Applying a Prenup in a Probate Estate

Thanks to Wills, Trusts & Estates Prof Blog for Implied requirement of good faith allows beneficiaries to recover

The agreement:

A prenuptial agreement provided that if the husband died first, wife would maintain a valid will giving not less than one-quarter of her entire estate to each of her husband’s three sons. The husband’s will left a substantial portion of his estate to his wife.

What happened next is something lawyers fret over: wife put most of her estate out of the reach of her husband's children.

The Kansas Court of Appeals ruled as followed:

In a split decision, the Court of Appeals reversed the district court. Estate of Draper v. Bank of America, 38 Kan. App. 2d 183, 164 P.3d 827 (2007). The Court of Appeals concluded that the antenuptial agreement did not restrict Ethel with respect to gifting or inter vivos transfers of her property; further, no language in the agreement restricted Ethel from creating irrevocable trusts. Consequently, the panel determined that Ethel complied with the clear language of the antenuptial agreement and did not breach the contract. 38 Kan. App. 2d at 189.

The Kansas Supreme Court reversed and found the prenuptial agreement did create a duty on the part of the wife for the benefit of the children.

Reading the Kansas opinion leaves me with the impression that without the prenuptial agreement, there would have been little money for the husband's children.

Georgia Family Law Blog: Top 10 Reasons a Premarital Agreement May be Invalid

FindLaw has a list of 10 reasons which may cause a prenuptial agreement to fail. For more details, check out the original post, but this is a list of those reasons:

# NO WRITTEN AGREEMENT.
# NOT PROPERLY EXECUTED.
# YOU WERE PRESSURED.
# YOU DIDN'T READ IT.
# NO TIME FOR CONSIDERATION.
# INVALID PROVISIONS.
# FALSE INFORMATION.
# INCOMPLETE INFORMATION.
# NO INDEPENDENT COUNSEL.
# UNCONSCIONABILITY.

News About Indiana's Protection Order Registry

This came from JTAC Project Blog:

"Decatur County became the 79th county to implement the Protection Order Registry (POR) on Monday, leaving only 13 counties yet to implement the system, which was recently deemed mandatory by the Indiana General Assembly and Governor Mitch Daniels.

Sullivan County was the 78th county to deploy the POR just last week. The clerk and court staff completed their training on May 22, 2009, and entered their first order in the registry on June 3. Both protection orders and no-contact orders have already been processed in Sullivan County with the new system."

Defining Joint Custody in Indiana

The following comes from Arms v. Arms, a 2004 Court of Appeals opinion.

I am hacking out the statements of law from discussions of the facts/evidence. I think this might make it easier reading for non-lawyers while it may raise the hackles of lawyers (I know I find breaking it down like this a bit strange). As I am working from a HTML version of the opinion, there are no page citations. :

In making the determination of whether joint custody is appropriate, courts are guided by the principle that parents should not be permitted to maintain joint legal custody over their children if they cannot work and communicate together to raise the children. I.C. § 31-17-2-15(2) (West 1998); Carmichael v. Siegel, 754 N.E.2d 619 (Ind. Ct. App. 2001). Thus, in determining whether joint legal custody is appropriate, courts examine whether the parents have the ability to work together for the best interests of their children. Carmichael v. Siegel, 754 N.E.2d 619....

***

.... In a joint custody arrangement, the parents share the “authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care, and religious training.” Ind. Code Ann. § 31-1-11.5-21(f) (West 1998). Under such an arrangement, it is critically important that the parents demonstrate the ability to work together for a common purpose, i.e., the child’s best interests...

I added the links to the statutes which are not in the original document. For non-lawyers, understand that there is here an interplay between statute, case law, and the facts.

Bottom line requirement for joint custody: that the parties can work together for child's benefit.

That fits nicely into a definition of joint custody: shared authority and responsibility for making decisions about the child's care. Notice that does not include sharing physical custody of the child. See IC 31-17-2-14

In this case, the Court of Appeals uphold modifying a joint custody order to sole custody in the father. In the following the opinion discusses the facts of the case. I think they are clear enough not to need any commentary.

