the 1950s also, but there was less of an ability to get out of them because of fault-based divorce (no-fault divorce had not yet arrived and would not arrive for several more decades) and there was a stronger societal pressure to remain married.

Just because there are far fewer divorcees among those whose families have arranged their marriages, it doesn’t show me that they have stronger unions. Instead, it suggests to me that they are more submissive to the will of their family members, as they allowed their family members to choose their spouses in the first place. The desire not to disappoint the family, or the intent not to incite backlash, seems the driving factor in the continuity of those marriages, rather than the thorough harmony of the husband and the wife.

Drivers and Passengers in Divorce

I’ve said all along that there can be a driver and a passenger in a divorce – someone who wants the action and is pressing it, and someone who is being dragged along against his or her will. In most divorces except the most amicable, and even in some of those, there is an instigator and a responder. In fact, the court system makes this distinction between the “petitioner,” the person who initiates the legal proceeding, and the “respondent,” the person who answers the petitioner’s request.

In the Katie Price-Peter Andre debacle (and I think it has reached “debacle” status as this is my fourth posting in the last two weeks and my second in as many days), Ms. Price had initially positioned herself as the driver. It had been her decision to divorce, her choice to hire a pit bull divorce attorney, and her substantial fortune to protect from division. However, in the last day or two, she appears to have had a change of heart, if published reports have any validity. Now, she wants Mr. Andre back, and she will evidently do anything to reconcile with him.

Enter Mr. Andre. Whereas he had once been relegated to the role of the manipulated spouse who had no choice but to jump on the train, lest he get steamrolled by that train, he now assumes the posture of the driver. Before, he had to respond to Ms. Price’s choices whether he agreed with them or not, and initially he did not. Now, however, he is possessed of the power that she had previously held. The ball is in his court. Ms. Price asked for a divorce and Mr. Andre, like any sensible spouse, wisely decided not to stand in her way. How can she blame him now for doing exactly as she asked?

Joint Custody: Pitfalls to Avoid

I read this morning that a Saudi Arabian couple had divorced because they could not agree on the name of their child. That seemed to me to be a silly reason to end a marriage, but it reminded me how complicated it can sometimes be to share joint custody with your ex-spouse. After all, those people were not even exes at the time they had their squabble. Being an equal parent with your former husband or wife is a challenging proposition. I am still very much in favor of joint custody over sole custody, because it gives the children a better chance of having two active parents, and it does not set up one parent as superior to the other. However, it can often be quite complicated to reach agreement on even the most basic decisions. Here are some common decisions that holders of joint custody share when they are divorced:

1) Discipline. Will there be corporal punishment? Will a grounding that one parent imposes in his or her home be enforced in the other parent’s home?

2) Privileges. What about the bedtimes in each home? Cell phones? How much TV may the kids watch?

3) Unsupervised time. How old must the kids be to stay home alone for an hour? Two hours? Four hours? At what age can a kid care for his or her siblings with no other adult present? If you hire a babysitter, how old must he or she be, and how much older than the oldest child under care?

4) School. Will both parents be listed in the school directory? Who will be called first in the event of an emergency? How about parent-teacher conferences – are the parents civil enough to attend the same one, or does the school need to schedule separate ones for each parent?

5) Health and nutrition? Will a vegetarian diet be observed at one home? If so, how about the other? What kind of health care will the children receive – traditional, acupuncture, chiropractic, psychotherapy?

6) Religion. If one parent is religious but the other is not, will the kids attend religious services every week, even during the other parent’s parenting time? If both parents are religious, will the children attend worship services with one, the other, or both?

In sum, joint custody is a wonderfully rewarding approach for most people. However, like almost anything, it carries its potential problems, and the more responsibly they are anticipated at the outset, the less likely they will cause issues down the road.

It Takes a Unanimous Vote to Stay Married

The saga of Katie Price (also known as Jordan) and Peter Andre continues. After separating from Andre, hiring England’s most formidable divorce lawyer, and packaging up Andre’s possessions to be placed in storage, Price has now announced that she wants to take Andre back. This twist in the ever-changing story illustrates at least two salient points:

1) People are often impulsive and irrational as they navigate the challenges of a divorce or separation. Who knows whether Ms. Price was wrong to separate from Mr. Andre, or whether she was right to do so at the time and is now wrong to want to take him back? The reason that most states provide a waiting period (Oregon’s is 90 days) between filing for divorce and finalizing a divorce is that people often do change their minds. The court system does not want people taking up judicial resources to make a impactful life decision haphazardly. If it’s a good idea, it’ll be a good idea in three months, and Ms. Price did not even have to wait nearly that long before she came to the conclusion that it might not be.

2) It takes two people to get into a marriage and one to get out. England, like almost every state in the United States, appears to be a no-fault jurisdiction. Simply deciding you don’t want to be married anymore is enough to get divorced in a no-fault jurisdiction. Nothing stopped Ms. Price from separating from Mr. Andre in the first place, no matter what he wanted. By the same token, now that she wants to be reunited with him, that won’t happen unless he decides that he’s in favor of reconciliation. Nothing in the law forces people to be together; both must want the union or it does not happen.

Do-it-yourself Divorce? Don't.

