Tips for Divorcing Parents | Divorce and Children

Tips for Divorcing Parents

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

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

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

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

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

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CHILD CUSTODY EVALUATION: FAQS

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

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

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

Why do I have to do this?

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

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

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

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Tax Deductibility of Payments in Divorce Cases

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

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

Division of Property

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

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

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

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

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Financial and dating considerations during the divorce

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

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

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

Question one, dating:

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

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

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

Question two, financials:

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

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

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

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

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

SOURCE: Orsini & Rose Divorce and Family Law Blog

South Carolina passes UCCJEA!

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

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

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

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

SOURCES: Divorce Law Journal and Family Law News Blog