“Common Sense” Themes in Divorce Cases

Here is a great post from the South Carolina Family Law Blog

There are certain truths in all family court cases — no matter how famous the parties involved or in which state the case is filed.’ For instance, James E. McGreevey, the former governor of New Jersey, is going through a ‘contentious’ divorce.’ Last Friday, the judge in that case urged the McGreeveys to use ‘common sense’ during their split.

The New York Times article about their divorce case illustrates the following common themes:

  • Judges want parents to use ‘common sense’
  • Judges want parents to facilitate age-appropriate activities
  • Judges want parents to minimize the potential effects of the proceedings and the parental conflict on the child
  • Judges focus primarily on parenting skills, not side issues like sexual orientation
  • Judges don’t like parents accusing each other of every imaginable error or misdeed
  • Judges don’t want to micromanage a child’s life
  • Judges will employ methods to reduce conflict and to help resolve child-related disputes, such as the appointment a parenting coordinator

Sources:’ ‘Judge Wants Common Sense Used in McGreeveys’ Divorce‘ published in The New York Times and ‘Learning From the Contentious Divorce of Former Governor James E. McGreevey‘ by David C. Sarnacki, published at his Domestic Diversons blog.

Source for Post: South Carolina Family Law Blog and Kansas Family & Divorce Lawyer Blog

Divorce Preparation: Step 10 – Stay Put (until further notice)

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

We are nearing the end of our series on practical steps to take when you are facing an imminent divorce.  We have reached Step 10 – Stay Put (until further notice).

One of the most common questions I am asked by my clients is whether they can move out of the house.  In most cases my answer to them is to stay put.  It is not the answer most of my clients want.

I know that things are stressful.  I know that they will likely get worse before they get better. Unfortunately, there are several reasons to avoid leaving. The most important ones are the following:

1.       It could jeopardize your custody claim.  If you end up in a custody dispute, then if you leave the house and the children remain there with your spouse you will almost guarantee that you will not receive primary custody.  If the case becomes contested, it could drag out for many months (even a year or two).   If your spouse has had primary physical custody that entire time and you’ve had alternate weekend visitation, then unless your spouse has made major mistakes in the interim, they will likely maintain primary custody.

2.       It could affect your property interests.  You’ve moved out.  Your spouse pays the mortgage the entire time the case is pending.  Some judges may factor that in when making the property division.

3.       You will lose leverage in the negotiations. This is big.  You want the divorce.  Your spouse doesn’t.  You decide you have to get out of the house.  You move to an apartment and are paying your rent and the home mortgage.  Now under the Pre-trial Status Quo Order you may be required to keep paying it as long as the case is pending.  You have just given your spouse a major incentive to drag out the litigation.  I see it happen all the time.  Eventually you decide to settle for much worse terms because you can’t keep paying for two households.  Do not make this mistake.

Moving out of the house can have dramatic effects on the case.  Do not do it without discussing it with your lawyer and giving it a great deal of thought.  You should know, also, that some judges will consider a motion for temporary possession of the residence pending the trial.  This varies dramatically from county to county (and sometimes even from judge to judge) so you will want to discuss it with your lawyer.

It goes without saying that if domestic violence is an issue, then all of this is moot.  You will need to take whatever steps you must to protect yourself.  Just make sure you let your lawyer know what is going on.  In the case of domestic violence, your lawyer may actually be able to have your spouse removed from the house.

SOURCE: Alabama Family Law Blog

Georgia Appeals FAQ

I am dissatisfied with the outcome of my domestic relations case. Can I file an appeal?
Possibly. Your ability to file an appeal depends on the nature your case. Certain cases are subject to direct appeal procedures, which means that Georgia law grants you the right to appeal. Other cases are subject to discretionary appeal procedures, which means that you must request and be given permission to file an appeal with the Georgia Supreme Court or the Georgia Court of Appeals.

I am dissatisfied with the outcome of my divorce case. Can I file an appeal?
For the past few years, the Supreme Court of Georgia has implemented a Pilot Project for cases involving divorce and/or alimony. Under the Pilot Project, discretionary applications for appeal, which are timely filed from the final judgment and decree of divorce, will be automatically granted unless the application is found to be frivolous by the Court. The Court will deny frivolous applications, and the applicant as well as his or her attorney may be assessed a penalty of up to $2,500.00. Please check with an attorney to ensure this process is still in existence or has not been modified by the time you wish to file an appeal.

