Canadian Approach to Dealing with Parental Alienation Syndrome

Florida Divorce * Child Custody * Domestic Violence Law Lawyer Blog's Canada: Parental Alienation: Is It Appropriate for a Court to Order Intense, In-Patient “Rehab” at a Distant, Secure Facility? picks up on some news from Canada that is worth pondering:

"In Canada, claims of parental alienation are taken extremely seriously.

So much so, that at least one commentator has noted a judicial “fad” of ordering alleged child victims of it to a US clinic for cure.

Parental alienation remains very controversial."

How often can we can convince a judge here that a child subjected to parental alienation syndrome should receive counseling?

Prenuptial Agreements - Trusts as an Alternative?

Payback Time from Barrons has more to do with Wall Streeters but I was struck by a possible alternative to a pre-nup agreement - with two very serious preconditions.

"But these days, even though lovebirds may not be utilizing the pre-nup much, it doesn't necessarily mean they aren't covering their assets. Mitch Drossman, national director of wealth-planning strategies at U.S. Trust, is seeing an increase in self-settled trusts, where people can park their assets, or third-party trusts, to protect the family inheritance just in case the romance sours. Happily, the survey found that only 2% of those in first marriages sought pre-nups, compared with 18% of the recidivists. Which may just prove that young love, at least, still is blind"

What is this serious precondition? Trusts can cost more than a prenuptial agreement. That limits their use to those who can afford them. The other problem has to do more with my reluctance to place non-liquid assets in a trust.

Since I also write about cohabitation agreements, I see no reason that a trust could not also protect a person's liquid assets when cohabiting. However, I think the problems of cost and protecting non-liquid assets will be even greater for non-married couples.

Grant County Medical Expenses Local Rule

Let us take our review of local rules to Marion, Indiana. Grant County rule on medical expenses has two points that need examining. Here is the first:

5. If presently effective, or if available through their place of employment, both parents are ordered to pay the premiums and maintain the children on a health insurance policy, exchange insurance cards, and cooperate with the filing of health care claims for the children. The custodial parent shall be responsible for, pay and document all uninsured health care expenses, including but not limited to medical, dental, orthodontic, hospital, optical, psychological, addiction counseling, and services, prescription and non-prescription health care items, and other physical, mental or emotional health-related expenses for the minor children up to 6% of the basic child support obligation set forth on line 4 of the Child Support Obligation Worksheet. The parents shall then be responsible for and pay any such uninsured medical expenses in excess of said amount at the rate of: father ____%, mother ____%. Example: If the basic child support obligation on line 4 if $200, the custodial parent would be responsible to pay $624 per year in uninsured health care expenses before such expenses would be shared by the parent by the above percentages. [$200 x 52 = $10,400 x 6% = $624.]

What I see here duplicates Indiana Child Support Guideline 1. H.. Which makes it a bit useless as a local rule. If you look at the Child Support Worksheet, you will see that it provides for the percentages set out in this Rule.

For me, the following contains the more important parts of this Rule:

For the purposes of the payment of uninsured expenses after the 6% amount has been paid, the custodial parent shall, within a reasonable time for the receipt of a statement for health care, send a copy of such statement to the non-custodial parent for the payment of the non-custodial parent’s share within 30 days. The non-custodial parent shall then be responsible to pay and hold the custodial parent harmless for the non-custodial parent’s share of that statement; or, if the amount of the statement was paid in full by the custodial parent, reimburse the custodial parent the non-custodial parent’s share of that statement within 30 days.

No other county in my area has such a rule. The first question I have for my clients when they want to file contempt for failing to pay medical expenses is this: have you sent the bills to the other party? A party cannot be held in contempt for failing to medical expenses without their knowing about the bills.

Now comes the sticky part of the Rule, where the paying parent might lose the ability to get reimbursed for unpaid medical expenses:

The custodial parent may bring a contempt action if not timely reimbursed. It frequently is difficult to fairly determine the issue of unpaid health care expenses when a substantial period of time has passed before the issue is brought to the attention of the Court. Therefore, if contempt proceedings have not resolved the payment of health care expenses, the following procedure applies:
A. No later than April 15th of a year they shall determined the proper allocation of payments.
B. In the event that the parties are unable to agree, the aggrieved party shall file with the court a petition for the payment of medical expenses on or before July 1st of that year.
C. Unless good cause is shown, failure to file to enforce the court’s order by July 1st shall be deemed a waiver for the payment or reimbursement of medical expenses for the proceeding year.
D. Any person who unreasonably fails to settle the allocation for health care costs and who thereby causes the other party to incur attorney fees to resolve the issue shall be sanctioned by the imposition of those fees as a part of any court proceedings.

Grant County residents have a time table to settle accounts. Do not settle them by July 1 without a good reason and you are stuck with the bills.

Indiana Decisions: GAL fees

This news is not so much new, but still worth noting The Indiana Lawyer report on Appellate court rules on GAL fees:

"A guardian ad litem must differentiate between attorney and non-legal work when billing in a paternity case, and trial courts must carefully consider guidelines set out in probate-focused Indiana Professional Conduct Rule 1.5 when deciding how to compensate for fees and expenses.

The Indiana Court of Appeals ruled today in the case In Re: The Paternity of N.L.P., (PDF format)Robert Pendowski v. Lisa A. Sizemore/ Jill S. Swope, No. 45A03-0805-JV-226, vacating and remanding to Lake Superior Court a case dealing with an issue of first impression."

Henry County Divorces and Child Support Worksheets

The requirement in (C) about the support docket fee surprises me. Yet that is something that ought to be in all Decrees of Dissolution. The Indiana Code requires it. I think the requirement about payment for the uninsured medicals in the Decree seems duplicative of the quoted part of (A). So far as I can recall, the Child Support Worksheets show the uninsured medical expenses.

LR33-FL00-1 FAMILY COURT RULES
(A) CHILD SUPPORT WORKSHEET AND CERTIFICATE OF ATTENDANCE. ....The parties must also file a child support worksheet to accompany their Decree of Dissolution of Marriage....

( C ) DECREE OF DISSOLUTION OF MARRIAGE INVOLVING MINOR CHILDREN. The written decree must state that the non-custodial parent is responsible for the annual child support docket
fee. Two original copies of the decree must be tendered along with sufficient copies for all counsel and parties if unrepresented. The decree must also provide for the payment of uninsured medical expenses pursuant to the child support rules. A child support worksheet must be attached to all decrees.

Alternatives to Divorce: Annulment

The interest in annulments continue, so I decided to take a look at Indiana case law. There is not much.