The tight economy has made people cut unnecessary expenses from their budgets, which is usually a very responsible decision. However, there are certain things that it’s just not wise to skimp on. As a divorce mediator, I have to go on the record to urge the public to strongly consider not using a “do it yourself” divorce kit or service. This is an important enough area that you need to consult with a professional. Even if you fill out some of the paperwork yourself to cut down on your costs, you need a professional mediator or attorney to navigate the process for you.

Do you need a lawyer to fill out paperwork and file it for you? Not necessarily. People make a big deal about the divorce paperwork as if it is something mystical that only a person with a law degree can possibly figure out. That belief is not accurate. Those who want lawyers to handle the documents for them are usually just too overburdened, rather than being too stupid, to do it themselves. The challenge is a logistical one, not an intellectual one.

However, the best reason to hire a lawyer or mediator (preferably the latter) is not because of how to fill out the paperwork, but rather what to put into the paperwork. The questions that the basic state or county forms ask divorcing couples to answer are woefully minimal. They will cover your legal bases, but they won’t help you achieve long-term harmony. To do so, you must delve much more deeply into the specifics of parenting, the precise methods of asset division, and the explanation of the support figures you’ve crafted, among many other areas, so that both of you can be confident that your agreement will still function years down the road.

Peter Andre Seeks Full Custody: Good Idea?

On May 22, 2009, British singer Peter Andre met with his attorneys to discuss custody options among other issues in his divorce battle with his estranged wife, Katie Price, also known as Jordan. The bild.com article insinuates that Andre’s lawyers advised him to seek full custody of his children so that he could have a better chance of betting at least shared custody.

While I am far from an expert on the divorce laws of England, Andre’s strategy would be advisable in some states in the United States but a poor idea in others. Some states, including my home state of Oregon, do not allow joint custody unless both parties agree. In Oregon and states like it, a custody battle before a judge produces a winner and a loser. No compromises. Compromises can be reached outside of court, by private agreement between the parties, but an Oregon judge cannot order joint custody unless both parties agree. Custody cannot start as sole custody for one person and then bargained down to joint custody. Even though custody differs from other realms that might invite compromises, with the parties meeting each other halfway, such an approach does not work in states such as Oregon.

Some states do allow their judges to fashion a joint custody award from the bench, even without the mutual blessing of the parties. In that kind of jurisdiction, and perhaps England is one such jurisdiction, parties can aim high and then settle for something in the middle. However, anytime a custody decision is surrendered to a judge, it becomes a risky crapshoot. Family court judges have wide latitude, and their decisions are rarely overturned, usually only in cases where there has been a clear abuse of discretion. By far the best approach is for the parties to work out their differences so that they can come to an agreement with which each of them can be satisfied, instead of a judge’s ruling that may leave both parties unhappy.

No-Fault Divorce

An article on the Opinion Page of the May 21, 2009 edition of the Buffalo News criticized fault-based divorce. I strongly agree with the author’s position, as no-fault divorce has revolutionized the world of matrimonial law. While no-fault divorce is not without its shortcomings, it is, on balance, the “least bad” option.

Up until the 1970’s, fault was required to obtain a divorce. Abuse, abandonment, adultery, or other enumerated transgressions had to be pled for a divorce to be granted. California, followed within 15 years by all other states except New York, enacted a no-fault divorce statute in 1970.

Opponents of no-fault divorce claim that it makes it too easy to get a divorce. I agree. What exactly does “irreconcilable differences” really mean? Who is to decide whether differences are truly irreconcilable or whether the parties just don’t feel like being married anymore? Does deciding not to reconcile differences make those differences irreconcilable? I don’t know.

But what is the alternative? If I had the choice between making divorce too easy or making it too hard, I’d rather make it easy. Again, as I stated at the outset, it is the choice between two bad options, but I believe it is the “less bad” one. We cannot allow people to manipulate the system by inventing salacious gossip about a spouse, ruining his or her reputation, simply because the petitioning spouse believes it is required to establish the merits of a divorce. However, neither can we force people to remain in a bad and possibly irredeemable marriage.

As a divorce mediator, I promote reconciliation whenever it is possible, and I’ve even persuaded some couples to reconcile even when they were dead-set on divorcing, but we cannot erect roadblocks to a process that may be vital to certain people’s happiness and even their safety.

Marriage does not require much of an application process, and those who have hurdled that ankle-high bar have earned the right to get out of their marriages as easily as they got in.

Vocational Experts

The economic downturn has focused the spotlight on a previously low-profile profession: vocational experts. A vocational expert is a person who assesses the employability of a particular person. In a divorce, there are often disputes about earning capacity. People want to understate their own income or their capacity to earn an income, while overstating the other spouse’s income and that spouse’s potential earnings. Here are some common questions that arise in this area:

1) Can my husband simply decide one day that he doesn’t want to continue his $300,000-a-year job as a bank executive because he would prefer to make pottery? You can’t just decide to make pottery if it would result in your making poverty for your family. A court may, and often will, assess a person’s potential income if it differs from that person’s actual income. Moreover, deflating one’s income specifically to avoid a legal obligation can constitute fraud.

2) If my wife does not want to work, even though she is capable of doing so and has the education to do so, am I still on the hook for child support and spousal support as if she were not working at all? Usually, people’s potential income is ascribed to them rather than their actual income if there is a conscious decision not to work. The factors that determine potential income include age, education level, work experience, how long ago someone was educated, how long ago someone was last employed, health concerns, childcare responsibilities, and the like.