Father produced substantial evidence that the acrimonious relationship between him and Mother rendered it impossible for the pair to work together toward a common goal. To review some of that evidence, Mother filed several allegations of abuse against Father. Subsequent investigations by the authorities failed to substantiate the allegations, and even caused authorities to question whether Mother was exerting a positive influence in E.A.’s life. There was evidence that Mother coached E.A., against his will, to say bad things about Father and Vicki and to call them derogatory names. Father also detailed several examples of Mother’s unwillingness or inability to abide by the terms of the then-existing custody and visitation orders with respect to meeting with Father or Vicki to drop off or pick up E.A. Also, we note that there was evidence that Mother instigated a physical altercation with Vicki at Father’s home. We need not detail the rest of the evidence in this regard. The foregoing is sufficient to demonstrate that the Mother and Father were incapable of working together well enough to make a joint custody arrangement plausible.

This evidence was sufficient to support the trial court’s findings that Mother and Father were unable to effectively communicate with each other, and that they are unable to jointly make decisions concerning E.A. In turn, those findings support the judgment terminating joint legal custody as untenable. See Albright v. Bogue, 736 N.E.2d 782. The same evidence supports a conclusion that Father, and not Mother, should be given the sole legal custody of E.A.

Paternity and Adoption: New Indiana Supreme Court Case

News of this came in from The Indiana Lawyer Daily. I had not read the case being as it appeared to be only an adoption case. However, I see I missed an an important new case relating to paternity cases.

High court rules on putative father adoption case

In a 4-1 decision June 26, justices decided the Bartholomew County case of In Re Adoption of Unborn Child of B.W., W.G. v. D.B. and J.B. , No. 03S04-0810-CV-560, which is the first to come from the Indiana State Bar Association's pro bono appellate program. Four justices made up the majority, but the chief justice dissented while another justice concurred in result and wrote the debated statutes provide "multiple opportunities for confusion or even intentional obfuscation."

The adoption case revolves around the minor child T.B., who was born out of wedlock in late 2006. Since the biological father, W.G., was incarcerated at the time, the trial court granted temporary custody to the adoptive parents. The jailed father received notice of the pending adoption and filed a motion to establish paternity in Circuit Court, rather than in Superior Court where the adoption case was pending. He later filed a more expansive motion entitled, "Petition to Establish Paternity and Contest Adoption of Unknown Minor Child," in that same Circuit paternity action. The adoptive parents claim that his failure to file it in the proper court nullified the motion; Bartholomew Superior Judge Chris Monroe determined that W.G. had failed to follow the statutory requirements to contest that adoption in Superior Court in a timely fashion, and his consent was irrevocably implied because of that.

The father argued that Indiana Code Sections 31-19-4-5 and -9-12 are in conflict because they require the putative father to file a motion to contest the adoption or to initiate a paternity action within 30 days of being served with the petition for adoption and notice of named father. Also, that county's local court rules require all paternity cases be filed in Circuit Court.

***


"In sum, we hold that under Indiana Code § 31-19-9-12(1), to be deemed to have implied his irrevocable consent to an adoption, a putative father must fail to file both a paternity action and a motion to contest the adoption," Justice Brent Dickson wrote. "The appellant-father here undisputedly timely filed his paternity action. It is therefore unnecessary to decide whether his timely attempt to contest the adoption, filed in the Circuit Court rather than in the Superior Court where the adoption was pending, satisfied the adoption implied consent statute. The paternity action sufficed to preclude a finding of implied irrevocable consent to the adoption."

The majority reversed and remanded the Bartholomew Superior Court ruling, while Justice Ted Boehm concurred in result but has concerns about the statutes.

"The statutes should not permit a filing in another court to suspend the prompt resolution of an adoption," he wrote. "Dueling jurisdictions, or even the need for transfer and consolidation, are formulas for delay. Nor should there be any doubt what a putative father must do to preserve his rights. I hope the General Assembly will consider requiring that a putative father wishing to contest an adoption or declare paternity must file in the court in which an adoption action is pending or otherwise assure consolidation of these two proceedings to reduce the opportunity for delay and confusion, while still preserving all rights of the putative father."

New Ohio Law Bog

A shout out to Ohio Law Blog which has a large number of family law posts. I am finding it very interesting to see some of the similarities and differences between Indiana and Ohio. (I do like the layout and style, the way.)

Why not a Standing Domestic Relations Procedural Order for Indiana?

I found The Standing Domestic Relations Procedural Order: What You Need to Know from the Alaska Divorce Blog. Here are three things that I think ought to apply in Indiana:

1. Canceling the utilities on the family home. If you move out of the home by choice or because of court order, you should not cancel the utilities on the family home. If you do not want to continue to pay the utilities, then you should discuss this with your attorney.

