California Divorce and Family Law

In divorce, put focus on well-being of the kids

Parental visitation important to building child's support system

One in four children will experience the divorce or separation of their parents, and many will face serious adjustments. New homes and/or schools, and added financial pressures are all significant factors, but critical to a child's ability to cope is the opportunity to have regular access to both parents.

Communication is frequently an issue, often resulting in wrong assumptions by one or both parents regarding their children. Frustrated parents may refuse their children access to the other parent, and/or the non-custodial parent may be inconsistent in contacts with his or her children.

Unless parental rights are revoked, denying a parent contact with his or her children is illegal — even if he or she fails to pay child support. Domestic violence or drug issues sometimes are involved. As long as a child's safety is not threatened, he or she still can have contact with a parent, even if third-party assistance is necessary.

Sometimes children become "pawns" in parental battles. As parents seek to win, their children frequently lose. By supporting their child's contact with the other parent, adults validate the importance of that relationship, and minimize the focus on their own hurts or frustrations.

Parents can't control each other, and benefit most from focusing on what they can control: their own attitudes and behaviors. When adults — even when they feel disrespected — resist the urge to degrade the other parent in front of children, they demonstrate integrity.

There may be frustration with the other parent's lack of follow-through or availability, and the pain that this causes for children. While making disparaging comments should be avoided, adults should be careful not to make excuses for parental irresponsibility.

Non-custodial parents must persist in maintaining contact with their children, even if the other parent makes it difficult or a child seems to push them away. It may feel discouraging now, but perseverance generally pays off with deeper parent-child relationships later.

Parents should respect/honor the visitation schedule — both in showing up, and by being on time to pick up and drop off children. They should avoid making promises unless they can deliver on them.

Children need structure and love. Parents should make time with them as "normal" as possible, showing that they are more than simply a "Disneyland Dad" / "Magic Kingdom Mom," who constantly entertains. Kids feel safer and grow up more confident with a healthy balance between clear expectations and unconditional support.

More in the Statesmanjournal.com.

"After my divorce, I lost touch with my daughters. Now that they're older, I'm desperate to reconnect with them"

Dear Lesley,

Do you think it is possible to reconnect with two daughters in their early twenties, from whom I have been estranged for at least five years? The trouble is that I have tried to put the past behind me emotionally, and do not want to open myself up to be hurt again.

I'll try to summarise events. I divorced their mother when the girls were 12 and 14 because she was having an affair with a colleague and our home life was a mess. The divorce itself was uncontested. I obtained joint custody, bought a home and attempted to rebuild a relationship with my daughters. Naively, I believed their mother would support me in this, but instead she constantly disparaged me to my daughters and to others. Later I came to learn that this phenomenon is called Parental Alienation Syndrome.

I attempted family counselling but my efforts were undermined, both by my ex and by my daughters, who were getting out of hand. When they left school, they both moved away to go to college and carried on seeing their mother, but in all this time I have seen them only once. Over the years, I continued to send them birthday and Christmas cards and occasional emails. However, much as I wanted a good relationship with my daughters, I distanced myself from them emotionally and financially. I was not willing to accept a one-sided relationship, nor would I allow myself to be disrespected or used.

Recently, the door between my daughters and me has been opened slightly. But I take the view that, much as I would like a relationship with them, I will not attend any function at which their mother is present. I know this sounds selfish and immature but I cannot describe the emotional damage this woman has caused. My daughters have interpreted this attitude as a direct rejection of them. Can you see any opportunity for me to have a meaningful relationship with my daughters without changing my position?

Ian

Dear Ian,

I have a picture in my head of you walking backwards from your daughters, draped in silver crosses and garlic to ward them off. They are not vampires. They are young women. It is very clear to me that you long for a good relationship with them and I am going to encourage you in that. A short answer to your final question is that I do see an opportunity for a meaningful relationship with your daughters but I also think you have to consider changing your position. You can drop some of the defensive control, without opening yourself up to be badly hurt again.