3) If my ex-spouse is cohabiting with, or married to, a partner who has substantial resources so that my ex does not have to work, is my child support and spousal support figured as if my ex makes no money? Most states, including Oregon, have as part of their child support guidelines a rebuttal worksheet on which the parties can list additional factors that influence the amount of child support that is just. Although future spouses and partners do not generally have a legal obligation to support their partner’s children from a previous relationship, if they have chosen to do so and if the biological parent’s share of the support for the children comes from that person, that person’s resources may be relevant to the determination of child support and spousal support.

4) If my ex wants to work only part-time, does that affect the spousal support or child support that I pay? While the court cannot order a person to work a certain number of hours, if the court determines that a spouse is capable of working more than he or she is, or at a higher rate of pay than he or she has chosen to earn, the court can order child support and spousal support as if the person were working at that higher rate of pay and with a greater number of hours.

5) Can the court order my spouse to get a particular job, or to get any job at all? Not exactly. Courts cannot order a person to work, because that amounts to involuntary servitude, which is prohibited by law. However, a court can fashion support awards based on what a person would earn if that person were working full-time at a job that the person is qualified to do. If a lawyer wants to manage a restaurant instead of practicing law, the lawyer is free to do so, because a person can work or not work as that person chooses. However, a court may very well assess the lawyer’s support payments based on what the lawyer could earn in the legal profession rather than at a restaurant.

Based on Nas and Kelis: Divorce Q and A

The announcement today that musicians Nas and Kelis are embroiled in a bitter divorce battle puts a public face on issues that ordinary divorcing Americans face regularly.

1) Does pregnancy affect spousal support? Yes, it can. Spousal support is meant to ensure the self-sufficiency of each spouse, providing a payment to whichever spouse cannot maintain himself or herself for whatever reason. The duration is often limited to the time it takes each spouse to achieve that self-sufficiency. In the case of pregnancy, it is relevant that Kelis is pregnant because she cannot work due to her condition. As such, she lacks the ability to earn a living, so spousal support from Nas seems appropriate.

2) Does someone have to work if he or she is able? The court will not actually force a person to perform labor, as doing so would amount to involuntary servitude, which is unconstitutional. However, a court can ascribe to a person the wages that he or she would earn if employed full-time at an occupation for which he or she is skilled. An Oregon case involved an anesthesiologist who tried to circumvent spousal support by claiming that he was going to raise llamas instead. The court assessed his support payments based on his doctor salary instead.

3) Nas wants Kelis to pay her own lawyer’s fees. What is typical? People usually pay their own attorney fees out of their share of the marital property. Some couples pay their collective attorney fees from the marital property before dividing the remainder into the husband’s share and the wife’s share. Still others wait for a court to order a payment of a certain amount of money to fund the lower-earning spouse’s attorney fees.

4) Both Nas and Kelis are seeking joint custody of their unborn child. Can they obtain it? Some states allow a court to award joint custody to both parents or sole custody to either parent but do not express a presumption for joint custody or sole custody in their statutes. Other states apply a presumption in favor of one or the other, usually in favor of joint custody in those states that have any presumption at all, but permit a judge to depart from that presumption if it is rebutted by the evidence. Other states, such as Oregon, actually prohibit joint custody unless both parties agree. However, if Nas and Kelis’ case were litigated in Oregon or a similar jurisdiction, the court could order joint custody because both parties to the case have expressed a mutual desire for joint custody.

5) Kelis has filed for divorce based on “irreconcilable differences,” but if rumors of infidelity are true, does the outcome of the divorce change? No. All states except New York have a form of no-fault divorce, which means that the fault of either party is not relevant to whether a person is entitled to a divorce. Neither is it relevant to the determination of property division. Whether someone has been unfaithful or whether a spouse simply does not want to be married any longer, a divorce will be granted in a no-fault state.

Renegotiating Divorce Agreements

The historic economic downturn has caused many people’s long-term commitments to be reevaluated because the circumstances that existed when they undertook those obligations have changed to the point that they cannot honor them. People understand backing away from church pledges and other charitable donations, but one area that receives less attention but is no less open to renegotiation is a divorce agreement.

Many of my clients hesitate to agree to terms in their mediated divorce agreement because they do not want to commit themselves to things that may prove unrealistic later. There may be no money to cash one person out of the house, and yet the person staying in the house cannot commit to a sale date because he or she doesn’t know whether the market will even support a sale at that price in the near future.

Also, monthly support payments can become an issue. The payer’s most common argument is, “I know I’m making this much now, but it’s heading downward.” Or, “I got a bonus last year, but I’m either not getting one this year, or it’ll be much smaller.” Or, “I don’t know what my commissions will be because the industry has fallen flat.”

The recipient’s most common reply is, “I don’t want to lock myself into a lower support structure now just because the economy is bad. We were doing way better financially just a couple years ago, and as soon as the recession is over, he’ll be back to making what he was.”

The way around all that uncertainty is to put a clause in your divorce agreement that spells out how renegotiation will take place. In the case of speculative income, you can index it to a base salary plus a certain percentage of income over and above that amount, up to a certain higher amount but not infinitely higher.

