Therapist Note: Legal Issues of Trial Separations

For mental health professionals, temporary separations can be a useful therapeutic tool for stressed marriages.  But, many marriage counselors are unaware of the legal ramifications that even seemingly temporary separations can produce.  Nonetheless, there are potential legal issues involved, and mental health professionals would do well to have a very basic understanding so that they can advise clients to seek legal advice if appropriate.  This post describes the most common complications.

Making Divorce Decisions in the Face of Uncertainty

“How Do I Know if I’m Making the Right Decision?”

This is one of the most common dilemmas that people face in negotiating divorce, custody, alimony, equitable distribution and child support issues.  In fact, the fear of making the wrong decision can paralyze people and prevent them from making any decisions.  

In my last blog post, I talked about the negative impact of indecision.  The fear of making the wrong decision is one powerful fear that feeds indecision. 

However, in a divorce context or any other, making decisions in the face of uncertainty it is critical. 

The fact of the matter is that there are poor, better and best decisions.  But, there are rarely right and wrong decisions.  There are great decisions that turn out poorly and terrible decisions that work out well.  No one has a crystal ball, and even the best analysis and prediction can be laid waste by future events.  Life, as they say, is uncertain. 

Nonetheless, decisions must be made.  The best way that I know to handle the discomfort of making difficult decisions in the face of uncertain outcomes is from the book Difficult Conversations by Douglas Stone, Bruce Patton and Sheila Heen of the Harvard Negotiation Project. 

These authors give the following advice: 

Don’t spend your time looking for the one right answer about what to do.  It’s not only a useless standard, it’s crippling.  Instead, hold as your goal to think clearly as you take on the task of making a considered choice.  That is as good as any of us can do.

That is tremendous advice in both divorce and life.

 

Collaborative Divorce: How Do You Define the Enemy?

Many divorce clients want their attorney to fight for them.  That can mean a lot of things.  In my experience what most people really want is an attorney that will help them obtain the best possible outcome.  “Fight” is just an easy one-word way of saying that.

But, if your attorney is fighting for you, they have to fight against something.  The question then becomes:  What are you fighting against?  How do you define your “enemy”?

In the traditional, adversarial, litigation based divorce process the enemy is typically defined as your spouse.  Therefore, you fight your spouse.  Your time, money, energy and emotion are spent fighting your spouse.  And, your spouse’s time, money, energy and emotion are spent fighting you. (And what happens to the kids in the midst of all that fighting?)

The adversarial way of handling a divorce assumes that dumping all of these resources into fighting each other will produce a “fair” result.  And, fair generally means equally bad for both of you. In fact, divorce attorneys love to say, “A good result is one that everybody is equally unhappy with.”

In contrast, the Collaborative Divorce Process does not make your spouse the enemy.  Instead, for each spouse, the enemy is the set of challenges and practical issues that can make divorce so difficult for you and your family. 

Instead of using your resources to fight against the mother or father of your children, collaborative divorces use the combined resources of both spouses to fight against the practical problems that frequently come with divorce.  These issues (and others) are most often the real enemies to a divorcing couple: 

  • Insufficient money to support two households
  • Emotions that derail effective decision making
  • Practical difficulties in co-parenting children from two households
  • Differing parenting styles in two households
  • Complicated valuation issues for assets or debts
  • Overwhelming debt that cripples each party financially
  • Blending new relationships into the family
  • Paying for college and meeting financial needs of family
  • Planning for retirement while meeting financial needs of family

The adversarial process most often produces a result that is equally bad for each party without solving any of these problems.  

The Collaborative Process most often produces a result that is beneficial for both parties (and their kids) and solves many, if not all, of the issues in that list. 

In divorce, the reality is that the enemy is not really your spouse; the enemy is the set of problems that come with divorcing your spouse.  So, it makes sense to choose a process that recognizes the real enemy and focuses your resources on defeating those issues, instead of trying to defeat each other.  Collaborative Divorce is that process.

(Special thanks to Michael Kothakota of Wolfbridge Financial, a combat veteran, for introducing the concept of “defining the enemy” to me.)

Toddlers & Tiaras: A Cautionary Tale of Child Custody and Privacy

Most lawyers will tell you that there are many hidden perils of taking your family law matters to court. 

One of those hidden perils is the loss of your privacy.

Privacy has many forms.  One form that people frequently don’t consider is the loss of privacy in child custody actions.

This loss of privacy takes the form of the government interfering in parenting decisions that it would have no right to inquire about if you were not in court.  In court, everything you do as a parent and every decision you make regarding your children becomes a matter for public scrutiny.