It may surprise you to learn that I don't believe in happy endings. I am on the side of Solon the Lawgiver, who famously said: "Call no man happy until he is dead". He wasn't being gloomy, simply acknowledging the fact that every human life is full of twists, turns and surprises. I am not going to encourage you to believe that your family past can be completely forgotten and that you can walk off into the sunset with a loving daughter on each arm. Life is much more complex than that.

However, I do believe in redemption. I believe that human beings have the ability to take a step back, adjust their behaviour and get different results. I believe in the power of growing adults to mature and gain new understanding. I believe that if you lower your expectations, lighten up and take the long view, you can protect yourself from a lot of pain. I think you are right to shield yourself as far as possible from the caprices of your wife, but your daughters are still a work-in-progress, and so is your relationship with them.

There is so much to gain here. Last week in this column, I published letters from step-parents and stepchildren who testified to the reconciliations that come with maturity. When your daughters find partners and have children of their own, they will tap into mature emotions and may become more forgiving themselves. They will certainly welcome the contribution of a loving and tolerant grandfather. Your question is, how do you get to there from here?

You say that the door between yourself and your daughters "has been opened slightly." I'm intrigued by the passive voice. Who opened it? Was it you? Was it them? I have a picture of a half-open door with people standing warily on either side of it, looking but not daring to step. They've been hurt, too. When you say you won't be in the same room as their mother, it looks to them as if you are putting your hurt feelings above theirs.

I don't know how you have been approaching the question of a meeting, but I think it might be easier for everyone, and carry a lot less emotional weight, if you were to start with something pretty small – a lunch, say. You can't walk slap-bang into a meaningful relationship with them after so long a gap, but you could manage an hour together –­ an hour in which you listen, without preconceptions, to what is going on in their lives. An hour in which you drop any attempt to be in control. An hour in which you take a deep breath and acknowledge that you don't really know the girls (or girl – you could do it one at a time) very well, and you need to observe the good in them. You are the grown-up. You can afford to be patient.

If they want to bring their mother along, keep your cool and refuse gently. Say something along the lines of, "Sweetheart, I can see why you'd want to get your mother and me together, but we have a difficult history. Maybe one day we'll be friends but, just for now, I'd like to catch up with you on your own and get to know you a bit better. Let's take things slowly, one step at a time."

What do you really know about them? Not a lot if your relationship rests on birthday cards and the odd email, and your primary emotion is fear of being used and exploited. I can see that they were difficult teenagers, but they are young adults now. I repeat that you will build a much better relationship with them if you meet without preconceptions.

And what is wrong with helping them out if they really need help? Nobody wants to be exploited, but if, after an hour in their company, you pick up on the fact that they need help furnishing an apartment or paying for education, then offer to help if you can. It feels good. It's what fathers do – and it reinforces what is good in them.

An easier relationship with your daughters won't happen overnight. But you have the rest of your lives and, on a timescale like that, I do believe miracles can happen. Who knows, a few years down the line you might even be able, for your daughters' sake, to be in the same room as your ex-wife for the length of a wedding or a christening. Once you have healed some of your wounds, she won't be able to hurt you as she used to

By Lesley Garner at the Telgraph.

Kids Keeping the Peace When Parents Divorce

Today's New York Daily News has a headline that screams Madge's Lourdes Works a Miracle. No, Madonna's teenage daughter isn't healing the sick or parting the seas. According to the paper, what Lourdes has done is even more miraculous -- she's managed to make peace between divorcing duo Madonna and Guy Ritchie.

A source tells the paper that 14-year-old Lourdes came the couple begging, "Please don't be mean to each other." The teen told her mom and Guy that she wanted everything to be as friendly as possible. According to the source, Guy and Madonna have buried the hatchet and are making every effort to make things as civil as possible for the sake of the kids.

The fact that teenage Lourdes is managing to do what even divorce lawyers can't is a definite sign of the times, according to psychologist Cooper Lawrence. Cooper, author of "The Cult of Celebrity" tells momlogic, "It's different now than when we were kids. The way they parented us is different from the way parents raise kids today. Today, kids are involved in every family decision from what car are we going to buy to what kind of dog are we going to get. You can't have it both ways -- you can't expect the child to be involved in family decisions and then all of a sudden make a life changing decision and expect the child to have no say."

