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April 25, 2007

Case Review - Requirements for Change in Custody

Strobel v. Strobel was decided by the Missouri Court of Appeals, Western District, on April 17, 2007.  In this case the parties sought a modification of the original dissolution judgment as it pertains to the custody of the children.  The original dissolution judgment awarded sole legal and physical custody of the children to the Father but gave each parent roughly equal parenting time with the children.  Subsequent to the original dissolution judgment being entered the Mother sought a clarification of the parenting plan.  Thereafter the Father countered with a modification of the Mother's visitation time and the Mother then countered seeking joint legal and physical custody.  The Court granted the modification of custody from sole legal and physical custody to joint legal and physical custody.  Father appealed.

In order to support a custody modification, there must be proof of a change in circumstances.  However, this change does not have to be a "continuing" change in circumstances and it does not have to be a "substantial" change where the modification order changes custody from sole custody to joint custody.

In Strobel the Mother testified that until right before the modification action was initiated, she and the Father were able to communicate and make joint decisions regarding the children. However, this changed right before the modification was started, and Mother testified that the Father tried to keep the Mother from participating in the decision making for the children and that the Father interfered with her parenting time.  The Court found that a change in circumstances occurs when there is a breakdown of parental communication and cooperation.  This is enough to modify the original dissolution judgment.

Source:  Walter Strobel v. Jane Strobel, Missouri Court of Appeals, Western District, WD67242, April 17, 2007

April 22, 2007

Careful What You Say or Print

Let the lesson be learned: In this day and age of technology, what you say, in whatever format, could be used against you later.

This morning's news story relating to Alex Baldwin's voice mail message to his daughter, who I believe was reported as being 11 years old, should be a lesson to every person going through a divorce and to every person who may now or in the future have a possible custody issue. 

While many states have laws limiting the recording of conversations, whether in person or on the phone (and you should consult an attorney about this issue before ever attempting to make such a recording because it could be a crime), if a person voluntarily creates a recorded message or statement, whether on a voice mail system or by sending an email, the statements made likely are admissible in a court proceeding. 

I tell my clients all the time to be very careful in emails.  In many situations I also ask to review many emails before they are sent.  Finally, I have clients keep every email, in bound and out bound, so that I can review them prior to hearings and make sure there are no surprises waiting for me in the courtroom.

If the recording of Alex Baldwin is accurate, it is wrong on so many levels.  Even if his allegations are true that his former spouse is attempting to alienate his child from him, it is up to him to take the high road and keep his daughter out of the middle of, what should be, an argument between the adults. 

Think before you speak and before you write.  That is the message for the day.

This is very good advice.  I always have my clients bring in the email and telephone messages they receive from their spouse or ex-spouse.  I also warn my clients about leaving messages that will hurt their case.   It is surprising to me that people still leave messages that will hurt their case.  In this day and age of technology, they have to know their messages can be preserved and used against them.   There just isn't any excuse for doing so.

In Missouri, unless you are an attorney or other regulated profession, recordings may be made of a conversation that you are participating in.  There are times when I direct my clients to have a small recorder in their pocket to record what is being said during exchanges of the children.  There are two reasons for doing this.  First, I want to be able to prove my client did not say something that the opposing side is or may accuse my client of saying.  Second, I want to be able to prove how nasty the opposing side can be when no one else is around or when the children are around.  Again, I remind my client to be careful of what comes out of his/her mouth as the recording can just as easy be used against him/her by the other side.

As to Alec Baldwin's situation - even though I can understand frustration (and he seems to have been under a lot of it during  his custody battle), there is no excuse for saying what he did to his child.  I know there are times when all parents become extremely frustrated by their children (me included) and just want to blast them for their behavior.  Probably Baldwin's daughter was acting like the pig he accused her of being, but you just do not say things like that to a child and in such a hateful manner.    You step away, back off, whatever you need to do to calm down; then you make the phone call or talk to your child.  I am sure Baldwin deeply regretted what he said to his daughter even before the recording was made public.  It is a shame that someone had to publish the recording.  It does not make it easier for any one - Baldwin, Baysinger or their child.   If Baysinger did publish the record, I have to wonder if she really thought of her child first; it makes me wonder about her abilities to parent just as much as Baldwin's statements make you wonder about his abilities.  The recording should have been kept private with just the family court hearing it.