Intercepting E-mail Communication

A Brooklyn judge ruled last week that a woman seeking to prove that her husband had schemed to hide his income could introduce e-mails from his computer as evidence, without violating that state’s law against intercepting an e-mail communication. That episode illustrates several legal and practical concepts in family law.

First, every divorce is predicated on open and honest communication and full disclosure of all relevant financial information, no matter what. Any divorce that does not involve full disclosure, either by mistake or by fraud, is subject to being reopened and reevaluated in light of the new information. For that reason, the woman was well within her rights to do what she did to preserve her right to full disclosure. In so doing, she also probably saved herself time and expense by avoiding the need for a second hearing at a later date to reexamine the things that would have been withheld from the previous hearing.

However, in most of my clients’ divorce agreements, I encourage them to insert a clause stating that they will not do exactly what that woman did. The judge drew a fine line in the Brooklyn case because he differentiated between her reading his existing e-mails on his computer, versus her intercepting his emails before he received them. For that reason, and on those narrow facts alone, her conduct was permissible. However, it’s generally inappropriate to monitor your ex-spouse’s correspondence, regardless of the supposedly noble purpose you have for doing so.

Co-Petitioning: A More Civil Alternative

Congressman Lacy Clay’s wife, Ivie, recently learned through news reports that her husband was planning to divorce her. Although most people aren’t so high-profile as to find the details of their private lives splashed across the headlines, the Clay case nonetheless demonstrates the right ways and the wrong ways to communicate divorce information to the other spouse.

A discussion of how to notify your spouse about a divorce has to begin with acknowledging the truth: someone who wants a divorce can get one. Very little, if anything, that a stubborn or unwilling spouse can do will stop the divorce train if one spouse is determined to be on that train. Therefore, in most cases it is counterproductive to be difficult, because if a divorce is going to happen, it’s probably going to happen anyway, no matter what the other spouse says.

Traditionally, the way to handle divorce paperwork is for one spouse to go down to the county courthouse and complete a petition for divorce (often called Dissolution of Marriage). Then, a deputy or process server brings the papers to the other spouse (either at his or her home or his or her business). That process is somewhat hostile because the spouse is often surprised and could be embarrassed in front of his or her co-workers or children.

The more cooperative way to file for divorce is for both parties to go to the courthouse together to fill out the paperwork. That approach is called co-petitioning. In that method, neither party has to be served at home or at work because both were there to receive the paperwork in the first place. The purpose of serving the papers is to give the other party notice, but if both were there to file them, notice is already achieved.

Even when divorce is bitter, it is still personal. It is a matter between a husband and a wife. The media and the grapevine are not the proper venues to disseminate that sensitive information.

To Cohabit or Not to Cohabit?

The Courier News of Elgin, Illinois observed that “it used to be rare to see couples choose to live in the same home after a divorce. Now, it’s increasingly common. The tight economic circumstances are forcing people into difficult choices. Generally, it’s a bad idea to live together after a divorce. The main detractor is the toxicity of the home that likely exists just as it is. Toxicity between soon-to-be ex-spouses almost always gets worse before it gets better. It is patently stupid to wait for a situation that is already bad to become completely intolerable before you do anything about it.

The other reason it’s a bad idea to cohabit with your estranged spouse is the message it sends to the children. Almost all children view divorce as a form of trauma, as it is, and the more that Mom and Dad continue to occupy the same home, all the while claiming they are getting a divorce, the kids are more likely to wonder, “If you’re getting along well enough to remain in the same home together, why are you putting us through the hardship of a divorce?”

However, cohabiting prior to divorce does serve some noble purposes. First, it conserves the family’s resources by not straining the finances to fund a second residence. Second, it allows the couple to consider whether they truly believe that separation is in their best interests, so that it is a contemplated decision and not a haphazard one.

On balance, nevertheless, I oppose cohabitation once a couple has determined that they need a separation, because they are more likely to gain clarity if they indeed separate physically. Moreover, if they do end up divorcing, the quality and amicability of their divorce discussions and negotiations will likely be far greater because they will not have the pent-up animosity that comes from sharing close quarters with someone with whom they are not on good terms.

College education as a form of spousal support

Many have taken note of the increase in older, so-called “non-traditional” students on college campuses of late. The economic downturn has made college more attractive, either because people need more education to get whatever jobs are available, or because they cannot find work at all, meaning that going to school is the next best thing to do.

Divorcing spouses should at least examine the possibility of college education for one or both of them. In their mediated divorce agreement, spousal support should be specifically structured as to provide for the temporary expenses surrounding the education of the receiving spouse. Spousal support often starts with a higher dollar figure at the outset, when the receiving spouse is least able to be self-sufficient. If that spouse is actually incurring financial obligation while at the same time not earning any money to counterbalance them, that person’s needs are heightened, at least in the short term.

Any spousal support agreement that aims to situate the receiving spouse in the working world should have a time limit that represents the reasonable period in which the average person would complete that education. Some couples may also wish to insert language into their agreement that provides for terminating or revising spousal support if, after the education is complete, the spouse who has been recently educated obtains a position that pays more than X dollars a year.

Grandparents' Rights

The United States Supreme Court’s 2000 decision in Troxel v. Granville limited the rights that grandparents and other relatives have to see grandchildren and other extended family members. The Court’s reasoning was that the primary decision-makers for children should be their parents, and that the parents have the right to include or exclude whomever they want.