Cooper also adds that watching Lourdes take an active role in her parents' divorce sends a powerful message to other children of divorce. "Lourdes is a little girl who grew up with the paparazzi as part of her public life. She has a public image and it matters what she says and does. When she says be nice to one another it sends a different message, it's influential to other kids."

But even so, Cooper cautions about having children act as peace keepers in their parents divorce. She asks parents to be careful about their behavior and warns that children should never be put in a situation where they feel they need to step in to keep the peace. "The children have nothing to do with the divorce. When you put the kid in the middle you're screwing up your kid. It's cruel. Children learn from your behavior and how you treat people."

As a rule, Cooper tells momlogic that parents need to keep the arguments to themselves; no child should have to hear you badmouth, fight or yell at each other. "Some kids take this stuff personally. You don't want the kids to somehow think that the divorce is their fault -- and even if you say that it's not, if you continually bad mouth your ex to the child, you're sending the message that somehow the child is involved."

And above all, remember, although you want to be your child's friend, you are first and foremost a parent. Don't use this as an opportunity to talk about what went wrong in your relationship, that's not a conversation any parents should have with a child. Cooper explains, "Don't talk to the kids about the divorce except for conversations about their own feelings. You have to reassure them that it's going to be ok. Mommy and daddy might not love each other any more but we both love you."

From MomLogic.com.

Can Economy Also be Blamed for More Divorces?

Do tough economic times put extra strain on marriage? The experts say 'yes.'

While therapists and counselors say business is up thanks to our sagging economy, some divorce attornies say their phones have also been ringing with a lot of questions.

So, how are things going here in Arkansas? The Natural State already has one of the highest divorce rates in the country, only Nevada is higher on the list.

A North Little Rock attorney we spoke with says while things are usually quiet in his office the month of December, Arkansans are bucking the trend this year. Boasting one of the highest marriage rates in the country, people in Arkansas are obviously eager to "have and to hold for better or for worse."

But unfortunately, some Arkansans aren't sticking to the "as long as we both shall live" part of the deal.

The divorce rate in the United States is 3.6 out of every thousand people. But in Arkansas, that number jumps to 6.1.

Attorney Sam Hilburn says divorce proceedings are never easy, and he's been busier than usual in recent past.

"Generally during the month of December, because of Christmas, people are more reluctant to initiate or begin a divorce, and this particular year I haven't seen much fall off from that or any hesitation to go ahead and file for divorce,” Hilburn says.

Hilburn says the sluggish economy and the troubles that come along with it could be to blame for marital discord.

Obviously, money causes all kinds of stress, but with the housing market in the tank and people losing jobs, marriage could be more fragile than usual.

From ArkansasMatters.com.

Divorce the house before the spouse

Splitting up after years of marriage? Divorce your house, then your spouse.

"If you're still linked through the house, than you're not really divorced," says Kelly Lise Murray, a Harvard-trained lawyer and Nashville real estate agent.

That bit of advice goes against the almost universal desire to hang on to the family home, especially by the spouse who ends up with custody of the children. Indeed, the courts almost always give special consideration to the parent who gets the kids: Keep the kids, keep the house.

But Murray, who describes herself as a "divorce real estate advocate," says people tend to underestimate the "ghosts" that go along with keeping the house. The place is often so filled with memories, both good and bad, she says, that "it's not the family home anymore. It's a huge lodestone."

People also tend to underestimate the true cost of homeownership, so much so, according to Murray, that the remaining spouse's ability to afford the place is often drastically overstated.

Even in a friendly divorce, if there really is such a thing, certain key expenses are either forgotten or overlooked. Lawn care, homeowners' association fees, even the basic costs of maintenance and upkeep are among the costs that are rarely considered, either by the courts or the spouses.

Then there's the even bigger issue of hidden debt. Ideally there will have been no secrets between the husband and wife. But money is a major cause of divorce, and in many cases, one spouse has no clue that the other one has rung up big bills that have become undisclosed liens against the property.