Source:   Pennsylvania Family Law

Private Investigators

There are times when your attorney will request that  a private investigator be hired on your case.  Private investigators can be help obtain documentation regarding lifestyle, assets, income, roommates, friends, paramour and parents, including  criminal history checks , work history, demonstrating hidden affluence, locating and interviewing witnesses, and obtaining information regarding abuse or neglect.  The private investigator can be called to testify as to his/her findings in court.  I find them helpful in interviewing witnesses whom I believe may be adverse to our position or who may change their testimony down the road.  The investigator's testimony can be used to impeach a witness on the stand if necessary.

Your attorney should be able to recommend a private investigator.  Usually an attorney has one that they have worked with before or can get a recommendation from another attorney.  Some private investigators will be licensed and some will not.  In this area many of the private investigators are former law enforcement officers who have decided to go into investigation.

When hiring a private investigator, a consideration is the cost.  Costs can vary but are typically in the $50 to $75 per hour range plus expenses.  You have the right to a written contract at the time you are contracting the service.

In every case, there are issues of both law and fact.  Private investigators can help make the facts become clearer.  Solid, verifiable facts can affect the outcome of cases.   Even the greatest attorney will have a hard time meeting his burden or proving his/her case without verifiable facts.  Hiring a private investigator may be the best way to get those facts.  You and your attorney will have to decide whether the cost of the investigator is worth it.

Source:  South Carolina Family Law Blog published by Benjamin Stevens

April 19, 2007

Holiday Tips

The holidays are very hard for parents when they are going through a divorce or are divorced.  No parent wants to spend a holiday without  his or her child.  In a perfect world the parents would get along well enough to spend the holidays together with the child.  This would include the parent's new spouse and children.  However, this is not a perfect world and this happening occurs only in rare circumstances.  I think I have had only two or three divorced families that have been able to do this.  How did they manage to work out their differences enough to be able to celebrate together?  They put the child first and did what was necessary to obtain this goal.  Not every family can do this and not every family should.  If there is domestic abuse or if the  parents cannot control the animosity towards each other, they should not attempt it.  However, they should attempt to work out the specifics of the holidays so as not to make the child feel guilty about spending the holiday with one parent and not the other.  Parents should never put the child in the middle of their disagreements over the holiday (or any other custody/visitation period).  It is hard enough for the child to be separated from one parent during the holidays without being placed in the middle of the parents' disagreements.  The following are tips that should help in working out the holidays.

1. Plan Ahead

Develop a parenting schedule before the holidays.

Avoid scheduling the children for dinner with Dad at noon and a second turkey dinner a few hours later with Mom. Instead, arrange for Dad to spend the entire day with the children in all odd-numbered years, and have Mom spend the holiday with them in all even-numbered years.

If possible, hire a parenting coordinator or mediator, usually a child psychologist or divorce lawyer appointed by the court to act as a decision-maker until a judge makes a different decision. You have quicker access to the coordinator/mediator than the judge, but the coordinator/mediator must be paid.

2. Keep Your Word

Stick to the schedule. Arrive on time and drop off the child on time.

3. Keep in Touch

If the child is not with you for the holidays, call, and be sure to send cards or email. Consider celebrating the holiday or birthday before or after the actual day. Children love parties and gifts any time - nothing fancy - but something special you create just for them.

4. Let the Child Keep in Touch

If the child spends the holiday with you, let them speak with the other parent. Give the child any cards and email from the other parent, and read the messages to young children who cannot read. If the child is too young to call, help  make or receive a call, and let the child have a quiet moment to speak with the other parent. Make sure to avoid planning an exciting activity like gift-opening at the same time that the child is  scheduled to speak with  Mom or Dad.

Remember, children usually have a short attention span, so do not blame the other parent if conversations are short.

5. Safe Travel

Make travel arrangements with airlines for long-distance travel. Airlines provide supervision for unaccompanied minors for a nominal fee.

6. The Art of Gift-Giving

Coordinate gift-giving with the other parent. Do not give your child a cell phone if you know Mom is giving her a phone. If your ex-spouse will not cooperate, go ahead with your own plans, but do not complain to the child  about the other parent.

