COVID Vaccination and Custody

COVID has created issues for parents that we never imagined we’d have to face. The balance of being safe while not sacrificing too much of our children’s lives is elusive and ephemeral. And, there are as many ways to strike that balance as there are children.

These issues are difficult for intact families to negotiate. Each parent may have very different tolerances for risk and different life experiences that make them prone to preferring different balances. 

For many divorced families finding the balance is complicated by the fact that each parent typically has co-equal decision making and former spouses are less likely to defer to each other in big decisions. 

As one might expect this has led to more legal issues when parents disagree about COVID vaccinations. This article walks through several families’ experiences in the legal system when they disagreed about having their kids vaccinated.

Without a previous court order or parenting agreement in place, parents can be in a legal no man’s land. If one parent wants the kids to be vaccinated and one does not, then a court will typically have to decide.

A judge’s decisions on this issue are likely to be very location-specific and geared toward the culture of their jurisdiction. Areas with low vaccination rates may have judges that feel differently than areas with high vaccination rates. I am not aware of any research on this issue.  

My state, North Carolina, has issued some guidance (see the “New Resource” box on the linked page) on the issues but it doesn’t give clear answers to the vaccination issue. It does seem to say that medical advice plays a role.  

There are no easy answers for these issues. But, spending a lot of money to fight it out in court for a very hard-to-predict result is probably not a great one. It may be better to work with a co-parenting expert to help you both discern your underlying concerns and how to bridge the gap and find a solution. When there are no clear legal answers, lawyers may not be the best tool for the job. 

Issues With Non-Traditional Parenting Relationships

As society changes there are more “non-traditional” families, that is families are not husband, wife, and children all in the same home.  Historically, non-traditional familes were not a choice, but more a result. 

But, more and more people are choosing to have children outside of the traditional framework.  These experiences, like traditional families, produce both great and not-so-great experiences for both parents and children.

This article walks through several parent’s experiences in both the decision making and the outcomes of their non-traditional parenting path. 

The legalities are briefly mentioned in the article.  But, there are important legal impacts of parenting children and all kinds of laws, rights, and responsibilities that come into play.  And many of our laws in North Carolina and other states are struggling to catch up to new societal norms around parenting. Most of us never considered the law when we chose to have kids. But, if you are considering a non-traditional parenting relationship, it would be wise to learn about the parenting laws of your state in advance (this is a good place to start in North Carolina). There may be ways to address the legal issues in the beginning to avoid future problems.  

Are Equal Marriages Happier Marriages?

Every marriage is different because it involves two unique individuals.  So, there is no one size fits all way to create an enduring and happy marriage.  

But, there may be general rules that we can all implement to help protect our marriages.  Some sociologists study the role of marriage in our society and how we manage our marriages to help us understand whether those rules exist and how to use them to our benefit.

This article explores how these sociologists run their own marriages given what they know about marriage from their academic research.

It turns out that one of the general rules they follow is to try to share the work of the marriage as much as possible.  But, more specifically, they try to equally share each kind of work in the marriage.  That can be juxtaposed to marriages in which there is a very clear division of labor. 

The sociologists in the article point out that sharing each kind of work can lead to less resentment and hard feelings between spouses, and how that happens.  While only anectdotal, I have certainly seen many cases in which spouses who had a strict division of labor really struggled to feel appreciated for their share of the work in the family, and also struggled to appreciate their spouse’s work. And over time, that lack of feeling appreciated greatly contributed to the decision to divorce in those cases.  It seems that strict divisions of labor cause us to lose appreciation for how hard our spouses are working, and hyper focus on how hard we are working.  

As we as a society and individuals continually strive to strengthen and protect our marriages, partnerships, and other domestic relationships, perhaps we should consider both whether and how we are equally sharing the work of these relationships. 


Turning Arguments into Problem Solving

As a Collaborative Divorce attorney my day-to-day job is trying to turn arguments into conversations focused on problem solving issues. In a legal profession steeped in the adversarial model of conflict negotiation that sometimes feels counterculture.

But the fact is that almost every part of our society has embraced interest based, problem solving conflict resolution. The legal profession with its frequently anachronistic processes and traditions is simply lagging behind the rest of society.   

This kind of negotiation and conversation becomes even more important in today’s society of constant conflict about things we never thought we’d have to talk about.

This piece by NPR applies problem solving negotiation to hard conversations with people that have different reactions, behaviors, and comfort levels with the pandemic.

But the lessons and skills discussed can be taken into any conflict.  I use it in divorce negotiations every day, but you can take into work, family, and other areas of life in which you want to tackle a tough topic without alienating others.  I hope it helps as we all navigate difficult times.

