Kansas Family Law Blog

In-Court Acknowledgment of Divorce Settlement Becomes "Electronic Signature"

gdgrifflaw@mac.com (Grant Griffiths) — Thu, 25 Oct 2007 14:25:51 -0700

Here is a curious case. A divorce settlement calling for a transfer of real property is read into the record on the day set for trial. Both parties orally acknowledge the settlement in court, and the court's reporter duly transcribes their remarks. However, one party later refuses to sign the agreement. She claims, among other things, that enforcement of the settlement agreement would be unlawful because state law requires a writing to transfer real property.

The Kansas Court of Appeals recently entertained this argument and rejected it, remarking along the way' that an electronic signature was created in the trial judge's courtroom, thereby satisfying the state-law requirement of a writing for real property transactions.

The court said this was so because Kansas had adopted the Uniform Electronic Transactions Act. Under UETA -- with some exceptions that aren't relevant here -- qualifying digital records, sounds, symbols, you-name-it, will be treated as 'writings' if a writing is required by state law. UETA, the court said, 'probably' makes the electronically produced record of the divorce litigant's in-court statement the legal equivalent of a written signature:

The record does not disclose the type of equipment used by the court reporter, but it would be quite rare today for a court reporter's equipment not to at least require electricity. The UETA deems records generated by electronic means, including the use of electrical or digital magnetic capabilities, to be electronic records.

In order for a record to qualify as an electronic signature, a party must also adopt the record 'with the intent to sign.' The court doesn't make much of an effort to explain how the litigant in this case 'adopted ... with the intent to sign' the court reporter's record of her remarks. Apparently, it was enough that the litigant uttered aloud her acknowledgment of the divorce settlement that had been recited in open court. '[A]ssuming that the court reporter's equipment was consistent with modern practice, it would appear that the electronic capture of Mieko's oral assent that this was the agreement would satisfy the statute of frauds.

The case is In re Marriage of Takusagawa, No. 95,508 (Kan. Ct.App. Sept. 7, 2007)

SOURCE FOR POST: E-Commerce and Tech Law Blog

Clients Benefit From Fixed Fees in Family Law Cases

gdgrifflaw@mac.com (Grant Griffiths) — Mon, 24 Sep 2007 14:53:04 -0700

The South Carolina Family Law Blog posted his reasons for flat fees in family law cases today. In doing so, he gave us some of the benefits clients receive from hiring attorneys for a fixed fee:

Clients know the total cost up front, which enables them to determine prior to retaining the attorney whether or not they can afford his/her services and to budget for the attorney's fees and costs.'
Clients have another basis upon which to compare attorneys, both in the manner they charge for their services (fixed fee vs. hourly) as well as the amount charged ($X vs. $Y).
Clients never end up in fee disputes with their attorneys, because all fees were negotiated and agreed upon before the representation began.
This method encourages open communication from the client to the attorney.' In hourly billing situations, clients sometimes hesitate to provide information to the attorney because they know that they will incur fees and costs for doing so.
Clients have a higher level of trust with their lawyers, which results in a better working relationship, which frequently yields better outcomes in the clients' cases.

I could not agree more. I have been doing flat fee cases in my family law practice for at least 3 years now. It really does work better for both the client and attorney.

Source for Post: South Carolina Family Law Blog.

Kansas Receives Grant for Supervised Visitation Program

gdgrifflaw@mac.com (Grant Griffiths) — Sat, 22 Sep 2007 19:42:25 -0700

Children are still vulnerable to family violence even after separation from abusive situations

Kansas has received a $400,000 grant from the U. S. Department of Justice, Office on Violence Against Women. via KAKE-TV Wichita

Source for Post: Kansas - Topix.net.

Oklahoma Adoption Law Held Unconsitutional

gdgrifflaw@mac.com (Grant Griffiths) — Sat, 11 Aug 2007 09:07:47 -0700

The United States Court of Appeals for the Tenth Circuit has upheld a district court judgment that a state law barring recognition of adoptions by same-sex couples already finalized in another state is unconstitutional. The case involved three same-sex couples who had adopted children in other states.' These three families brought suit against the state of Oklahoma seeking to enjoin enforcement of the adoption amendment, naming the governor, attorney general and commissioner of health in their official capacities.' The court held that 'final adoption orders by a state court of competent jurisdiction are judgments that must be given full faith and credit under the Constitution by every other state in the nation. Because the Oklahoma statute at issue categorically rejects a class of out-of-state adoption decrees, it violates the Full Faith and Credit Clause.