2. Allowing the mortgage on the home to become delinquent. Under no circumstances should you allow the mortgage on the home to become delinquent. This would jeopardize your credit and could be viewed as endangering a marital asset.

3. Allowing car payments or credit cards to become delinquent. Under no circumstances should you allow any marital debt to become delinquent. Damaging credit while a divorce is pending is a factor a court would consider in equitably dividing marital assets.

Wow, this might create a deterrent some very stupid divorce games.

Prenup Related Litigation

An item from San Jose Mercury News that did not published during my hiatus. How would this play in Indiana? Probably about the same. Although I am thinking of this as being tried before a judge under a divorce case, I am not so sure that a jury of Hoosiers would be greatly impressed with the ex-wife.

Jury rejects Peter Morton's ex-wife's money claims -

Tarlton Morgan claimed in a 2007 lawsuit that her ex-husband cheated her out of the full value of her 1 percent interest in the Hard Rock Hotel and Casino, worth about $5 million, because he didn't tell her he had purchased land next door which increased the value of the resort.

Tarlton Morton got the stock in 1994 in exchange for giving up a yearly $100,000 payment by Morton as part of a prenuptial agreement, said her attorney Paul Nelson. The suit alleged breach of fiduciary duty, intentional misrepresentation and invasion of privacy.

Peter Morton testified that he paid her a fair price for her stock, paid more than $2 million in alimony until April 2004, and provided a fashionable Los Angeles home where she lived rent-free.

***

Nelson said the jury's finding was "not what we'd hoped for," but
added that Tarlton Morton might get some relief when a judge hears her claim for unjust enrichment.

"We're very gratified," Nolan said. "Mr. Morton has been more than generous to his ex-wife."

Divorce Take Care of Your Joint Debt

Those of you thinking about doing your own divorce read Complications with joint credit card debt after divorce:

"The best way to avoid future debt issues is to make sure there is no joint debt remaining at the end of your marriage. So while you are still married you should establish credit in your individual name. You also need to determine any and all outstanding individual and marital debt. One way to do this is by requesting a credit report from each of the three major credit-reporting agencies (Transunion, Equifax and Experian). Detailed in these reports will be a listing of your various accounts, the date each was opened, the credit limit or loan amount, and the account balance and payment history.You can request this information for free online at www.annualcreditreport.com or by phone at 1-877-322-8228 from each of these agencies once every 12 months.

From earlier this year reports of divorces postponed centered around the debt issue. Dividing debts occurs more often in my cases than custody disputes, maybe even more often issues about dividing property.

If you are doing this yourself, then make sure you get the debts divided before the divorce is final.

Brazil and David Goldman - International Custody Issue

I have been a bit too swamped here to give anything like a close examination of the Goldman case out of Brazil, UPDATES IN MICHIGAN FAMILY LAW has done so and I suggest starting with David Goldman | Back to square one?. I was especially taken with these paragraphs>

"The United States needs to make it clear to Brazil that our government will not tolerate the wrongful retention of U.S. children by Brazil. There are at least 64 children who have been abducted to Brazil by one parent and who are wrongfully retained there. Until Brazil is convinced that its failure and refusal to return children to their habitual residence is wrong, these children may never be returned."

Economic sanctions are one way to make the point with Brazil that refusal to honor its obligations under the Hague Convention will not be tolerated. CLICK HERE to review H.R. 2702, proposed legislation that would suspend Brazil's "favored nation" status with respect to trade with the U.S. CLICK HERE to contact your state legislators and ask them to co-sponsor and support this legislation. Help www.bringseanhome.org by supporting this proposed legislation.

For a more general background on international custody issues, see my News: Non-compliant Hague Countries Report.

New York Time Book Review of Marriage-Go-Round

I think this may be worth noting and for some to read.

Books of The Times - Slippery Hitching Posts - Andrew J. Cherlin’s ‘Marriage-Go-Round’ - Review - NYTimes.com

Marriage is nevertheless an American ideal. We are the only Western nation that actually spends government money to support it. The 2005 federal Healthy Marriage Initiative now allocates $100 million a year to promote marriage. It doesn’t seem to be working; marriage rates are declining precipitously, though most Americans are still expected to marry.