7. Acknowledge the Child's Right to Enjoyment

Let your child take gifts to your ex-spouse's home. Conversely, if your child brings home a new toy or bicycle, let your child take it back to  Dad's home, if the child wants.

8. To Each His Own

Let the child spend Mother's Day with Mom and Father's Day with Dad.

9. Create Your Own Celebrations

Do not insist upon attending your child's birthday or graduation party if your ex-spouse is throwing the party. Give your own party on another day.

10. Give Your Child Permission to Love Both Parents

Help your child buy or make a gift and card for the other parent, if the child is too young to handle the tasks himself or herself. You are doing your child a favor, not your ex-spouse, because you are giving your child permission to love the other parent - the best gift you can give.

Source:  DivorceNet, 10 Holiday Tips for Divorced Parents by Law Offices of Sharyn T. Sooho

April 18, 2007

Recommended Reading for Divorces

Below is a list of recommended reading if you are contemplating, going through, or recovering from a divorce.  It includes books for your children as well as yourself.  This list was compiled by Leigh Joy Carson:

 

For Children ages 3-6

"Divorce is a Grown-Up Problem"
by Janet Sinberg

"Two Homes to Live In"
by Barbara S. Hazen

"Mommy and Daddy are Divorced"
by Patricia Penny and Marietta Lynch

For Children ages 6-14

"How Does It Feel When Your Parents Get Divorced?"
by Terry Berger

"Always, Always"
by Crescent Dragon Wagon

"How Does It Feel When Parents Divorce?"
by Jill Krementz

"Coping When Your Family Falls Apart"
by D.D. Booher

"Why Are We Getting A Divorce?"
by Peter Mayle

"Me Day"
by J.M. Lexau

"It's Not The End of the World"
by Judy Blume

"Taking Sides"
by N. Klein

Adult Children of Divorce

"Adult Children of Divorce Speak Out"
by Claire Brown

"A Grief Out of Season"
by Noelle Fintushel and Nancy Hillard

Step-Parent Families

"What Kind of Family is This?"
by Barbara Sueling

"No Easy Circle"
by P. Naylor

"On Becoming A Step-Family"
by Patrcia Papernow

Recommended Books for Parents

"Crazy Time: Surviving Divorce"
by Abigal Trafford

"How to Talk so Your Kids Will Listen - How to Listen So Kids Will Talk"
by Adele Faber and Elaine Mazlishby

"Families Apart - Ten Keys To Successful Co-Parenting"
by Melinda Blau

"Divorce Book For Parents"
by Vicky Lansky

"Stop Struggling with Your Child"
by Evonne Weinhaus and Karen Friedman

"The Parent Book About Divorce"
by Richard Gardner

Source:  DivorceNet

April 13, 2007

Suggestions When Going Through A Divorce

I was pleased to read an article on DivorceNet from an attorney that I am familiar with in the family law area.  Leigh Joy Carson has written an article, Suggested Guidelines for Parents During Separation or Divorce Proceedings, that contains common sense tips.  My favorite is: 

1. Think first of your children's present and future emotional and mental well-being before acting or reacting. This will be difficult, because of your own feelings, needs and emotions, but try, try, try.

This makes sense.  You will not always be able to do this, but it is a goal you should strive for.  Children should be put first if possible.  However, do not forget to take care of yourself.  You need to take care of yourself in order to be a good parent to your children.  The other suggestions are:

2. Maintain your own composure and good emotional balance as much as possible, and in talking to yourself, verbally and in your thoughts, remember it is not the end of the world. Laugh when you can and try to keep a sense of humor. What your children see in your attitude will to some measure be reflected in theirs.

3. Allow yourself and your children time for readjustment. Convalescence from an emotional operation, such as a dissolution of marriage, is essential.

4. Remember the best parts of your marriage. Share them with your children appropriately and use them constructively.

5. Assure your children that they are not to blame for the breakup and that they are not being rejected or abandoned. Children, especially the young ones, often mistakenly feel they have done something wrong and believe that the problems in the family are the result of their own misdeeds. Small children may feel that some action or secret wish of theirs has caused the trouble between their parents. Explain to them that there are other children whose parents have been divorced and that they are not going to lose their mom or dad.

