Missouri Family and Divorce Lawyer Blog

New Perspective on Representing Clients

I have represented divorce clients for almost 18 years now.  I thought I always had compassion and understanding about  my clients' needs, and I did.  I just didn't understand it exactly from their viewpoint or perspective.  Now I do.  I am in the process of getting divorced myself and let me say, it has opened my eyes on a lot of the emotional issues involving a divorce.    I have two children and I am trying to keep their best interests in mind with dealing with my soon to be ex.  It isn't always easy and I find myself biting back words, especially if I know the children are close by.  Dealing with him not wanting to pay child support even though I have the children the majority of the time, paying joint bills, deciding where to live,  when each will have the children, etc.   The list goes on.  There are so many issues that I disagree with him on but have to remain calm for the children's sake.  They are the most important part of this divorce and it is hard enough on them without us adding to their worries.  So, to all of you out there that have went through a divorce and managed to keep the children out of the battles - I salute you.  You have my utmost respect.  I know that when I represent a divorce client in the future, I will have more insight and respect for what the client is going through and, hopefully, my personal experience will make me a more compassionate attorney and more able to  guide them through the emotional process as well as the legal process.

Behavior by Client in a Custody Hearing

In the past I have talked about the behavior of clients and how the behavior could possibly alter the outcome of a custody hearing.  Recently another attorney, Ben Stevens of the South Carolina Family Law Blog,  wrote about being called "the devil" by his client's wife while she was on the stand testifying.  The wife was saying how horrible Ben's client was and called him the devil.  She then went on and called Ben the devil too.  In awarding custody to Ben's client, the Judge noted the wife's behavior and hatred while she was on the stand (as well as elsewhere).  It just goes to show that you cannot be too careful in what you and say and do when involved in a custody battle.  Please take the time to read Ben's posting on his blog, South Carolina Family Law Blog.  It is entertaining as well as informative.  He leaves you with the following:

There are two morals to be learned from this story:

1. Your bad actions and/or misdeeds can (and usually do) come back to haunt you at trial.  I typically advise my clients to assume that they are always being recorded and not to do or say anything outside of court that they wouldn't want the judge to see/hear.
2. Even if things go against you during trial, you should remain calm, cool, and under control.  It will never benefit your case to call the other party names from the stand.  Instead, it will almost always backfire and result in you looking worse in the judge's eyes.

Take his advice to heart if you are going through a custody battle or contemplating one. 

More Suggestions on Preparing for a Divorce

I want to take the liberty of directing  you to another attorney's blog and his suggestions on how to prepare for a divorce.  The firm of Sherman & Jeffries have the Alabama Family Law Blog and have posted a series of steps on this.  Please take the time to read these steps if you are considering a divorce.  The steps are:

Step 1 - Find a Wise Guide
Step 2 - Make an accounting of the family finances
Step 2A - Determine what you own
Step 2B - Determine what you owe
Step 2C - Determine Income
Step 3 - Make photocopies of all the financial records
Step 4 - Prepare a budget (or two)
Document & Safeguard Personal Property
Step 6 - Establish your own credit
Step 7 - Assess the Financial Accounts
Step 8 - Address the Credit Accounts
Step 9 - Avoid additional debt or major purchases
Step 10 - Stay Put (until further notice)
Step 11 - Keep a diary

Although all of the steps are important, I want to point out step 11 - keeping a diary.  I recommend all my clients, whether going through a divorce or a modification, keep a diary that logs telephone calls and in-person conversations, the date and time of each, and the content of each.  I also have clients keep logs of items involving the children - comments the children make about a situation that is at issue, whether the other parent was involved, etc.  The more you can give the court specifics about an incident, the more likely your testimony is going to be believed by the court.  There are ways to protect this from being discoverable and you should discuss these ways with your attorney.

Social Security/Medicare Elgibility

If you are a stay-at-home parent, do you know how your Social Security and Medicare benefits are affected by a divorce?  You should be, especially if you are being asked to give up your interest in your spouse's Social Security and retirement benefits.  Did you know that unless you have earned 40 Social Security quarters the free Medicare A in not available to you?  Or that if you are between 0 and 39 quarters you will need to have other arrangements made?  Before you sign off on your spouse's benefits, check out your status at www.medicare.gov/MedicareEligibility and discuss the same with your attorney. 

