Georgia Family Law Blog

Tips for Divorcing Parents

No step-by-step manual can give you a guarantee on how to raise kids blissfully through divorce. Every situation - and every family - is different. There are, however, some commonsense guidelines that may make adjustment a little bit easier.

Here are some suggestions to make the process less painful for your child. Parents will need to interpret them in their own ways; honesty, sensitivity, self-control, and time itself will help to begin the healing process. Be patient. Not everyone's timetable is your own.

Encourage your child to talk as openly as possible about his or her feelings - positive or negative - about what has happened. Make that an ongoing process.

It's important for divorcing - and already divorced - parents to sit down with their children and encourage them to say what they're thinking and feeling. But you'll need to keep this separate from your own feelings. Most often, children experience a sense of loss of family and may blame you or the other parent - or both - for what they perceive as a betrayal. So, you'll really need to be prepared to answer questions your child may raise or to address concerns he or she may have.

Make talking with your child about the divorce and how it's affecting him or her an ongoing process. As children get older and become more mature, they may have different questions or concerns that they hadn't thought about previously. Even if it seems like you've gone over the same topics before, keep the dialogue open.

CHILD CUSTODY EVALUATION: FAQS

The following article, written by By Robert E. Erard, Ph.D. appears at Divorce Online:

"They said I need to go see you and take some tests or something to figure out if I'm a good parent."

Many of my first contacts with parents ordered by the court to undergo independent psychological evaluations in child custody cases begin something like this. What has over time become a fairly routine procedure for many family lawyers, judges, and mental health professionals is anything but that for parents who are facing it for the first time. The following brief article is intended to acquaint you with what a custody evaluation is, the purposes it serves, and how to approach it in a prepared and confident manner.

Why do I have to do this?

If you have been asked to participate in an independent psychological evaluation, it is because either the judge (or someone standing in for her-e.g., a court referee) ordered it or both attorneys agreed that it would be a good idea. Some court orders are very specific, offering detailed instructions to the evaluator and to the parties about who will be evaluated, for what purpose, using what kinds of information, paid for by whom, etc., whereas others are extremely vague and general. Your first order of business should be to discuss with your attorney the details of the order and what, if anything, your attorney knows about how the evaluator assigned to you usually works.

The evaluation is called "independent" because the court-appointed psychologist (or other mental health professional) is not working for one side or the other. He or she is the court's expert, charged with the responsibility for advising the court about your children's psychological and emotional needs, the resources offered by each parent to meet them, and how a custody or parenting time arrangement might best be devised to meet those needs.

The best evaluators are not primarily interested in a detailed public inspection of all of your personal strengths and weaknesses or deciding "which side is right" in all of your marital and post-marital conflicts. Their main concern is figuring out how to establish the best fit between your children at this point in their development and the various proposed custodial environments and arrangements.

Tax Deductibility of Payments in Divorce Cases

One of the most frequently overlooked areas of family law is that of tax consequences.  Many family law practitioners do not fully understand the in's and out's of the applicable tax laws, which can result in their clients having unwanted "surprises" down the road.  Alan Pearlman of the Chicago Family Law Blog recently published the following article, which does a great job of analyzing and explaining the major tax issues for property division, child support, and alimony that divorcing parties should consider.

Prior to filing for divorce, various federal tax considerations should be reviewed due to their potentially profound implications. Among the major issues commonly covered in a divorce decree or agreement are: alimony, sometimes referred to as "spousal" or "separate maintenance" support; division of property; and child support. Each has its own tax treatment and implications.

Division of Property

Most divorces involve a division of the property owned by the couple. Such a division of property is not usually a taxable event, i.e., neither owes taxes nor gets a deduction from income because he or she receives certain property as a result of the divorce.

There are, however, tax implications following divorce that affect future taxes. More specifically, selling personal and real property in the future may require spouses who received such property (pursuant to a divorce) to pay taxes in connection to that property.

Personal and real property have a "basis" for federal tax purposes. The basis is usually the purchase price of the property. When the property is sold later, the amount by which the sales price exceeds the basis is called "capital gain." Capital gain is usually taxable at special rates. Thus, when property distributed pursuant to a divorce decree is subsequently sold by the receiving spouse, the receiving spouse may be required to pay taxes on the proceeds of the sale.

For example, in a divorce, the wife may receive the family home while the husband might receive stock or other investments equal in value to the house. If the house has a lower basis than the stock, when both are sold, the husband could end up with significantly more money, because he owes less capital gains tax.

Financial and dating considerations during the divorce

Here are some excellent observations and instructions from Tampa, Florida, attorney Brent Rose at his Orsini & Rose Divorce and Family Law Blog:

Two questions generally come up after a couple has separated but during the time a divorce is pending:

1) Can I date?
2) Can I buy things?

Question one, dating:

The usual legal answer to both questions is yes, but you'll want to check with your lawyer to be sure, because there are a lot of exceptions.

In terms of dating, once you've separated, the marriage is over, and judges don't care if you move on with your life. Once you've split up and aren't living together with your spouse, it's usually not considered adultery to start dating (or have sex with) someone new. Judges don't want you to be trapped in your marriage until the divorce is final. No one wants your life to stagnate while your await your final hearing date.

Be careful about at least two things though: don't have someone spend the night with you when the children are also spending the night or if the children know that someone is spending the night. This could affect your custody case, since someone can say your moral character isn't what it should be. Keep that kind of thing secret from the kids. It's something they just don't need to know about. Also, don't move in with a new boyfriend or girlfriend if alimony is a possibility or you could destroy your alimony case. Living with friends is okay. Living with people you are dating could cause your alimony to be reduced or eliminated.

Question two, financials:

Financially, you are generally free to do as you please after you separate, especially if the divorce has been filed and is pending, but there are a couple of things to consider here as well:

a) Don't sell or get rid of anything that could be considered "marital property" (things you acquired during the marriage or things that are in both spouses' names), like a car, jewelry, a 401(k), etc. You need a judge's permission to sell or encumber (take a loan out on) marital property.

b) Even if you do acquire property after you file for divorce and during the separation, the judge may still declare the property to be "marital," and force you to give half or some other portion of it to your spouse. The law says that a judge can consider property to be "marital" (and therefore divide it up) if it was acquired 1) before the separation date, 2) before the date the divorce was filed, 3) before the trial date, or 4) before any date the judge darn well pleases. [Editor's Note: Under Georgia law, property acquired right up to the date of the final hearing in the divorce case is Marital]

These last two dates should worry you. In other words, if you buy a new car or add money to your IRA, even a year or two after you've moved out and filed for divorce, you still might have to sell it and give your spouse half.

Don't be too worried, though. Most judges agree that the date of separation or the date the divorce was filed is the date on which you can safely buy new stuff and claim it as completely "nonmarital." I can't even remember the last time I saw a judge rule any differently. But, as I said, check with your lawyer first. That's what we're here for.

SOURCE: Orsini & Rose Divorce and Family Law Blog

South Carolina passes UCCJEA!

A big THANK YOU to Diana Skaggs at the Divorce Law Journal in Louisville, Kentucky for this alert! This is good news to Georgians who may have cases involving interstate custody with our neighbor to the north and east.

South Carolina adopted the Uniform Child Custody Jurisdication Act (UCCJEA) this month, bringing to 46 the number of states that have finally come onboard. Ronald Nelson at Family Law Newsletter reports:

The UCCJEA, promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL), is now the law in every state except Massachusetts, Missouri, New Hampshire, and Vermont The UCCJEA is an important step forward in establishing clarity and predictability with regard to interstate custody rules, and resolves several significant jurisdictional questions that arose over the years concerning the Uniform Child Custody Jurisdiction Act (UCCJA) of 1968. The UCCJA was designed to prevent a fairly common legal standoff of the day, whereby one parent gained legal custody of a child in one state, and the other parent managed to take the child to a "haven state"; in search of a court willing to change the initial lawful custody order. Under the UCCJEA, this kind of conduct is no longer legal. The UCCJEA harmonizes federal law and developments in case law by prioritizing home state jurisdiction. Additionally, the UCCJEA sets forth the concept of continuing exclusive jurisdiction. The order of a state with continuing exclusive jurisdiction is entitled to be enforced in every other state. No other state can modify the order unless the first state relinquishes jurisdiction. These changes bring certainty to custody and visitation determinations within South Carolina. Moreover, the UCCJEA provides enforcement mechanisms which prevents kidnappers from hiding behind divergent state laws and ensures that missing children return home even if they cross state lines. The act also expands protections for victims of domestic violence. Additionally, the act establishes procedures for interstate enforcement of custody orders including registration, expedited enforcement, and the use of other civil remedies by prosecutors and law enforcement. In this and other respects, the UCCJEA accomplishes for custody and visitation determinations the same certainty that has occurred in interstate child support law with the promulgation of the Uniform Interstate Family Support Act, now the law in every jurisdiction.

