Family Law Advisor®
The Divorce, Alimony, and Custody Reporter
Volume 7, Issue 2
October 2003
Predicting and Preventing Divorce
Researchers can predict divorce based on certain behaviors, according to an article in the August 6, 2002 edition of the Wall Street Journal. Your marriage is in trouble if you roll your eyes when your spouse talks. Couples who maintain traditional gender roles are least likely to divorce, although the arrival of the first child adds enormous stress. Subsequent children are less likely to break up a marriage.
If divorce is predictable, is it preventable? Some psychotherapists are trying to get spouses to accept one another "as is." They tell us to emphasize positive attributes and stop being contemptuous, critical, defensive and stubborn. See Professor John Gottman's research on divorce predictions at www.gottman.com.
Who Gets the Dog?
You and your spouse are splitting up. You have to divide assets, work out child custody and visitation, and how to pay bills. You may even need to work out a plan for sharing time with the pets, but what do you do if you cannot agree? We love and pamper our pets, but the law says pets are property. Many judges are not interested in crafting pet visitation schedules. So, good luck to the pet lovers among us.
Broken Hearts, Broken Engagement: Who Gets the Ring?
Engagement rings may be tokens of love, but when love ends, who gets the ring? The leading case in Massachusetts is De Cicco v. Barker, decided by the Supreme Judicial Court in 1959. Mr. De Cicco met Ms. Barker in 1952 while he was still married. Sometime thereafter his wife became ill and was dying in February 1954. The following month Mr. De Cicco asked Ms. Barker to marry him, and gave her six rings, including a six carat diamond engagement ring.
In April 1954, Mr. De Cicco's wife died. Ms. Barker then called off the engagement, refusing to return the rings. Mr. De Cicco brought suit against her. The court decided that he was entitled to the six carat diamond engagement ring, because through no fault of his own, the wedding was called off. The court allowed Ms. Barker to keep the other three rings because they were not given on the implied condition that the parties would marry when and if Mr. De Cicco's wife died.
Minimizing Legal Fees: Knowing Local Custom and Practice
Divorce lawyers are fond of telling clients that if they insist on endless court battles, the clients end up paying for the lawyers' yachts and summer homes. If you keep the fighting to a minimum, you reign in your legal fees and costs. Knowing when "enough is enough" is the secret to minimizing fees and costs. The following discussion offers some help in knowing what "enough" is.
Child Support. Child support is determined under state guidelines. Each state has its own version, and in California, each county has its own variation. If you have children, become familiar with your state or county's version of the child support guidelines and learn how it affects your particular case. Ask your lawyer if you case is an exception to the rule, and if so, what the chances are of winning. If you hold out for an improbable result, you will certainly end up with a large legal bill.
Alimony. Alimony may or may not be established under state guidelines. Some judges use their own guidelines and if you want to know what your judge is likely to do, ask your lawyer.
Asset Division. Each state has its own rules on dividing assets. For example, some states exclude inherited property from a division between divorcing spouses. Other states, like Massachusetts, give courts enormous discretion in deciding what to do with inherited property. You need to know what judges in your state are likely to do before going to court. Also learn the difference between "community property" states and equitable distribution" states. "Community property" will be divided equally between spouses. "Equitable distribution" means the court must divide property fairly, not necessarily equally.
Visitation. Some states have visitation guidelines. If you live in a state that established visitation guidelines, find out what they are. While some states do not have formal guidelines, local custom and practice will usually determine what will happen.
Custody. While each case is different, courts are increasingly willing to listen to experts in child and adolescent psychology. Those experts tell us young children need frequent, short stays with noncustodial parents. Older children tolerate fewer, longer visits, while adolescents sometimes prefer to live with one parent and only occasionally visit the other parent, in order to keep up with their friends and school mates. Courts do not cede their authority to decide custody cases to anyone, but they will take into consideration what an adolescent wants.
Most judges do not like to see children in the courtrooms, and will not speak with the children. They will appoint a guardian ad litem, or sometimes an attorney for the children. The guardian ad litem usually interviews the parents and children, and would speak for the children in the courtroom.