The most recent being In the Matter of the ESTATE OF Mark R. HOLT, 870 N.E.2d 511 (Ind.App. 2007). Brother petitions court to determine on grounds that remarriage of dead brother and former wife was void due to decedent's mental incompetency. Some points to consider:

Indiana Code Section 31-11-8-4 provides: “A marriage is void if either party to the marriage was mentally incompetent when the marriage was solemnized.” Accordingly, if a party is of unsound mind when the ceremony was performed, the marriage can be declared void. Baglan, 4 N.E.2d at 55. The burden rests upon the challenger to prove that a party was incapable of understanding the nature of the marriage contract. Id. “The presumption in favor of the validity of a marriage consummated according to the forms of law is one of the strongest known.” Bruns v. Cope, 182 Ind. 289, 105 N.E. 471, 473 (1914), overruled in part on other grounds by Nat'l City Bank of Evansville v. Bledsoe, 237 Ind. 130, 144 N.E.2d 710 (1957).
Several lay witnesses testified concerning Mark's apparent state of mind and actions on his wedding day. Porter County Clerk Dale Brewer, who completed the marriage license application and performed the wedding ceremony, testified that she “followed basic procedures” and perceived “no red flags.” (Tr. 98.) She testified further that she specifically asked Mark if he “wanted to get married.” (Tr. 115.) In her opinion, Mark had no problems answering the application questions and responded promptly and appropriately. Mark's friend Darin Milbrandt testified that Mark exhibited no problems at the wedding. He was “in good spirits” and “didn't need assistance.” (Tr. 142.) Mark's stepson testified that Mark joked and laughed, talked about fishing, and specifically inquired about his step-granddaughter. Curtis and Donna Claussen, who briefly visited with Mark after the wedding, described a conversation in which Mark asked about Curtis's work and correctly identified his employer. Curtis opined that Mark was “not confused or incoherent” and expressed his wish to get out on his boat. (Tr. 168.) Irene Claussen also testified that Mark was engaging in normal conversation and was “not confused or incoherent.” (Tr. 129.)

Richard essentially argues that the testimony of each of the foregoing witnesses should be discarded as incredible because they are related to or friendly with Cindy and they are not expert witnesses. He cites no authority for the proposition that laypersons may offer no evidence of another person's mental competency. He also would discard the testimony of expert witness Dr. Robert Granacher because his opinion of competency rests in part upon the laypersons' reports. Richard merely requests that we reweigh the evidence, find each of Cindy's witnesses lacking in credibility, and credit only the testimony of his expert witness who opined that Mark's seizures were likely preceded by undiagnosed seizure activity. However, we do not engage in this reweighing process, but rather must determine whether the evidence unerringly points to a conclusion other than that reached by the trial court. See LTL Truck Service, LLC v. Safeguard, Inc., 817 N.E.2d 664, 667 (Ind.Ct.App.2004)

Then we have DeMoss v. DeMoss, 135 Ind.App. 548, 195 N.E.2d 496 (1964) where one of the parties was too young to marry without parental consent.

The complaint here indicates that appellee was a male seventeen years of age at the time of marriage, and also at the time of the filing of this action, and could not have ratified the marriage. The marriage was therefore voidable and subject of being declared void upon his application.

Then we go back 1919 and CHRISTLIEB v. CHRISTLIEB, 71 Ind.App. 682, 125 N.E. 486. By the way, this case remains good law in Indiana even with its age. This case actually has some interesting points, some of legal interest and also of more historical interest. Here are the facts as plead:

The material averments of the first paragraph of complaint, hereinafter termed the complaint, are as follows: That on August 29, 1916, appellee entered into a certain marriage ceremony and pretended marriage with appellant at Centerville, in the state of Michigan; that said marriage was illegal and void for the following reasons: That appellee was at the time but 16 years of age, and that the pretended marriage was without the consent of her parents, who were at the time residents of Lagrange county, Ind.; that prior to said marriage appellant had falsely and fraudulently represented to appellee that he had never been married, had no children, and was a man of good character in the community where he had lived; that appellee, being ignorant as to the truth of such representation, believed the same to be true, and, relying thereon, entered into the marriage contract; that said representations were false, and known by appellant to be false at the time made, and were made for the purpose of deceiving appellee and inducing her to enter into said marriage; that appellant had been married and was the father of three children; that in 1914 appellant was divorced from his former wife; that the custody of two of said children was awarded to appellant, and he is now under order of court to support the same; that appellant is a drinking man who spends his earnings in riotous living and debauchery, and that he is dishonest; that the parties “have never lived or cohabited together as husband and wife.” Prayer that the marriage be declared void.

It will be observed that the complaint is not based upon section 5 of the Acts of 1905 (Acts 1905, p. 215; section 8367 Burns 1914), regulating marriages, or upon any other statute, but proceeds upon the theory of actual fraud in procuring the marriage contract. The law is well established that a marriage procured by fraud is voidable at the suit of the injured party, and that courts having the jurisdiction of courts of equity, under their general powers to annul fraudulent contracts, also have jurisdiction to annul a marriage on account of fraud (Henneger v. Lomas, 145 Ind. 287, 44 N. E. 462, 32 L. R. A. 848); but what would constitute such fraud as to authorize the annulment of a marriage has not been determined by the courts of appeal of this state.

Nowadays this sort of fraud is included in the annulment statute. How does the Court of Appeals decide the case?

The allegations of the complaint which refer to appellant's fraudulent representations as to his personal character and his former marriage are not, however, the only averments going to the charge of fraud. It is also alleged that appellee was but 16 years of age; and, although appellant's age is not given, it may nevertheless be inferred from the facts set forth in the complaint that he was much older. The mere fact that appellee was but 16 years old at the time, and was married without the consent of her parents, would not, under the statute requiring parental consent to the marriage of a girl of that age (section 8371, Burns 1914), render the marriage void, even if the marriage had taken place in Indiana. Franklin v. Lee, 30 Ind. App. 31, 62 N. E. 78. Nevertheless, when taken in connection with the other allegations of the complaint, the statement that she was only 16 years of age is an important allegation in support of the charge of fraud....

Another averment of the complaint, and perhaps the most important, is that the parties “have not lived or cohabited together as husband and wife.” Where a marriage has not been consummated, the reason for the rule above stated, and therefore the rule itself, do not apply. No unborn children “will cry out from the mother's womb demanding that they may not be bastardized, lose a father, and know only a disgraced >mother.” In the case under consideration the public can be in no way interested in affirming the marriage. On the contrary, public policy would seem to require an annulment of the marriage. If the marriage is declared valid, it will be in name only, preventing the parties from marrying again. We are therefore constrained to hold that the allegations of the complaint, when taken together, state a cause of action for fraud, and authorize the annulment of the marriage....

So with all the talk of fraud, what we have in is the same case as DeMoss.

Let me speculate a bit about the long gaps between these appellate court cases. First, annulment requires meeting and proving certain things which makes its use rather limited and rather rare. Then, too, I think what annulment cases do get filed, do not give rise to issues for appeal.

Ask yourself this question about DeMoss: what potential bride (or her family, who probably paid for the appeal) would appeal the annulment of her marriage? I suspect more of a social stigma attached in 1964.

I think Moore v. Moore. 81 Ind.App. 169, 135 N.E. 362, 363 (1922) supports my thinking that annulment lost its luster when fault was removed from the divorce statute.