The Uniform Child Abduction Prevention Act (UCAPA), a companion bill to UCCJEA, was also introduced in South Carolina as SB 486. The UCAPA expands abduction preventions found in the UCCJEA to all custody cases. The prevention mechanisms under the UCCJEA apply only to post-decree cases. The UCAPA was enacted in six states during the 2007 legislative season: Nebraska, South Dakota, Utah, Kansas, Colorado, and Nevada.

SOURCES: Divorce Law Journal and Family Law News Blog

Suspect your Spouse is Cheating? Get a Parrot.

If I didn’t read about it in three different cases, I would have never believed it. Apparently over history, the pet parrot has been a key witness in proving unfaithfulness and abuse in marriage:

November 19, 1937: According to the LA Times, Mr. James J. Reynolds wanted to put his parrot on the stand to testify concerning its knowledge of the domestic affairs of him and his wife by showing that the bird had learned to call Reynolds certain abusive names and that the bird’s teacher could have been none other than Mrs. Reynolds. Superior Judge Brand, however, refused to allow a parrot to testify declaring the procedure was a little too irregular in that the parrot probably could not be placed under oath and furthermore probably could not recall who had taught it anything it might have learned.”

November 28, 2005: Frank Ficker of Freiburg (try saying that five times straight) thought he had it all: successful wife, nice home, and a mistress on the side. But the family parrot, a pro at imitating Frank, spilled the beans on his cheating ways. That’s how Mrs. Ficker found out about her husband’s affair with a woman named Uta. “Hugo always liked to mimic Frank and he could do his voice perfectly,” said his wife. But one day Mrs. Ficker heard the bird repeating something she’d never heard before. “I heard him doing Frank’s voice, but saying ‘Uta, Uta,’” she said. According to DW-World, the unfamiliar word got the wife searching their house where she eventually came across two plane tickets to Paris, one for Frank, another for Uta (who was, evidently, the other woman.) “I kicked him straight out,” she said. “It’s just me and my parrot now.” Divorce proceedings are pending.

February 27, 2006: Argentina - Angry wife Rosella DeGambos got her blabbermouth parrot Bozo to testify in court, who then spilled all the family secrets within a two-hour appearance. “I knew he’d seen everything that my husband Carlos did when my back was turned,” Mrs. DeGambos said in an interview about her bizarre divorce court ploy. “And I knew he had the vocabulary to describe what he’d witnessed. According to Nature’s Corner, the parrot described three “pretty dollies” that Carlos had “tickled” while his wife was away. He also identified the women in photographs, calling them by their correct names. “I used to think that Carlos was a faithful husband but Bozo let me know about a year ago that something was up when I wasn’t home,” Mrs. DeGambos said. “He was using new words, words of love. And he began giggling in a high-pitched feminine voice. He kept saying, “No Carlos, not here,” and things like that. I knew if the lawyers could get him to testify, there was plenty of information they could get from him.” Shown one picture of the 23-year-old beautician Carlos allegedly wooed in his home, the bird shrieked, “Honeybun, I love you.” When Mrs. DeGambos’ attorney asked the bird, “Who loves Carlos?” the winged witness said, “Ruby loves Carlos, Ruby loves her baby.” Coincidently, Ruby is DeGambos’ young and voluptuous secretary. Judge Agusto, let Bozo’s testimony stand and granted the Mrs. her divorce. The first such ruling in the world.

Either way, it’ll be pretty easy to determine who gets to keep the parrot…

SOURCE: Darn Divorce

Factors Considered for Grandparent Custody and Visitation

Courts grant visitation or custody to grandparents only when certain conditions provided in state statutes are met. Conditions for a grandparent to attain custody differ from those conditions required for visitation rights. A grandparent should be familiar with the conditions for either custody or visitation before determining whether to file a petition to request either from a court of law. Best Interests of the Child Courts in every jurisdiction must consider the "best interest of the child" when granting custody or visitation rights to a grandparent. In some states, the relevant statute provides a list of factors the court should considered when determining a child's best interests. Other states do not provide factors in the statute, but courts in those states typically identify factors in custody and visitation cases interpreting the state statutes. The following factors in determining the best interest of the child are among those included in state statutes and case law: The needs of the child, including considerations of physical and emotional health of the child, the safety of the child, and the welfare of the child The capability of the parents and/or grandparents to meet the needs of the child The wishes of the parent(s) and the grandparent(s) The wishes of the child, if the child is capable of making decisions for himself or herself The strength of the relationship between the grandparent(s) and grandchild The length of the relationship between the grandparent(s) and grandchild Evidence of abuse or neglect by the parent(s) or grandparent(s) Evidence of substance abuse by the parent(s) or grandparent(s) The child's adjustment to the home, school, or community The ability of the parent(s) or grandparent(s) to provide love, affection, and contact with the child The distance between the child and the parent(s) or grandparent(s) SOURCE: FindLaw

Summary of Georgia Law: Grandparent Custody and Visitation

Grandparents should check a number of provisions in the statutes in their respective states to determine the conditions for visitation, the factors a court must consider to order visitation, and the proper venue to file a request for visitation. Though many state statutes are similar, state courts may apply statutory provisions differently. Every statute requires courts to consider the best interest of the child before awarding custody or visitation to grandparents.

As noted above, courts in a few states have ruled that statutes providing for grandparent visitation violate either the federal or the respective state constitutions. Several states have revised the statutory visitation provisions, but the constitutionality of these statutes may still be in question.

In Georgia, the following law applies:

The custody statute does not list specific factors for the court to consider for determining the best interest of the child. A court may award visitation rights if an action is pending where there is an issue involving the custody of a minor child, divorce of the child's parents, termination of a parent's rights, or visitation rights. Adoption cuts off the visitation rights of the grandparents unless the adoption is granted to a stepparent or a natural relative of the child.

SOURCE: FindLaw (See this site for summaries of other states' laws)

Divorce Checklist

Divorce Online has prepared a basic checklist of issues that should be considered in every divorce and discussed with your attorney. The list is intended to be general and broad in scope, and food for thought as part of a negotiated settlement or in preparation for trial. Some items may not apply to everyone due to state law variations, whether or not there are children, etc.

1. Custodial arrangements for the children
2. Visitation/parenting time
3. Child support
4. Medical, dental, hospital, pharmaceutical, and psychological expenses for the children
5. COBRA or medical insurance for a former spouse for up to 3 years from the entry of the divorce judgement where applicable
6. Income tax exemptions regarding the children -- who will claim them
7. Alimony/spousal support
8. Property division
9. Division of real estate, transfers, and deeds
10. Making sure that all investments are covered including limited partnerships, stocks, bonds, and savings
11. The handling of debts
12. Pensions, IRA accounts, 401K transfers, Qualified Domestic Relations Orders
13. Personal property including furniture, furnishings, art, and collectibles
14. Motor vehicles, including trailers and boats
15. Income taxes whether there can be joint filings and liabilities for payment of taxes
16. Bankruptcy issues, protection in case one spouse does go bankrupt
17. Proper security and protection regarding property division
18. Clauses to hold the other spouse harmless and indemnification in case someone fails to live up to his or her obligations
19. How to handle the discovery of hidden assets
20. Spouse abuse and restraining orders
21. Restoration of a prior maiden name
22. Life insurance policies as protection for child support payments, alimony/spousal support payments, and/or property payments in the event of death
23. Attorney fees and/or mediator, accountant, and other expert fees and payment of same
24. College education for children and/or spouse
25. Provisions for review in certain circumstances such as with regard to child support and/or spousal support.
26. Clauses such as payment for summer camps and/or religious training and/or upbringing or other special situations involving children

SOURCE: Divorce Online

Your Spouse’s “Hidden” Assets - A Checklist

The following is a list of easily-overlooked or "hidden" assets in property settlement or division cases:

1. Frequent flyer mileage
2. Security deposits (e.g., utilities, car lease)
3. Timeshare property
4. Leased vehicles, cell phone, other items
5. Stock options
6. Memberships (e.g., country club)
7. Bond or deposit for country club
8. Unused vacation, sick leave
9. Patents, copyrights, royalties
10. Income tax refunds
11. Income tax capital loss carry-forwards
12. Income tax charitable contribution carry-forwards
13. Marketable govt licenses (radio licenses, commercial fishing quotas)
14. Special retirement benefits (“golden parachutes”)
15. Retirement - life insurance benefits
16. Retirement - medical benefits
17. Retirement - survivor benefits
18. Hobby or other collections
19. Contract rights from marital employment (e.g., insurance renewal payments for agent)
20. Affiliation “rewards” programs (e.g., points or discounts for credit card use)
21. Entertainment tickets, season ticket options
22. Business vehicle for personal use
23. Prepaid rent, leases, subscriptions
24. Burial plots
25. Life insurance cash surrender value (or perhaps death benefit if insured is elderly)
26. Tort, worker’s comp claims
27. Stock options
28. Hangar lease (for aircraft)
29. Hotel or credit card points
30. Cash
31. Small business retained earnings
32. US Savings Bonds, other securities
33. “Hidden value” items - rare items of personal property (e.g., antiques), rare pets, collectibles
34. Options to purchase property
35. Unpaid commissions on deals set to close
36. Referral fees (e.g., for personal injury lawyers)
37. Security or performance bonds posted
38. Car insurance prepaid
39. Taxes prepaid

Divorce Agreement Not Set Aside - Arnold v. Arnold

The Supreme Court affirmed the denial of the husband’s motion to set aside the parties’ settlement agreement in their divorce case after the trial court reviewed the agreement, found it to be within the bounds of the law and incorporated it into the final judgment. The Court held that the trial court did not abuse its discretion, since the husband voluntarily signed the agreement, no evidence showed misrepresentation or fraud and the wife’s non-compliance with a provision requiring her to pay a debt did not constitute repudiation of the agreement or otherwise divest the trial court’s discretion. The Husband challenged the agreement,contending that it disproportionately distributed his military retirement income and that child support had been incorrectly calculated.