Marriage is our battleground. Only in America, Mr. Cherlin says, are gay people campaigning so determinedly for the right to marry. Most gay men and lesbians in Europe, he maintains, view marriage as another oppressive heterosexual institution.

How to explain this peculiar paradox — we idealize marriage and yet we’re so bad at it. Mr. Cherlin, who is also the author of “Public and Private Families,” has taken upon himself the task of explaining and has come up with an original thesis: There are two powerful forces at war in America, a historic belief in marriage grounded in our religious heritage on the one hand and a foundational principle of individual freedom and a post-modern sense of the right to self-fulfillment on the other. When these values clash, breakup and divorce follow.

***

Instead of spending money to promote marriage, we should use it to encourage security for our children, he says. Divorce and breakup can affect children badly. But parents shouldn’t rush into another relationship just to provide a stable home. In one study by Mr. Cherlin and a colleague, the two found that every time a partner entered or left a household, the odds of an adolescent stealing, skipping school or getting drunk increased by 12 percent, though he points out that the majority of adolescents with broken homes don’t exhibit delinquent behavior.

One way to ensure children’s stability is to give single mothers resources so they aren’t pressured to find partners to support them. He points to a Wisconsin welfare experiment with the Temporary Assistance for Needy Families program, in which the state government normally attempted to collect child support from delinquent fathers and then shared it with the federal government as reimbursement for welfare, giving the mother $50 at most. In a 1997 study the state gave the entire amount to a group of randomly selected mothers. The result: mothers who received the full child support payments were less likely to cohabit with men other than their children’s fathers — presumably causing less turmoil for the children — and were just as likely to marry. The book’s last chapter is titled “Slow Down.” Think before you rush into new relationships, Mr. Cherlin writes. That’s the least we can do.

Child Custody Hearings and Indiana Trial Rule 41(B)

I defended a custody case last week. Father sought to change custody from Mother. This meant Father had to prove there was a change in circumstances substantial enough to justify a change. After Father finished his case, I made a motion for judgment on the evidence under Indiana Trial Rule 41(B) . The Rule reads as follows:

(B) Involuntary dismissal: Effect thereof. After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the weight of the evidence and the law there has been shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff or party with the burden of proof, the court, when requested at the time of the motion by either party shall make findings if, and as required by Rule 52(A). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision or subdivision (E) of this rule and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits.

The judge denied the motion. That left us with another 90 minutes of testimony.

So what? Here is what the judge put in his Order finding for my client:

That there has not been a substantial change in circumstances to warrant a modification of the Court's previous order of custody.

Yes, we won the case and so why should I be bothered? Granting the motion would have saved my client some money in fees, and the court some time. Not so much a savings as in other cases, but some.

I admit I did not expect the judge to grant the motion. My gut feeling is that judges want to hear everything on a custody case and to give both parties an opportunity to vent via evidence. It also meant the judge could postpone his decision till the courtroom was emptied of people who might have an emotional reaction to his decision.

Lawyers know that 41(B) has more uses in civil cases than in family law cases. That does not mean it is without uses in family law cases.

Counseling pacts for churches?

Not sure what to think of Marriage group seeks to make counseling pacts for churches, but I do think it has merit. What most people do not realize is that every family alw attorney would rather have a marriage survive than not.

"A Wisconsin nonprofit aimed at bolstering the institution of marriage is working with local pastors to establish the first so-called community marriage agreements in Milwaukee and Waukesha.

Under the pacts, participating congregations agree to impose waiting periods for couples, administer assessments to gauge relationships' strengths and conflict potential, and offer training and enrichment programs before and after marriage.

Supporters say such agreements benefit those religious communities and society as a whole.

'Our mission is to uphold the value of marriage and teach people the skills to form lifelong, healthy relationships,' said Susan Dutton Freund, executive director of Green Bay-based Foundation for a Great Marriage, which will host an informational program for clergy July 1."

***

Other pastors are wary of the initiative, saying many healthy-marriage initiatives push a political agenda that discriminates against same-sex couples and diminishes and disrespects those who cannot or choose not to be married.

"Society obviously benefits from healthy relationships. But healthy relationships are not limited to marriage," said the Rev. Craig Schwalenberg, assistant minister at First Unitarian Society of Milwaukee, which recognizes civil unions by same-sex partners.

"Attaching a stigma to those who choose not to marry or to divorce for good reason is not something I'd be interested in promoting," he said.