The issue presented in this cause by the first paragraph of cross-complaint was as to the right of appellant to have his marriage to appellee nullified. The issue presented by the second paragraph of cross-complaint was as to the right of appellant to an absolute divorce from appellee. No other issue was presented. The court found upon each of these issues against appellant, that he was not entitled to have the marriage declared null and void, and that he was not entitled to an absolute divorce....

Under the current statute, the husband (who was the appellant) would have had his divorce although not the annulment.

Grant County Clerk, Child Support Information

Clerk, Child Support:

"Child Support (765) 668-6542
Hours, Monday - Friday 8:00 a.m to 4:00 p.m Closed Noon to 1:00 p.m.///////// INSCCU Indiana State Central Collection Unit Mail Child Support Payments to: INSCCU P.O.Box 7130 Indianapolis, IN. 46207-7130 Customer Service: (317) 233-5437 (local) 800-840-8757 or (317) 241-9636 (TTY) Mon-Fri. 7:00 a.m. - 6:00 p.m. Sat. 7:00 a.m. - 12:00 p.m."

Indiana Decisions - Grandparent visitation and adoption

News from The Indiana Lawyer for the 20th, Court: grandparent visitation survives adoption:

"State statute clearly allows grandparent visitation to survive a child's adoption by another biological grandparent, the Indiana Court of Appeals has ruled."

In a unanimous decision today in Elizabeth and Terry Baker v. Donnie Lee, No. 36A01-0807-CV-340, the appellate panel affirmed a lower ruling from Jackson Circuit Judge William Vance.

The case involves three children who were born out of wedlock between 1995 and 2002, and whose parents were incarcerated multiple times because of substance abuse. Lee is the maternal grandfather and Elizabeth Baker is the paternal grandmother, who with her husband received guardianship of the children and allowed Lee to visit on an informal basis.

News: Counties wanting local video can apply now

Something that could be very useful and so the whole story from The Indiana Lawyer:

"Indiana counties that would like a customized self-represented litigant video can apply to the Indiana Supreme Court Division of State Court Administration Indiana Family Court Project.

The Division of State Court Administration is currently accepting applications to create 15 more customized county videos. Last year, the Family Court Project made a video to help courts with self-represented litigant issues. The first phase of the project consisted of creating one, 'boilerplate' video that provides general information applicable to litigants statewide.

There is no match or any other cost to the counties to participate in this project. The only requirements from the counties are to provide some local information and possible 'extras' for the video. First preference will be given to those participating in the Family Court Project. Applications are due by March 13."

Today, I had two different callers from two different callers complain that the judges on their cases wanted them to get lawyers or they could not file. I can understand this view on a professional level - it does lessen mistakes and work for the judges. Still, such a rule can only be called unconstitutional. I think education would lessen most problems. Education such as this video.

Minnesota Looking to Change How to Handle Child Custody Litigation

That is what I gather from Florida Divorce * Child Custody * Domestic Violence Law Lawyer's Minnesota Pleased with Early Results in Pilot Program to Resolve Custody Issues Amicably Outside Court: "Minnesota is experimenting with a program to reduce litigation over child custody.

Early Case Management and Early Neutral Evaluation are the cornerstones of the pilot program.

In the program, parents begin working with professionals to amicably resolve child issues early in the case.

About 120 cases have participated in the program over three years.

One hundred of those cases were amicably resolved.

None of them have had to go back to court.

The program costs $600 to participate in."

Considering the bit of response I have been getting to my posts on the proposal to change Indiana's child custody law and my own reaction to the proposed change (see here and here), I think this might be a better alternative to a wholesale change of the law.

Cohabitation: From England to Scotland to Indiana

Want to read how they handle cohabitation in Scotland and England? Read Cohabitation: England v Scotland – by guest blogger Jenny Wilmot from the Marilyn Stowe Blog.

In 2006 the Family Law (Scotland) Act became the first major legislation in the UK to secure unmarried couples’ rights. It does not seek to give separating cohabitants the same rights as divorcing spouses. Instead, it aims to provide a limited version of the same. The legislation applies to couples who have been living together for at least one year. The courts there now take account of:

* whether the applicant has suffered economic disadvantage due to the other cohabitant or the child; and
* whether the defender has derived an economic advantage from the applicant’s contributions.

If these matters are satisfied, the court has the power to do the following:

* Make an order that requires the other cohabitant to pay a capital sum to the applicant.
* Make an order that requires the other cohabitant to pay an amount in respect of any economic burden of caring for a child that both cohabitants parent or
* Make any other order the court thinks fit."

And then take a look at The Scottish statutory cohabitation scheme by guest blogger John Fotheringham WS from the same blog.

Grant County attorney fees

What we do not often see is a Local Rule setting attorney fees but Grant County has one.

1. The standard attorney fee order in all dissolutions of marriage shall be $850, payable as follows: $300 within 30 days, $300 within 60 days, and $250 on or before the final hearing.

I think the essential word in this Rule is "standard" but there is no definition of that word in the Rule. I see nothing unreasonable about the amount of $850.00 where there are not custody issues or pensions or requests for maintenance or real estate issues or enforcement issues. After all, I recently finished a case in Muncie where opposing counsel requested $1,000.00 for a provisional hearing where there no children, no real estate and almost no personal property. I found that unreasonable and the judge awarded only $750.00 (which might be still be unreasonable but by the time we finished the case, the Muncie attorney only got a total award of $1,250.00 and there were maintenance and enforcement issues).

If standard is anything more than preparing a petition, appearing for a short provisional hearing, calculating child support, appearing for a short Final Hearing, and then preparing the Decree of Dissolution, then I have to question what Marion calls a standard divorce. The point where service suffers due to low profits is one not understood by most clients and maybe more than a few judges.

To compare with Madison County's view on attorney fees, take a look at this article.

News: Indiana Legislation About Legal Aid

No, the General Assembly is not going to create a system making sure that everyone has access to a lawyer and the courts but it is improving how the indigent get to court.

Bill: Legal aid services can assess indigency:

"Indiana lawmakers want the state's legal aid and pro bono programs to have one less hurdle to navigate through when representing indigent clients, agreeing that there's no need to always tie up court time in establishing indigency.

The unanimous House vote came Thursday on HB 1363, which is authored by Rep. Trent Van Haaften, D-Mt. Vernon, also an attorney with Bamberger Foreman Oswald and Hahn. The legislation provides that a clerk can waive any required fees or court costs on a civil action or petition for a guardian to be appointed, without a judge's approval, if that person is represented by a civil legal aid program or pro bono attorney that's already established indigency.

Designed to improve court efficiency by reducing the time spent on determining indigency, Van Haaften said courts generally waive filing fees even if they require a hearing for a plaintiff represented by Legal Services Inc. or a pro bono district. Those programs set their own standards and have comprehensive screening processes, and there is no need to duplicate the efforts or tie up court resources, he said.

Van Haaften said trial courts would have the option to step back in at any point and re-examine a person's indigency, if needed."