The Georgia Supreme Court granted Husband’s application to appeal this divorce case pursuant to Court’s Domestic Relations Pilot Project. Arnold v. Arnold. The Court held that the Douglas County Superior Court did not abuse its discretion in denying Husband’s motion to set aside the parties’ settlement agreement prior to its being incorporated into the final judgment, where Husband had read and understood the agreement and signed it voluntarily and where there was no evidence that the agreement was obtained by fraudulent means. Justice Hugh Thompson wrote the unanimous opinion for the Court.

SOURCES: Supreme Court of Georgia and Fulton County Daily Report

Attorney's Fees Award Upheld - Haley v. Haley

The Supreme Court has affirmed the denial of the husband’s motion to set aside the parties’ settlement agreement in their divorce case after the trial court reviewed the agreement, found it to be within the bounds of the law and incorporated it into the final judgment. The Court held that the trial court did not abuse its discretion, since the husband voluntarily signed the agreement, no evidence showed misrepresentation or fraud and the wife’s non-compliance with a provision requiring her to pay a debt did not constitute repudiation of the agreement or otherwise divest the trial court’s discretion.

In Haley v. Haley, the Georgia Supreme Court has affirmed a Dougherty County trial court’s award of attorney fees in a child support modification case. Chief Justice Sears wrote for the majority. The Court held that Ms. Haley’s claim for attorney fees rested not on OCGA § 19-6-19 (d), as Mr. Haley asserted, but on the parties’ settlement agreement in which Mr. Haley agreed to increase child support payments and the parties agreed to  ubmit the issue of Ms. Haley’s claim for expenses and attorney fees to the trial judge. The Court found that by agreeing to submit the attorney fees issue to the trial court for resolution, the parties authorized the trial court to exercise its discretion to consider whatever factors it found to be relevant to determine if Ms. Haley was entitled to attorney fees, including whether she was a prevailing party in the litigation, and to award the amount of fees the court found to be appropriate and reasonable under the circumstances.

Presiding Justice Hunstein wrote a concurring opinion to rebut the dissent’s position that an award of attorney fees to Ms. Haley was not proper under OCGA § 19-6-19 (d), observing that nothing in the statute precluded an award of attorney fees to a party who prevails in the settlement of a modification of alimony proceeding. She also stated that the dissent’s position, instead of promoting the settlement of disputes over alimony, would exacerbate the bitter battles that too often follow divorce by adding attorney fees and other litigation expenses to the list of contested items that parties would have to address before an agreement outside of the courtroom could be reached. Justice Carley concurred in the judgment only.

In a dissenting opinion, Justice Melton asserted that there was no statutory or contractual basis for the award of attorney fees in this case. He found that because each party in this case compromised something in order to bring about an end to the dispute, the trial court was not authorized to find that Ms. Haley was a prevailing party on the underlying child support modification claim under OCGA § 19-6-19 (d) unless the parties otherwise agreed. Contrary to the majority’s findings, Justice Melton concluded that the language of the settlement agreement did not authorize the attorney fees award, noting that the parties did not agree about whether Ms. Haley was legally or factually entitled to any fees and that Mr. Haley expressly refused to waive any defenses to Ms. Haley’s attorney fees claim and challenged whether Ms. Haley was the “prevailing party” pursuant to the statute.

SOURCE: Supreme Court of Georgia and Fulton County Daily Report

Collaborative Law Approach in Family Law Cases

Collaborative law is a new way to resolve disputes by removing the disputed matter from the litigious court room setting and treating the process as a way to "troubleshoot and problem solve" rather than to fight and win.

As part of the collaborative law method, both parties retain separate attorneys whose job it is to help them settle the dispute. No one may go to court. If that should occur, the collaborative law process terminates and both attorneys are disqualified from any further involvement in the case.

Each party in the Collaborative law process signs a contractual agreement which include the following terms:

• Disclosure of Documents.  Each party agrees to honestly and openly disclose all documents and information relating to the issues. Neither spouse may take advantage of a miscalculation or an inadvertent mistake. Instead, such errors are identified and corrected.
• Respect.  Each party agrees to act respectfully and avoid disparaging or vilifying any of the participants.
• Insulating Children.  As part of the process all participants agree to insulate the children from the proceeding and to act ins such a way as to minimize the impact of the divorce on them.
• Sharing Experts.  The parties agree to implement outside experts where necessary in a cooperative fashion and share the costs related to those experts. (eg. real estate appraisers, business appraisers, parenting consultants, vocational evaluators, or accountants)
• "Win-Win" Solutions.  The primary goal of the process is to work toward an amicable solution and to create a "win-win" situation for all.
• No Court. Neither party may seek or threaten court action to resolve disputes. If the parties decide to go to court, the attorneys must withdraw and the process begins anew in the court system.

Avoiding Parenting Plan Mistakes

Not only avoid mistakes, but make sure your plan is as complete as possible. Cover all the bases. Most important in this process is to try to work together in preparing the parenting plan. Both parents will be much more pleased with the plan if they work on this together and not hand over this important process to the judge. The judge will be happy to decide these important issues for you. But, I am almost 100% certain, if you let the judge decide you will not be happy.

Thanks to the Oklahoma Family Law Blog and the Kansas Family Law Blog for a heads up on this great information from Anju Jessani of Divorce With Dignity Mediation Services in New Jersey.

Many divorced couples find themselves back in court for post-decree litigation simply because of poorly drafted parenting plans. Listed below are some of the most common mistakes and oversights related to parenting plans.

Talking to kids about divorce

The divorce rate in the United States has declined since the 1980s but is still higher than most other countries. Researchers Hetherington and Stanley-Hogan estimate that 40 percent of children born to married parents in the U.S. will experience their parents' divorce.

During the summer months when noncustodial parents have children for an extended time, I cannot help but think of some of the ways parents can help children deal with the divorce and strengthen relationships along the way. It is a lot of work for all involved but need not be contentious. Ellen Galinsky and Judy David offer some guidelines for communicating with children about divorce.

-As soon as it becomes obvious that one parent is moving from the home, it is important to explain to the children what is occurring. It is also important to have both parents present and to assure them. Be sure to tell them who will take care of them and assure them of the visitation arrangements with the other parent.

-Be sure to let them know that the separation or divorce is not the child's fault. You may need to repeat this several times, as many children believe that they have done something to cause the parent to leave.

-Let them know that it is normal to feel bad. It is OK to share emotions and let them know it will get better after a while. Keep this part of the discussion brief and do not criticize the other parent.

A State Fact Sheet for Grandparents and Other Relatives Raising Children

Across the United States, more than 6 million children are being raised in households headed by grandparents and other relatives; 2.5 million children are in these households without any parents present. As the children's parents struggle with substance abuse, mental illness, incarceration, economic hardship, divorce, domestic violence, and other challenges, these caregivers provide a vital safety net to children inside and outside of the foster care system. This fact sheet provides important information and resources for the grandparents and other relatives raising children in your state.

National and State Data*

The Children

• Nationally, 4.5 million children are living in grandparent-headed households (6.3% of all children under age 18). This represents a 30% increase from 1990 to 2000.
• There are another 1.5 million children in the United States who are living in households headed by other relatives (2.1% of all children under 18).
• In Georgia there are 164,423 children living in grandparent-headed households (7.6% of all children in the state). There are another 53,785 children living in households headed by other relatives (2.5% of all children in the state). Of the children living in households headed by grandparents or other relatives in Georgia, 98,773 are living there without either parent present.

The Grandparents

• Nationally, 2.4 million grandparents report they are responsible for their grand-children living with them: 29% of these grandparents are African American; 17% are Hispanic/Latino; 2% are American Indian or Alaskan Native; 3% are Asian; and 47% are White. 34% of these grandparents live in households without the children’s parents present. 71% are under the age of 60; 19% live in poverty.
• In Georgia, 92,265 grandparents report they are responsible for their grandchildren living with them [5,947 grandparents in Atlanta and 2,572 in Columbus]: 52% of these grandparents are African American; 3% are Hispanic/Latino; 1% are Asian; and 24% are White. 36% of these grandparents live in households without the children’s parents present. 74% are under the age of 60; 20% live in poverty.