This recent story about Lindsay Jackson, a “Toddlers & Tiaras” mom, is a cautionary tale:  Jackson lost custody of her daughter, Maddy Verst, at least partially because of her decision to put her daughter in pageants. 

If the case were not in court, then it is hard to imagine that a governmental agency would have grounds to inquire into this kind of issue in a family.  No one has the power to tell a parent not to put their child in pageants; unless you are in court.

But, once the matter goes to court, parenting decisions and behaviors that have been sheltered by your privacy are open to judgment and review by a court, and the public.  And like Bill Verst, Maddy’s father, most parents in court are only too willing to bring up these kinds of issues in front of a judge.

Clearly, Lindsay Jackson believed her daughter’s participation in pageants was good for her daughter, a positive experience and an unquestionable parenting decision.  Turns out, the father, the court and the court’s psychologist did not agree. 

Before you run to court to open up your family’s life and your parenting decisions to judgment by a court and the public, you may want to ask whether you want to sit in the crucible of explaining your parenting decisions to a judge.  Your privacy may be more important than your need to fight.  And, while you may consider the decisions you’ve made for your kids to be above reproach, the people in power may not agree.

Fortunately, you can resolve your child custody issues without sacrificing your privacy and without opening your family and your decisions up to public scrutiny.

Collaborative law and mediation allow you to work out the issues while maintaining your privacy and your family’s privacy.

 

 

New Article Explaining Collaborative Divorce

I am happy to announce that co-author Michael Kothakota and I have published our latest article on Collaborative Divorce in Resolved:  Journal of Alternative Dispute Resolution.  

Interdisciplinary Collaborative Divorce:  A Process for Effective Dispute Resolution is intended to provide a brief but thorough explanation of the interdisciplinary collaborative divorce process for both practitioners and clients.  

Each professional and prospective client must determine whether the ICD process is appropriate for their situation.  But, our hope is that this article will provide an introduction to the process and help people make more informed decisions.

If you have questions about collaborative divorce after reading the article, then please do not hesitate to contact me to discuss the process and whether it may be right for your family or your practice.  

5 Tips for Protecting Your Kids in Divorce

 

The vast majority of my clients with children share one huge concern:  My divorce will ruin my children’s chances of being happily married. 

 

Fortunately, the research does not support the idea that divorce, by itself, negatively impacts the odds of a child being happily married. 

 

The research does show that the most important factor for kids of divorce is not that their parents were divorced, but the level of ongoing conflict between the parents.

 

So, if you want to protect your child from the negative effects of divorce, follow these guidelines:

 

  1. De-escalate conflict between you and your spouse whenever possible;
  2. Address conflict as quickly as possible so that mole hills do not become mountains;
  3. Choose a divorce process that promotes peace and problem-solving, like collaborative divorce or interest based mediation;
  4. Choose lawyers that promote problem solving and non-combative tactics;
  5. Treat your spouse as the parent of your children, and not as your enemy.

 

These steps will not make your divorce easy for you or your child.  But, they will help insulate your child from the lasting negative impacts of divorce.  

Amendment One Update

As an update, I have pasted below a blog post from the Greensboro News & Record from a group of Family Law Professors from the various law schools in North Carolina:

 

As usual, Doug, your comments are thoughtful. But family law professors from every law school in the state – including Campbell – agree with the UNC white paper on the dangers that Amendment One poses to domestic violence protection for unmarried couples. The Campbell white paper ignores a critical distinction between the Ohio amendment and Amendment One. The Ohio Supreme Court eventually concluded that the Ohio amendment did not require denying domestic violence protection to a victim unmarried to her abuser. But the Ohio amendment merely prohibited THE STATE from CREATING a legal status for unmarried relationships. Amendment One is much more far-reaching. Amendment One declares that the only “domestic legal union” that the state shall find “valid” or “recognize” is a marriage. In other words, all other “domestic unions” are “illegal,” or “not lawful.” Surely, lawyers who represent batterers who live with victims to whom they are not married will argue for this interpretation. I certainly hope that ALL the district court judges in the state who hear this argument will reject it, which seems a vain hope indeed. And I hope that when after some district court judges accept the argument, the appellate courts of this state will eventually reject it. But how much domestic violence are we willing to tolerate until that happens – assuming the appellate courts reject the argument? There is no reason to tolerate any. Marriages in North Carolina have been limited to a man and a woman for 150 years. Fifteen years ago, we passed yet another marriage statute, making clear that if same sex couples marry in a state that permits their marriages and then move to North Carolina, North Carolina will not honor their marriages. If Amendment One is defeated, which I fervently hope it will be, nothing changes. Marriages in North Carolina will continue to require the “consent of a man and a woman,” as they have for 150 years. If Amendment One passes, things change: unmarried families – some of whom are prohibited by the state from marrying – are a lot less safe. That’s why family law professors from every law school in the state – including Campbell – have joined this statement:

