Thanks to Jeremy Morely for bringing this article from the economist to our attention. Our office has handled several cases of forum shopping.
Money in misery
Feb 5th 2009From The Economist print edition
MARRIAGES that thrive on money may wither with thrift. That is a depressing lesson from the world economic crisis, which has brought a surge in business for divorce lawyers in former boomtowns such as London and New York. When one or both spouses is from a foreign country, divorce is not just sad but complicated too—especially when most assets may be in a third country, a pension in a fourth, and offspring in a fifth.
Globalisation has made binational marriages, once exotic, much more common among high-earning, highly mobile families. When they stop being high-earning, life gets tricky. Louise Spitz of Manches, a London law firm, has observed an “exceptional” period since September. “With the redundancies in the City there has been a concomitant wave of marital upheaval,” she says. “Families used to living on huge bonus income are unable to continue with the commitments they have taken on—housing and school fees and the cost of living the high life.” Manches has taken on eight more divorce lawyers to cope with the extra work. A high proportion, Ms Spitz and other lawyers reckon, of the once-rich couples now breaking up include at least one foreign spouse.
So who sues whom for divorce and where? How much money will be awarded to whom? Will it be collected? And how? The answers are far trickier than most non-lawyers would imagine. Take, for example, this lightly disguised but real-life example: a wealthy philandering Texan banker with a French wife. Formerly resident in New York, with a recently-lost good job and rented house in London, he now plans to move back to Texas. His wife, newly suspicious and with no money of her own, wants to take the children home to France. She needs her family, she says. What she actually needs is urgent, specialist legal advice.
A London divorce settlement might give her many millions: a house, school fees and maintenance until the children are adults, or even indefinitely. An English court may well disregard a prenuptial agreement, particularly if one of the parties did not have independent legal advice. And it will tend to care more about immediate needs than about whether assets were acquired during the course of the marriage, or predate it, or are the result of an inheritance. All assets are likely to be divided. If the wife is lucky, she may even be able to collect her share.
In the wife’s native France, things will look very different. In her favour is that conduct counts—so adulterous spouses will be penalised. In most other Western countries, divorce courts have given up attributing blame. Even domestic violence is often ignored, though it still counts heavily in some jurisdictions, such as Florida.
But in the typical French divorce, any alimony (also called maintenance) will be less and for eight years at most; any prenuptial agreement will be binding. Only assets acquired during the marriage are up for grabs. If, in our example, the American husband moves to France, he will be expected to play an equal part in bringing up the children—a requirement that would delight some fathers, but by no means all.
If the errant husband has the divorce filed in Texas, the tables are turned even more dramatically. The wife risks being left penniless. In Texas state law, alimony is usually minimal and temporary—though child support, thankfully, is a federal matter. In America, the law varies hugely between states. Most exclude from the settlement assets acquired before the marriage (but some don't). Most exclude inherited property (but Massachusetts does not). In most states, judges will enforce prenuptial agreements (but not everywhere).
If the Texan husband decides to file in New York, however, he may find the outcome startlingly expensive. As in some English court rulings, New York courts may award one party a share of a spouse’s future earnings—assuming that they are based on a qualification, such as an MBA or medical degree, that was earned thanks to a joint effort in happier times. Yet New York law has one big catch: unless the parties have signed a formal separation agreement it requires proof of cruelty, adultery or abandonment, whereas other states allow “irreconcilable differences” as grounds for a divorce. So binational couples in New York who want to end their marriage may find themselves unable to do it there, and squabbling about alternatives. Rules differ, too, on what constitutes residency in a particular jurisdiction. In hedonistic Las Vegas, six weeks is enough.
According to Jeremy Morley, an international divorce lawyer based in New York, hiding assets from a spouse is also much easier in some countries than in others. California, at one extreme, requires complete disclosure of assets. At the other extreme, Austria, Japan and many other countries require very little disclosure. A California court recently ordered a husband to pay $390,000 in costs and penalties to his wife because he did not disclose some significant financial information. In another jurisdiction, the assets could have stayed hidden.
Who gets the children?
Cash and kids may pull in different directions. Countries that are “man-friendly” (shorthand for favouring the richer, usually male, partner) when it comes to money may be “mum-friendly” when it comes to custody. Japan, for example, is quick and cheap for a rich man—unless he wants to keep seeing his children. English courts are ferocious in dividing up assets, even when they have been cunningly squirrelled away offshore. But compared with other jurisdictions, they are keen to keep both divorced parents in touch with the children.
The children’s fate, even more than family finances, can be the source of the hottest legal tussles. The American State Department unit dealing with child abduction has seen its caseload swell from an average in recent years of 1,100 open cases to 1,500 now. In Britain, the figures rose from 157 in 2006 to 183 in 2007, according to Nigel Lowe of Cardiff Law School.
Of the cases reported worldwide, mothers are the main abductors when a marriage breaks down. They are cited in 68% of cases. Ann Thomas, a partner with the International Family Law Group, a London law firm, says child abduction has increased “dramatically” in the past three years or so. A big reason is freedom of movement within the European Union, which has enabled millions of people from the new member states to live and work legally in the richer part of the continent. That inevitably leads to a boom in binational relationships, and in turn more children of mixed marriages. Ms Thomas notes that when a relationship between a foreign mother and an English father breaks down, the mother often assumes that she can automatically return to her homeland without the father’s permission. That may be a costly legal mistake.