Finstuen v. Crutcher (US App 10th Cir. August 3, 2007)
Opinion online' (last visited August 10, 2007 bgf)

Source for Post: Oklahoma Family Law Blog.

Saving for an Emergency Fund

gdgrifflaw@mac.com (Grant Griffiths) — Mon, 06 Aug 2007 10:54:52 -0700

As I have mentioned here in this blog and more times than I can count to my clients, one of the areas married couples argue about is money. There are really three, money, children and the other one we won't mention. But, in my own experience, money is the one that usually causes more problems than the other two. Let me just say, I am just as guilty on this one as you are.

First of all, we don't communicate about money. We have to talk to our spouse openly about money. Both spouses should feel free to talk about their concerns and fears. And BOTH spouses should have an equal say in how YOUR money is spent, saved and invested. Remember one thing, when you got married you were two who became one. When one spouse takes total control of the money in the household and keeps the other in the dark, problems arise.

Spending, saving and investing should be done as a partnership. If done that way, fewer problems will come up. And by doing this, we take one of the causes of divorce out of the picture.

To help start the conversation going, there is a great list of things you can do to create an emergency fund. Check out 28 ways to save for an emergency fund. And talk about it.

How Will My Divorce Affect My Credit?

gdgrifflaw@mac.com (Grant Griffiths) — Wed, 01 Aug 2007 13:34:19 -0700

Ask the Advisor has a very good post concerning divorce and credit. I am not going to paste the article here. I am however, going to provide a link to the post. It is called, How Will My Divorce Affect My Credit?

While you are there check out some of the other information contained in Ask the Advisor.

Wife’s student debt is costing husband -- Injured Spouse

gdgrifflaw@mac.com (Grant Griffiths) — Fri, 20 Jul 2007 07:46:56 -0700

Here is a great Q&A from Bankrate.com. The advise in the answer applies not only to student loans, but to overdue child support.

Q:

My wife had a student loan, but the school went bankrupt before she could finish the course. She did not get her training and the school kept all tuitions. For the past 17 years when we've filed taxes, the state of Florida has been taking them. The federal government has dismissed the loan, but a company in Florida bought the loan and somehow they got approval to take my tax refund. Can they take my tax refund even if it was incurred before our marriage? How can I make them understand that the student loan has been charged off?

A:

IRS Tax Topic 203 discusses the Treasury Offset Program for past-due obligations. These include amounts owed for child support, federal agency debts and state income tax obligations.

The Treasury Department's Financial Management Service, or FMS, acts as a collection agency for the creditor that notified them of the past-due debt. FMS will send you a notice if an offset occurs. The notice identifies your original refund amount, your offset amount, the agency receiving the payment, and the address and telephone number of the agency. The IRS will not be informed of the agency receiving the offset, but FMS will notify IRS of the amount taken from your refund.

Since the debt is only your spouse's, you are entitled to your portion of the refund even though you are filing a joint return. According to Tax Topic 203:

If you filed a joint return and you're not responsible for the debt, but you are entitled to a portion of the refund because you reported income, payments, or credits on the return, you may request your portion of the refund by filing Form 8379, Injured Spouse Allocation. Attach Form 8379 to your original Form 1040 or file it by itself after you are notified of an offset. If you file a Form 8379 with your return, write "INJURED SPOUSE" at the top left corner of the Form 1040. Because the IRS will process your allocation request before an offset occurs, filing Form 8379 with your original return may take 11 to 14 weeks from the date of filing to process your return.

The IRS does not get into the validity of the debt. You should contact the agency shown on the notice of offset if you believe you do not owe the debt or you are disputing the amount taken from your refund.