***

Fiscal research on the legislation notes that the number of people represented by a civil legal aid or pro bono attorney is not reported in the Indiana Judicial Report, though pro bono administrators and directors of legal assistance corporations report that the large majority of indigent plaintiffs are represented in divorce and child support cases. On average, the state's general fund receives fees between $104 in civil cases and $118 in probate cases, and local general funds receive between $32 in civil and $38 in probate, according to a fiscal impact statement

Add Henry County to the list of counties with a divorce seminar

Yet another local rule post, this time from Henry County.

LR33-FL00-1 FAMILY COURT RULES
(A) CHILD SUPPORT WORKSHEET AND CERTIFICATE OF ATTENDANCE. All divorcing parents with children must attend the required “Loving Your Children Through the Divorce” program and provide the court with the original certificate of attendance at the commencement of their final hearing or accompanying their Waiver of Final Hearing. .... The Court may, in its discretion, continue the Final Hearing or withhold entering the Final Decree for failure to attend the required class.

I tried to find out what I could find online about this seminar but the Henry County website gave me nothing.

For my other posts on counties requiring parents attend a seminar, see these posts: Children Cope with Seminars and Madison County Local Rules: LR48-AR00-18 Children in the Middle Seminars

The Costs of Collaborative Divorce

I am not so sure that I am greatly surprised that collaborative divorce might have a high price tag. Thanks to Florida Divorce * Child Custody * Domestic Violence Law Lawyer for leading me to this letter to The Toronto Star - Collaborative divorce not cheap:

"Collaborative divorce is a translation for making lots of money. I was advised that the process would cost anywhere from $4,000 to $8,000. After almost 12 months, I'm looking at more than $15,000 with no end in sight. Between the two lawyers, facilitator, financial adviser and lawyers' assistants, the money I could have put into my children's education has gone down the drain.

There is nothing about the process that is collaborative – other than how the players collaborate together to make money."

I also want to note this from Florida Divorce * Child Custody * Domestic Violence Law Lawyer's article, A Canadian Participant Rates Collaborative Divorce as … Not Cheap:

"Collaborative divorce has been enthusiastically embraced by many attorneys and other professionals serving people going through divorces.

Its primary virtues are touted as:

1. nonadversarial
2. less costly than litigation

Maybe, maybe not. It all depends on the particular case and parties."

From England, The Living Together Agreement

Yes, this comes from what appears to be a news release from English Family Law Specialists Woolley & Co..

But Back The Living Together Agreement has points that apply to Indiana and they are well made points.

February 5, 2009 -- Andrew Woolley, Senior Partner at Woolley & Co, whose pioneering UK-wide family law firm conducts much of its work online and over the phone, said, “Most people think that if you live with your partner for a couple of years you get the same rights as married couples, but this simply isn’t true. Cohabiting couples have very few automatic rights and contrary to popular opinion, there is no such thing as s common law husband or wife. This is where a Living Together Agreement comes in.”"

The only difference between Indiana and the UK is that Hoosier have no automatic rights based on cohabitation.

This paragraph applies to prenuptial agreements as well as cohabitation agreements:

Although no one enters into a relationship believing it will break down, a Living Together Agreement can be thought of as a safety net, assuring both parties that if the worst was to happen their financial security would be protected.

And thinking of these agreements as safety nets, as insurance, is the best mindset I can think of.

Nor can I think of any points omitted below that Hoosiers should not be thinking of when they live together:

The terms to be included in the agreement will be decided by both parties. The agreement can include details about property, payment of the mortgage, outgoings, ownership of contents, liability for debt, ownership of bank accounts and much more. This in-depth assessment at the outset is of particular value to those who have been married previously or who own their own home and feel that moving their partner in may give them a claim to the property.

Cohabiting couples have little access to the established law governing married couples in the event of a separation or getting a divorce. A Living Together Agreement at a very early stage can eradicate this problem and avoid complicated legal issues such as rights to property. If one partner’s name isn’t on the deeds but they have contributed to the mortgage or rent payments or if the home has been occupied as the family home of the children, documenting these contributions in the Living Together Agreement will avoid complicated legal claims and help both parties avoid any unpleasant surprises at the end of the relationship.

Mr Woolley added, “Normally the most significant asset of any partnership is the house and once you have decided to go your separate ways, the starting point is often to consider whose names are on the deeds to the property. There are some circumstances which may allow you to claim an interest in your former partner’s home, for example if it is the family home for children, or if you have paid towards it – but this is a complicated area of law and it is very important to get some advice from a family law expert on your particular situation.”

If you were not married to each other, the contents of your house can also end up being the fuel that lights the fire. The basic rule is that each item belongs to whoever paid for it, but in some cases couples will be able to agree that it would only be right for example, that whoever any children live with should have the use of the majority of items. Wishes such as these can recorded in a Living Together Agreement to settle any disputes, which may arise later.

I chatted with a young lady the other day who has lived with her guy for eleven years. Several years ago, they bought a house. No cohabitation agreement, of course. I hate to think what the litigation will cost her if the relationship ends.

Marriage Quality and Having Children

I am reading Till Children Do Us Part online at The New York Times and thinking this is interesting but I was not sure whether to post or not. What got me the most was that marriage with kids is difficult and there is no one path to success.

"HALF a century ago, the conventional wisdom was that having
a child was the surest way to build a happy marriage. Women’s magazines of that era promised that almost any marital problem could be resolved by embarking on parenthood. Once a child arrives, “we don’t worry about this couple any more,” an editor at Better Homes and Gardens enthused in 1944. “There are three in that family now. ... Perhaps there is not much more needed in a recipe for happiness.”"

***

Over the past two decades, however, many researchers have concluded that three’s a crowd when it comes to marital satisfaction. More than
25 separate studies have established that marital quality drops, often quite steeply, after the transition to parenthood. And forget the “empty nest” syndrome: when the children leave home, couples report an increase in marital happiness.

But does the arrival of children doom couples to a less satisfying marriage? Not necessarily. Two researchers at the University of California at Berkeley, Philip and Carolyn Cowan, report in a forthcoming briefing paper for the Council on Contemporary Families that most studies finding a large drop in marital quality after childbirth do not consider the very different routes that couples travel toward parenthood.

***

The Cowans found that the average drop in marital satisfaction was
almost entirely accounted for by the couples who slid into being parents, disagreed over it or were ambivalent about it. Couples who planned or equally welcomed the conception were likely to maintain or even increase their marital satisfaction after the child was born.

***

When the Cowans designed programs to help couples resolve these
differences, they had fewer conflicts and higher marital quality. And the children did better socially and academically because their parents were happier. But keeping a marriage vibrant is a never-ending job.
Deciding together to have a child and sharing in child-rearing do not immunize a marriage. Indeed, collaborative couples can face other problems. They often embark on such an intense style of parenting that they end up paying less attention to each other.

Dogs and Divorces

I like dogs but I have not had a dog for years. last night, the kids and the wife and I had another discussion about why we will not have a dog so long as we live in town. I mention all this to counterbalance my lawyer's opinion where I disagree with the premise of The Legal Week's Why you shouldn't let your divorce come between you and your dog:

"Here, Shelley Hesford from SAS Daniels, says distressed dogs are increasingly becoming factors in how a divorce is conducted - and many couples are underestimating the impact the build-up to divorce and the consequent split can have upon their hound. Her comments are followed by the views of pet care professional Sarah Walmsley.