6. Continuing anger or bitterness toward your former partner can injure your children far more than the dissolution itself. The feelings you show are more important than the words you use.

7. Refrain from voicing criticism of the other parent. It is difficult, but absolutely necessary. For the child's healthy development, it is important for him or her to respect both parents.

8. Do not force or encourage your children to take sides. To do so encourages frustration, guilt, and resentment.

9. Try not to upset the children's routine too abruptly. Children need a sense of continuity and it is disturbing to them if they must cope with too many changes all at once.

10. Dissolution of marriage often leads to financial pressures on both parents. When there is a financial crisis, the parents' first impulse may be to keep the children from realizing it. Often, they would rather make sacrifices themselves than ask the child to do so. The atmosphere is healthier when there is frankness and when children are expected to help.

11. Marriage breakdown is always hard on the children. They may not always show their distress or realize at first what this will mean to them. Parents should be direct and simple in telling children what is happening and why, and in a way a child can understand and digest. This will vary with the circumstances and with each child's age and comprehension. The worst course is to try to hush things up and make a child feel he or she must not talk or even think about what he sees is going on. Unpleasant happenings need explanation, which should be brief, prompt, direct, and honest.

12. The guilt parents may feel about the marriage breakdown may interfere in their disciplining the children. A child needs consistent control and direction. Overpermissiveness or indecisive parents, who leave a child at the mercy of every passing whim and impulse, interfere with a child's healthy development. Children need and want to know quite clearly what is expected of them. Children need leadership and sometimes authority. Parents must be ready to say "no" when necessary.

13. Do not overlook the fact that you are only human and admit it. You will not be able to make a 100 percent score on being a perfect parent (no one ever does in good or bad times). When you fail in your attempts, acknowledge it, and resolve to attempt to improve day by day.

14. Read and reread these basic guidelines. Add to them by writing down your own constructive, positive approaches to the handling of your new way of living. Discuss, when practicable, your thoughts and feelings with others you trust and feel comfortable with and benefit by sharing their positive attitudes.

Source:  DivorceNet, Suggested Guidelines for Parents During Separataion or Divorce Proceedings by Leigh Joy Carson

April 12, 2007

Divorce Tax Tips

When you are deciding on a settlement agreement with your soon to be ex-spouse, you need to consider the tax implications involved.  There is a good article at DivorceNet which lists tax mistakes people make during the process of a divorce and contemplating a settlement agreement.  These mistake tax tips are