Child Dependency Deductions: Must File Form 8322

gdgrifflaw@mac.com (Grant Griffiths) — Thu, 19 Jul 2007 11:58:11 -0700

I have touched on this issue before. And based on a U.S. Tax Court ruling, the IRS is taking this requirement serious.

As stated on a fellow family law blog, New York Divorce Report:

In order for the non custodial parent to take the dependency deduction, it is essential to file the Form 8332 with the tax return

So, make sure you file the proper forms with your tax return if you are planning to take the deduction. In addition, make sure you discuss this issue with your attorney and have the proper language included in any orders or settlement agreements that each party will execute the necessary forms so you can take the deduction.

What is the difference between mediation and collaborative law?

gdgrifflaw@mac.com (Grant Griffiths) — Thu, 19 Jul 2007 11:02:13 -0700

With all the talk going on right now about collaborative law and mediation, it was great to see my fellow family law blogger, Oklahoma Family Law Blog publish his recent post on the topic. There is a clear difference between the two methods. And this post will help explain the two.

In mediation, there is one 'neutral' who helps the disputing parties try to settle their case. The mediator cannot give either party legal advice, and cannot help either side advocate its position. If one side or the other becomes unreasonable or stubborn, or lacks negotiating skill, or is emotionally distraught, the mediation can become unbalanced, and if the mediator tries to deal with the problem, the mediator is often seen by one side or the other as biased, whether or not that is so. If the mediator does not find a way to deal with the problem, the mediation can break down, or the agreement that results can be unfair. If there are attorneys for the parties at all, they may not be present at the negotiation and their advice may come too late to be helpful.

Collaborative Law was designed to deal more effectively with all these problems, while maintaining the same absolute commitment to settlement as the sole agenda. Each side has quality legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is leveled by the presence of the skilled advocates. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process stays positive and productive.

Source: DivorceNet.com.

Source for Post: Oklahoma Family Law Blog.

What is the difference between mediation and collaborative law?

gdgrifflaw@mac.com (Grant Griffiths) — Thu, 19 Jul 2007 11:01:39 -0700

In mediation, there is one 'neutral' who helps the disputing parties try to settle their case. The mediator cannot give either party legal advice, and cannot help either side advocate its position. If one side or the other becomes unreasonable or stubborn, or lacks negotiating skill, or is emotionally distraught, the mediation can become unbalanced, and if the mediator tries to deal with the problem, the mediator is often seen by one side or the other as biased, whether or not that is so. If the mediator does not find a way to deal with the problem, the mediation can break down, or the agreement that results can be unfair. If there are attorneys for the parties at all, they may not be present at the negotiation and their advice may come too late to be helpful.

Collaborative Law was designed to deal more effectively with all these problems, while maintaining the same absolute commitment to settlement as the sole agenda. Each side has quality legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is leveled by the presence of the skilled advocates. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process stays positive and productive.

Source: DivorceNet.com.

Source for Post: Oklahoma Family Law Blog.

A Win-Win Custody Battle Strategy

gdgrifflaw@mac.com (Grant Griffiths) — Mon, 16 Jul 2007 14:47:52 -0700

Divorce and Family Law in Tarrant County had a great post today concerning a win-win custody battle strategy which I think all PARENTS should consider. While it is not something new or really all that different, my fellow blogger actually puts it in writing for all to consider. Below is the meat of his post and I would strongly suggest all of those involved in a custody battle consider it.

Instead of limiting yourself to only two options, winning it all or losing, there is another, more productive way to approach the custody issue. The approach may require more maturity than some parties can muster, but, for those able to shift gears, think rationally and be patient, the following approach can be rewarding for them and their children. These steps can lead to a better solution for all, especially the children.

1. Think about, discuss and decide what your ultimate goals are for the kids. What outcomes would you like to see? Many people would want some of the following (or similar) goals:

The kids having a great relationship with both parents
The kids having a great relationship with their extended families
Financial security for the children
Having a safe, secure home for the children
Having good schools for the kids
Providing for a college education for the children
Providing sports opportunities for the children
The opportunity for the kids to learn music, art or other interests

Each parent can decide what he or she thinks would be important goals for their children. Broader, underlying goals are more helpful and meaningful. If both parents think of goals in broad terms, they often can agree on them.