Why You Need to Discuss the Ground Rules of Your Divorce Negotiation (2 min read)

One conversation I find myself having a lot with potential clients lately is about the ground rules of their divorce negotiation.  Specifically, I warn them that if they don’t agree on these ground rules when they begin negotiating their divorce settlement, then they will likely run into problems that will increase the time and expense of their divorce but do nothing to help resolve the legal issues.

We have ground rules for almost every kind of conversation in our lives.  That is, we have a set of expectations about how that conversation will go.  We have expectations about who will be involved, what can be said, how it can be said, when the conversation will happen, and almost every other facet of the conversation.  And, when those mores are violated we are frequently offended.  People who violate these conversations mores seem to us to be rude, selfish, obnoxious, dishonest, hurtful, and otherwise offensive.

We don’t have to think very hard to find a conversation or interaction in our recent past in which the other person violated some expectation or ground rule about how that conversation should have gone that offended us.  

The conversations you have about how you will settle your divorce issues are perhaps the most emotionally charged, complex, and important of your life (and maybe the lives of your children).  This means that the ground rules of your divorce negotiation become crucial to productive negotiation.  

I frequently speak with prospective clients who are suffering frustration, anxiety, fear, or confusion because they have already begun some discussions with their spouse about their divorce settlement, but have not agreed on the ground rules in advance.  

This often occurs in one of the following scenarios:

  • One spouse presents the other with a “settlement offer”, “demand”, or “proposal” out of the blue
  • One spouse hires an attorney without notifying the other in advance or simply utters the word “lawyer” early on
  • One party takes a leveraged, adversarial stance right off of the bat
  • One party assumes that they need to leave themselves “room to move” in the negotiation and presents an unreasonable “offer” early on
  • One spouse starts talking in terms of what they or their spouse “deserves”, “is entitled to”, “should get”, or what they will and will not do.
  • One spouse begins talking about “what the law says”

When this happens, the discussion is already headed down an unproductive path, and things will only get worse if there is not a discussion of the ground rules of the negotiation.

The problem is that each spouse typically enters the discussion (and the entire idea of divorce) with significantly different, but unspoken, ideas about how they are going to negotiate.  One spouse may be very direct and positional, while the other is reticent and geared toward consensus building.  One spouse may expect that they are going to move quickly while the other expects them to take their time in making important decisions.  One may feel that lobbing offers and counteroffers at each other through attorneys is best, while the other expects to have a joint problem-solving approach.

These different expectations can derail your negotiation before it can even start.  I frequently see spouses that scare each other so badly early on by violating these expectations that they end up in unnecessarily combative and expensive divorces. 

Unfortunately, this also happens between lawyers.  There is a lot of squabbling (and resulting legal fees) when one lawyer feels that the other has violated some expected ground rule in a case.  Discovery motions and objections are almost always a result of this kind of squabbling. 

The solution that I give these families is that they need to agree on the ground rules before they begin discussing the substantive issues in their case (e.g. custody, child support, alimony, equitable distribution).  If you are not careful someone else, such as a judge or your attorney, will choose your ground rules for you. 

Each kind of legal process has its own ground rules.  Litigation ground rules are found in the Rules of Civil Procedure, Rules of Evidence, and Local Court Rules.  Mediation and arbitration rules are also set out in the law. Attorney to attorney negotiation has some informal and unspoken rules, but they are not universal and are frequently the fodder for attorney spats. 

In my experience, Collaborative Divorce has the most client-friendly, productive, and efficient ground rules of any divorce negotiation process.  By signing a Collaborative Law Agreement, the parties and the attorneys are agreeing to play by these ground rules during the negotiation.  These ground rules are designed to promote honesty, information sharing, respect, productivity, and efficiency. 

Regardless of the process you choose, the conversation about ground rules needs to happen very early in order to be effective.  So, if you are facing divorce, give some thought to what ground rules you would like to have in your discussions.  Discuss those with your spouse.  Hopefully, you and your spouse will be able to agree on the basic ground rules early, so that you don’t violate each other’s expectations.  That way, you can spend your time and money addressing the substantive issues in your case and your actual solutions, and spend less time and money arguing over the negotiation rules. 


Raiding your Retirement in Divorce

In my last post, I set out 10 basic facts about retirement accounts in divorce in North Carolina.

One of those tips mentioned the taxes and penalties that are incurred upon an early withdrawal of retirement funds. This article from Kiplingers details exactly how this came back to bite one divorcing teacher.  

Needless to say withdrawing funds from a 401k or other retirement vehicle needs to be handled very carefully, and with the advice of an attorney or financial professional, if not both. As the article states, there are frequently alternative means of obtaining needed liquid funds that have less drastic consequences.  

Ideally, you and your spouse can agree to discuss the division use of retirement funds in a joint problem solving legal process that takes into account your individual goals and needs.  