Additional Information

• United States Census data on grandparents who are responsible for meeting the basic needs of their grandchildren can also be broken down by county, congressional district, and other categories. Log on to http://factfinder.census.gov. Additional data on grandparents and grandchildren are available at www.census.gov/ population/www/cen2000/briefs.html.
• Additional national and state data on grandparents raising children are available on AARP’s website at www.aarp.org/grandparents.

* These data are taken from the U.S. Census Bureau Table DP-2. Profile Selected Social Characteristics: 2000.

Postnups becoming ‘new’ prenups

Sam Hasler of the Indiana Divorce and Family Law Blog recently posted this report on an article on post-nuptial agreements:

Who else cares about your marriage?

Besides the in-laws and your closest friends? How about the boss?

Postnuptial agreements are gaining popularity as an estate-planning tool, and some hedge funds and private-equity firms have asked their top executives to sign them to protect their companies in case of a messy divorce, according to attorneys and financial advisers.

***

Postnup agreements are similar to prenuptial agreements, but they are crafted and signed after a couple is married. Attorneys say that the agreements actually can strengthen marriages, because the couple is able to resolve disputes about money and then focus on the marriage itself.

This from the Investment News article, Postnups becoming ‘new’ prenups. The article appears below:

Judges Orders Man not to have a Girlfriend

The Associated Press reports that a judge has ruled that a 24-year-old Canadian man is not allowed to have a girlfriend for the next three years. The ruling came after Steven Cranley pleaded guilty on Tuesday to several charges stemming from an assault on a former girlfriend. Cranley, who has been diagnosed with a dependent personality disorder, attacked his girlfriend in an argument after their breakup.

Read the New York Times story below.

SOURCE: Family Law Prof Blog

Glossary of QDRO Terms

The following terms may be useful in understanding division of retirmenet benefits through Qualified Domestic Relations Orders (QDRO's).

SOURCE: Pension Benefit Guaranty Corporation

Glossary of Terms

Legal definitions for terms used in court-ordered support payment documents, custody and visitation and other divorce paperwork.

SOURCE: SupportCollectors.com

How to Keep Your Child Out of the Middle

Dick Price at Divorce and Family Law in Tarrant County had this great post. He points out some key points that most divorcing parents forget. First of all, you are parents. And for the best interest of the children, these five points must be considered. While emotions are high for the divorcing parents. Don’t forget that the children also are going through the divorce and as parents, everything must be done to help them through it. And, lets not forget that until the children reach at least the age of 18, you and your ex-spouse will have to work together to raise the children to adulthood.

The following is a brief list of 5 'Don’ts' and a 'Do' that may help avoid such situations.

1. Don’t ask the children to decide. In the heat of family disagreements, it may seem simple or fair to just let the children decide where they want to live, or what visitation schedule they want to follow, etc.; parents may feel that’s like having a neutral person make the decision. Unfortunately, that puts a lot of pressure on the children and sets them up for guilt feelings and/or angry parents.

2. Don’t disparage the other parent or his/her family. This can be by direct comments made to a child or it can be done indirectly, such as comments made to others, but overheard by a child. It can also include body language and gestures that indicate disapproval or other bad opinions of the other parent. A child will likely take such actions or words as an attack on him or her.

3. Don’t argue around the kids. Disagreements are normal, even in well-functioning, intact families. Discussions and arguments between adults should take place just between adults, if at all possible. The kids don’t need to be drawn in or manipulated by the situations.

4. Don’t ask the children about the other parent. It’s not necessary for you to know everything that goes on when your children are with the other parent. Children will often tell about things they enjoyed or about big events, good or bad. Children don’t like being grilled about what happens when they visit their other parent.

5. Don’t use the children as messengers. If you want to send a message to the other parent, talk directly by phone or in person, send a letter or send an email. Kids aren’t always dependable anyway. And if you send a message by the children and then the other parent reacts badly when the message is delivered, the children are likely going to feel that they caused the problem.

Finally, something you can Do:

Do take a co-parenting class, preferably with the other parent. There are several good classes available in this area in person and even on line. I recommend the 'in-person' class because you can learn more and get specific questions answered.

If you can avoid the temptation to put your children in the middle of adult disputes, your children will be happier and you should have better relationships with them (and maybe the other parent as well). If both parents will take a co-parenting class, all of this advice may be unnecessary!"

Sources for Post: Divorce and Family Law in Tarrant County and Kansas Family Law Blog

California: Divorce Attorneys Raid Electronic Toll Road Data

Divorce attorneys track the every move of California motorists who use FasTrak electronic toll road transponders.

Records of every trip a motorist takes on an electronic toll road over a five-year period is fair game for divorce attorneys and others given access to California's FasTrak system. The device records the location, date and time that a vehicle equipped with a transponder passes a tolling checkpoint. The data is held indefinitely.

A Contra Costa Times investigation earlier this month found about twenty subpoenas used in the past two years to gain information about a handful of the 620,000 FasTrak users in the San Francisco Bay area who crossed one of eight toll bridges. Divorce lawyer Alexandra Mussallem uses FasTrak to build a case.

"We often have arguments about whether or not one spouse works to his or her maximum earning capacity," Mussallem told the Times. "If someone hits the Bay Bridge toll plaza at noon on a day he said he was working, you know he's not working. He might be with his girlfriend in Contra Costa County."

FasTrak has an unadvertised anonymous account option for motorists who do not wish to be tracked. A FasTrak device -- which still has a serial number and is tracked -- is linked to an account with no personal details. The motorist may go to a service center in person to update the account with cash.

Sources: TheNewspaper.com and  FasTrak to courthouse (Contra Costa Times (CA), 6/5/2007)

Source for Post: California Divorce and Family Law Blog

Divorce Finances

Five things every woman needs to know about divorce and making sure you're taken care of.

First, many states determine the value of retirement assets to be split based on the official date of separation, not divorce. So, if you separated in May 2006 but don't divorce until 2007, the courts may direct you to divide assets as of May 2006. So, if your husband is about to get a bonus you should wait to separate. Or if you're expecting a bonus, get out fast.

Second, if you leave your husband the house, make sure he refinances immediately and takes your name off the mortgage. If your name is on it and he defaults, it will affect your credit.

Third, make copies of all your recent financial statements so there's an accurate record of all money to be split.

Fourth, make sure you know about all the credit cards taken out during your marriage. If you have any cards with balances on them, pay them off and close the accounts.

Fifth, if you've been married for at least ten years you qualify to receive half the amount of your husband's benefits when you reach full retirement age. And, even after divorce, if your ex-husband dies you're entitled to survivor's benefits starting at age 60.

SOURCE: WLWT.com

Retirees lose fight against former spouse law

Fifty-eight current and retired service members have reached the end of their long legal battle to overturn the Uniformed Services Former Spouses’ Protection Act after the Supreme Court refused to hear the case.

The high court’s decision effectively upholds a lower court ruling to dismiss the lawsuit by the service members and retirees who had sought to put military pensions off-limits for division in divorce cases. The USFSPA allows state courts to treat military pensions as common marital property in divorce cases and award a portion of it to the spouse.

The lawsuit named the secretary of defense as the defendant.

A U.S. District Court in Alexandria, Va., issued a ruling in 2004 to dismiss the case, and that decision was upheld in September by the 4th U.S. Circuit Court of Appeals in Richmond, Va.

“We believe it’s unfortunate what the court has decided with regard to this latest initiative to address the inequities in this onerous law,” said Joe Barnes, national executive secretary of the Fleet Reserve Association.

Supporters of reforming the law will continue their effort, Barnes said.

“Our principal focus has been trying to address this legislatively, and we continue to address the need for reform to members of Congress and staff,” Barnes said, adding that FRA has never advocated that spouses do not deserve benefits.

“But the way the law was written, it is subject to broad interpretation by state courts,” he said.

The USFSPA, enacted in 1982, does not give spouses a right to a specific amount of money in a divorce settlement. The decision whether to award part of retirement pay, and the amount, is up to state courts, and the amounts vary widely. Most pensions, including those of police officers and federal employees, and other occupations, are subject to division in divorce cases.

Barnes said a number of changes to the law have been made in the favor of former spouses, and service members need some additional protections. For example, he said, if a former spouse is awarded a percentage of a service member’s retirement pay, that amount should be based on the member’s paygrade at the time of divorce, not pay at the time of retirement.

SOURCE: AirForceTimes.com

Braves Tickets At Center Of Divorce Battle

ATLANTA (AP) --A divorced couple is feuding over tickets to see the Atlanta Braves.

H. Elizabeth King, a psychologist, accuses her ex, Charles Center, a lawyer, of breaking their 2002 divorce agreement to divide the four tickets they had shared behind home plate.

The Atlanta couple owned tickets to 82 home games in a three-way partnership with other baseball fans. Every year King and Center had four tickets to 27 games.

When they divorced, he agreed to take the first home game every year. Then each would get four tickets to 13 games.