Freund said her organization has taken no stand on same-sex marriage, which is not legally recognized in Wisconsin.

News: Non-compliant Hague Countries Report

What is this about Hague Countries? These are countries that have signed a treaty over international family law matters. Not something I am likely to see but still an important thing to know about.

Australian Divorce Blog posted Non-compliant Hague countries: US State Dept report and I think is worth passing along:

"The State Department has recently released its 2009 report, and it's enlightening reading. This year, there are two categories: non-compliant countries and countries with patterns of concern.

Australia was not named and shamed. There were 26 children allegedly abducted or removed from the US to Australia, and 14 from Australia to the US."

The full report is here (PDF format)

Prenuptial Litigation from New York

From New York Probate & Estate Litigation Blog comes Wife's Bipolar Disorder Held Not To Affect Judgment --Prenuptial Agreement Upheld:

"Kings County Surrogate Lopez-Torres has ruled against a wife attempting to set aside a prenuptial agreement in the Estate of Joseph Menahem. In a decision reported in the New York Law Journal on September 10th the court declined to nullify the agreement on grounds of undue influence, fraud or the lack of mental capacity to knowingly execute the agreement.

Prior to her marriage to the decedent, his wife Gita had been hospitalized for mental illness. Subsequently, after her discharge from the hospital, she went on to execute a prenuptial agreement providing that each party waived, among other things, the right of election against each other's estate. Even with her illness, the wife went on to complete a program in medical computer technology from a business school receiving no grade lower than a 'B'."

I suspect that last sentence explains much and I think Indiana courts would hang their decision on the fact of her education just as much did the New York courts.

Indiana Attorney-Client Relationship: Terminating the Relationship

Here, too, exist Local Rules needing followed when lawyers end the relationship.

Some Counties provide for an automatic withdrawal. Allen County's LR02-TR3.1-703 is a very good example:

(3) Automatic Withdrawal. After the entry of a final Decree or Order
that resolves all pending issues, each attorney shall be deemed to have withdrawn his or her appearance upon the occurrence of one of the
following events:
(3.1) The expiration of time within which an appeal of such Decree or Order may be preserved or perfected pursuant to the Indiana Rules of
Trial Procedure and/or the Indiana Rules of Appellate Procedure if no
appeal is filed; or
(3.2) The conclusion of any appeal of such Decree or Order
commenced pursuant to the Indiana Rules of Trial Procedure and/or
the Indiana Rules of Appellate Procedure, provided the Trial Court is
notified in writing that the appeal is concluded.
(4) Subsequent Filings and Notices. After withdrawal of an attorney’s
appearance made in the conformity of these rules, the service of any motion, pleading, or notice of hearing upon any party shall be made upon
that party pursuant to Trial Rule 5. A copy of any pleading, motion, or
notice of hearing served upon previous counsel who has withdrawn or is
deemed to have withdrawn under this Rule shall be considered a matter
of professional courtesy only, and is not adequate service of process on
the previously represented party.

Pre-nup Agreements: Another Why You Should Get One Article

Momlogic approaches it from a different route with its Should You Be Afraid of a Prenup?

Who should get a prenup? The easiest way to answer that question is to explain who should NOT get a prenup. If you have no assets, don't anticipate high earnings or a significant inheritance, and intend for your marriage to be a true partnership where all income and assets are split equally, then you may not need a prenup. Also, if you spend what you make, then there is nothing to discuss. However, it is important to consider that all marriages end. They end by either death or divorce. Would you rather make the decision about how your assets will be split yourselves under these circumstances or have the state decide?

***

Are prenups more necessary in 2nd marriages or if there are previous children? Yes! Prenups offer a wonderful benefit to spouses with children from previous relationships by avoiding a later disagreement in court. Prenups could separate assets owned before the marriage and define how they are to be distributed in the event of an untimely death. Without a prenup, a surviving spouse could claim the assets previously owned by the deceased as "community property," claim ownership of 50%, and most likely end up in probate court in conflict with the children from the prior relationship.

I'll be honest ... I once had an ex-boyfriend who gave me months (yes ... months!) of grief over a cell phone bill. I can't even imagine how difficult a divorce could be. I've always been in favor of prenups for the simple reason that breakups of any kind are usually messy and, with today's divorce rates, it would be foolish to believe that a divorce could "never happen to me." The most important piece of advice I learned during my conversation with the family law attorney is that it is best to have these discussions before the marriage. Both parties should consider all of the possibilities that prenups prepare for. Make a joint decision about how to handle these possibilities and then decide whether or not to get a prenup. Making these decisions while you are in love has to be more pleasant (and a whole lot less expensive) than discussing them during a divorce, but it's still never easy.