2. Look at the big picture. What are the resources to work with:

Financial abilities of the parents
Parental/family member time available
What homes and schools are available and affordable
What the parents’ neighborhoods are like
The existing relationships between parents and children and the roles each parent plays with the children
What community resources are available
What special needs, if any, a child has
What interests the child has

3. Brainstorm options. Think up as many different solutions as you can. Sometimes it is helpful to get help from a parenting expert. Spend some time and try to be non-traditional or unconventional. Don’t limit yourself to ‘standard’ solutions. Open up your thoughts to come up with some crazy ideas because they might just turn into good ideas.

4. Evaluate your options. See if they can help achieve your identified goals. Criticizing and testing your options can lead to the discovery of other ideas and can help you narrow down the choices until you are left with an idea or ideas that work.

Implementation: This process can helpful if just you do it, but it is really better if you can do it with the other parent. Collaborative Law is one way to accomplish that. This is actually a very common approach to problem-solving in Collaborative Law. Even in traditional litigation, you can use this system alone or together with the other parent. If you work on this alone, you can create a better plan to present in court or in negotiations. If both parents work together through this process, there’s an excellent chance they will reach an agreement that will be satisfactory to both parents and to the children.

Please give this a try and let me know how it works for you!

Source for Post: Divorce and Family Law in Tarrant County.

Seven Tips for a Better Divorce

gdgrifflaw@mac.com (Grant Griffiths) — Fri, 06 Jul 2007 07:47:59 -0700

There are some actions anyone can take to improve their chances of having a more favorable outcome and avoid some of the problems that occur during a divorce. Seven of the best tips from Texas family law attorney, Dick Price, are listed below:

Be prepared. If you know ahead of time that you will (or may) be going through a divorce, it really pays off for you to gather documents and information about important issues, such as your finances. You may uncover unknown assets or you may just have proof of the existence and values of assets, which would probably help save quite a bit of money.
Plan for changes and be flexible. Realize that your family will become two separate units and that will stretch your resources. You may have to change your short- and long-range goals. In almost every case, someone virtually 'starts over' and often both parties really struggle. Accept the need to compromise and be open to new ways of doing things.
Be honest with your attorney. He or she can’t do nearly as good a job with faulty information. Virtually everything you tell an attorney is confidential, so don’t hold back.
Prepare to use specialists. Attorneys can be very good helping you with the law, facts and procedure, but they often don’t know as much about specialty areas such as taxation as a CPA or divorce financial planner does. The process can move faster and better if you use (as needed) a:
- Counselor/therapist, if you are sad or mad.
- Financial planner, if you don’t have much experience in finances.
- Business valuation expert for small businesses.
- Child specialist to help find solutions for visitation, child support issues, living arrangements, etc.
Look at the big picture. Don’t get lost in insignificant issues or in keeping score to see who wins the most points. If you start to slip into arguing about tiny issues, make yourself go back up to the broader issues and get your spouse off the small stuff. Focus on the goals, needs and interests that are important to you. It doesn’t matter what your spouse is gaining or claiming to gain or wants to argue about. Leave the small stuff alone and stay true to your essential goals. You will be truly successful if you can achieve your important goals and needs.
Practice 'putting yourself in your spouse’s shoes'. Empathy can really help you in a number of ways. Since 90-95% of divorces settle, negotiations are a major part of any divorce. You can better understand and respond to your spouse’s requests and offers if you understand what important to him or her and what factors will motivate them. Being able to figure out what your spouse is motivated by can help you create settlement options that will be acceptable and even welcome to your spouse.
Reduce conflict. The more you fight, the more it costs. That should be obvious. You can choose to start or continue battles, or you can decide to work for solutions.

Following these tips will improve your chance of success, no matter how you define success. At the least, you should have a divorce with less fighting and more attention to the important issues.

Source:' '7 Tips For a Better Divorce' by Dick Price, published at his Divorce and Family Law in Tarrant County blog.

Source for Post: South Carolina Family Law Blog.