  1. Not Looking at After-Tax Cash Flow When Analyzing the Workability of a Settlement Proposal. Look at the number of lines on your tax return that change as a result of divorce:
    1. Your filing status changes from married joint to head of household (if you have at least one child living with you) or single.
    2. The number of personal deductions will be reduced by at least one – your ex-spouse (more if you agree to split deductions for dependents).
    3. Your income without your ex-spouse may put you in lower bracket and you will be taxed at a different rate.
    4. Itemized deductions such as state income taxes, real estate taxes, mortgage interest, charitable contributions, and non-reimbursed employee business expenses may affect your return differently.   
    5. Alimony is taxable and you are required to pay quarterly estimated taxes on it.
    6. The effects of AMT (alternate minimum tax) may not be changed without your spouse’s income and deductions.
  1. Failing to Negotiate Dependency Deductions. In 2005, the exemption amount for each dependent is $3200. In a divorce or separation, the custodial parent specified in the agreement is entitled to the exemptions or without an agreement, the parent with physical custody gets the exemptions. The lower income parent can sign over the exemption to the higher income parent using IRS form 8332 resulting in greater tax savings to the higher income parent. For example a $3200 exemption for a person in the 31% bracket would save over $1000 while a person in the 15% bracket would save under $500. The value of exemptions starts to phase out for income above $145,950 for a person filing as single, so the exemption may only be effective for a lower earning spouse. Don’t forget to factor in the child tax credit ($1,000 for each child under age 17) and dependent care credits for up to 2 children under 13 ($960 or more).
  1. Not Using IRS Code Section 72t(2)c to Get Distributions from Qualified Plans. More often then not, couples in the process of a divorce have severe cash flow problems. Income stays the same, but expenses increase dramatically because there are two households to support. Changing or downsizing one or both parties' lifestyles often requires a cash infusion to purchase, set up, or carry a second residence. Section 72t(2)c allows the alternate payee (the spouse who is not the employee) to take distributions from a qualified plan (not an IRA) without paying the 10% early distribution penalty even if they are younger then 59 ½. The distribution is still subject to income tax. If the funds are first rolled over into an IRA then the preferred distribution rules no longer apply.
  1. Not Following the Rules for Alimony. Alimony is deductible to the payor and taxable to the payee. Where alimony is given there is usually a significant disparity in incomes. Alimony results in tax savings since the higher income individual is able to deduct payments at a higher tax rate while the ex-spouse pays taxes at a lower tax rate. Section 71 of the Internal Revenue Code defines certain rules for payments to be considered alimony. If these conditions are not met then the tax benefits of alimony could be revoked by the IRS.
    1. Alimony payments must be in cash, to your ex-spouse, designated in a divorce or separation agreement, and you must live in separate residences
    2. Payments must terminate on death of the recipient; alimony cannot end on dates corresponding to dependents 18th or 21st birthdays
    3. Alimony cannot be front loaded over the first three years (much larger amounts paid in the 1st year compared to the 2nd or 3rd year).
  1. Disregarding the Impact of Taxes on Assets in a Divorce Settlement. The marital assets you keep after the tax man gets his share is the real bottom line. Say your spouse handles all the investments and offers to split them 50/50. Would you rather have cash in the bank, an IRA, or the Microsoft stock you bought in the early 1990s? Each of these assets is taxed at a different rate. Avoid assets that are unattractive from a tax point of view such as low-basis stocks (those that have increased dramatically since you bought them), partnerships where depreciation might be recaptured, or retirement accounts where you have to pay tax on the money you get. Look at the value of assets you will receive on an after-tax basis. Then decide if the deal is fair.
  1. Failing to Take Advantage of the Full $500,000 Home Exclusion. Married couples are allowed up to $500,000 in profits tax free from the sale of their principal residence. Formerly, a spouse who moved out as a result of divorce lost his $250,000 deduction because it was no longer his principal residence, but thanks to a change in the tax law an ex-spouse can now retain that exclusion. To qualify, the spouse who moved out must remain an owner and the divorce or separation agreement must grant him use of the home. The ex-spouse must have lived in the home for two years at any time prior to the sale. If these rules are not followed, the spouse selling the residence will only be able deduct a $250,000 gain and will have to pay tax on the second $250,000. Capital gains tax on $250,000 is $37,500 and state income taxes may also apply. If a spouse who is the sole owner remarries, the new spouse must live in the house for two years to qualify for the full $500,000 exclusion. 
  1. Not Writing Off the Cost of Your Divorce.  The portion of the cost of your divorce which relates to tax and financial advice is deductible on Schedule A of form 1040. To substantiate this deduction you should obtain a statement from your attorney or mediator delineating the cost of legal services and the amount attributable to tax and financial advice. Normally the deductible portion of your divorce runs from 1/3 to ½ of the total cost. In order to deduct legal fees, you must be filing Schedule A (Itemized Deductions) and your deductible divorce fees must be greater than 2% of your income.

Ask your attorney about these mistake tips.  If your attorney isn't a tax attorney, he or she can consult with a tax expert and obtain the answers or you can consult with your own accountant to determine specifically how the terms of the proposed settlement agreement will affect you.

Source:  DivorceNet's Seven Tax Mistakes in Divorce by Lee Slater, Divorce Financial Planner

April 11, 2007

Link of the Day

Last month I was honored to be the "Link of the Day" at Robert Kraft's P.I.S.S.D. blog.  Here is the article:

Link of the Day - Missouri Family Law Blog and Missouri Criminal Defense Lawyer Blog

For the month of March, I am going to use my Link of the Day feature to highlight legal blogs that I think are interesting and useful. Some may not be directly related to personal injury or Social Security disability law, but all of us who represent injured and disabled people occasionally need help in other areas. Today's entry in March of the Blogs:

Missouri lawyer Penny J. Umstattd-Cope is the owner of The Umstattd-Cope Law Firm, LLC, in Joplin, Missouri. She keeps busy writing both the Missouri Family and Divorce blog and the Joplin, Missouri Criminal Defense Lawyer Blog.