In a divorce, however, the issue of grandparents’ rights and in-laws’ rights can become a thorny topic that can lead to manipulation and bad faith. A spiteful parent may yank a child away from the relatives he or she has always known, just to get back at the other parent. To do so breaks the cardinal rule of post-divorce parenting: do not hold your children responsible for choices you made.

It is best to place into a mediated agreement the terms of the visitation with both family members so that nothing gets reversed later in the heat of spite. At the very least, an affirmation of the existing routines with each family member or, even more simply, a verification of the extended family members with whom the children spend time, should be placed in the agreement.

Wide Latitude, but Not Carte Blanche

I always tell people in my office that they can do ALMOST anything they want when they fashion their divorce agreement. Almost anything that is not totally unfair will be accepted by a court, even if it is slanted in favor of one party or another. My clients often craft settlements that meet their needs, even if they may seem odd to an outsider who doesn’t understand the context.

However, a judge in New York recently declined to approve the divorce of a man and a woman because the judge felt it was fundamentally unfair. The court believed that it saddled the immigrant woman with too much debt, not enough assets, and inadequate monthly support to fund herself and her three adolescent and pre-adolescent children.

Family law is inherently flexible (or, less charitably, vague), but the reasons underpinning the loose structure are sound: the courts want to afford families and spouses the widest possible latitude to govern their affairs as they see fit. However, the court must still exercise its supervisory authority in the most extreme cases, as the New York case illustrates.

No-Cost Divorce Clinics: The Pros and Cons

Many people erroneously believe that because the Sixth Amendment to the United States Constitution guarantees the right to an attorney in a criminal proceeding, that same privilege is afforded in any kind of legal proceeding. People facing a divorce action or any other civil suit are not protected by the Sixth Amendment. Even low-income people do not have a right to a taxpayer-funded attorney for their divorce proceedings.

In the context of divorce, other than the private charity of lawyers who are willing to work pro bono, the only option for no-cost legal services is a free clinic, which many communities are beginning to have. These clinics, founded by volunteer attorneys who may donate a few hours a week or more, provide divorce services in the form of assistance in filling out paperwork and the like.

Some, such as one recently founded in Florence, South Carolina, are offered only sporadically. Others limit the scope of the divorces they will handle. The South Carolina clinic, for example, does not assist with property division and does not help couples who have minor children.

For the vast majority of couples, restrictions such as the above would preclude them from using the clinic. The clear majority of couples have children, and almost all couples have at least some property to divide. In sum, although these volunteer clinics are a good start and a noble effort, they do not meet the needs of the burgeoning population who requires them.

Dissolving a domestic partnership

A Sacramento, California couple was recently featured in a local news broadcast in that city because of the complaints they had about how difficult it was to end their domestic partnership. Their argument was that they did not enjoy the full privileges of marriage, yet to exit the relationship, they had to jump through all the same hoops as married people.

The bottom line could hardly be clearer. Domestic partnerships and marriages, whether they are opposite-sex or same-sex unions, are an action that the state sanctions. The government confers rights and privileges on those who are so united. Accordingly, there are responsibilities that those who choose to be united as spouses or domestic partners must also undertake and fulfill.

Those who have asked for legal status for their relationships must also understand that exiting those relationships requires the same interaction with the legal system that would be expected of any other legally-sanctioned relationship.

Do you need a lawyer? Katie Price thinks so.

Katie Price (also known as Jordan) and her soon-to-be ex-husband, Peter Andre, are embroiled in an increasingly bitter divorce that I first analyzed on May 12, 2009. Within the last week, Ms. Price has hired one of Britain’s foremost divorce lawyers, Fiona Shackleton, to represent her against Mr. Andre. Ms. Shackleton represented Sir Paul McCartney and Prince Charles in their respective divorces. In each case, as in the Price case, Ms. Shackleton has represented the more affluent spouse.

Ms. Price has a fortune of approximately 40 million pounds, significantly higher than the personal fortune of Mr. Andre. The couple does not have a prenuptial agreement, and Ms. Price has hired Ms. Shackleton to negotiate or litigate the matter such that Mr. Andre’s share of the marital estate is as small as possible.

In most circumstances, hiring a divorce lawyer does not result in an increased benefit. Often, the facts surrounding child support, spousal support, and property division are so cut-and-dried that self-help, mediation, lawyer assistance, or adjudication will result in substantially the same outcome. Moreover, most people do not have the funds to engage in a drawn-out court battle because they would be depleting the very resources they are fighting over.

However, in a case involving the amount of money that Ms. Price has, it may well be worth the investment in her divorce attorney. The hourly rate she would pay to Ms. Shackleton to resolve the matter would pale in comparison to the amount she might give up to Mr. Andre without such assistance. Furthermore, she can bet that her resources will buy her better legal representation than his funds will secure for him.

If Ms. Price believes she has the law on her side, she should proceed as long as she can do so without the litigation harming the children she shares with Mr. Andre.

Swizz Beatz's Divorce

Singer Alicia Keys’ new boyfriend, musician Swizz Beatz, is engaged in a divorce battle with his estranged wife, Mashonda Dean. The case presents at least two principles of family law that merit discussion.