The court ordered to me to pay an amount of child support which I believe is too high. Can I file an appeal?
[Presently] child support cases are subject to discretionary appeal procedures, which means that you must request and be given permission from the appellate court to file an appeal.

The court ordered my ex-husband to pay child support to me, but I think the amount is too low. Can I file an appeal?
[C]hild support cases are subject to discretionary appeal procedures, which means that you must request and be given permission from the appellate court to file an appeal.

I am considering whether or not to file an appeal? How much time do I have to decide?
Generally, you must file your appeal or application for appeal within 30 days from the entry of a final order. If you hire an attorney to file the appeal, the attorney will need as much time as possible to prepare the appeal so hiring an attorney on the 29th day will likely make it impossible for the attorney to file an appeal.

SOURCE: DivorceNet

Keeping divorce civil holds down cost of breakup

The Institute for Divorce Financial Analysts reports that about $50 billion a year is spent in North America as a direct result of divorce.  Divorces can range from simple to complex, but saving money largely revolves around two strategies: (1) paying less to your lawyer and (2) paying less to Uncle Sam.

The following suggestions can help you avoid wasting money as you go through the divorce process:

  • Cooperate.  This is far easier said than done because feelings of bitterness and distrust are common, but most wasted money stems from emotional decisions and contentious divorces.  Your divorce will be very expensive if you need lawyers to help determine who gets the big-screen TV and flatware.
  • Trim the lawyer bills. It’s reasonable that price be one factor in choosing a lawyer, especially if the divorce is unlikely to end up in a court battle.  Once you hire a lawyer, use him or her sparingly. An attorney should handle court paperwork and lay out your legal rights, duties and options.
  • Be prepared. Write down questions for your attorney meetings to make efficient use of your time. Remember, any drawn-out conversations will be billed at the hourly rate of maybe $250 an hour or more. When minor developments happen, don’t call your lawyer each time. Instead, keep a journal and update your lawyer periodically.
  • Use other professionals. Your lawyer is for legal stuff. If you need a therapist, get one. If you need a financial planner, get one. Either will be far better at giving you what you need and far cheaper than billable attorney time.
  • Use free resources. Library shelves are full of books on divorce, and the Internet has a slew of Web sites. A helpful one is operated by Lee Borden at www.divorceinfo.com.  A new inexpensive book is "The IDFA Divorce Survival Guide," written by two leaders of the Institute for Divorce Financial Analysts.
  • Tax considerations. The old joke is there are three parties to a divorce: the husband, the wife and the Internal Revenue Service. Cooperating spouses can structure a divorce to pay as little tax as possible, but you might need help from a tax pro.  The way you split up stocks that have appreciated by different amounts could have big capital gains tax consequence. It may not be an easy decision on who receives the child tax deduction and head-of-household tax filing status. You even may try to time your divorce to happen late in the calendar year or early in the next year, depending on the tax impact of filing jointly or as singles. And it’s important to know that structuring payments as child support or alimony can have a big tax impact.
  • Don’t rebound. People who have been in a stagnant marriage sometimes go wild with money, dating every night and spending money frivolously.

Source:  "Keeping Divorce Civil Holds Down Cost of Breakup" by Gregory Karp, published in the Chicago Tribune. (The article appears below)

SOURCE FOR POST: South Carolina Family Law Blog

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Digging Deeply Into Matrimonial Data Mining

The first part of this article discussed the importance and focus of data retrieval in matrimonial actions and the parameters of data mining. The conclusion herein addresses privacy concerns, the impact of e-mail and the costs of data retrieval.

PRIVACY CONCERNS REGARDING DATA MINING

Some privacy advocates have attacked data mining during the pendency of matrimonial actions as an inherent invasion of the privacy of one party.

Arguments have also been raised that data forensics, conducted unilaterally by one side inherently lead to the hoarding of relevant information by the adverse party ultimately for dissemination as he or she deems fit.

Additionally, there are extremely valid concerns surrounding medical records and medical information. Counsel can certainly voice specific and relevant privacy concerns to the trial judge. Furthermore, it is likely that legislation will be enacted in the upcoming years that will effectively weaken the ability of one party to manipulate the process.

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