After one of the partners died last year, King's ownership increased to a full third: 27 games. The 82 season tickets are still in her ex's name, and he has been in charge of dispensing them to the partners.

In a court hearing Tuesday -- during which the couple hardly looked at each other -- King testified that Center had gone out of his way this year to give her tickets to games that conflicted with her schedule. And she claimed 80 percent of the tickets he gave her were for day games, implying he'd done it because he knew she had skin cancer.

Center testified that the four tickets to 27 home games cost about $6,000. And he was distributing them to her the way he'd always distributed them, sequentially, according to a mathematical formula. He said he adjusted that arrangement when people asked or if there were conflicting schedules.

So far, attorneys' fees come to about $13,000.

After two hours and several witnesses, a frustrated Superior Court Judge Melvin K. Westmoreland ruled that he would not cite Center with contempt and urged the two to settle it out of court.

When Center left the courtroom, Center whooped in the hall outside: "I'm not going to jail! I'm not going to jail!"

SOURCE: CBS 46

AVOIDING DIVORCE TRAPS

Steps you can take to safeguard your finances during and after a divorce:

• Consider other ways to divorce. Litigious divorces can cost tens of thousands of dollars in legal fees and last for years. Opt for alternative ways to reach an agreement, such as mediation or collaborative divorce.

• Keep taxes in mind. A stock portfolio split down the middle might not really be equal, if there are embedded losses or gains in the portfolio.

• Don't be house poor. Many divorcing spouses want to keep their homes for emotional reasons and to provide stability for the kids. But maintaining a house also means mortgage, tax and upkeep expenses.

• Splitting up retirement plans? That involves tricky tax rules, so be sure you have the proper paperwork and talk to legal and tax advisers.

• Update wills, trusts and beneficiary designations on retirement plans and insurance, so your ex doesn't end up inheriting an unintended windfall.

SOURCE: Wall Street Journal

Divorce Preparation: Step 13 - Be Good

Michael Sherman at Alabama Family Law Blog is concluding his series of posts on Preparing for Divorce:

Well, we have finally reached the last step in this series of posts on practical steps to consider when you may be facing divorce.  I will wrap up the series with two more posts to conclude and summarize the series.  But, first, the final step which may seem a bit silly. 

It is simply this: Be Good.Here is the principle: you are about to be under a microscope.  You are reading this blog, so I assume that you may be facing a divorce and you'd like to that unpleasant process to be as amicable as possible.  Unfortunately, that is not always possible.  Your spouse may not share that objective for some reason.  They may be influenced by others (lawyers, friends, etc.) that convince them that what you are offering is not fair.

So, there is a chance that your case will end up going to trial no matter how diligent you and your lawyer are about trying to work the case out fairly and quickly.  That being said, you should not put ammunition in the gun for your spouse to use against you.

That means no dating, no carousing, and no partying. If custody may be an issue it means making the children your number one priority (they should be that anyway, right?).  Even things that are perfectly legal and harmless any other time can be twisted to look suspicious or worse in the hands of your spouse’s lawyer.

Suppose for example that you go out for dinner and drinks with members of the office to celebrate a fellow employee’s birthday.  This sounds harmless enough.  But, in a custody case these questions may be asked: While you chose to go out drinking with your friends, your spouse was at home taking care of the children, correct?  Are you having a romantic relationship with Joe/Jane who was also at the party?  How many drinks did you have that night?  This is something you routinely did during the marriage, isn’t it (i.e. choosing social events over your family)? You drove home that night under the influence of alcohol didn’t you? Etc.

You get the point.  This is a silly example, but why even open yourself up to this line of questioning.  Don’t put the judge in the position having to decide whether you are telling the truth that this was a harmless and isolated event.

Spend time with your kids, work, stay around the house, exercise, and attend to your spiritual life. Be above reproach.  Be Good.  Come to think of it, Its not bad advice whether you are facing divorce or not.

SOURCE: Alabama Family Law Blog

Child Custody Basics

When parents divorce, the divorce decree will specify with whom the divorcing couple's children will live (and circumstances under which the other parent will visit with the children). Often, parents work out these arrangements between themselves, either completely voluntarily or with the assistance of their attorneys or a mediator. When they are unable to reach a decision, however, or when unmarried parents are unable to agree on who will have custody of their child, the court may intervene and make a decision based on the child's best interests.

Physical and Legal Custody

In most situations, physical custody is awarded to one parent with whom the child will live most of the time. Often, however, the custodial parent shares "legal custody" of the child with the non-custodial parent. "Legal custody" includes the right to make decisions about the child's education, religion, health care, and other important concerns.

Joint Custody

Some parents have chosen a joint-custody arrangement in which the child spends an approximately equal amount of time with both parents. Proponents of this arrangement say it lessens the feeling of loss that a child may experience in a divorce. Critics, however, say that it is best for the child to have one home base, with liberal visitation allowed to the "non-custodial" parent. Because joint custody requires a high degree of cooperation between the parents, courts are reluctant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child's sake.

Split Custody

Another option, although much less favored, is split custody, in which one parent has custody of one or more of the parties' children, and the other parent has custody of the other(s). Courts usually prefer not to separate siblings, however, when issuing custody orders.

Child Support Basics

When married parents divorce or separate, or when only one of the unmarried parents of a child has custody, the court may order the "non-custodial" parent (the parent with whom the child does not live) to pay a certain portion of his or her income as child support. This is not the only scenario in which child support might arise. Less frequently, when neither parent has custody, the court may order them to pay child support to a third party who cares for their child.

No matter what situation gives rise to the need for child support, it might help to think of the legal right to child support as being possessed by a child (which it technically is), for his or her proper care and upbringing, regardless of who actually receives child support payments.

The Government's Role in Child Support

Because in the United States nearly half of all marriages end in divorce and almost one-fourth of all children are born to unmarried parents, the regulation of child support is an important social issue. Whereas once the arrangement for and payment of child support was left to the parents, now state child support enforcement agencies are taking an aggressive role in seeking payments from non-custodial parents.

Frequently, the agency and court will work together to implement a child support withholding order, by which the child support amount is automatically taken from the payer's paycheck. If the child support payments become delinquent, the agency can implement other collection mechanisms, such as withholding support amounts from tax refunds, or seizing real estate or personal property.

Child Support Orders

Child support orders are issued by the family court, which bases the amount of the support on the state child support guidelines. These guidelines establish the amount of support that must be paid, based largely on the non-custodial parent's income and the number of children. The court will also take into account other relevant factors, such as the custodial parent's income and the needs of the children.

The court can deviate from the guidelines if there are significant reasons for doing so. The fact that the custodial parent has a high income does not itself justify deviation from the guidelines, because under the law children have the right to benefit from both parents' incomes. Child support can be increased if there is a change in circumstances justifying the increase, such as an increase in the payer's income or the cost of living, a decrease in the custodial parent's income, or an increase in the child's needs. Similarly, the amount can be reduced if the circumstances justify the reduction.

Unmarried Parents and Child Support

In cases involving unmarried mothers seeking child support, the first step may be to legally establish the father's "paternity" of the child. The father can do this voluntarily, but if he does not the mother may need to bring a lawsuit to establish paternity, which is usually done using genetic (DNA) testing. The court will order the "putative" (or alleged) father to submit to the testing if he does not agree to do so voluntarily. Once paternity is established, the court will issue a child support order in a manner similar to that in a divorce situation.

Interstate Moves and Child Support

When the non-custodial parent moves to another state, the custodial parent may have to rely on the Revised Uniform Reciprocal Enforcement of Support Act to implement or ensure payment of child support. This Act provides the mechanisms by which a support order issued in one state can by enforced by the courts of another state.

Child Support: Getting a Lawyer's Help

If you are facing a potential child support issue or dispute, whether due to divorce or as a single parent, a family law lawyer can help by fairly and zealously representing either side in a child support proceeding. A family law lawyer will work to obtain the best possible result in the entry of a child support order, enforcement of an existing order, or in establishing or disproving paternity.

SOURCE: Women Against Domestic Violence

Child Custody for Immigrants

Many illegal immigrants in places like the Georgia carpet-mill town of Calhoun are taking special precautions in case they are jailed or deported. They are drawing up legal instructions designating someone to take care of their children.

At the urging of activists, parents are authorizing, in writing, a friend, neighbor or relative to watch their children until they can be reunited either here or in their home countries. During workplace roundups of illegal immigrants, youngsters sometimes become separated from their parents and are taken into government custody. In some cases, they can be held for days or weeks before they are reunited with their parents on one side of the border or the other.

Under U.S. law, children born in this country are American citizens and cannot be deported. There are more than three million such children in the U.S. There are also an estimated 1.8 million children in the country illegally.

Parents of children both legal and illegal are filling out the papers, specifying such things as whether they want their U.S. born children to stay here or to be sent back to the country where the parent might be deported. Fear is particularly strong in Georgia, where many young mothers work in the fields, carpet mills and produce-packing houses.

One of the nation's strictest immigration-control laws, passed last year, will go into effect July 1st.