1. Child support is typically not retroactive to a date preceding an order. Mashonda has recently filed a petition for interim support. We often hear media reports about “back child support.” However, that term typically refers to child support orders that have already been entered by a judge, and the paying party is behind on those payments. A court orders child support after a petition has been filed, and, for good reason, does not dial back the start date of the payments to a date before the order was entered. If a person had become accustomed to paying a certain amount of child support and suddenly found out that he or she was responsible not only for an additional amount going forward, but also for that same additional amount for months or even years in the past, that order could work a significant hardship on the paying parent.

2. All divorce proceedings require complete honesty. Mashonda alleged that she had not accepted Swizz’s financial offers yet because she was unsure about whether he was being completely forthcoming about his financial circumstances. If Mashonda and Swizz enter into an agreement of any kind, and it is later determined that one or both of them have acted dishonestly, or even that new information has come to light that was not known to either of them at the time the agreement was finalized, the agreement can (and usually will) be reopened for further proceedings.

Importance of Written Divorce Agreements

Susan Michaels and Mark Steinway are the founders of Pasado’s, an Everett, Washington animal sanctuary. Michaels and Steinway are divorcing and now find themselves embroiled in a dispute about an agreement into which they entered six years ago, concerning the land they own, on which the animal sanctuary sits. Each has a different version of the terms of the agreement, and the written documentation that exists is ambiguous.

The case demonstrates that handshake agreements, or even loosely-worded written agreements, are insufficient. Written agreements are a form of insurance. They are not an indication of a lack of trust, and they do not foreshadow a breach of contract.

However, no two parties can be completely guaranteed to remain on good terms for the remainder of their lives, particularly those who enter into an agreement because they are getting divorced. Divorce practically changes people’s DNA and makes them do things and act in ways they never would have even fathomed before.

Divorcing people must make written agreements on a good day, so that if a bad day ever comes when they are not on the same good terms, there is a written record and no one has to argue about it. Michaels and Steinway could have saved themselves considerable headaches if they had simply memorialized their commitments in writing before their communication degenerated and they began to acquire a self-serving motivation to shade their recollections of the agreement in their own favor.

Lessons from the Katie Price-Peter Andre Divorce

Reality show stars Peter Andre and Kate Price are embroiled in a messy, sensational divorce in their native England. As much as the celebrity cases are fodder for the tabloids, they are also effective teaching tools for the public because they exemplify relevant concepts in divorce law.

The case presents at least five important issues for people of all backgrounds to consider:

1) Ms. Price fled the country with her two young children. Every divorce agreement should have a clause addressing how far each parent may move or travel with the children. When Ms. Price left the country with the children, it should have alarmed Mr. Andre, and I imagine it did.

2) Mr. Andre alleged that Ms. Price was drunk and had flirted with another man in a bar. Fault does not enter into the equation. Mr. Andre will get a divorce if he wants one. If Ms. Price’s fault motivated him to leave and file for divorce, fine. But it doesn’t change the outcome in court. You are equally entitled to seek and receive a divorce whether or not fault has occurred.

3) Ms. Price said she was committed to Mr. Andre and did not want the separation. In a no-fault jurisdiction, it doesn’t much matter what one spouse wants. If one person wants out, that person gets out. Between 1970 and 1985, every state except New York adopted a form of no-fault divorce. In a no-fault jurisdiction, anyone who no longer wants to be married can get a divorce. The fact that Mr. Andre wants a divorce is enough to get him out; it doesn’t make any difference whether or not Ms. Price agrees. Even if she is committed to him, he has to be committed to her in order to stay married. Based on his divorce filing, it would appear that he is not.

4) England appears to be a community property jurisdiction, as Mr. Andre is seeking 6 million pounds from Ms. Price, which represents exactly half of what she has earned during the four years of their marriage. In an equitable distribution jurisdiction, such as most of the states in the United States of America, a judge can fashion an award that may not be a 50-50 split of the assets, if the circumstances require an unequal distribution in order to make it equitable. Even in an equitable distribution state, it is typical that the husband and wife share equally in what was amassed during the marriage and then, depending on the length of the marriage and other factors, the premarital assets and liabilities of each spouse may or may not remain entirely with that spouse.

5) Mr. Andre claimed that the children were to blame for the divorce because they had ruined his sex life. This comment strikes me as idiotic, immature or both. Children are never the cause of a divorce. There have been a lot of divorce books written by quacks who claim to know what they’re talking about when they really do not. But even those books agree on the cardinal principle that no child is ever responsible for his or her parents’ marital problems or divorce. Are some children hard to raise? Sure. But they didn’t ask to be born, and the parents are always older and usually more mature than the children. Perhaps not in this case, however.

Advantages of Co-Petitioning

The Denver Post reported on May 11, 2009 that a Larimer County (Colorado) man was convicted of murdering a process server who had served him with divorce papers. The tragedy painfully illustrates at least two important principles that were not observed in that case but would behoove all divorcing spouses to consider.

1) Almost all states have a form of no-fault divorce. A reason is not needed to obtain a divorce; irreconcilable differences will do the job. The man, who did not deny killing the process server, said he “snapped” when the process server arrived because he saw the process server as representing the loss of his marriage. If the wife in that case wanted a divorce, she was going to get it. It takes two people to get into a marriage and only one to get out.