But, even if your divorce becomes combative, and you need funds from your retirement account to pay legal fees or living expenses, proceed with extreme caution and explore your options before raiding a retirement account. 

Your 401k and Divorce: 10 Facts

One item that people frequently worry about most when they find out they are getting divorced is their 401k. The prospect of sharing their retirement savings, whether in a 401k, IRA, pension, or other retirement accounts can cause a lot of anxiety. I have always found that the best way to alleviate anxiety in divorce is with accurate information. So, here are some basics of what you can expect regarding your 401k if you are getting divorced.

  • At least in North Carolina, only the marital portion of the retirement account can be divvied up by a court. Typically, that is the portion of the account that accrued between the date of marriage and date of separation. 
  • Many, if not most retirement accounts can only be divided by way of a special court order called a “Domestic Relations Order”. 
  • Dividing retirement accounts without a court order or a properly drafted and executed separation agreement can result in expensive penalties and taxation on the withdrawals to the account owner. 
  • Most 401k companies will not allow you to give your spouse specific parts, shares, or assets of a 401k. For example, it is usually impossible to give your spouse just the Apple stock out of your 401k.
  •  There are big differences between Roth and non-Roth retirement accounts in taxation when the funds are withdrawn later.
  • Some retirement accounts can be divided such that your spouse gets their own separate account. But, some can only be divided such that your spouse gets a portion of your payment once you start receiving benefits.
  • Annuities are difficult to divide and therefore payments from the annuities may need to be shared or divided when the payments begin.
  • When dividing pensions, there are important and tricky survivor benefits that need to be considered and addressed.
  • Some retirement plans have online services for researching and drafting domestic relations orders to divide the accounts.  
  • The “coverture fraction” or “marital coverture fraction” is the most common technique for determining what part of a “defined benefit” (e.g. pension) plan can be divided. This is the fraction representing the years of the marriage during which you earned the benefit, divided by the total years you earned the benefit. If you earned the entire benefit while you were married, then the fraction is 1/1. If you were not married for the entire time you earned the benefit, then the fraction will be less than 1. 

Dealing with retirement accounts in divorce can be complicated and the details of each plan and case are important. But understanding some of the basics can help reduce anxiety in the early stages.  Optimizing retirement outcomes for both parties in divorce is best done in a joint problem solving divorce process where all of the options can be discussed.   

The Thoughtful Divorce

One of the core tenets of my practice is that people need to be very thoughtful and very intentional about how they are going to go through the divorce process.  If they don’t want a big nasty fight, then they need to take the steps necessary to avoid a big nasty fight.  If they want to fight, so be it; that can be a valid choice.  But that needs to be an intentional choice, not something you fall in to. 

The point is that you don’t want to fall into a certain kind of divorce by accident.  You want the tone, tenor, and structure of your divorce process to be the one you and your spouse choose, not the default process of your attorneys.  

But to do that you have to start with the end in mind.  What kind of relationship do you want to have with your spouse down the road?  What kind of relationship do you want to have with your kids down the road?  What kind of relationship do you want your kids to have with the other parent?  Do you want to stress your kids out when they are planning their wedding because you and your ex never healed?  Do you want to lose out on time with your kids and grandkids because they have to divide their family time between divorced parents who can’t be in the same place? Do you prefer to fund your children’s college or your attorney’s children’s college?

I think these are the concepts that the divorce attorney to the stars, Laura Wasser, is touching on in her recent interview about the new movie Marriage Story.

In discussing a character’s super aggressive divorce attorney she says “If you don’t want to end up like these people, and have somebody like this representing your spouse, you ought to really think carefully about how you embark upon the road to divorce.”

She goes on to describe the trend of divorcing couples finding more peaceful and reasonable ways to get through their divorce: “I definitely think that, in the last five to ten years particularly, we have seen a shift in terms of more divorcing parties going to mediation, communicating more effectively…joining communities, reading things, getting educated about the process”.

Part of the reason for that is the fading of the misconception that aggressive and attacking behavior helps a client’s cause.  She says she doesn’t recommend clients “…exercising bad behavior as a way to get ahead. I don’t think judicial officers find that to be something that’s worthy of being rewarded.”

Laura Wasser is just one attorney but she’s an attorney who deals in many cases where privacy is paramount, there are big financial issues at stake, and emotions run high.  If she is telling her clients to be very thoughtful about their divorce process and to keep the end result in mind when choosing a process, then perhaps that’s good advice for everyone else.   

Value for Your Attorney Fees: Avoiding Future Disputes

The cost of divorce is top of mind for almost every client that I serve.  In my experience the amount of income and net worth have very little impact on how much someone worries about this issue.  