Medical Insurance. Medical insurance is expensive, but courts want to ensure that both spouses and the children are covered. If you have insurance as a benefit of employment in Massachusetts, for example, the court will insist that you make coverage available to your former spouse and children. The cost of coverage may be shared by the spouses.
Due Diligence. Visit your local courthouse to observe a few sessions in the courtroom. You should be able to get a sense of what judges like and dislike.
Records. In preparing your case, it is also helpful to keep good records. That includes assembling tax records and other financial documents that tell the financial story of your marriage. If you are not a do-it-yourself type, your lawyer will bill you for the document assembly.
Listen to your lawyer. Some of us like to pay for advice and then disregard it, but that is an expensive exercise.
If your case goes to trial despite your best efforts to settle, then follow these rules to keep costs to a minimum.
- Try to agree on what your marital assets are and what they are worth. If you believe the marital home is worth $400,000 and your spouse argues it is worth $425,000, consider splitting the difference.
- Avoid disputes over visitation by the hour; in other words, some parents are upset if one parent has an "extra hour." In the long run, it will not matter if your spouse spends extra time over the holidays with the children. The best gift you can give your children is to stop the fighting.
- Do not fight over the contents of the house. As much as you may love the armoire from your wife's family, let her have it. Even if your family gave you the armoire, if its fair market value is $1,000, do not spend more than a few minutes of your lawyer's time over the armoire. Add it up. Your lawyer and your spouse's are charging hundreds of dollars between them. If they spend an hour exchanging letters and calls over the old armoir, you and your spouse, will pay the lawyers the cost of a new armoire.
- Play by the rules. Provide your spouse with full and fair financial disclosure.
- Maintain a sense of humor.
Book Review
'Somebody Else's Children:' The Courts, the Kids and the Struggle to Save America's Troubled Families, by journalists John Hubner and Jill Wolfson, published in 1996 by Crowd, is a highly readable account of what happens to children thrown into the court system in California. The authors, a husband-wife team, had almost unlimited access to the judge, courtroom, lawyers, parents and children.
The authors include first hand accounts of what it is like to be thrown into the legal system. One section deals with a high conflict custody case between divorced parents of an eight year old son. The mother ended up with custody, but the fighting continued. The boy later told his father that the mother's new husband tied him to a chair and abused him. The father rushed the child to a child protective agency. The father was stunned when the child remained in the custody of the agency, because the child also accused the father of abusive behavior. The agency decided neither parent's home was safe and sent him to his maternal grandmother. After months of intensive therapy for the parents and child, the child is returned to his mother's home.
The parental conflict quickly heated up again, and the father stopped seeing the child. The father despairingly conceded that he could not continue fighting and hoped his son will want to see him when he is grown.
The authors opine that there are no innocent bystanders. Everyone is a victim and victimizer. Even young children. Some people may take issue, but the authors describe how this child made up horrendous allegations against both parents that led to state intervention. The child's therapist surmised that he treated both parents equally and also managed to stir up a controversy that kept his parents involved with one another.
The child also had a safe harbor for many months in state custody. However, his parents were unable to break free of the chronic conflict that drove them to divorce in the first place. Their hostile relationship was a substitute for a loving relationship. As one wise divorce lawyer once said, "Sometimes an acrimonious relationship is better than no relationship."
Buy 'Somebody Else's Children:' The Courts, the Kids and the Struggle to Save America's Troubled Families, online from Amazon.com
Moving On and Moving Out of State with Minor Children
The October 2003 issues of the ABA Journal contains an article on moving children out of state after divorce. Written by Jenny B. Davis and entitled "Relocation Revisited," the article describes the seminal case of In Re Marriage of Burgess, decided by the California court in 1996. The Burgess court held that custodial parents do not have to establish the necessity of their proposed move.
Judith Wallerstein-the researcher and writer from Marin County, California-wrote extensively in support of the custodial parent's right to move in Burgess. The author concluded that children do not need frequent visits with the noncustodial parents to grow into well-adjusted adults.