2) Co-petitioning is better than one party petitioning and serving the other party. When you co-petition to dissolve your marriage, the husband and the wife go together to the courthouse and file the paperwork jointly. That procedure eliminates the need for one spouse to have the other served with divorce papers. It reduces the surprise that one person may experience, and it takes away the tension that the spouse, his or her children, and his or her co-workers may feel when a stranger or a police officer shows up and sternly asks to speak to the spouse. There is no excuse for the violent, homicidal outburst by the husband in the Colorado case, and his rage may have prevented co-petitioning from even being an option for his wife, but it potentially could have calmed his nerves if he had been more adequately prepared for the documents he was about to receive.

Consistency in Marriage Laws

Georgia attorney Randall Kessler, in the Tuesday, May 12, 2009 edition of the Atlanta Journal-Constitution, grapples with the puzzling question of how to recognize same-sex divorce as a growing number of states, but still a distinct minority, are adopting same-sex marriage. I respect the beliefs of those on both sides of the debate, and my focus here is not to address any of the political issues. The critical point to acknowledge is that, for right now at least, same-sex marriage is here.

Whether you are glad to see the definition of marriage expanded, or whether you would prefer a return to the definition of marriage as exclusively the union of one man and one woman, practical concerns remain in either case. No matter whether you believe same-sex marriage should or should not be legal, all of us must be concerned with the impact of inconsistent laws. Inconsistency, not policy disagreement, creates the most problems and frustration.

Therefore, what the country needs now is consistency in its matrimonial laws. Domestic relations law is, with relatively few exceptions such as tax regulations, the exclusive province of the states. The problem is not necessarily THAT same-sex marriage is happening, but instead HOW it is evolving inconsistently and producing disparate results. I envision several problems with the current system:

1) “Forum-shopping” is implicitly allowed now with same-sex marriage, and it is prohibited in most other areas of law. You can get married in a state in which you do not live. That’s not unusual. Texans get married in Las Vegas. Montanans tie the knot next to a volcano in Hawaii. But the difference is that opposite-gender marriage is legal in every state, so straight couples have no trouble marrying wherever they want, returning to their domicile, remaining there for the required minimum stay, and then using the courts in their state of domicile to dissolve their marriage if they later choose to. With same-sex marriage, I believe the simplest way to eliminate forum-shopping is for the states that permit same-sex marriage to restrict it to legal residents or of that state who have continuously remained there for at least a year. Doing so would make it far more likely that no one would come to the state just to get married, which would reduce the number of people likely to move out of state and have to enforce a custody and child support order from State A in State B.

2) Judgments of divorce, or decrees, as they are known in some states, should be recognized as contracts even if a state does not wish to confer “dissolution” status on them. If the document is understood simply as a binding agreement between two parties, the policies of the respective states are irrelevant.

3) Child support awards are not implicated by interstate differences in marriage laws. You don’t have to be married to be a party to a child support order. Unmarried heterosexual people have them all the time. All you need is a written acknowledgement of parenthood, and then you have a contract between the two parents. A written declaration in the judgment of divorce, specifying that all disputes arising out of the dissolution will be litigated in the courts of XYZ state, and that the laws of XYZ state will govern the dissolution.

4) The same is true with custody and visitation orders. Despite the concern that such orders might be unenforceable or disregarded across state lines according to the whim of either state, there are practical ways around it. You can specify that parents will not move across state lines, and if they do, a particular state will retain jurisdiction over the matter. You can also enforce custody and visitation agreements as a matter of contract law.

Like any new development, same-sex marriage will require some fine-tuning, at least until its constitutionality is definitively determined. Until the issue is settled, those who are subject to it (the spouses and, most importantly, any children they may have) deserve legal clarity.

Can't Afford to Divorce?

With the historic economic crisis in which our country finds itself, I have heard more than once the idea that the economy has made it so that people “cannot afford” to get a divorce. I want to examine some of the flaws in that thinking.

First, those who would argue that someone lacks the funds to get a divorce fail to understand that the same person would be spending huge financial resources to stay in a bad marriage. When one considers the missed work, compromised physical health, and effects of stress, the savings on one residence instead of two start to be not quite the same bargain.

Second, some claim that if they divorce now, they will be less able to qualify for a home mortgage when they want to buy a home. The solution is simple: Qualify for the loan while you are still married.

Third, some are concerned that they will have to sell their home if they divorce, and they do not want to “give it away” for less than what it might be worth in two years when the housing market recovers. The only people who will be hurt in this housing market are those who are selling but not buying a new home. People who are selling their home now, even at a bargain price, are going to be buying someone else’s bargain if they purchase a new home. It’s a wash.

Fourth, those who have a significant chunk of their assets in 401(k) accounts or other market-based investments that fluctuate with the Dow and other economic indicators contend that they will be disadvantaged if they divorce while the stocks are in the tank. I advocate separating out each of the asset classes when you divide your property. For example, if you intend to split everything equally, split the residential property equity, then split the bank accounts, then split the retirement accounts, and so on. That way, if some types of assets have been more affected than others by the economic downturn, neither spouse has to bear the burden of having his or her share of the assets be more heavily weighted with one class of assets or the other.