"I see it a lot," says Murray, whose goal is to reform divorce law as it pertains to real estate, one state at a time. "It's frequent. And what you don't know during your divorce can hurt you long after the marriage is over."

Fortunately, a major mistake is preventable—but only during your divorce, not afterwards. So Murray's mantra is "more earlier," as in more due diligence and more information from more financial and real estate experts, all much earlier in the divorce process.

In most divorces, the spouses determine what the house is worth, and the one who gives up the place is usually given a credit of some sort for his or her half of the equity the couple has in the place. Typically, the parties split the difference based on an appraisal. So if an appraiser says the house is worth, say, $300,000 and they owe $200,000, the "out spouse"—usually the man—gives up his claim to his $50,000 equity stake for, perhaps, $50,000 in stocks and bonds.

But along with that appraisal, Murray says the "house spouse" should obtain an independent, third-party inspection of the property to determine whether there are any latent defects that could impact its value.

"You wouldn't buy a house without an inspection, so why would you accept one in a divorce without an inspection?" Murray asks. "What if something's wrong or about to go wrong? You can use the inspector's report as a punch list, and either use the marital assets to make the necessary repairs or reduce the value of the property accordingly."

Make sure to ask your inspector to estimate the remaining life of the property's major appliances and systems. If something is on its last legs, you'll want to know in advance so you can adjust for that as well. And while you're at it, order a termite inspection—the damage those little buggers cause is often significant.

The real estate divorce specialist, whose book, "Divorce This House: When Keeping Your House Equals Losing Your Divorce" ($19.95, divorceyourhousetoo.com) was released in December, also wants the spouses to have two title searches, one soon after the divorce process begins and the other shortly before it's finalized.

The first will uncover any unknown liens, encumbrances or clouds on the title that may have been placed by one spouse without the other's knowledge. Often, there is—a second mortgage, perhaps, or maybe a gambling debt that has become a lien on the property. The second will uncover anything placed on the title during the proceedings, such as a lien filed by the out spouse's attorney to cover his fees.

Speaking of one spouse not being totally honest and aboveboard with the other, it might not hurt, either, to request a CLUE report from the company that insures your home or directly from ChoiceTrust.com.

The more people follow these guidelines, Murray believes, the more they will end up selling the once-family home and moving on.

From the Chicago Tribune.

US man wants value of kidney in divorce settlement

New York doctor donated kidney to wife in 2001 and is now demanding an estimated $1.5m, attorney says

When his wife needed a kidney transplant, Dr Richard Batista gave her one of his, attorney Dominic Barbara said.

Now that Dawnell Batista has filed for a divorce, Richard Batista wants his kidney back as part of his settlement demand. Or, Barbara said today, his client wants the value of that kidney: An estimated $1.5m (£993,000).

The case is being heard in Supreme Court in Mineola, New York.

Barbara said his client, a 49-year-old doctor from Ronkonkoma who graduated from Cornell University Medical School in 1995, married Dawnell Batista on August 31 1990. The couple had three children, now ages 14, 11 and 8.

After she had two failed transplants, Barbara said, his client donated a kidney to his wife in an operation that took place at the University of Minnesota Medical Centre on June 18 2001. Richard Batista said his marriage at the time was on the rocks because of the strain of his wife's medical issues.

"My first priority was to save her life," Batista said at a news conference in Garden City. "The second bonus was to turn the marriage around."

Dawnell Batista, 44, of Massapequa, filed for divorce in July 2005, Barbara said.

Neither she nor her attorney, Douglas Rothkopf, of Garden City, could immediately be reached for comment. A receptionist at Rothkopf's office said he was in court.

Medical ethicists agreed that the case is a non-starter. Asked how likely it would be for the doctor to either get his kidney back or get money for it, Arthur Caplan at the University of Pennsylvania's Centre for Bioethics, put it as "somewhere between impossible and completely impossible".

First and foremost, said Robert Veatch, a medical ethicist at Georgetown University's Kennedy Institute of Ethics, "it's illegal for an organ to be exchanged for anything of value". Organs in the US may not be bought or sold. Donating an organ is a gift and legally "when you give something, you can't get it back", he said.