The reality is that many divorces involve complex emotional, financial, and legal issues and therefore take some time to problem solve to resolution.  So, it is very important that clients get as much value from what they pay for their divorce process as possible.  

One of the best ways that attorneys can add value to a client’s use of resources on their divorce is to help them avoid future expenditures on legal issues.  When I was litigating adversarial family law cases in court, clients almost always grossly underestimated the amount that they would spend in the years after their first round of court hearings.  This was because the adversarial nature of the court process planted seeds of anger, resentment, distrust, and vindictiveness that I knew would sprout into fields of future conflict.  And, this future conflict often costs multiples of the amount spent in the initial round of conflict.

The best way to prevent this, in my experience, is to resolve the first round of conflict in a way that prevents, or at least greatly reduces the likelihood of future adversarial conflict that would require legal fees.  That is essentially the main goal of Collaborative Law. 

While this is a core tenet of my practice, it came to mind most recently while reading a study on shared parenting which stated:

“Shared custody – like any other parenting arrangement – can work well or poorly depending on a range of factors.  Moreover…life changes may eventually present new challenges, and helping parents understand and be more prepared for future issues that would need to be addressed if they are to continue sharing parenting could prevent future difficulties.” The Growth in Shared Custody in the United States: Patterns and Implications, Meyer, D, Cancian, M., and Cook, S. Family Court Review, V. 55, No. 4, October 2017

I have previously discussed the difference between answers and solutions in legal matters. Answers give you an immediate instruction of what you will do now.  Solutions give you not only an immediate answer, but a plan and process for handling the “future issues” that invariably come up for families after their separation agreement is signed.

In a collaborative divorce, communication patterns are identified, modified to be more productive, and new communication and conflict resolution skills are learned.  These underlying issues are rarely addressed in a court proceeding or traditional negotiation. So, while courts can give families an immediate answer, they are far less able to provide the tools and solutions that will help avoid future legal fees.

The aim is that, when future issues arise, the parties feel competent and confident in finding their own solution instead of calling an attorney to re-ignite the adversarial process.   If that doesn’t work, they can enlist their collaborative attorneys, financial neutral, or child specialist to help them over a rough spot without falling into the endless pattern of litigation or incurring high legal fees.  Those fees saved are the same as extra money earned.

As the saying goes, the only constant is change. Changes will happen after your separation agreement is signed and your divorce is finalized.  In order to get the most value from your time and money spent, choose a process that will help both of you handle future issues more productively down the road so that you won’t need to involve courts or attorneys for the “future issues”.  

Health Insurance in Divorce: Legal Separation v. Legally Separated

One of the biggest financial hits that can come with divorce is the cost of health insurance for an unemployed spouse. Typically, the unemployed or part-time employed spouse is covered under the health insurance plan offered by the other spouse’s job.
In my practice, I typically see premiums for private policies (policies not provided through an employer) between $500 and $800 per month depending on the plan. This cost can vary greatly and can be reduced to almost nothing if certain government subsidies are triggered by the Affordable Care Act (“Obamacare”).
But, in most cases, a family is looking at a substantial additional expense to cover a spouse with no employer-sponsored health insurance.
So, it typically makes sense for a spouse to stay on the other spouse’s employer-sponsored health insurance for as long as possible to save money.
The question then, is how long can one spouse stay on the other’s health insurance? The answer in North Carolina in the vast majority of cases is until the date of divorce.
There may be language in documentation from Human Resources or in the benefits package documentation that mentions “legal separation”. This language sometimes requires the employee to report a “legal separation” to HR so that benefit eligibility for the spouse can be re-evaluated.
This is where the difference between “legal separation” and “legally separated” comes in. A “legal separation” is a specific legal order by a court that is offered in some states, but not North Carolina. The closest thing North Carolina has to a “legal separation” is called “Divorce from Bed and Board”, or a “DBB”. A DBB has to be obtained from a court in North Carolina. You have to put a lot of time, effort, and legal fees into a DBB. So you will know if you have a DBB.
In North Carolina, “legally separated” is much different than a “legal separation” in some other states. “Legally Separated” in North Carolina means that you are living under separate roofs with the intent for that separation to remain permanent (i.e. not a limited “trial separation”). Being “legally separated” in North Carolina is not a “legal separation” as that term is used in other states. “Legally separated” in this state means essentially that the one-year waiting period for divorce has begun and that some financial issues related to divorce have kicked in (there are other legal impacts of being legally separated, ask a lawyer for a full explanation).
So, if you are separating, or legally separated in North Carolina, you typically do not need to report that separation to an employer-sponsored health plan. And, both spouses can remain on the employer policy until the actual date of the divorce.
That being said, every situation is different, so contact an attorney to determine whether and how being legally separated impacts you or your spouse’s eligibility for employer-sponsored health insurance.