Tip on Setting Up Meetings to Exchanging the Children

Meet Halfway: A Tech Tip For Exchanging The Kids came to me from the Alaska Divorce Blog and for those with long distance visitation issues, it may come in very handy:

When divorcing parents are working on a custody or visitation schedule for their children, it is not unusual for them to disagree about where to exchange the children if they do not live close to each other. One option is to find a point half-way between each of their homes. I recently came across a web-based program, which is called MeetWays. It is specifically designed to give users the midpoint between two addresses. I tested it quickly. It looks like it requires a little tinkering. But it is designed to find a point of interest such as a restaurant midway between two addresses.

This is how MeetWays describes itself:

Welcome to MeetWays.com

Welcome to Meetways! Meetways was established to help people easily find a halfway point between two locations. If you're thinking about meeting-up with a far away friend, organizing a Craigslist transaction, or meeting a client for lunch, MeetWays can help you find the perfect middle point. Simply enter the addresses and a point of interest and Meetways will do the rest!

Indiana Divorce Case Law: Liens and Property Division

I started this discussion back in April with Indiana Case Law: Divorce, Property Division and Judgment Liens, Call this a post a victim of my hiatus. You might want to go back and read the earlier article.

I opined that White v. White, 819 N.E.2d 68, 70 (Ind.App.,2004) (Word format) also applied to settlements. That opinion finds full support in Joyce v. Joyce, 627 N.E.2d 825 (Ind.App. 2 Dist.,1994) where the lien is placed in a settlement agreement.

The opinion provides us with sample language:

6. DIVISION OF EQUITY. The Husband's share of the equity in the parties' real estate is Twenty Five Thousand Dollars ($25,000.00). Said judgment of Twenty Five Thousand Dollars ($25,000.00) shall be due and payable, in full, upon the sale of the subject real estate by the Wife, upon the death of the Wife or upon emancipation of the parties' minor children.”

627 N.E.2d at 826. The Court Of Appeals also provided a bit of criticism of its drafting in footnote 1:

Although the agreement and the decree served to grant Paul a judgment against Mary, neither document described a specific lien against the property. The agreement also failed to specifically describe any security, bond, or other guarantee for the payment of the judgment. We would encourage the inclusion of such language in settlement agreements and dissolution decrees so as to avoid confusion regarding the application of the judgment lien statute and/or the security for payment statute and to show the clear intent of the parties.

627 N.E.2d at 827.

The case also stands for the proposition that a lien under IC 31-15-7-8 has another advantage over a mere judgment lien: a line under IC 31-15-7-8 extends past the ten years allowed for a judgment lien. See 627 N.E.2d at 827 - 28.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

Collaborative Divorce Links

Not a very fancy post here but I hope an informative one. Basically you will find here the results of a Google search on the subject of collaborative divorces. I hope to spark some interest in this topic, so please read on and follow the links!

1. CP California

   Locate a Group. Collaborative Law, Collaborative Divorce. Please use this form to begin your search for a Collaborative Law professional near you. ...
   www.cpcal.com/ - 15k - Cached - Similar pages

   Publish Post

2. Collaborative Divorce Team Trainings LLC

   Information about the collaborative divorce process.
   www.collaborativedivorce.com/ - 5k - Cached - Similar pages

3. The Collaborative Law Institute of Minnesota

   Creating and practicing collaborative non-adversarial strategies to help clients in family law matters achieve agreement in a dignified and respectful ...
   www.collaborativelaw.org/ - 15k - Cached - Similar pages

4. Massachusetts Collaborative Law Council - Business Law, Employment ...

   Massachusetts Collaborative Law Council, attorneys specializing in Business Law, Employment Law, Family Law, Divorce, Wills, Trusts, Estates and Probate.
   www.massclc.org/ - 24k - Cached - Similar pages

5. Cincinnati Academy of Collaborative Professionals

   Provides clients with specially trained lawyers committed to resolving legal problems through an efficient, mutually agreeable out of court settlement.
   www.collaborativelaw.com/ - 11k - Cached - Similar pages