Your Spouse’s “Hidden” Assets - A Checklist

gdgrifflaw@mac.com (Grant Griffiths) — Thu, 28 Jun 2007 22:04:58 -0700

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

Frequent flyer mileage

Security deposits (e.g., utilities, car lease)

Timeshare property

Leased vehicles, cell phone, other items

Stock options

Memberships (e.g., country club)

Bond or deposit for country club

Unused vacation, sick leave

Patents, copyrights, royalties

Income tax refunds

Income tax capital loss carry-forwards

Income tax charitable contribution carry-forwards

Marketable govt licenses (radio licenses, commercial fishing quotas)

Special retirement benefits (‘golden parachutes’)

Retirement - life insurance benefits

Retirement - medical benefits

Retirement - survivor benefits

Hobby or other collections

Contract rights from marital employment (e.g., insurance renewal payments for agent)

Affiliation ‘rewards’ programs (e.g., points or discounts for credit card use)

Entertainment tickets, season ticket options

Business vehicle for personal use

Prepaid rent, leases, subscriptions

Burial plots

Life insurance cash surrender value (or perhaps death benefit if insured is elderly)

Tort, worker’s comp claims

Stock options

Hangar lease (for aircraft)

Hotel or credit card points

Cash

Small business retained earnings

US Savings Bonds, other securities

‘Hidden value’ items - rare items of personal property (e.g., antiques), rare pets, collectibles

Options to purchase property

Unpaid commissions on deals set to close

Referral fees (e.g., for personal injury lawyers)

Security or performance bonds posted

Car insurance prepaid

Taxes prepaid

Source for Post: Georgia Family Law Blog.

Avoiding Parenting Plan Mistakes

gdgrifflaw@mac.com (Grant Griffiths) — Wed, 27 Jun 2007 10:17:51 -0700

Not only avoid mistakes, but make sure your plan is as complete as possible. Cover all the basis. 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 for a heads up on this great information.

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.

The use of a non-specific parenting schedule (the 'liberal and frequent visitation' clause). The phrase 'liberal and frequent visitation' has no defined meaning in a court of law; the phrase means whatever the custodial parent says it means and is subject to change without notice.
No provision for discussion regarding residential moves by the custodial parent. Move-away disputes are among the most hotly-contested post divorce issues brought to family court, and almost always an issue that a well-written parenting plan could help resolve (or prevent).
No section covering access to and/or the sharing of medical and educational records. Although many States now have laws that address these issues, non-custodial parents still frequently encounter difficulty in obtaining records from local school systems and doctors.

No provision for domestic and/or overseas travel or travel
restrictions. This isn't a common source of trouble, but for couples
who travel abroad frequently, who are from different countries or who
have different citizenship statuses, this may be an important item to
clarify.

Not including guidelines for future medical care, such as
orthodontia or other medical/surgical treatments, as well as how the
costs for such care will be split.

No provision for how the potential impact of loss of employment or disability will be handled (for either parent).

No provision on methods to handle future disputes and the
expenses related to the disputes. Mediation is often called for as a
first step. Mediation acts as a 'buffer zone' for disputes in family
court, 'screening' some out by resolving them before the court system
is actually engaged.

No requirement for a periodic review of child support amount
(upward or downward). Although some States do this automatically now,
it is also a good idea to have this addressed in the parenting plan.

Not including a provision for changing parenting time
schedules as the child gets older. This can be a difficult provision to
include, because no one knows what direction events, including
children's choices and desires, will go. Nonetheless, there should be
guidelines for managing potential schedule changes.

No provision for or discussion of future educational choices,
including college, and no clear determination of how the costs will be
split.

The first point is far and away the biggest problem
for both parents and courts. At the time of the divorce, the parents
often state that they 'don't need a schedule' - they can work the
schedule out and both parents are free to see the children 'anytime
they want'. This, upon reflection, is completely ridiculous; if the
parents could agree this well on everything, chances are they wouldn't
be getting divorced in the first place. This spirit of cooperation
lasts until the first argument, rarely if ever to return. Another
problem with this arrangement is that it doesn't give the children much
in the way of consistency or routine. Most children need the
reassurance of knowing where, when, and with whom they are going to be.