The Wallerstein approach is being challenged by two professors from Arizona State University at Tempe, Sanford L. Braver, a psychology professor and Ira Ellman, a law professor. Braver and Ellman conducted a study involving 602 freshmen at the university in the fall of 2001. Their findings are published in a study called "Relocation of Children after Divorce and the Children's Best Interests: New Evidence and Legal Considerations." The study is published in the June 2003 issue of the American Psychological Association's Journal of Family Psychology.
Braver and Ellman state their findings are preliminary, but indicate that children need frequent contact with the noncustodial parent, and thus, the burden of proving the move is consistent with the children's best interests should be shifted to the custodial parent.
LaMusga v. LaMusga, now pending in the California Supreme Court, may modify or overturn Burgess, following the Braver-Ellman approach instead of Wallerstein.
Whatever the court decides in LaMusga, there will be people continuing to line up on both sides, including the judges. That is probably the worst outcome, because parents and their lawyers will remain uncertain about what a court will do. When uncertainty prevails, more people litigate, prolonging and solidifying the differences between mothers and fathers.
Charles P. Kindregan, a professor of family law at Suffolk University Law School in Boston, wrote in his article, "Family Interests in Competition: Relocation and Visitation," published in the Suffolk University Law Review in 2002, that "any lingering presumption against relocation ought to be expressly eliminated, signaling to judges that starting analysis with a bias against the custodial parent is simply not in accord with life in a modern mobile society."
Getting Ready for Divorce
- See your family doctor. If your doctor prescribes medication, take it.
- Exercise and eat sensibly.
- Talk to a psychotherapist.
- Do not increase alcoholic consumption or smoking.
- Do not make radical changes in lifestyle.
- Consult a family law lawyer
Name Changes
It is not official. Both men and women are allowed to resume the use of a former name upon divorce. By statute women are allowed to resume the use of their maiden names or former married names at the time of divorce.
Men are now allowed to change their names, too, because of a 2003 ruling in Massachusetts. Married men are sometimes adding their wives' surnames to theirs, so that both spouses and the children will be called Smith-Peterson, for example. Upon divorce, the woman would be entitled to drop "Peterson" from her name and resume her former name of Mary Smith, but the husband would be obligated to continue using Smith-Peterson unless he filed a separate name-change petition. Unfair! The Massachusetts court agreed that the husband could resume his former name of John Peterson without filing a separate petition.
Children's names cannot be changed unless it is consistent with their best interests. Women sometimes want to change the children's surnames after divorce. Not surprisingly, men oppose the change, and courts have agreed that children should continue using the names given to them at birth-usually their fathers'.
DNA Testing On Your DVD Player
Your computer or DVD player might be used sometime in the near future to tell you about your genetic make-up. A September 25, 2003 article in the New York Times describes an accident in the lab of molecular biologist, James La Clair.
Dr. La Clair accidentally dribbled a biochemical sample on a music CD on his lab bench. When he tried playing the CD, the dried sample had "silenced" the music. Dr. La Clair realized his inexpensive CD player had just detected the molecules in his sample that a $300,000 piece of equipment was designed to read.
The CD Player will not entirely replace the $300,00 equipment now in use at DNA test labs, but Dr. La Clair and his colleague Michael D. Burkart believe their system will ultimately allow ordinary folks to buy "specially prepared CD's, smear them with saliva and then insert the disc into their computers for analysis.
A Few of Our Favorite Things
Divorce is entertainment this fall. Hollywood is touting the Cohen brothers' new movie, Intolerable Cruelty, about a glib Beverly Hills divorce lawyer played by George Clooney, and a new television series, Miss Match, starring Alicia Silverstone as a young divorce lawyer by day and match-maker by night.
"What the client tells you is only the tip of the iceberg," an older divorce lawyer said to the new associate, who responded with "I'm not planning any underwater excursions. I've seen enough," after hearing about a man who faked his own death, another husband who became a woman, and a man who cut off his own hand to collect alimony.
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