6. The Coalition for Collaborative Divorce

   The Coalition for Collaborative Divorce is a non-profit organization dedicated to addressing divorce needs in a positive and cooperative manner.
   www.nocourtdivorce.com/ - 17k - 10 hours ago - Cached - Similar pages

7. Collaborative divorce - Wikipedia, the free encyclopedia

   [edit] Overview and History. Collaborative Family Law (also called Collaborative Practice, Collaborative Divorce, and Collaborative Law) was originally a ...
   en.wikipedia.org/wiki/Collaborative_divorce - 44k - Cached - Similar pages

8. Sacramento Collaborative Practice Group

   Sacramento Collaborative Practice Group. How to Divorce Without Going to Court. A marriage has ended, but why should the ensuing divorce be so devastating? ...
   www.divorceoption.com/ - 14k - Cached - Similar pages

9. IACP - Locate a Professional

   Dan Cantone is a Collaborative Practice attorney devoted to out-of-court solutions for families transitioning to living apart. Spouses who are interested in ...
   www.collaborativepractice.com/_loc.asp?T=Profile&PID=2055 - 31k - Cached - Similar pages

10. Collaborative Practice

    Going through a divorce does not mean you have to be involved in an acrimonious process and endure the turmoil that is so often associated with going to ...
    www.collaborativepracticesantacruz.com/ - 15k - Cached - Similar pages

Observations on a Pro Se Case, Part One: Don't Swear at the Judge

Luck has put me where I have seen some pro se cases or had to deal with the aftermath of a pro se case. Which lead me to a decision of writing about these cases.

Today's episode happened in Hamilton County last month. While waiting for my case to be called, I got to hear a pro se support case. The facts were like this: ex-husband had an arrears prior to the divorce, he had a wage assignment paying child support and the arrears since the divorce, and he figured the arrears had been paid. Seems straightforward enough, right? Wrong.

Ex-wife pointed out that the wage assignment had been put into place until weeks after the Final Hearing. No support received during this time period.

Ex-husband starts arguing with the judge that the old arrears had been paid and the wage assignment should end. Judge tried pointing out to him that he still had money owed but husband kept making comments about unfairness and unjustness. (The judge, I think, was too subtle - he was trying to not give legal advice but husband was not taking any hints, either.)

What ex-husband was not understanding was that he still owed for child support and it was in his best interests to keep the wage assignment as is.

On the way out, ex-husband made some comments about the judicial system using a variety of scatological terms and he left the building escorted by the deputy sheriff.

Ex-husband would have done better to understand a few things: 1) keep a civil tongue in your head if you want to impress a judge; 2) that while the Decree mentioned an arrears, he had increased the amount owed in child support and he would have to pay that amount some way, some time, and 3) if you are going to do it yourself, know what you are doing.

A Cohabitation Outline

The Bradenton Herald published Living together that has an excellent checklist for those of you thinking of living together.

"1. Get a Cohabitation Agreement. Do your research. If you can afford it, go to a lawyer. If you can’t, there are a number of good books on the subject, and standard forms you can download for free online. You can then amend them to suit your particular circumstances."

2. Decide what your cohabitation agreement will cover. Make sure it covers the three biggies:

A. Assets. Are you sharing, or are they separate? What happens when one party contributes money or labor to an asset?

B. Support. Does either party have an obligation to support the other?

C. Is either party obligated to pay the other for services?

3. Know Thy Partner. Investigate. Does your partner have a good financial track record and good credit? It may sound basic, but you need to know. You can ask for documents up front, or you can do a little digging around online. After all, trust works both ways.

4. Don’t Put All Your Eggs in One Basket. Don’t be in a hurry to go into business with your partner, or buy a house, if you don’t have to. Moving in together is a big change. It’s wise to let the relationship find its footing for six months to a year before making any other major decisions.

5. Be realistic. The divorce rate is almost 50 percent, and the failure of cohabitation relationships is even higher. “Be guided by the reality that it may not work out,” one lawyer suggests. “And if you’re lucky, you won’t need Plan B.”

6. Keep Your Own Place. Not very romantic, and not economically feasible for many, but if it is, it’s a great option. Consider renting or subletting the place you live in now. It’s a way of easing the transition into living together, and is especially worthwhile if you have kids who might be deeply affected if the relationship doesn’t work out.