Ms Hesford told LDPLegal.co.uk: 'This may well sound frivolous, but a dog has rights and its wellbeing can put huge demands on its owners, and actually cause intense complications when a couple splits up.

Ms Hesford continued: 'When there are children involved, they
take priority. However, some couples are childless but have a very
parent/child-like relationship with their pets - particularly dogs - and
completely misjudge the impact a divorce can have."

Yes, I have a problem with dogs having rights. Except for one, now senior judge, I expect most of the judges in my area will agree with that dogs do not have rights the same as human beings.

That pets affect humans and that needs addressing by lawyers and courts, is something I can agree upon.

More News On New Indiana Joint Custody Bill (HB 1044)

I have a letter from State Representative Pond, the sponsor of HB 1044 (which I first noted in New Indiana Legislation: New Joint Custody Bill). My apologies for the delay in getting this onto the blog. I also have excerpted posts from two other family law blog from outside of Indiana that I think give us some food for thought; first as to the effectiveness of a joint custody presumption and a possible alternative.

I asked for an explanation of what need this legislation is to remedy. I would like to comment that I doubt very many people in Indiana think the mom stays at home while dad goes to work. Indiana's economy has not allowed that in the past 30 years, if not longer. I would also comment that Indiana law does recognize joint custody as "as sharing authority and responsibility for major decisions in the child's life." I would also say that between our custody statutes, Parenting Time Guidelines, and Child Support Guidelines, Indiana law has done a lot to not make the non-custodial parent merely a visitor and it is even now left to the courts to decide if joint custody is appropriate in each case. I simply do not read an answer to my question that gives any empirical evidence that this change will accomplish the stated goal of improving the lives of Indiana children.

INDIANA HOUSE OF REPRESENTATIVES

THIRD FLOOR STATE HOUSE 200 WEST WASHINGTON STREET INDIANAPOLIS, INDIANA 46204

January 20, 2006

Samuel Hasler

1106 Meridian Plaza Suite 251

Anderson, IN 46016

Dear Samuel:

I went over your question with Rep. Pond. Here is her response:

Today, many Indiana mothers have a full-time career which does not allow them to be home 24 hours a day. The term "Joint legal custody" should be recognized as sharing authority and responsibility for major decisions in the child's life.

House Bill 1044 would establish a rebuttable presumption that an award of joint legal custody is in the best interest of the child. To prove assuming joint legal custody would not be in the best interest of the child the court must consider:

1. The fitness and suitability of each of the persons who would be awarded joint legal custody;
2. Whether the persons who would be awarded joint legal custody are able and willing to communicate and cooperate in advancing the child's welfare; and
3. Whether the child has established a close and beneficial relationship with the both of the persons who would be awarded joint legal custody,

The court's decision should include any history of violence by either parent. As author of HB 1044, I believe it's time for Indiana to make a public policy statement that joint legal custody is in the best interest of the children. It is no longer fair to assume that the mother stays home 24/7 and the father is the bread-winner who stays away from the family. It also shouldn't be assumed the father is less caring and nurturing than the mother. That is a false assumption.

It is time Indiana stops making the noncustodial parent (usually the father) simply a visitor in a child's life. Although the parents are divorcing each other, the children shouldn't be divorced from either parent unless there are valid reasons, which the courts should decide.

Sometimes the Deadbeat Dad is a Mom comes from a New York lawyer writing in NewsLI.com:

"How can we use this information to help reduce the “deadbeat” category altogether? The answer may lie in the concept of joint custody and visitation. Statistics show that when non-custodial parents are more involved in their children’s lives through joint custody and visitation arrangements, they pay all or some of their support obligation nearly 85% of the time. Non-custodial parents who do not share custody or visitation pay support less than 62% of the time. Absent circumstances of actual domestic violence, drug abuse or other such “red flags” where joint custody and visitation may not be appropriate, the custodial parent would be well-advised to encourage the non-custodial parent to be as involved with the children as possible. In such a scenario, the custodial parent would benefit, the non-custodial parent would benefit, and most importantly, the children will benefit. Where else in this economy will you be offered the opportunity to engage in a win-win-win situation?"

Do we have this kind of statistical information for Indiana? I do not know. Knowing the information collected here, I doubt that we have this information easily available, if at all. I will offer up this observation: nothing keeps the soured feelings of divorce flowing as well as non-payment of child support. That rancor influences the relations between parents and the parents and the child.

Minnesota Divorce and Family Law blog notes what the Minnesota legislature is doing in its article, Study Group's Report on Joint Physical Custody Presumption:

"The study group has issued its report with six non-comprehensive, non-unanimous recommendations. The study group has recommended that the Legislature do the following:

1. Fund the collection of data regarding custody arrangements and parenting plans over several years;

2. Promote cooperative agreements in future custody and parenting legislation;

3. Continue to provide the family court the ability to consider individual needs of children and families in making custody and parenting decisions;

4. Consider the essential importance of the safety of children and parents;

5. Amend current statutes to make it clear that there is no presumption for or against joint physical custody (except for the rebuttable presumption against joint physical custody in cases involving domestic abuse); and

6. If there were a presumption of joint physical custody in the future, that the term be clearly defined, and its relationship to the determination of parenting time also be clearly defined."

Of these six, I think 2 and 6 need serious consideration here also.

Here is what I wrote in New Indiana Legislation: New Joint Custody Bill about Minnesota:

It might be a good idea to see what the effect has been in other jurisdictions. I noted in an early post that Minnesota had a proposal for presuming joint custody. (There is another post here post e about Minnesota and joint custody.)....

I think we might want to think about what appears to be Indiana's plunging into a presumption when another state that favors joint custody takes a more cautious approach.

I suggest that anyone with an opinion leave a comment. Even those who subscribe to e-mail newsletter from here (and for those reading me regularly, you should sign up for the e-mail alerts).

As for me, I think it is an admirable idea that has not proven its need to me. If anything, I would ask why the General Assembly does not require - and fund - parenting classes for all divorcing parents.

For those interested, I found out that Yahoo hosts a group supporting the bill. You can find that group here.

If anyone has an opinion, then leave a comment on this blog.

Federal legislation and COBRA

Since I never deal with COBRA except in the area of divorces, I think NBGH Backs Temporary COBRA Subsidies from workforce.com is relevant:

"A major employer benefits organization said Monday, January 12, that it would back federal COBRA premiums subsidies as long as those subsidies are temporary.

In addition, the Washington-based National Business Group on Health said lawmakers should consider allowing former employees to choose a less expensive plan in which to receive COBRA coverage. Under current law, COBRA beneficiaries must remain in the plan in which they were enrolled until the next open enrollment period.

“With choice, they might pick a plan that has lower premiums and may be a better value,” NBGH president Helen Darling wrote in a letter sent to the chairmen and ranking members of congressional committees with jurisdiction on health care issues, as well as to Tom Daschle, President-elect Barack Obama’s selection as the next secretary of the Department of Health and Human Services.