In sum, it is hard to see how withholding a divorce (when a divorce is preferred) is a positive idea, because it carries with it a great number of risks, and the reasons that one might put off a divorce are mitigated by solutions that a divorcee might not have considered.

Stephanie Seymour's Divorce: What NOT to Do

Model Stephanie Seymour and her husband, businessman Peter Brant, are headed for divorce court. Their story, while high-profile, still illustrates issues common to many divorces. The case demonstrates some mistakes to avoid when divorcing. Mediator Matthew House has published this article on his website, www.mediatormatthew.com.

1. Is it unusual for people who are planning to divorce to continue living under the same roof? For couples who cannot afford to do otherwise, it is not uncommon to separate within the home but not acquire a second residence. Many people cannot afford to finance another dwelling right away, and others do not want to be locked into a long-term lease of an apartment or other housing that may be needed only temporarily. However, people of substantial financial means, such as Ms. Seymour and her billionaire husband, Mr. Brant, have more than adequate resources to live separately. When the situation is as toxic as theirs appears to be, it is best in the long run to separate physically. People who are undergoing serious strife but don’t separate have a much lower chance of reconciliation than those who move apart for a “cooling-off period.” Moreover, the more contentious the relationship between the husband and the wife, the more acrimonious their divorce negotiations are likely to be.
2. When Ms. Seymour refers to “playing dirty,” what is she likely accusing her husband of doing? She is almost certainly referring to a custody fight. Custody fights always have losers, and they rarely, if ever, have winners. Occasionally, a custody battle is necessary to wrest control from a truly abusive, unstable, or inept parent, but most of the time, custody fights involve egos rather than genuine concern for the welfare of a child. Some states have a presumption in favor of joint custody, while others have a presumption in favor of sole custody. Still others actually prohibit joint custody unless both parents agree; Oregon is one such state. In such states, and to a lesser degree in the other states, when someone commences a custody fight, one party WILL lose. It’s just a question of which one. Custody fights are largely destructive because they often take many months or even several years, and they subject the children to the unwanted attention of lawyers, judges, and even a custody evaluator who may visit the home and observe the parents interacting with the children.
3. Does the length of the marriage have anything to do with how the divorce is handled? Often, yes. The amount and duration of spousal support often correlates (loosely) to the length of the marriage. The asset division may also bear some relationship to the number of years the parties have been married. The length of the marriage does not, however, typically affect custody or parenting time decisions, because the parents have been parents an equal amount of time, regardless of how long they have been married and regardless of whether their children preceded or followed their marriage.
4. How are the assets likely to be divided in a case such as Ms. Seymour’s, where each spouse is wealthy but one is substantially more affluent than the other? It depends on many factors. If there was a premarital agreement (popularly called a “pre-nup”), that document might determine the division of assets. If not, the laws of the state would decide the outcome. In a community property state, the parties would share equally in the property acquired during the marriage. In an equitable distribution state, which the majority of the states are, a judge can fashion an award in a manner that is just and equitable, even if one spouse gets more than the other.

MEDIATOR MATTHEW'S SUMMER STRATEGIES FOR DIVORCED PARENTS

1. What are some summer pitfalls to avoid? Probably the biggest area of conflict is coordinating schedules so that summer activities planned by one parent do not interfere with the other’s parenting time. Ideally, parents would sit down in mid-March and discuss the summer activities when the planning for them begins. Now that we are past that point, it is important to have a meeting as soon as possible. Parents should discuss consistent expectations about bedtimes, activities, allowances, chores, and other routines that may change between the school year and the summer, so the kids are not confused and do not prefer one home over the other.

2. Do we have to maintain the same parenting time schedule in the summer as in the school year? No. Many factors go into the school year schedule, such as the desire to have the children not move between homes during the school week. That idea makes a lot of sense during the school year for stability and to promote the best academic performance. In the summer, with relaxed bedtimes and no school responsibilities, staying in the same home isn’t quite paramount, at least for most people. Having a different schedule for the summer also gives the parent who had less school year parenting time a chance to have some additional time. However, in practical terms, some parents’ work does not afford them any additional time in the summer, so extra parenting time does not do them much good and may actually bore or even endanger the children by having them without a parent while that parent is working.

3. How do we handle paying for summer activities? Parents need to remember that summer camps and activities are for the children’s entertainment, not for the parents to compete and squabble over. The most typical arrangements are either to share the costs equally or to share them in proportion to income. There should also be a maximum amount of expense that the parents will be required to share. Half the cost of a soccer camp is one thing; half the cost of a six-week tropical vacation is quite another.

4. How do we handle longer vacations if we’re alternating weekends and having some weeknight parenting time? Remember that the regular schedule applies to ordinary circumstances, but occasionally there are exceptions that are clearly defined and agreed in advance. Parents can, and often do, make exceptions for one or several weeks of uninterrupted summer parenting time, not necessarily consecutive weeks. That way, each parent can take a somewhat longer vacation with the children or can just relax at home without traveling.

5. Does child support change in the summer? Child support does not normally change in the summer because it is based on a number of overnights for the entire year. However, if parents have an agreement that they will share in the extra summer expenses such as childcare, camps, activities or vacations, there may be more or less money exchanged during the summer. Also, if the summer parenting time schedule changed in a way that was not anticipated and resulted in more or fewer overnights for the year, child support would need to be reevaluated.