7. If You Have a High Net Worth. Attorneys say you have an extra incentive to maintain good boundaries and get it all in writing. At the very least — keep all your finances separate, and make it clear that cohabitating is not a promise of lifetime support.

8. If You’ve Been Promised Financial Support. It doesn’t mean a thing if you don’t have it on paper. Get it in writing. And don’t move in until you do.

Depression

I have been seeing a bunch of billboards in my area about depression. I have a case where the opposing party suffers from serious depression. I can say that depression is an insidious, dangerous condition but I suggest reading Mental Illness - a personal perspective.

Happy Father's Day

A collection of some articles worth reading today:

• Obama asks men to be better fathers than his own
• Happy Father’s Day
• Father time
• Happy Fathers' Day to the Unsung Solo Dads
• What Fathers Do
  

Shared Parenting - My View and Another's

I had a hearing this month where the issue was to continue shared custody or not. The client and her spouse had agreed to shared custody. That is one week the children stayed at the home of one parent and the next week at the other parent's home. Problems arose and my client wanted a change. The other spouse did not.

The judge explained to both parties that he had never seen a shared custody arrangement that worked during his whole career. he explained that the issue was not what either parent wanted but what was best for the children. Shared custody did not really give the children stability. I think the judge made his point quite well with one question to the other party: what is the children's home. Other party said: when they are with me, my home.

If it sounds like the judge was especially solicitous to the other party, the other party was pro se (without an attorney).

The judge's ruling came down last week. He gave the parties joint custody with physical custody to my client. At this point, it is up to the parties to show that they can make this custodial arrangement work.

Today, I ran across Child-Custody – Putting Your Children First. I suggest reading the whole of the article, but I find this important:

When custodial decisions move into contention, creating a scenario where lawyers, legislation and courts determine the direction of your children's future, you not only lose power in your life, you lose harmony within your already fragile family structure.

There is another way. When you create a child-centered divorce, your children win - on every level. Parents who make a concerted effort to sit down with each other and discuss the future well-being of their kids together, keep their perspective where it really belongs - on the children. To do this, they must take into account and ask themselves some very serious questions:

" What's best for our children today, tomorrow and in the years to come?
" How can we minimize the physical, emotional and spiritual damage inflicted upon our children as a result of our pending divorce?
" How can we best support our children through this difficult time?
" How can we show your love and compassion for them as they move through challenges they did not ask for -- or create?
" What can we do to boost their sense of security, self-esteem and well-being during the transitions ahead?
" Who can provide the least traumatic home environment for the children - and for what percent of each day, week, month and year?
" How can each of us best contribute our assets - physical, emotional and spiritual - to create harmony, good will and peace within the changed family structure?
" How will our children look back at this divorce a year, five years, ten years and more from now? Will they understand?
" How can we make life better for our children after the divorce than it was before?

The answers to these questions are not simple, nor are they black and white. They require honest communication between two mature adults who have their children's best interest at heart. And yes, it may likely take more than the two of you to come to resolution on all the child-custody details. That's where you can enlist the aid of professionals -- mediators, therapists, counselors, life coaches and clergy. These experienced and knowledgeable experts will approach your divorce from a child-focused perspective. They have the tools and insight to help you reach agreement on issues that will affect the total well-being of your children in the least-derisive manner.

I disagree with shared custody as being a good idea but I cannot disagree that avoiding contention in custody issues is best.

Not Dead, Just a Long Hiatus

For my regular readers, an apology for the very long stretch between posts. An appeal and personal issues made writing for the blog a bit of a luxury. I am back and there will be a lot of material coming your way over the next few weeks.

Saying 'I do' to prenups may be a smart money move - Saving - Belleville News-Democrat

Saying 'I do' to prenups may be a smart money move - Saving - Belleville News-Democrat: "A prenuptial agreement can lessen the potential for a messy divorce by spelling out each party's rights to assets brought into the marriage, as well as those acquired as a couple.

'What you're doing is deciding exactly how you're going to treat your assets, rather than having state laws decide for you,' said Gary Nickelson, president of the Chicago-based American Academy of Matrimonial Lawyers.

Coming to terms with whether you need a prenup is only a first step, however. You and your partner then need to lay bare your finances and voice expectations for what could be an ugly scenario. Finally, you'll need to find an attorney to put it all in writing.

As uncomfortable as it sounds, it's a safeguard worth considering for anyone with significant assets."