SOURCE: WMAZ

Potential Liability From Hiring a Private Investigator

Fellow blogger Dan Nunley at the Oklahoma Family Law Blog has the following wise cautionary observations on  the use of private investigators, as related in our posting of Alabama Family Law Blog's message on the subject:

Michael Sherman of the Alabama Family Law Blog encouraged those suspecting their spouses of infidelity to consider hiring a private investigator. While most states including Oklahoma no longer make fault a prerequisite of divorce, establishing fault (such as adultery) can benefit a spouse when it comes to decisions such as custody and property division. And some spouses hire a private investigator for just such reasons.

However, truth be told, most private investigators are retained to uncover evidence of unfaithfulness simply because the innocent spouse has been hurt and now wants at a minimum, verification of the betrayal, and as a matter of principal, payback or revenge. But the innocent spouse needs to proceed carefully, because improper surveillance tactics on the part of the investigator could very likely boomerang causing the innocent spouse to now be liable to the cheating spouse.

There are strict state and federal laws regarding the use of surveillance equipment such as listening devices which allow you to eavesdrop on another person, hidden cameras which let you view the activities of others without their knowledge, GPS tracking devices which allow you to monitor the location of someone's vehicle, and other gadgets or software installed on someone else's computer to monitor their internet activities.

So a word to the wise would be "CAUTION".  Proceed with caution when contemplating spying on your spouse.

WHAT IS A TEMPORARY PROTECTIVE ORDER?

A Temporary Protective Order (TPO) is a civil order issued by a Superior Court Judge for the protection of victims of Family Violence or Stalking.

Pursuant to O.C.G.A. 19-13-4, a temporary protective order can:

(1) Direct a party to refrain from committing acts of family violence or stalking;

(2) Grant to a spouse possession of the residence or household of the parties and exclude the other spouse from the residence or household;

(3) Require a party to provide suitable alternative housing for a spouse, former spouse, or parent and the parties’ child or children;

(4) Award temporary custody of minor children and establish temporary visitation rights;

(5) Order the eviction of a party from the residence or household and order assistance to the victim in returning to it, or order assistance in retrieving personal property of the victim if the respondent’s eviction has not been ordered;

(6) Order either party to make payment for the support of minor children as required by law;

(7) Order either party to make payments for the support of a spouse as required by law;

(8) Provide for possession of personal property of the parties;

(9) Order a party to refrain from harassing or interfering with the other;

(10) Award costs and attorney’s fees to either party;

(11) Order the respondent to receive appropriate psychiatric or psychological services as a further measure to prevent the recurrence of family violence.

SOURCE: Cobb County Police Department and Frank Cox, Chief Magistrate of Cobb County Magistrate Court

HOW TO PREPARE YOUR CASE FOR TRIAL

To prepare your case for trial, you need to know what you want to tell the Court and the other party. In order to do that, you will need witnesses and exhibits. Here are some instructions and a step-by-step guideline on how to chose your witnesses and exhibits:

STEP 1: CHOOSING YOUR WITNESSES

1. In General. In choosing a witness, you should think in terms of what you want to say to the Judge and what witnesses will help you tell your story to the Judge. Witnesses are people who will help to tell your story to the Judge. They should be people who can talk to the Judge under oath about things they have seen or know directly, not things they have heard from you or someone else. Note that the court will not accept a written statement from a witness who is not in court.

2. Custody Cases. In custody cases, you will need to think about who can come to court and who will best explain why it is in the best interest of your child or children to be with you. Examples of good witnesses are: teachers, day care workers, or close friends who can tell the Judge how you are caring for the child's physical, emotional, and/or psychological needs.

3. Family Members. Family members are good witnesses as well, but remember that a professional or third party is more believable to a Judge than a family member.

4. Supervised or Restricted Visitation. If you are seeking supervised or restricted visitation, witnesses who have seen acts of domestic violence, abuse, alcoholism, drug abuse, or other behaviors which explain to the judge why you want supervised or restricted visitation, should be brought to court.

5. Child Support and Alimony. If you are seeking alimony and/or child support, you may need witnesses who can talk about the income of the other party. If there is not enough evidence about to his or her income, you may want witnesses who can talk about his or her job skills or experience. For example, co-workers, accountant, yourself, family members, classmates, or instructors.

13 BIG DIVORCE FINANCIAL MISTAKES NOT TO MAKE IN YOUR DIVORCE PLANNING

1. Believing that a 50 - 50 division of property is the same thing as a fair division of property.
   
   
2. Keeping the house when you can’t afford to.
   
   
3. Deciding financial issues one at a time instead of understanding how they affect each other.
   
   
4. Failing to guarantee alimony and child support payments with life insurance on the person who is supposed to pay.
   
   
5. Failing to make the spouse who receives alimony or child support payments the owner of the life insurance.
   
   
6. Believing that your settlement must conform to what a judge   would order if your case went to court.
   
   
7. Seeking financial advice from someone whose expertise is the law.
   
   
8. Failing to include the present value of a pension among marital assets.
   
   
9. Failing to include transaction costs in the settlement when those costs may be years in the future.
   
   
10. Using unrealistic assumptions about inflation and investment       returns.
    
    
11. Believing that spending retirement assets before age 59 ½ will always result in a 10% IRS penalty.
    
    
12. Failing to consider creative financial solutions.
    
    
13. Failing to ask, "How do I know that I will be financially secure after my divorce?" before signing the divorce papers.
    

SOURCE: Divorce Financial Planning

DIVORCE CHECKLIST

Henry S. Gornbein at Divorce Online has prepared a basic checklist of issues that should be considered in every divorce and discussed with your attorney. The list is intended to be general and broad in scope, and food for thought as part of a negotiated settlement or in preparation for trial. Some items may not apply to everyone due to state law variations, whether or not there are children, etc.

Divorce Checklist

1. Custodial arrangements for the children
2. Visitation/parenting time
3. Child support
4. Medical, dental, hospital, pharmaceutical, and psychological expenses for the children
5. COBRA or medical insurance for a former spouse for up to 3 years from the entry of the divorce judgement where applicable
6. Income tax exemptions regarding the children -- who will claim them
7. Alimony/spousal support
8. Property division
9. Division of real estate, transfers, and deeds
10. Making sure that all investments are covered including limited partnerships, stocks, bonds, and savings
11. The handling of debts
12. Pensions, IRA accounts, 401K transfers, Qualified Domestic Relations Orders
13. Personal property including furniture, furnishings, art, and collectibles
14. Motor vehicles, including trailers and boats
15. Income taxes whether there can be joint filings and liabilities for payment of taxes
16. Bankruptcy issues, protection in case one spouse does go bankrupt
17. Proper security and protection regarding property division
18. Clauses to hold the other spouse harmless and indemnification in case someone fails to live up to his or her obligations
19. How to handle the discovery of hidden assets
20. Spouse abuse and restraining orders
21. Restoration of a prior maiden name
22. Life insurance policies as protection for child support payments, alimony/spousal support payments, and/or property payments in the event of death
23. Attorney fees and/or mediator, accountant, and other expert fees and payment of same
24. College education for children and/or spouse
25. Provisions for review in certain circumstances such as with regard to child support and/or spousal support.
26. Clauses such as payment for summer camps and/or religious training and/or upbringing or other special situations involving children

SOURCE: Divorce Online

Post Nuptial Agreements Gain Popularity

Daniel Clement at the New York Divorce Report posted the following article  on post-nuptial agreements this past week:

The Financial Times reports that there is a growing trend for post nuptial agreements.   Like the pre-nuptial agreement, the post-nuptial agreement sets out the parties’ rights, obligations and liabilities upon the termination of marriage by either death or divorce. The only difference between the two marital agreements is that the post-nuptial agreement is executed sometime after the parties are wed.

According to the Financial Times, post-nups are particularly popular with hedge fund managers.   This, however, makes perfect sense.   The financial tycoons are merely seeking to limit their downside risk in the event that their marriages become, to use the street slang, “bearish” (or in the event they want to seek other opportunities.)

The article notes that at least one hedge fund requires its new partners to have a marital agreement in which the partner’s spouse waives his/her claims against the fund.   The hedge fund firms are looking to protect themselves since the partnership interest is a marital asset and is subject to equitable distribution.   In order to ascertain the value of the partnership interest, the partnership needs to be appraised opening the door to an inspection of the hedge funds books and records.

So why would a spouse waive his or her claim against partnership interest in the hedge fund? The spouse is probably banking that the marriage will continue and he/she will continue to enjoy the lifestyle afforded by interest in the hedge fund. But, in the event the marriage ends in divorce, the consideration for the waiver is probably a generous distributive award.   

SOURCE FOR POST: New York Divorce Report

What Divorce Parenting Practices are Most Appropriate for School-Age Children?

Ruben Francia has an article posted on Your Child - Your Divorce which looks at the best appropriate divorce parenting practices for school-age children. It is well-worth a full read.