The criminal defense blog features "Missouri Criminal Law Articles on DWI, DUI, Domestic Violence, Misdemeanors, Felonies, Juvenile, Traffic Violations and Tickets, Law Enforcement Interviews and Questioning" while the family law blog features "Missouri family and divorce law articles: Divorce/Dissolution/Modifications Child Custody/Support/Visitation Paternity/Adoption/ Wills & Estate Planning."

Penny was an assistant prosecuting attorney and an assistant appellate public defender before leaving for private practice.

Civility Standards for Family Lawyers

Have you ever noticed that some attorneys are just downright rude to the other attorneys?  I have and apparently others have too.  It is not very pleasant to see or to be on the receiving end.  The American Bar Association's Section of Family Law has decided to do something about this problem.  It has adopted the Civility Standards.  These Standards address the responsibility of family lawyers to be civil to clients, to their opposing counsel, and to the Court itself.  Why any lawyer would not be civil to the Court is beyond me, but it happens.  The Standards are:

I. To Client

1. Treat the client with respect.
2. Try to keep the client on an even emotional keel and avoid characterizing the actions of the other party, opposing lawyers, and judicial officials in emotional terms.
3. Be aware of counseling resources and be prepared to refer the client to counseling where appropriate.
4. Where a client has an exaggerated or unrealistic view of his or her options in any given situation, explain matters as carefully as possible in order to assist the client to realistically assess the situation.
5. Respond promptly to client requests for advice or information.
6. Consider the availability and appropriateness of forms of alternate dispute resolution.
7. Where a client wishes to pursue a claim or motion for purely hostile or vindictive purposes, explain to the client the reasons why the client should not do so.
8. Do not assist a client in pursuing a claim for primary custody or visitation where the purpose of the claim is to obtain bargaining leverage in order to achieve a purely economic objective.
9. Avoid any communication to client about the judge, the other lawyer, or the other party that will contribute to disrespect for the legal process.
10. Encourage clients to comply with all court orders.

II. To Opposing Counsel

1. Be honest in all communications with opposing counsel. Do not intentionally misrepresent any factual or legal argument.
2. Be respectful and courteous in all oral and written communications with the opposing side.
3. Do not engage in conduct, oral or written, that promotes animosity and rancor between the parties or their counsel.
4. Use a demeanor and conduct during a deposition or other out-of-court meeting that would be no less appropriate than it would be in the courtroom.
5. Do not engage in harassing or obstructive behavior.
6. Honor reasonable requests for routine extensions of time, unless a client’s position will be adversely and materially affected.
7. Confer in good faith with opposing counsel on scheduling matters.
8. Do not utilize the manner of service of pleadings or discovery requests to disadvantage the opposing counsel.

III. To the Court

1. Act with complete honesty; show respect for the court by proper demeanor; and act and speak civilly to the judge, court staff and adversaries.
2. Avoid frivolous litigation and non-essential pleading in litigation.
3. Explore settlement possibilities at the earliest reasonable date, and seek agreement on procedural and discovery matters.
4. Avoid delays not dictated by a competent and justified presentation of a client’s claims or defenses.
5. Strive to protect the dignity and independence of the judiciary, particularly from unjust criticism and attack.

These Standards are a good start.

Source: South Carolina Family Law Blog; Domestic Diversions; Georgia Family Law Blog

April 04, 2007

Proposed Legislation - Another Safety Measure Against Sexual Offenders

The Jefferson City News Tribune today included an article regarding proposed legislation by Rep. Ward Franze from West Plains, Mo. that would allow a new special code to be included on the front of driver's licenses issued to convicted sexual offenders.  This new code would identify the driver as a sexual offender, just like codes now identify restrictions on the licenses (eyeglasses, not after dark, etc).  Supposedly it would also allow law enforcement officials to keep better track of the offenders.  This legislation needs one more vote before it can be sent to the Senate.  The bill number is HB224 and can be reached by going to the government website

Source:  Jefferson City News Tribune, 04/04/2007, Sex offenders' licenses would be marked under bill

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