"It's her kidney now and ... taking the kidney out would mean she would have to go on dialysis or it would kill her," Veatch said.

Nor can you assign a subsequent monetary value to an organ, Caplan said. "There's nothing later [you can get] in terms of compensation if you regret your gift," he said.

What's more, no reputable surgeon would perform such a transplant and no court could compel a person to undergo an operation, he said.

From the Guardian.

Custody of homes becoming main debate in divorce cases

Breaking up is hard to do and it can be even harder in a bad economy.

Lawyers say divorce rates are dropping because people simply can't afford to part ways right now.

Contact 13's Tricia Kean explains a new twist in a classic custody battle.

It was love at first sight when Marybeth Perrault found her dream home.

"I thought I would retire here and knew that this was a house that we could raise the family in," said Marybeth.

That was three years ago and now Marybeth and her husband have split and her dream home has become a nightmare.

"Now I can't stand it. The house is heavily mortgaged," said Marybeth.

Spouses used to fight to keep the house, often their biggest asset.

Now, lawyers say it can be the hot potato that nobody wants.

Attorney Gary Nickelson is President of the American Academy of Matrimonial Lawyers.

He says it's the newest divorce dilemma.

"Everybody wants the asset that's worth something. Nobody wants the asset that's not worth anything or has debt attached to it," said Gary.

Neither Marybeth nor her husband could afford the house on their own, so she's living there.

They put it on the market, but so far there are no takers.

Divorce attorney Vikkie Ziegler says the current climate is forcing many couples to get creative.

"I'll allow one party to remain in the home, not pull the equity out, try to come up with a financial package, and then perhaps when a child turns 18 or graduates high school, they'll sell it because the market perhaps would be better," said Vikkie.

Nickelson says he's even hearing stories of couples staying together after they're divorced.

"'Well, we can't get rid of the house, so I tell you what. We'll just live in the house until times are better. You can take the upstairs and I'll take the downstairs," explained Gary.

Here is the Contact 13 bottom line if you are thinking about a divorce and fear your house will be a big issue, experts say it's more important than ever to plan things out.

Talk to a mortgage broker, a financial advisor and a realtor.

Before selling take into account whether you or your ex can afford the mortgage on your own and find out if you would qualify to refinance and reduce the monthly payments.

From Action News Las Vegas.

Money problems lead to busy week for divorce lawyers

The "double whammy" of Christmas and the credit crunch will make this week one of the busiest ever for divorce lawyers, experts said today.

One in four people say their relationship is under strain because of money problems, according to a new survey.

Ironically, 11% of those polled say they are being forced to stay in a failing relationship because the financial crisis means they cannot afford to leave.

Researchers for online advice centre InsideDivorce.com found almost two million couples in Britain were suffering marital difficulties and 1.3 million people were considering splitting up.

The traditional New Year rush to end marriages after the stress of Christmas means divorce lawyers brand today D-Day, or Divorce Day, kick-starting their busiest week of the year.

And with 17% of divorced men blaming financial problems for the end of their marriage, the credit crunch is putting extra pressure on relationships in trouble.

Leading divorce lawyer James Stewart from Manches LLP said: "A stressful Christmas is already often the final straw for marriages in trouble.

"The double whammy of Christmas and the credit crunch will make the first full week of January one of the busiest ever."

Relate, the UK's largest provider of relationship support, said it had a 59% surge in the number of calls to its centres over the festive period.

TakeLegalAdvice.com, a website which matches consumers with lawyers, also saw enquiries about relationship difficulties soar over Christmas, up a third compared to the same period last year.

"Christmas can be a nightmare for couples who are already experiencing marital problems," said Derek Bedlow, the site's managing editor.

"Many think about divorce but the added pressures brought about by the downturn may be the straw that breaks the camel's back."

Yet divorce creates its own financial problems, with one in three divorcees falling off the property ladder or having to downsize as a result.

Two in five reported increased levels of happiness following their split - though just 29% of men said they were happier, compared with 49% of women.