We are family law professors who teach at every law school in the state of North Carolina. We speak on behalf of ourselves, rather than our institutions. Based on our professional expertise, the language of the proposed North Carolina amendment is vague and untested, and threatens harms to a broad range of North Carolina families. The amendment is phrased more broadly than most similar amendments in other states, and would therefore likely be construed by courts more broadly than in other states. The amendment would certainly ban same-sex marriages, civil unions, and domestic partnerships, and would very likely ban the domestic partnership health insurance benefits that a number of municipalities and counties currently offer to same- and opposite-sex unmarried couples. It also threatens a range of other protections for unmarried partners and their children, including domestic violence protections and child custody law. We are aware that some law professors at Campbell Law School think otherwise. In our view, this disagreement simply underscores the fact that Amendment One is vaguely worded and that it is not possible to know how broadly it will eventually be construed.

April 20, 2012

Jean Cary
Professor of Law
Campbell Law School

Scott Sigman
Associate Professor
Charlotte School of Law

Katharine Bartlett
A. Kenneth Pye Professor of Law

Kathryn Bradley
Professor of the Practice of Law
Director of Legal Ethics

Carolyn McAllaster
Clinical Professor of Law
Director, Duke Legal Project
Duke Law School

Sonya Garza
Assistant Professor
Elon School of Law

Kia H. Vernon
Assistant Professor of Law
North Carolina Central School of Law

Maxine Eichner
Reef C. Ivey II Professor of Law

Holning S. Lau
Associate Professor
UNC School of Law

Jennifer Collins
Professor of Law

Suzanne Reynolds
Executive Associate Dean and Professor of Law
Wake Forest School of Law

Understanding Amendment One in North Carolina

 

On May 8th, North Carolina voters (that is probably you) will go to the polls (hopefully) to vote on Amendment One.  Amendment One would theoretically change the North Carolina Constitution to ban same sex marriage. 

 

The actual wording of the Amendment is as follows: 

 

“Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”

 

The wording is a bit confusing and a little vague legally.  That has contributed to great confusion among people I have talked to as to what they would actually be voting for or against. 

 

In an effort to help educate people on the Amendment, I have included below the Executive Summary of an article entitled “Potential Legal Impact of the Proposed Same-Sex Marriage Amendment to the North Carolina Constitution” (footnotes omitted).  You can read the whole article here.  This article was written by law professors at the UNC School of Law (my alma mater in the interest of full disclosure). 

 

One thing to understand initially is that North Carolina does not recognize same sex marriage.  Same sex couples cannot get married or divorced in North Carolina under current law.  Perhaps that is one reason for the confusion.

 

My hope is that you will feel a little less confused about the Amendment and it’s potential impact before you vote on May 8th (I strongly encourage everyone to vote!).  Also, this is by no means the only view of the Amendment.  But, it is the most unbiased and academic one that I could find that was not from a political based group. 

 

EXECUTIVE SUMMARY

 

The proposed Amendment would not simply place this state’s current statutory prohibition of same-sex marriage into the North Carolina Constitution, as its sponsors seek.

 

Instead, the proposed language is problematically vague, untested, and threatens to upend years of settled law. In prohibiting state recognition or validation of “domestic legal unions,” the proposed Senate bill would introduce into the Constitution a phrase that has never been used in any prior statutory law in North Carolina, never been interpreted by its courts, and never been interpreted by courts in any other state.  Taken as a whole, the bill’s language is sufficiently vague, and its

scope significantly unclear, that it would enmesh our courts in years of litigation to untangle its appropriate meaning. Moreover the eventual result of judicial interpretation of the Amendment would be uncertain.  It could, however, be interpreted to upend completely the very minimal legal rights, obligations, and protections now available to unmarried couples, whether same-sex or opposite-sex.

 

The Amendment could be construed by courts to:

 

 Prevent the courts from enforcing private agreements between unmarried couples, therefore encouraging the wealthier members of couples to avoid marriage so that they will not be subject to obligations to transfer property;

 

 Interfere with child custody and visitation rights that seek to protect the best interests of children;

 

 Invalidate protections against domestic violence to members of unmarried couples;

                                                       

 Interfere with end-of-life arrangements, such as wills, trusts and medical powers of attorney, executed by unmarried couples;

 

 Invalidate domestic partnership benefits currently offered to same-sex and opposite-sex couples by local municipalities;

 

 Prevent courts from enforcing private employers’ agreements to provide benefits such as health insurance to employees’ domestic partners. 