The NBGH backing of federal COBRA premium subsidies comes as lawmakers are considering whether to include subsidies in an economic stimulus package. Business lobbyists said last week that lawmakers were discussing a proposal in which the government would subsidize 50 to 60 percent of the COBRA premium paid by beneficiaries."

Collaborative divorce ...meanwhile, over in England

I wanted to note this report from the Liverpool Daily Post blog The Legal Week: "Collaborative" divorce offered in Warrington.

"A WARRINGTON law firm is offering clients divorces without the need to go to court.

Forshaws Davies Ridgway (FDR) say 'collaborative' family law offers separation 'without the drama and stress' often seen when couples meet in court.

FDR's Family solicitors Audrey Venables and Ruth Hetherington, who are both qualified collaborative lawyers, added that the process can mean quicker and more amicable divorces for couples.

Ms Venables told LDPLegal.co.uk: 'Collaborative law is a new option that means divorce or separation need not necessarily end in a lengthy and expensive courtroom battle.

'Each person appoints their own lawyer but instead of conducting negotiations between you and your partner by letter or phone you meet together to work things out face to face.'

Although the process is not for everyone it could make divorcing significantly less painful and drawn out for couples who have split amicably."

Surely, therein is an idea can be adopted elsewhere - just think about it for a minute or two.

Tips for the Unmarried Buying Real Estate

The details vary but the facts set out by Ellen James Martin in her : Premarital home buyers? Set up some guidelines in ContraCosta Times are not so so rare:

"He's a mid-level manager at the Pentagon whose divorce became final five years ago. She's an elementary school teacher who's never been married. Though madly in love, both favor delaying marriage. So as a step toward commitment, they recently bought a house together.

But a few days after moving in, the two started bickering about who should pay for the extensive home repairs needed to raise it to neighborhood standards. As their arguments have escalated, so has the fear that their courtship could be in jeopardy."

And, of course, they did not have a cohabitation agreement and soon enough it is off to the lawyers and to court.

The writer gives some good points on what should go into a cohabitation agreement and buying real estate:

Here are four pointers for couples considering a home purchase before marriage:

Give yourself some latitude on payments.

Make sure both partners weigh in on the choice of a home.

Talk through how your mortgage payments will be apportioned.

Consider using a mediator to assist in developing your agreement.

Henry County Local Rules: Guardian ad Litem

Having written before about guardians ad litem (here and here and here), I am interested to see how often GAL's actually get used in Henry Couty.

(F) GUARDIAN AD LITEMS. The Courts shall utilize the Henry County Guardian Ad Litem/CASA office for the appointment of a Guardian Ad Litem. A separate order will be issued by the court and the CASA appointed by the Court should file a written report with the court, with a copy to all counsel and parties of record, within 2 days of any scheduled hearing. The Guardian Ad Litem should be available for hearing.

It does not mention any penalty for failing to get the report to the court and/or counsel and/or parties before the hearing. I got to admit that 2 days is short time to prepare any rebuttal to GAL's report.

Ideas for parents not communicating with the ex about kids

A long time ago, I learned that relationships depend on communication. Here are two sites that I have seen touted for helping parents communicate during their divorce. The first is Joint Parents and the other is Family Wizard. This is not an endorsement, just a suggestion to check them out.

Parenting Time - The Best Advice fo the Week

Maybe the advice for the entire year comes from California Divorce and Family Law Blog's In divorce, put focus on well-being of the kids:

"Non-custodial parents must persist in maintaining contact with their children, even if the other parent makes it difficult or a child seems to push them away. It may feel discouraging now, but perseverance generally pays off with deeper parent-child relationships later.

Parents should respect/honor the visitation schedule — both in showing up, and by being on time to pick up and drop off children. They should avoid making promises unless they can deliver on them.

Children need structure and love. Parents should make time with them as 'normal' as possible, showing that they are more than simply a 'Disneyland Dad' / 'Magic Kingdom Mom,' who constantly entertains. Kids feel safer and grow up more confident with a healthy balance between clear expectations and unconditional support."

Look, most parenting time/visitation cases come about from parents playing silly games of the kinds hinted at in the first two paragraphs. The third paragraph says why these games are bad for the kids. Let me add a far more unpleasant - for some game players - consequence for those denying visitation: persistent interference with parenting time has been used as grounds for changing custody.

Think About It: What Goes into a Prenuptial or Cohabitation Agreement

Deborah Moskovitch has written a book on divorce and is blogging on divorces with her The Smart Divorce® Weblog.

Her The thinking behind a prenuptial or co-habitation agreement beigns with:

"I am currently researching a book entitled Get It Right This Time and Move On: The Conversation You Need to Have. This is a revolutionary book covering the number of issues facing people going through not only another divorce, but offers ways to assess another significant relationship. It also guides people on their way to a smart relationship the next time, and moving on with the rest of their lives intact. While researching this book, I found that there seems to be a clear consensus on the importance of prenuptial/co-habitation and cohabitation agreements which need to be included in the mix."

I cannot disagree with either the sentiments or opinions of this paragraph (just click the link below to see my archives on cohabitation, post-nuptial or prenuptial agreements and you will see repeat both the sentiments and opinions in this paragraph):

Both type of agreements – prenuptial and cohabitation - are on the rise. Despite this increase, many family law lawyers feel that not enough of their clients are requesting these agreements. On the client side, there needs to be greater education about what these agreements are for. Furthermore, people are afraid to discuss their thoughts behind these agreements with a potential partner as a result of potential conflict and/or undermining their relationship.

Summing up, she makes this point which I think everyone emphasizes as why a prenuptial, post-nuptial or cohabitation is a good idea:

Considerations:

Prenuptial co-habitation agreements are an excellent way to protect assets in the event of separation/divorce. However, the important conversations a couple needs to have when agreeing to craft the agreement could actually go a long way to ensuring they are on the same page and hopefully avoid the all out war, which too often results.

I do suggest checking out The Smart Divorce® Weblog. Although Deborah Moskovitch is not a lawyer. This might get more of you paying attention to this idea of getting an agreement.

Dealing with the collateral damage Divorce

I want to share More magazine's Divorce's collateral damage. I have tried to point out the inability of the law to reach the underlying problems in a divorce and here is an other example. I do not know many lawyers capable of dealing with the emotional problems created by fractious personal relations:

"Jan Schloss, a social worker, certified parenting coach and family mediator, often discusses with her clients the issues related to the loss of these relationships.

There are different ways to look at it, says Schloss. These are loyalty issues, where many privately consider, 'Who am I going to side with, and how can I be friends with both?'

One of the suggestions she makes to clients when confronting the loss is to 'redefine who you are and how you would like to be in this new phase of your life.' And for those that think there may be a possibility of maintaining a relationship, Schloss says, 'Remember, you are not divorcing your in-laws or extended family that you loved and felt clearly connected.'"