New Books & Website to Review

Here are a couple of books that give information on the divorce process and what a divorce entails.  They are:  Your Pocket Divorce Guide by Linda C. Senn and The Divorce Recovery Journal co-authored by Linda C. Senn. 

You might also want to check out the following website for information on the books and a few articles:   DivorceTransitions.com.

Missouri Child Support FAQs

The following has been provided to the public by the Missouri Bar:

The purpose of this pamphlet is to answer some of the questions frequently asked about obtaining and enforcing support orders, and to give you an idea of the services which are available to assist you in your efforts.

Child Support in Missouri: Establishing and Enforcing Your Rights was prepared by the Young Lawyers’ Section of The Missouri Bar and was generously sponsored by the Young Lawyers Division of the American Bar Association.

Committee: Mary‑Michael Kelly, Esq., chairman, and special thanks to committee members: Melissa Mauer‑Smith, Esq. and Mark Katz, Esq. from the Family Support Division of the Jackson County Prosecutor’s Office, Kansas City, Missouri, for their contributions to this publication.

Copyright 1990, The Missouri Bar

ESTABLISHMENT OF CHILD SUPPORT ORDER

What is child support?

Child support is money that a non-custodial parent is ordered to pay on a regular basis to help pay for the costs of raising his or her child.

What is a child support order?

A child support order is a document from a court or Division of Child Support Enforcement (D.C.S.E.). It states 1) when, 2) how often and 3) how much a parent is to pay for child support. A child support order is usually included in a divorce judgment or paternity judgment.

Am I entitled to obtain a child support order?

If you have physical custody of your child rather than legal custody, if you are in the process of getting divorced, or if you are separated from your spouse, or if you have actual custody of a child for whom paternity has not been legally determined and there is no support order, then you are probably entitled to obtain an order for child support.

What amount will I receive for child support?

The State of Missouri has established guidelines for child support orders. These guidelines consider the needs of the child(ren) and the income of each party, i.e. the custodial and non‑custodial parent, and costs for child care and health insurance. Therefore, the amount of child support you receive will be different depending on your individual circumstances.

Who can change or terminate a child support order?

Only the court can change or terminate court ordered child support orders. Under no circumstances can the parties agree between themselves to alter a court order without the court’s permission.

In cases where D.C.S.E. has issued an administrative order, D.C.S.E. has the power to modify the child support amount.

How do visitation and joint custody affect child support?

Child support is not affected by visitation in most cases. Only a court can change a child support order because a custodial parent has not allowed the court ordered visitation. By the same token, visitation cannot be denied because a parent is behind in child support payments. D.C.S.E. is not allowed to get involved in visitation issues.

Any questions you may have on visitation issues should be discussed with your attorney.

In my divorce decree, the court did not order any child support. Can I apply for child support now?

You may be able to obtain an order of child support administratively or through the court depending on the language in your divorce decree and the circumstances.

Also, you may wish to speak with an attorney about changing the terms of your original decree. In some cases, the court may change an order of child support if the evidence supports a modification.

Who can order child support to be paid?

A child support order can be entered in several ways. A judge may issue a temporary order while a divorce or legal separation is pending, and the order may be finalized at the end of the case. A judge may issue an order as part of a paternity case. An order may also be entered as part of a juvenile proceeding, or as part of an adult abuse action. If a court has not already ordered child support, the director of the Division of Child Support Enforcement may issue an order in certain cases.

What is the Division of Child Support Enforcement?

The Missouri legislature set up the Division of Child Support Enforcement to assist parents in obtaining child support orders and in collecting child support. It is sometimes referred to as a IV‑D agency, because it was created under Title IV‑D of the Social Security Act.

In this pamphlet it will be referred to as D.C.S.E. The services offered by the D.C.S.E. are free.

How can I sign up for the services of D.C.S.E.?

Applications for child support assistance can be obtained at your local D.C.S.E. office. Check your local telephone directory for the Division of Child Support Enforcement office located nearest you.

Do I have to meet any financial qualification in order to obtain the assistance of the Division of Child Support Enforcement?

The child support services are available to all custodial parents, regardless of income level.

Can I get child support if I am receiving state aid?

As an A.F.D.C. recipient, you have signed over your rights to child support to the state. The state, through D.C.S.E., will try to establish and enforce a child support order. The money collected will be turned over to the state to pay back the state aid which you have received.