Here is his list of some divorce parenting practices that are best for your child:

Explain what is happening over and over again. Children this age are confused easily. In simple terms, explain where your child will live, with whom, where the departing parent will live, and who will provide care when both parents are unavailable.

Encourage your child to talk about how he/she feels. Be sensitive to children’s fears. Let your child know that he or she can openly talk to you about the ups and downs of your separation or divorce.

Read books together about children and divorce. Use books to help your child talk about feelings.

Answer all questions about the changes, and keep lines of communication open. Make sure your child feels like he or she can ask you questions and get answers about why the divorce happened and what to expect.

Plan special time together. Set aside special time to spend with your child but be careful not to make promises you may not be able to keep.

Repeatedly tell children that they are not responsible for the divorce. Children need to be reassured that the breakup wasn’t their fault.

Reassure children of how their needs will be met and of who will take care of them.

Reassure children that everything will be ok, just different. Children are invariably frightened and confused by divorce. It’s a threat to their security. Provide extra hugs and kisses and tell your child that you and other adults will always be near to love and protect

Talk to your child’s day-care provider about the divorce. She will better understand your child’s possible regressive behaviors and will likely offer extra support.

Talk to your child’s teachers or school counselors about the divorce. They may then better understand possible learning or behavioral problems and will likely offer extra support.

Keep daily routines intact. Children feel more secure when there is a standard routine. Stick with bedtimes, no matter at which home the children are. Have some consistent chores. Have some time committed to the child, which is treated as sacred.

Respect, but monitor, your child’s privacy.

Discourage reconciliation fantasies. Avoid dinners, outings, or holiday celebrations with your ex-spouse; they only fuel your child’s fantasies. Instead, emphasize the finality of divorce

Be sensitive to children signs of depression and fear. Seek professional help if depression is prolonged or intense.

Help non-custodial parent stay involve. Let non-custodial parent maintain a regular presence such as a phone call several times each week, messages sent on video or audiotapes.

Plan a schedule of time for children to spend with their other parent. Be supportive of children’s ongoing relationship with the other parent. Remember that children generally fare best when they have the emotional support and ongoing involvement of both parents.

Seeing Double: A Paternity Battle Between Identical Twins

What happens when a woman has sex with twin brothers within hours of each other and then becomes pregnant? How do you determine which brother is the father and which is the uncle? Unfortunately, even the best DNA tests money can buy can't answer that question today.

Read the entire story regarding this paternity battle with a twist.

Source: ABC News.     

SOURCE FOR POST: Oklahoma Family Law Blog

Top Divorce Myths and Facts

The National Marriage Project, located at Rutgers, The State University of New Jersey, provide sresearch and analysis on the state of marriage in America and educates the public on the social, economic and cultural conditions affecting marital success and child wellbeing.  The Project has released its "Top Ten Myths of Divorce".  These myths are summarized below, but the article itself contains much more detail, including cites to studies supporting its conclusions.

Myth #1:  Second marriages tend to be more successful than first marriages.

Fact:  The divorce rate of remarriages is in fact higher than that of first marriages.

Myth #2: Living together before marriage reduces the chances of eventually divorcing.

Fact:  Those who live together before marriage have a considerably higher chance of eventually divorcing.

Myth #3: Divorce may cause problems for many of the children, but those problems are not long lasting and the children recover relatively quickly.

Fact:  Divorce increases the risk of interpersonal problems in children, and there is evidence that many of these problems are long lasting and may become worse in adulthood.

Myth #4: Having a child together will help a couple to improve their marital satisfaction and prevent a divorce.

Fact:  Couples who have a child together have a slightly decreased risk of divorce compared to couples without children, but the decreased risk is far less than it used to be when parents with marital problems were more likely to stay together “for the sake of the children.”

Myth #5:  Following divorce, the woman’s standard of living plummets by seventy three percent while that of the man’s improves by forty two percent.

Fact:  The woman’s loss is actually twenty seven percent, while the man’s gain was ten percent.

”Something New”: H&R Block Explains Tax Effects of Marriage, Divorce

Taking the Plunge Has Major Tax and Financial Implications for Newlyweds

The ceremony was a success, the rings fit, and the vows were a hit: When it comes to planning their weddings, couples let no detail go unnoticed. If only they were as astute at preparing for a joint financial future, starting a life together might be a piece of cake.

With wedding season in full swing, H&R Block (NYSE: HRB) reminds newlyweds that tying the knot means new tax issues that tax professionals can help couples manage:

• Marriage means choices. The IRS allows married couples to file using the “married filing jointly” or “married filing separately” status. Each has advantages that can be difficult to understand. For example, if a taxpayer claims medical expenses or other itemized deductions that are limited by their adjusted gross income, filing separately may be the way to go. But if the person wants to claim most tax credits or deduct their IRA contribution, they’ll probably need to file jointly. Consulting a tax professional helps in determining the right choice for couples filing for the first time.
• Social Security numbers don’t change, but anyone who has changed their last name will need to apply for a new Social Security card. If the name and number don’t match, the IRS might delay processing of the return, which means a refund could take longer than usual to arrive.
• Marriage also means adjusting retirement savings. Besides changing filing status on an employer’s 401(k) account, newly married taxpayers also should consider increased limits for tax-deductible IRA contributions. If the couple’s income meets certain limits, they could qualify for more of a deduction. In some scenarios, one spouse also may “borrow” from the other’s earnings to meet the limits.

• Inform the IRS of a new address. If the IRS does not have the correct address on file for a newly married couple, it could take longer for a refund to arrive. Taxpayers shouldn’t count on mail to be automatically forwarded and should consider filing Form 8822 to inform the IRS.

Sears blasts majority in Cobb custody case

Court upholds denial of visitation for adoptive father of 10-year-old girl

CHIEF JUSTICE LEAH WARD SEARS, who has made her off-the-bench mission to address family law issues, put her passion into a hard-charging dissent Monday.

Accusing her colleagues on the Supreme Court of Georgia of misstating the record, Sears blasted the 5-2 majority that upheld a Cobb County judge’s decision to deny a man any visitation of the girl he adopted after marrying her mother, who initiated the divorce.

“Make no mistake about it: Mark Q. Taylor will never see his 10-year-old daughter … again,” Sears wrote in the first sentence of her 22-page dissent, joined by Presiding Justice Carol W. Hunstein. “And the reason is because he legally adopted her instead of contributing his genetic material to her conception.”

Sears’ dissent highlighted three family law cases that divided the court—overshadowing a closely watched tort law matter the court dispatched with an 11-page unanimous decision.

Georgia man, a former judge, jailed in NYC for not paying child support

A disgraced former judge was taken from a courtroom in handcuffs and jailed Thursday after being arrested on a warrant because he has failed to pay more than $250,000 in child support.

The arrest warrant for the former Brooklyn judge, Reynold Mason, now of Hampton, Ga., was valid, Manhattan state Supreme Court Justice Joan Lobis said.

"At this point I have no alternative but to direct that the order of arrest be executed," Lobis said.

Several people in court with Mason's former wife, Tessa Abrams Mason, cheered when Lobis ordered sheriff's deputies to jail Mason.

Abrams Mason said she was very surprised that her ex-husband had shown up.

Mason, a native of Grenada and reportedly the first Caribbean-born judge on the Brooklyn Civil Court, was elected in 1994. He was elected to the state Supreme Court in 1997. Soon afterward, he left his pregnant wife and their two children, Abrams Mason said, and she has been chasing him for child support since.

Abrams Mason, 47, said she married Mason, 57, in 1993. She said they separated in 1997 and divorced in 2004.

In 2003, Mason was kicked off the bench after the state Commission on Judicial Conduct found that the former landlord-tenant lawyer had improperly taken money from a client's escrow account.

Abrams Mason and their children — a daughter, 16, and two sons, 14, and 9 — live off monthly workers' compensation she gets after being injured on the job at Wal-Mart. Outside court, she showed an eviction notice she said she got Thursday.

Abrams Mason said she believes her ex-husband, now a real estate broker in Georgia, owes her about $267,000. She said she was surprised and disappointed that he went to court apparently with no intention of paying anything.

Her lawyer, Robert Z. Dobrish, said she had received child support payments totaling a few hundred dollars over the past couple of years.

Dobrish said Mason can spring himself from jail if he comes up with even a fraction of what he owes and a plan to pay the rest. He said Abrams Mason believes her ex-husband has hidden assets.

Mason's lawyer, Homer Richardson, told the Manhattan judge his client had tried everything he could to raise some of the money he owes, including reaching out to friends and relatives for loans, but had failed.

Richardson said outside court later that his client, "a very depressed man," was arrested because he failed to follow up on his Jan. 5 application in a Brooklyn court requesting a reduction in $2,600 monthly child support payments.

SOURCE: Fulton County Daily Report

The cost of a divorce

Death is the final stage of life, something we all must face. But many people go through another kind of death well before the coffin. It's divorce.

Divorce is death of a marital relationship that is supposed to last a lifetime. For whatever reason -- broken promises, infidelity or poor communication -- some marriages do not work out.