The survey's revelations about British relationships included the finding that 17% of marriages are entirely sexless - a potential trigger of infidelity, cited by two in five (38%) people as key factor for divorce.

The other common reasons for splits were abuse (34%) and boredom, cited by almost one in three (29%) people.

The survey also revealed that prenuptial agreements are still unusual, used by just 2% of people who were divorced or married.

Nearly a third (28%) of those who had no agreement said in hindsight they regretted the decision not to arrange finances before marriage.

The researchers surveyed 700 married, divorced, separated and cohabiting adults across the UK.

From the Belfast Telegraph.

Breaking Up Is Harder to Do After Housing Fall

When Marci Needle and her husband began to contemplate divorce in June, they thought they had enough money to go their separate ways. They owned a million-dollar home near Atlanta and another in Jacksonville, Fla., as well as investment properties.

Now the market for both houses has crashed, and the couple are left arguing about whether the homes are worth what they owe on them, and whether there are any assets left to divide, Ms. Needle said.

“We’re really trying very hard to be amicable, but it puts a strain on us,” said Ms. Needle, the friction audible in her voice. “I want him to buy me out. It’s in everybody’s interest to settle quickly. That would be my only income. It’s been incredibly stressful.”

Chalk up another victim for the crashing real estate market: the easy divorce.

With nearly one in six homes worth less than the mortgage owed on it, according to Moody’s, divorce lawyers and financial advisers around the country say the logistics of divorce have been turned around. “We used to fight about who gets to keep the house,” said Gary Nickelson, president of the American Academy of Matrimonial Lawyers. “Now we fight about who gets stuck with the dead cow.”

As a result, divorce has become more complicated and often more expensive, with lower prospects for money on the other side. Some divorce lawyers say that business has slowed or that clients are deciding to stay together because there are no assets left to help them start over.

“There’s an old joke,” said Randall M. Kessler, Ms. Needle’s lawyer. “Why is a divorce so expensive? Because it’s worth it. Now it better really be worth it.”

In a normal economy, couples typically build equity in their homes, then divide that equity in a divorce, either after selling the house or with one partner buying out the other’s share. But after the recent boom-and-bust cycle, more couples own houses that neither spouse can afford to maintain, and that they cannot sell for what they owe. For couples already under stress, the family home has become a toxic asset.

“It’s much harder to move on with their lives,” said Alton L. Abramowitz, a partner in the New York firm Mayerson Stutman Abramowitz Royer.

Mr. Abramowitz said he was in the middle of several cases where the value of the real estate could not be determined. “All of a sudden,” he said, “prices are all over the place, people aren’t closing, and it becomes virtually impossible to judge how far the market has fallen, because nothing is selling.”

For John and Laurel Goerke, in Santa Barbara, Calif., the housing market crashed in the middle of what Mr. Goerke said had been an orderly legal proceeding. At the height of the market, Mr. Goerke said, they had their house appraised at $2.3 million, which would have given them about $1 million to divide after paying off the mortgage. But by the time they sold last year, the value had fallen by $600,000, cutting their equity by more than half.

“That changed everything,” said Mr. Goerke, who is now nearly two years into the divorce process, with legal and other fees of several hundred thousand dollars. “The prospect of us both being able to buy modest homes was eliminated. The money’s not there.”

Now, with both spouses living in rental properties, their lawyers still cannot agree on what their remaining assets are worth. Their wealth is ticking away at $350 an hour, times two.

“It’s got to end,” Mr. Goerke said, “because at some point there’s nothing left to argue about.”

For other couples it does not have to end. Lisa Decker, a certified divorce financial analyst in Atlanta, said she was seeing couples who were determined to stay together even after divorce because they could not sell their home, a phenomenon rarely seen before outside Manhattan.

“We’re finding the husband on one floor, the wife on the other,” Ms. Decker said. “Now one is coming home with a new boyfriend or girlfriend, and it’s creating a layer to relationships that we haven’t seen before. Unfortunately, we’re seeing ‘The War of the Roses’ for real, not just in a Hollywood movie.”

Read the entire article at the New York Times.