***

Here are the top 5 things to consider when coming to terms with the loss of these relationships.:

You don't have to grin and bear it alone

Find strength from other relationships

Redefine who you are

Eliminate negativity

Put your children's best interest first

The Collaborative Family Law Association of Indiana

The International Academy of Collaborative Professionals website shows the following information for Indiana:

IACP: Collaborative law,collaborative practice,collaborative divorce.: "Collaborative Family Law Association of Indiana, Inc.
(7 IACP members)

Service Area: IN USA Contact
Person: Andrew Mallor
Phone: 812-336-0200
Website: Email: acmallor@mcgb.com
Address: 511 Woodscrest Drive
PO Box 5787
Bloomington IN 47407
USA"

Parents and the Financial Crisis

No, this post does not directly deal with divorce or other family law matters. Money does touch on the legal matters this blog's usual topics. It may be that the information in Parents and the Financial Crisis: An Update at SmartMoney.com will help you with your legal matters and it may be that it will just help. With those ideas in mind, I suggest that you follow that link and give it a read.

Indianapolis - Auction for domestic-violence victims

This news from The Indiana Lawyer's Auction to benefit domestic-violence victims seems well worth noting here:

"The Indiana University School of Law - Indianapolis' Women's Caucus is hosting its annual auction Feb. 12 to raise funds for the Protective Order Pro Bono Project. Proceeds from the auction will go to the project, which provides free legal advice for low-income victims of domestic abuse."

***

Auction paddles are $3 in advance and $5 at the door; to buy paddles in advance, e-mail the Women's Caucus at wmscaucs@iupui.edu. The auction is from 7 to 9 p.m. in Inlow Hall at the law school, and Dean Gary Roberts and Kerry Hyatt Blomquist of the Indiana Coalition Against Domestic Violence will be the auctioneers.

Say the right thing: 10 ways to defuse conflict and promote harmony

Domestic Diversions reprints Laurie Puhn’s list in his post Say the right thing: 10 ways to defuse conflict and promote harmony and that seems a very good idea:

1. “Thank you for your opinion. I’ll think about it.”
2. “Is this a good time for you?”
3. “Would you like my thoughts?”
4. “Why don’t we get the facts?”
5. “I need your help. Can you please…?”
6. “Let’s wait on this until we have more information.”
7. “What did you mean by that?”
8. “I don’t like that, so why don’t we do this instead?”
9. “I’m sorry you’re upset.”
10. “Let me get back to you.”"

Let me say again, most of our problems can be eased, if not solved, with a little diplomacy.

Delaware County Local Rules: Child Support Modification Orders

How often do we see a problem where the the support set up card has not been changed with the County Clerk? Or where the support arrears gets automatically set up on the Clerk's records. Muncie has a solution to this problem:

LR18-DR00-DLR-004 B. Order of Modification. Commencing on July 1, 2000, all Recorded judgment Orders on Petitions to Modify Support Payments shall be accompanied with a change in support payment sheet. The Recorded Judgment Order submitted for signature WILL NOT be signed without a change in support sheet completed and attached, or proof that the same has been done with the Support Clerk of Delaware County. With the above procedure being followed, any arrearage to be determined will be computed automatically on the support records and will allow the attorneys access to said arrearage immediately.

Local Rules on Parenting Time: Boone County

Well, I got to say that Boone County, Indiana has the best local rule on visitation based on brevity:

LR06-FL00-BLR-17
PARENTING TIME GUIDELINES
The Indiana Parenting Time Guidelines are hereby adopted by Boone County, together with any and all modifications and/or amendments thereto, effective as of the date said Guidelines determined effective by the Indiana Supreme Court.

Unlike Marshall County, the Boone County courts makes clear that the state-wide rules are the only rules in their county.

Remember that I have a link to the Indiana Parenting Time Guidelines on the right hand side of your screen.

Parenting Time - Alternate Means

Some new articles on Internet visitation. For something older, you might want to check out my Visitation by E-Mail. Meanwhile, let us take a look at the new articles.

First, take a look at Ohio Family Law Blog's Virtual Visitation: Part 1 - Utilizing Technology to Supplement Parenting Time:

"Not too long ago, divorced parents had limited communication options to stay in touch with their children. The old rushed and often dry “phone call approach” was better than nothing but had drawbacks. There were long distance phone charges and issues with time zones. New communication options have improved considerably! It is much easier for you to keep in touch with your children after a divorce. Most of these approaches require both parents to have a computer with broadband connections. Here are some options to supplement traditional face to face parenting time:"

All, too true. I had never heard of this:

etendi BRIDGE: Last month etendi.com launched BRIDGE (www.etendi.com) an easy to use, interactive, safe and secure web-based meeting place. It has been specifically developed for non-custodial parents or co-parenting situations, grandparents, military families, or the heavy business traveler. BRIDGE allows family members to stay connected by providing a single place for them to be together online. Features include live video phone calling, shared spaces for photos, videos and documents, personal notes, an interactive white board, and a shared calendar. Parents, kids and other family members can be online at the same time and have a video phone call, play games or work on homework together.

BRIDGE has combined the web-based tools that parents and kids enjoy into a simple subscription based system which eliminates external, undesirable content or SPAM reaching the kids. To learn more about BRIDGE, click here.

These “virtual visitation” tools are not suggested as a replacement to in-person contact but rather, as a supplement. The more options a parent can implement to stay in touch with a child, the stronger the bond between the two should grow. Long-distance parents should think “outside the box” and be creative in integrating virtual visitation tools to stay in close communication with their children. An excellent online resource to learn more about this topic is The Virtual Visitation Portal (www.internetvisitation.org), whose mission includes helping educate and providing free information on how virtual visitation can help both parents who are separated or divorced stay in touch with their children.

Then there is UPDATES IN MICHIGAN FAMILY LAW's Virtual grandparenting visitation:

"The New York Times today focused on grandparents' webcam visits with their grandchildren—virtual tea parties and virtual hugs. For grandparents who live countries apart or just hundreds of miles apart, there can be real benefits when children and grandparents have access to a computer that is hooked up to a webcam. Newer laptops do have built-in webcams."

(And also take a look at her Long distance parenting. Not about visitation but about virtual parenting.)

Then let us go back to Ohio Family Law Blog for Virtual Visitation: Part 2 - Legal Aspect wherein there is a short discussion of Ohio statutes on visitation. It also mentions that "Florida, Utah, Texas and Wisconsin have all enacted “virtual visitation” statutes." I do not think Indiana families need be inhibited by the lack of a "virtual visitation" statute or rule. I think our Parenting Time Guidelines support virtual visitation but even if not then the Indiana courts have sufficient discretion to provide for virtual visitation.

This article also has a quote from Gilbert v. Gilbert, 730 N.W.2d 833, issued by the Supreme Court of North Dakota in 2007 on the subject of virtual visitation.