"We did not enter into divorce lightly. We sought counseling. We tried to overcome our differences," says Sue Reddy, a Fort Lauderdale, Fla., resident whose divorce was finalized December 1998. "I gave 100 percent to my marriage. But we just could not get along."

Divorce is big business in the United States. According to maritalstatus.com, a Web site geared toward divorce and remarriage, divorce is a $28 billion-a-year industry with an average cost of about $20,000.

If you're contemplating divorce, there are short-term and long-term costs you should consider before legally saying sayonara to your spouse. Short-term costs mainly pertain to paying a lawyer, if you decide to hire one. Long-term costs will include financial lifestyle issues.

Do-it-yourself divorce kits

There's no law that says you have to hire an attorney. You can purchase a divorce kit if you feel that you and your spouse can rationally come to an agreement on who will get what. It's perfect for the couple who has nothing to dispute and no children.

Divorce Preparation: Step 12 - Consider a PI

Michael Sherman at Alabama Family Law Blog is continuing his series of posts on Preparing for Divorce:

We continue our series on practical steps to consider when you are facing an imminent divorce.  We are now on to Step 12 - Consider hiring a private investigator.

Alabama [and Georgia] law does consider “fault” when deciding how to divide property in a divorce.  Additionally, depending on the facts, adultery can affect custody determinations.

If your spouse is committing adultery, then you are better off having proof of it then not.  This is the case even where you fully intend to settle your case.  In fact, often having proof of an affair is what gets the case settled at terms that are fair to you.

It is not fun to find out your spouse has cheated, and you may be like many of my clients who have said they would rather not know.  But, you should think carefully before making that decision.  Talk to your lawyer.  Assuming you’ve chosen a good one, listen to their advice.  If you are going to get proof of it, now is the time.  Your lawyer should be able to talk to you about the costs involved (it is not cheap) and how to improve your chances of making the surveillance effective, should you choose to go that route.

SOURCE: Alabama Family Law Blog

Collaborative law can make divorces cheaper, civilized

Good marriages you've seen. How about a good divorce?

Some lawyers say there's a way to a better matrimonial finale called "collaborative law." It was devised by Stu Webb, a Buddhist Minneapolis-based lawyer who wanted a different path.

The biggest difference? If the lawyers can't get the unhappy couple to negotiate an agreement, the lawyers quit. New attorneys handle the court battle.

This is designed to create incentive for the clients to keep trying, for the lawyers to cooperate rather than be adversarial and for everyone to take a deep breath.

Lawyers who have practiced in a variety of courts know the most wrenching and unpleasant of practices can be family law. Losing freedom in criminal court and money in civil cases pales when the heart is torn asunder and people are their most wildly unhappy and obsessed. The divorce court process pretty much exacerbates every misery.

"It came out of desperation. The negativity can get to you. Every step of the litigation model is designed to create polarization," said Webb, whose divorcenet.com page shows a serene lake where his advertising brethren feature a picture of themselves looking serious and trustworthy.

He'd seen enough pain handling divorces that he was ready to leave the law when he instead created the collaborative concept in 1990. It has gradually gained steam internationally.

JUVENILE LAW: A GLOSSARY OF TERMS

The following is a list of terms commonly found in connection with proceedinsg in Juvenile Court:

SOURCE: Dr. Tom O'Connor
Program Manager of Criminal Justice and Homeland Security,
Austin Peay State University at Ft. Campbell, KY

Glossary of Terms Often Used in Superior Court

The web site of the Superior Court Clerks Cooperative Authority provides a glossary of legal terms.These definitions are provided for your convenience and should not be considered legal advice.

Many, but not all, of these terms are used in family law cases. The Superior Court has exclusive jurisdiction of divorce and most other family law cases in Georgia, so these terms may be helpful to family law litigants.

Child Support - An Overview

There are more than 13 million divorced parents in America with children under the age of 21. Typically, one of the parents has physical custody and relies on child support paid by the other parent. Statistics show that when all child support is paid as agreed in the divorce decree, both parents remain involved with their children and the children usually have an acceptable standard of living. Conversely, when child support is not paid custodial parents and their children are at risk for financial turmoil. Unfortunately, a disproportionate number of divorced single parents and their children do not receive child support and live below established poverty levels.

Enforcing the obligation to pay child support is a national priority. Federal legislation and uniform state laws exist to make enforcement and collection of child support easier. Each state has different guidelines for establishing child support and there are various methods in the law that exist to recover the support you are owed. If you are ending a marriage, already divorced, or are trying to make your child's other parent legally responsible, it is important to consult with a family law attorney. An attorney with experience in the area of child support will help you understand the laws in your state and the rules for child support collection and enforcement that apply to your particular situation.

Child Support Basics

Each child's biological parents have a legal obligation to financially support the child. That obligation lasts until the child reaches "the age of majority" (depending on state law, 18 or 21), marries, joins the military, or becomes self-supporting. When parents live together, the level of financial support provided is generally not questioned.

When parents divorce or are not married the parent who does not live with their child is usually obligated to pay child support. Support is owed whether the child lives with their other parent or a third party, and whether or not the person with whom the child lives can afford to support the child on their own. Depending on the state, support may be owed even if the parents share custody.

Each state has adopted a set of guidelines for determining child support. Family courts use the guidelines to establish the amount of support. Some states allow courts to make adjustments to the amounts the state guidelines indicate. Most courts, however, tend to closely follow the amounts the guidelines establish unless something in the case indicates the need for a change.

Support guidelines generally fall into one of three categories. Each uses a different approach to establish the amount of support, though they all consider the needs of the child. Provisions for medical costs and insurance are generally added to the basic amount suggested by the state guidelines. The three guideline categories are:

• Percentage—Calculates support based upon a flat or varying percentage of the income of the paying parent.
  
• Income Shares Model—Calculates support based on a formula that determines the proportion of parental income the child would have received if the parents had not divorced.
  
• Melson Formula—Calculates support using a complex formula that considers the economic conditions of the parties involved, their standard of living and the overall equities of the situation. The goal of the Melson Formula is to give children the standard of living of their more affluent parent, even if the custodial parent gets a financial benefit to which they may otherwise not be entitled.

Georgia Name Change Law

Georgia Code 19-12-1. Petition for name change; notice of filing; consent of minor's parents or guardian; service on parents or guardian; time of hearing; judgment; clerk's fees.

(a) Any person desirous of changing his name or the name or names of his minor child or children may present a petition to the superior court of the county of his residence, setting forth fully and particularly the reasons why the change is asked, which petition shall be verified by the petitioner.

(b) Within seven days of the filing of the petition, the petitioner shall cause a notice of the filing, signed by him, to be published in the official legal organ of the county once a week for four weeks. The notice shall contain therein the name of the petitioner, the name of the person whose name is to be changed if different from that of the petitioner, the new name desired, the court in which the petition is pending, the date on which the petition was filed, and the right of any interested or affected party to appear and file objections.

(c) If the petition seeks to change the name of a minor child, the written consent of his parent or parents if they are living and have not abandoned the child, or the written consent of the child's guardian if both parents are dead or have abandoned the child, shall be filed with the petition, except that the written consent of a parent shall not be required if the parent has not contributed to the support of the child for a continuous period of five years or more immediately preceding the filing of the petition.

Taxing Issues During Divorce

It's often said that there are really three parties to a divorce: the husband, the wife and Uncle Sam. In a sense, that's right. Far too many people negotiate and finalize their divorce without taking proper account of the tax impact of the decisions they're considering. Here's a quick summary of some of the issues I see people miss most often:

Capital Gains on Your House

Capital gains taxes on home sales used to be a huge issue, but the tax bill that took effect in August of 1997 effectively eliminated the problem for the vast majority of homeowners. The law allows you to exclude up to $250,000 of the gain from taxable income if you're single and $500,000 if you're married. But one real risk remains: you can still take a serious hit if you wait too long after you move out of the house before you sell your interest in it.

The catch is that the house must have been your "principal residence" for two of the past five years when you sell it. That means that the house must be sold within three years of the time you move out. It's common these days in divorce for one of the spouses to move out of the house but to continue owning an interest in it for several years. Once you've been out of the house for more than three years, though, it's no longer considered your "principal residence." If it's sold at a gain, you'll owe tax on it. Even here, however, Congress has offered some help. The new tax law says that if you move out of the house and your spouse has the right to live in it pursuant to a divorce or written separation agreement, your spouse's residence in the house will be counted as your residence for purposes of calculating the two-year residence requirement.

Alimony vs. Child Support

If you get alimony, it's part of your taxable income. If you pay alimony, it's tax deductible. Child support is not taxable or tax-deductible. So all other things being equal, the spouse who is paying support wants as much of it as possible to be considered alimony, and support recipients naturally want as much of the support as possible to be considered child support.

But all other things are not usually equal, especially when it comes to incomes. When the difference is significant, there may be an advantage to both spouses to make most of the payments in the form of alimony rather than child support, because the tax advantages of alimony leave more money for higher support payments.