 

The vague and untested language of the Amendment would therefore cause real harm to a broad range of North Carolina citizens. The proposed Amendment could be interpreted to strip the increasing number of unmarried heterosexual couples of their ability to order their relationships and property through contract, deny legal protection against domestic violence, and cut them off from custody of their children.  By the same token, committed same-sex couples in North Carolina, who are already precluded from marrying, would also no longer have access to these minimal protections.  Even if courts did not ultimately adopt a broad interpretation of the Amendment’s language, these couples’ rights would be uncertain during the inevitably long period of time that it took for these issues to work their way through the courts.  The Amendment’s broad sweep would also interfere with municipalities’ freedom to determine domestic partnership benefits for their own employees.  It could also undermine private employers’ efforts to attract top employees to North Carolina by providing employee benefits to domestic partners, as the courts and public medical facilities may not be permitted to recognize those benefits.  Finally, the breadth of the Amendment’s language and its untested terminology will significantly tax the resources of North Carolina courts, which will be charged with interpreting its scope.  

When is Divorce the Right Decision?

As a collaborative divorce lawyer, I generally extoll the virtues of avoiding divorce.  But, a film documentary has reminded me that to everything there is indeed a season, and a time to every purpose under Heaven.  

51 Birch Street tells a powerful story.  It is the story of a husband and wife that stayed married for 53 years, raised three kids, and seemed happy, but ultimately may have benefited from a divorce. 

After her death, Filmmaker Doug Block discovered that his mother lived most of her marriage resenting his father, and may well have preferred to have not been married at all. 

Further, shortly after his wife of 53 years died, Block’s father married his long lost former secretary.

That left Block to wonder whether his father had been in love with his secretary for decades, and whether his mother knew it.  

The film raises many questions.  One that sticks with me is when is it better to be divorced than to live life in misery, or pining for the person you truly love?  

I watch many of my clients struggle with these questions as they go through the divorce process.  Unfortunately, I can’t answer that question for them.  But, 51 Birch Street will serve as a reminder to me that there may be many right answers to these questions.  

Unpredictable Alimony Awards

Alimony has always been of the most unpredictable issues for spouses and attorneys.  The chair of the Family Law Section of the American Bar Association indicated in a recent article “Divorce law is one of the most discretion filled areas of the law…”

In many states, including North Carolina, judges have wide discretion in awarding alimony, both in amount and duration.  Compare this to child support awards that are largely determined by a formula in North Carolina.

A recent article in the February 2012 issue of the American Bar Association’s Journal highlights national efforts to create more predictable alimony awards. 

The article states, “Many agree that divorcing spouses deserve more predictable outcomes” and that the current alimony process in court “has been attacked as antiquated, unbalanced and unfair.”

Here are some of the proposals and efforts that have been undertaken by other states or legal groups according to the article:

  • In 2011 Massachusetts passed the Alimony Reform Act.  The new law created a formula for calculating alimony awards.  The law also ends alimony when the paying party reaches retirement.  Further there is now a 12-year limit on alimony payments in that state.
  • Oklahoma is trying to reduce a party’s ability to get military retirement pay as alimony.
  • Rhode Island generally limits alimony payments to five years.
  • In 2004, a Florida lobbying group tried to end alimony in that state forever.
  • The American Academy of Matrimonial lawyers suggests the following formula:
    • 30% of the paying party’s gross income minus 20% of the receiving party’s gross income
    • The receiving party should not receive more than 40% of the couples’ total combined gross income
    • For example: If one spouse makes $100,000 and the other makes $50,000, the numbers look like this:  $100,000 x 30% = $30,0000; $30,000 minus $50,000 x 20% ($10,000) = $20,000.  So, the receiving spouse would get $20,000 a year in alimony.
    • And, the duration would be calculated by multiplying the length of the marriage by a fraction.

These efforts clearly indicate that there is a big problem for divorcing couples using the courts to determine alimony awards.  

Their outcomes are highly discretionary and therefore very difficult to predict. Of course, couples always have the option to opt out of the unpredictable alimony system currently in place. They are free to resolve alimony issues in whatever way they choose in processes such as collaborative divorce and mediation. 

As the current alimony system comes under further attack, wise couples may elect to do just that.