Sometimes, the parenting schedule breaks down completely when
one of the parties changes jobs, starts dating or remarries. You can
minimize some of the resulting problems by creating the original
schedule with clear but flexible guidelines. For example, don't lock
either party into rigid commitments in the parenting plan; make sure
it allows for variation as needed. An important thing to keep in mind
is that once you have an initial schedule, you can always 'fine-tune'
it later as circumstances change.

In short, NEVER agree to a parenting plan that
doesn't spell out the visitation schedule in thorough detail (days,
times, alternate plans, provisions for missed time, etc).

A question often heard in the discussion of parenting plans is 'How long
should a parenting plan be?' The answer is 'Long enough to cover all
(yes, all) the issues you're likely to encounter until your children
are grown.' Realistically, in sheer page count, this often works out to
a parenting plan that is 20 to 30 pages in length, possibly more
depending on circumstances. A 5-page parenting plan simply cannot cover
everything that you're going to run across in the next 5 or 10 years.

Never commit to provisions that you cannot live up to just to get the
divorce process over with. Some parents agree to pay their share of the
cost of private school, without factoring the impact of things like
child support, childcare, and second families on their budget. Also be
aware of scheduling conflicts. For example, don't agree to see the
children Tuesday evenings if you know that you have to work late most
Tuesdays. Keep in mind that some aspect(s) of your life and schedule
will change with time, so build some flexibility into the parenting
plan when it comes to the visitation agreement.

Source: SPARC.

Source for Post: Oklahoma Family Law Blog.

Divorce and Taxes

gdgrifflaw@mac.com (Grant Griffiths) — Sun, 24 Jun 2007 11:07:05 -0700

Today's earlier post was all about marriage and taxes. Unfortunately, far too many marriages end in divorce and when this happens, tax issues are relevant once again.

The best advice is to understand the divorce decree and its terms, especially key components that could complicate a tax return, such as:

Alimony is taxable and deductible. The person who provides alimony can claim the payments as a deduction, while the person who receives it can avoid a large end-of-year tax bill by paying estimated taxes during the year. Unlike alimony, child support is not deductible or taxable.' '' '

Who claims children? The parent who has custody of a child usually can claim the child as a dependent. However, with the custodial parent’s consent, the parent without custody can claim the child. (The custodial parent may still be able to claim certain tax benefits related to the child, including head of household filing status, the Earned Income Tax Credit, and the child-care credit.)

Who is a head of household? There are several factors for determining the head of a household. A few include being considered ‘unmarried’ on the last day of the year, having children or other dependents who live with you, and paying more than half the cost of providing a home for dependents. Taxpayers should consult with a tax professional to determine if they qualify for head of household status.

Divorce, annulment and legal separation are considered the same by the IRS for tax purposes. The way a tax return is affected by the situation depends on how the decree is worded, and in cases where state and federal law differ, the IRS will side with the federal government.

Source: BusinessWire.com.

Source for Post: Oklahoma Family Law Blog.

Divorce Preparation: Step 13 - Be Good

gdgrifflaw@mac.com (Grant Griffiths) — Sun, 24 Jun 2007 11:04:43 -0700

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 for Post: Alabama Family Law Blog.

Collaborative Law: Divorce without War

gdgrifflaw@mac.com (Grant Griffiths) — Sun, 24 Jun 2007 11:00:51 -0700

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 'trouble shoot 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.

One of the biggest differences in the Collaborative law process is that it recognizes that emotional issues exist that cannot be addressed by the legal system. How often have you heard stories of divorcing parties spending thousands of dollars in legal fees to argue about pets or furniture that has limited monetary value. Generally speaking, the parties in such cases are not arguing about dogs, cats or furniture. Instead, they are reacting to psychological pains that they experiencing These emotional issues that are ignored in the Court process. By contrast, the collaborative law process specifically addresses these issues by bringing them to the forefront and using professionals as part of team approach to find solutions.

A team of professionals is assembled to help the parties understand and resolve their disputes i many different contexts. The disputes maybe legal disputes or emotional and include: mental health counselors/ coaches for each party, neutral financial advisors, accountants, parenting specialists, child specialists, vocational experts, and appraisers, if needed.