If you are receiving state aid, your caseworker should be able to answer your questions about their policies.

Who keeps track of my child support payments?

In all cases, child support payments are tracked through the Family Support Payment Center (FASTPAC).

 

When does the child support obligation end?

Usually, child support will terminate at the age of emancipation, which differs in each state. In most cases in Missouri, the obligation to pay child support will end when the child is between the ages of 18‑22 years. The actual date of emancipation will depend on whether the child has graduated from high school and is attending some form of higher education. Other factors include whether the child is married, is on active duty in the armed forces, or is self‑supporting.

My spouse and I are separated, but neither one of us has filed for divorce or legal separation. Our children are living with me. What can be done to get child support for my kids?

The Division of Child Support Enforcement can obtain a child support order for a custodial parent through administrative procedures.

The D.C.S.E. does not handle divorces; therefore, you may wish to contact an attorney to discuss your other options.

PATERNITY ISSUES

The father of my child and I are not married. Can I receive child support from him?

Your case can be handled either by D.C.S.E. or your own attorney and would generally be called a paternity case. In a paternity case, once paternity (fatherhood) is established, you may be able to obtain child support from him for your child.

How long does it take to get an order establishing paternity?

If the father of the child is unwilling to cooperate in establishing paternity and it must be proven that he is the father, establishing paternity can be a long process. Every case is different and the time span varies widely. If, on the other hand, the father legally admits his paternity, the case can proceed fairly quickly.

Will a blood test be done in my paternity case?

Generally, in cases where a man denies that he is the father of your child, the alleged father is entitled to request a DNA genetic parentage test to determine if he is the biological father. Sampling may be obtained by blood or buccal (cheek) swab. Today the vast majority of testing is performed using buccal cells, rather than blood. This technique is approved by the paternity testing accreditation organization, the American Association of Blood Banks.

ENFORCEMENT OF CHILD SUPPORT ORDER

I already have a child support order, but the other parent isn’t paying. What’s the next step?

Once you have a child support order, if the support is not being paid, the next step is to enforce the order. You may try to enforce the order on your own, or you may wish to speak with an attorney or go through D.C.S.E.

How can a child support order be enforced?

Usually, the quickest and most effective ways to enforce a child support order are through wage assignments and garnishments. These are orders to employers, banks and others who may owe money to the absent parent to pay the delinquent child support instead of the absent parent. Other methods of enforcement include real estate liens, personal property liens and attachments. These methods are usually more time‑consuming and, in the case of attachments, may involve large cash deposits to cover sheriff’s fees, storage and court costs.

What is civil contempt of court?

A civil contempt order is one way that a judge can enforce a child support order. In certain circumstances an absent parent may be sent to jail until he or she pays off the child support arrearage. Civil contempt is a very complicated area of law. It is recommended that you consult an attorney or the D.C.S.E. rather than trying to obtain a civil contempt order on your own.

What if the absent parent is not in Missouri?

The fact that an absent parent does not live in this state may make child support collection more difficult. However, all 50 states have passed laws which increase interstate cooperation. You may wish to contact your attorney to discuss the possibility of registering your child support order in the absent parent’s state.

D.C.S.E. has the ability to cooperate with IV‑D agencies in other states through administrative procedures. The agencies may also work together by filing a petition under the Uniform Reciprocal Enforcement of Support Act (URESA).

What will happen to the child support if I move out of Missouri?

In most cases, child support is not affected if you leave the state. If you have child support collection problems, you should contact the IV‑D agency in your new location. You should be aware, however, that leaving the state may have implications where custody and visitation are concerned.

If you are thinking of leaving the state, it is recommended that you speak with your attorney to get a full explanation of your rights and responsibilities.

What can I do to help the D.C.S.E. obtain and/or enforce the child support order for my kids?

You can provide all information and required documents with your application. You can keep D.C.S.E. advised of any new information on location or employment of the absent parent.

What about:

Custody ? Visitation ? Divorce ? Abuse ? Mediation/Arbitration ?

These issues are beyond the scope of this pamphlet and you may wish to discuss them with your attorney. The D.C.S.E. does not have the authority to deal with these issues.

Source:  The Missouri Bar

Also take a look at a new website, The Child Support Web, for information about child support in various states or to find an attorney in the different states.

Careful What You Say or Print

Posted on April 20, 2007 by Charles Meyer of the Pennsylvania Family Law blog:

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

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

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