About Orders for virtual visitation, the article offers this:

Judges even in contested cases should consider including provisions for video conferencing and other virtual visitation options especially where the parents have computers and the financial means to pay the costs associated with the interactive services. When the parties agree and are cooperative, the language in the order may simply say “The parties shall cooperate in utilizing interactive electronic communication technology including internet email, instant messaging, web cam/video conferencing or other wired/wireless technologies with each parent as a supplement to in-person parenting time.” While this language might suffice in some cases, in most cases, more detailed language would be suggested to avoid misunderstanding and contempt motions. Michael Gough, credited as the father of virtual visitation and founder of the virtual visitation portal (www.internetvisitation.org) has listed 10 items which the drafter of the order should consider including:

1. Which forms of “virtual visitation” are being ordered (video conferencing, email, video mail, instant messaging, etc.).
2. Equipment required (hardware, software and internet connection)
3. Installation and training services.
4. Which parent is required to pay for necessary equipment and services.
5. Schedule, e.g., days of the week, number of times per week, and times of day for virtual visitation to occur.
6. Which parent is responsible to initiate the virtual visitation session.
7. Deadline for custodial parent to have equipment ready and video conferencing in full operation.
8. If equipment malfunctions or breaks, what time period is allowed for computer repair before court sanctions are triggered.
9. Incorporation of the Children’s Bill of Rights, if one exists for your state.
10. Remedies and sanctions for noncompliance, including contempt and attorneys fees.
    

We will need to consider - and ask - our clients about whether they communicate with their children via the Internet. Then we need to ask how they communicate with their children. A tip for the general public - make a point of telling your attorney if you communicate with your children on the Internet!

Pyschological Effects of Divorce

I suggest everyone read Ohio Family Law Blog's Feeling Guilty About Your Divorce?. I find the article too long and probably too important for digesting. So give it all a look.

Divorce and Valuing Property

The Modern Woman’s Divorce Guide asks a question I get fairly often, What is your property worth in Divorce?:

"It depends on the method you and/or your husband select or upon which the judge relies. Some of the more common methods I have witnessed being used in divorce proceedings include the following:

1. Hiring a Certified Real Estate Appraiser to produce a real estate appraisal. Appraisers use a variety of methods to calculate the value of property, however they generally consider the actual value of the lot upon which the house sits, the replacement cost of the structure(s) on the lot and the sales prices of comparable homes recently sold within close proximity to the property in question. Banks use Real Estate Appraisers to determine the value of property before they extend credit to the property purchaser or owner.
2. Hiring a Real Estate Broker who is licensed and experienced in the sale of property in the neighborhood. The property value, as provided by a Broker, may be greater or less than the value established by an Appraiser for the same property. The valuation may differ because it is common for real estate to sell above and below appraised values when the market is in a boom or slump. For example, a home in Beverly Hills located next door to Tom Cruise and Katie Holmes’s house may be appraised for $10 million, but may sell for twice that because it is located in a highly coveted neighborhood and is surrounded by celebrities. A party who wants real estate to be valued at more or less than the appraised value for purposes of divorce will often use Real Estate Brokers to calculate the price.
3. Referring to and relying upon property tax records. City and state property tax offices calculate property taxes based upon the value of the real property and any structures located thereon. The tax man’s methods for determining appraised values are often a mystery and in some cities and states, have historically generated values far below those set by Certified Real Estate Appraisers or Brokers. Thus, this method for valuing property is rarely used.

In addition to the foregoing, couples also establish the value of their real estate for purposes of divorce arbitrarily. Some use the purchase price while others use the outstanding mortgage balance....

The last option gets used most often in the average divorce. Real estate we want to have appraised and I would want an appraiser if I had some sort of unique antiques (I have antiques on my mind right now).

The question about worth then becomes questions of evidence. Can it be admitted into evidence before the court? What evidence exists to contradict? How persuasive is our evidence and how persuasive is their evidence?

I had a landlord-tenant case two weeks ago. The landlord claimed a diminution of value to the real estate due to water damage. Landlord testified she bought and sold real estate which was intended to qualify her as an expert. On cross-examination, landlord admitted she had not bought or sold real estate in the particular area of Anderson for about ten years. The only house she had sold in that area was one that had burnt. She had no appraisals made of the home. Landlord lost that part of her case.

Divorce and the credit crunch

Along the lines of misery loves company, a reminder that the credit crunch is nationwide and even world-wide. What can we learn from all this?

DivorceSolicitor has Trapped by the credit crunch?:

"What happens when couples can't afford to divorce? Maybe we will go the way of Southern Ireland - when it was difficult to get a divorce they divided the house in two - I predict that lots more people will live separate lives in the same house and there will be an increase in planning applications to convert houses into flats!!!"

Not so sure how well that will work for my clients who rent apartments.

International Family Law published Credit crunch raises divorce rate for America's superwealthy brings little sympathy to my heart as it shows how the other half divorces.

One New York divorce lawyer said one client was worried that his wife would leave him if she found out that his net worth had fallen from $20 million (£10 million) to $8 million after he suffered huge losses on property and other investments. To keep his wife he was trying to mask his declining fortune by borrowing to pay for her clothes and holidays.

Breaking Up Is Harder to Do After Housing Fall from California Divorce and Family Law Blog mentions some nasty statistics:

With nearly one in six homes worth less than the mortgage owed on it, according to Moody’s, divorce lawyers and financial advisers around the country say the logistics of divorce have been turned around. “We used to fight about who gets to keep the house,” said Gary Nickelson, president of the American Academy of Matrimonial Lawyers. “Now we fight about who gets stuck with the dead cow.”

As a result, divorce has become more complicated and often more expensive, with lower prospects for money on the other side. Some divorce lawyers say that business has slowed or that clients are deciding to stay together because there are no assets left to help them start over.

And then points out a similar solution to DivorceSolicitor:

For other couples it does not have to end. Lisa Decker, a certified divorce financial analyst in Atlanta, said she was seeing couples who were determined to stay together even after divorce because they could not sell their home, a phenomenon rarely seen before outside Manhattan.

“We’re finding the husband on one floor, the wife on the other,” Ms. Decker said. “Now one is coming home with a new boyfriend or girlfriend, and it’s creating a layer to relationships that we haven’t seen before. Unfortunately, we’re seeing ‘The War of the Roses’ for real, not just in a Hollywood movie.

California Divorce and Family Law Blog has another post on real estate and divorce, Custody of homes becoming main debate in divorce cases.

Neither Marybeth nor her husband could afford the house on their own, so she's living there.

They put it on the market, but so far there are no takers.

Divorce attorney Vikkie Ziegler says the current climate is forcing many couples to get creative.

"I'll allow one party to remain in the home, not pull the equity out, try to come up with a financial package, and then perhaps when a child turns 18 or graduates high school, they'll sell it because the market perhaps would be better," said Vikkie.

***

Here is the Contact 13 bottom line if you are thinking about a divorce and fear your house will be a big issue, experts say it's more important than ever to plan things out.

Talk to a mortgage broker, a financial advisor and a realtor.

Before selling take into account whether you or your ex can afford the mortgage on your own and find out if you would qualify to refinance and reduce the monthly payments.

Right now, I am looking at a case where the parties have rental properties and all have gone into foreclosure and the opposing party has filed bankruptcy. With different facts on my side, I would have recommended bankruptcy to my client or taking over the rental business. The debts exceed the real estate's value.