A child specialist may play a very important role in the collaborative process. So often, children become the unintended victims in divorce proceedings. They internalize the conflict and often blame themselves for the break up of their family. The child specialist works with children of divorcing parents. It is their job to assist the children in understanding that the parental dispute is not their fault and to teach them how to cope and communicate with their parents. In this way, the children have a voice in the proceedings and become part of the team process.

Financial professionals may be used to help define values of assets. In the litigious court process often redundant appraisals are performed by one expert for each party. The end result is a duplication of services at greater cost and with increased distrust. this often results in an expensive war of experts at trial where each expert testifies regarding their different valuations. In the collaborative process, the parties choose a neutral appraiser that is not associated with either party. With a trust relationship established, the parties agree on some division of cost and agree to be bound by the appraised value.

Most Cases Settle. The Statistics state that more than 90% of all divorce cases are resolved without a trial. In the Court system that resolution often comes more than a year after the divorce was commenced and after many hurtful statements have been made part of the public record in the form of affidavits and motions. Doesn't it make more sense to seek that resolution before the bridges are burned and the missiles are launched in a courtroom? Certainly, collaborative law will not work in every case. After all, it takes two to tango and it takes two willing participants to effectively use the collaborative law process. However, in the cases where collaborative law has been used, even if reluctantly, there have been more rapid settlements at a fraction of the normal cost associated with divorce.

SOURCE: DivorceSource

How to Keep Your Child Out of the Middle

gdgrifflaw@mac.com (Grant Griffiths) — Tue, 19 Jun 2007 15:01:43 -0700

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!"

Source for Post: Divorce and Family Law in Tarrant County.

Must Read Books For Divorced Dads

gdgrifflaw@mac.com (Grant Griffiths) — Sat, 16 Jun 2007 06:56:23 -0700

With Father’s Day being tomorrow, the Oklahoma Family Law Blog had a great post today providing the following list of books for divorced dads.

Following are four recommended books for fathers dealing with the difficult issues of divorce. Whether you're in the initial stages of divorce, dealing with the immediate aftermath or well past one, these books will provide down-to-earth ideas and strategies you can use to remain an integral of your children's lives.

Always Dad: Being a Great Father During & After Divorce by Paul Mandelstein, a divorced father of three and founder of the Father Resource Network.

More and more, divorced fathers are finding out that, rather than being one half of a 'broken' home, they can continue to play a crucial role in their children's lives. You can, too. Turn to Always Dad and discover how to work with your ex to create a fulfilling extended family, one that can help ensure that your kids grow up in an enriching, loving environment.

Live-Away Dads: Staying a Part of Your Children's Lives When They Aren't a Part of Your Home by William C. Klatte, a psychotherapist, social worker, and divorced father of two grown daughters who lived with their mother. Klatte begins by advising fathers to take care of themselves, including dealing with anger and depression, good advice for anyone coping with a major life change. He stresses the importance of staying involved with your children despite personal difficulties or the challenges of working with their mother. Later sections deal with cooperation, using the court system, developing parenting skills, and finding support groups.

The Divorced Dad's Survival Book: How to Stay Connected With Your Kids by David Knox, a divorced father of two. With hands-on 'get you through it' plans to help fathers remain positive, involved parents, and personal stories from a variety of home fronts, this invaluable guide illustrates how men can best develop their fathering skills, stay involved with their children, and honestly evaluate their own capabilities as fathers and ex-spouses.

Wednesday Evenings and Every Other Weekend: From Divorced Dad to Competent Co-Parent. A Guide for the Non-Custodial Father by F. Daniel McClure and Jerry B. Saffer. A reader writes 'This book is written in plain english and is brutally honest. You WILL learn how to cope with the situation you are in and how to get so much more from your relationship with your children.'

Source for Post: Oklahoma Family Law Blog.

Quitclaim deed and divorce

gdgrifflaw@mac.com (Grant Griffiths) — Wed, 13 Jun 2007 08:46:12 -0700

The California Divorce and Family Law blog brings up an important point today. If you have real estate involved in your divorce, in order to make sure you have a clear title to the property and if one spouse keeps the property. Get a quitclaim deed signed as part of the divorce proceedings. And make sure it is filed with your county’s Register of Deeds.