Most advanced industrialised countries, plus most of Latin America and a sprinkling of others, are signatories to the 1980 Hague Convention, a treaty which requires countries to send abducted children back to the jurisdiction where they have been living previously. That is fine in theory: it means that legal battles have to be fought first, before a child is moved. It is a great deal better than a fait accompli which leaves one parent in possession, while the other is trying to fight a lengthy and expensive legal battle in a faraway country.
But in practice things are very different. Views on the desirability of children being brought up by “foreigners” vary hugely by country; so do traditions about the relative roles of fathers and mothers in bringing up their children after divorce. In most Muslim countries, for example, the assumption is that children over seven will be brought up by the father, not the mother, though that is trumped by a preference for a local Muslim parent. So the chances of a foreign mother recovering abducted children from a Muslim father are slim. Apart from secular Turkey and Bosnia, no Muslim countries have signed the Hague Convention, though a handful have struck bilateral deals, such as Pakistan with Britain, and Egypt and Lebanon with America.
Japan has not signed it either—the only member of the rich-country G7 not to have done so. Canada and America are leading an international effort to change that. Foreign fathers, in particular, find the Japanese court system highly resistant to attempts even to establish regular contact with abducted and unlawfully retained children, let alone to dealing with requests for their return. Such requests are met with incomprehension by Japanese courts, complains an American official dealing with the issue. “They ask, ‘Why would a father care that much?’” Countries edging towards signing the Hague Convention include India, Russia and mainland China. But parents whose ex-spouses have taken children to Japan should not hold their breath: as Ms Thomas notes, even if Japan eventually adopts the Hague Convention, it will not apply it retrospectively.
Games with different rules
Moreover, even signatory countries may be bad at abiding by the convention, especially when it means enforcing the return of children to a parent alleged to have been abusive. The annual State Department report to Congress on observance of the Hague Convention lists Honduras as “non-compliant” and nine other countries (Brazil, Bulgaria, Chile, Ecuador, Germany, Greece, Mexico, Poland and Venezuela) as showing “patterns of non-compliance”. Anyone in a wobbly marriage with a citizen of these countries might bear that in mind before agreeing to let the children go on holiday there.
But America is not blameless either, particularly if parents try to recover their children through state rather than federal courts, where judges may be unaware of the Hague Convention’s requirements. “Except in Florida, New York, California and Texas, a judge may only hear one Hague case in his career,” says a State Department official. Judges who get it wrong can be overruled on appeal, but it takes time and money: the Hague Convention aims to make proceedings quick and cheap, thus making abduction less likely. Whereas Britain offers automatic legal aid to the foreign parent trying to recover the children, in America they must rely on their own resources or a pro bono lawyer.
Making wily choices about possible jurisdictions is often criticised as “forum shopping”. But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery. Mr Morley says the differences between one divorce jurisdiction and another are far more than, say, playing a sporting fixture at home or away. As the table shows, totally different rules apply.
So it is understandable that a disillusioned spouse, and his or her lawyer, will try hard to get the most favourable jurisdiction. Yet that can all too easily lead to each party starting, or even finishing, a divorce in a different country. Sorting out these cross-border legal wrangles can be colossally expensive. A tussle between jurisdictions usually starts in six figures, in dollars, euros or pounds; when all four legal bills, of both sides’ costs in both countries, are totted up, it easily shoots into seven figures. And it is hugely time-consuming. The children involved may reach adulthood before the final verdicts are given.
International attempts to tidy up the law have made some things better, but not all. The European Union (where 875,000 divorces take place each year, a fifth of them binational) introduced a reform in 2001 called Brussels II. This has largely stopped “forum shopping”, with a rule that the first court to be approached decides the divorce.
The problem with this rule is that it encourages those in troubled marriages to end them, not mend them. Even if a marriage is doomed, the trend in family law is to resolve the dispute out of court, typically through mediation. A race to issue proceedings makes it much more likely that matters will get nasty, as well as lengthy and costly. David Hodson, an international family law specialist, notes sadly that “This law works against reconciliations and resolutions out of court. Cases can be won and lost by one spouse issuing a divorce a matter of minutes before the other spouse. That must be wrong.”
The law of dirty tricks
Brussels II also encourages some less scrupulous lawyers to behave badly, urging their clients to act fast and dirtily. A London divorce lawyer recalls a case where a husband from an overseas country had acquired his wife’s European nationality by marriage, living briefly in her continental home country before moving to London. Five years and two children later, the marriage was on the rocks, with the husband away working in East Asia. Without his wife’s knowledge, he filed for divorce in her country, one of the stingiest jurisdictions in Europe (from her point of view). His only connection with it was his marriage to the wife he was trying to dump cheaply. Had the case been heard in London, where both parties had much stronger links and had owned a home for years, she would have done far better.
To avoid such cases, a further EU measure, Rome III, tried to stipulate that a marriage should be ended only by the law that has governed it originally. That works fine in similar countries where divorce rules are highly codified, precedents do not matter and judges’ discretion is limited. It already applies in some northern European countries, so that Dutch courts, for example, will apply French law when dealing with a French couple whose marriage has ended during a posting in The Hague.
But such a rule works much less well when other systems are involved. English law is much more complex, and is based on intricate precedents and judges’ discretion that cannot simply be looked up and applied. Even greater difficulties arise when couples come from more distant countries. Would a Swedish court want to apply sharia law to a divorcing couple recently arrived from Saudi Arabia? Many Swedes flinched at that. Mr Hodson complains that it would mean that “the essence of a country’s community life found in its family laws is removed and replaced by the laws of another country.” In the United Kingdom, he says, it would be “entirely against [national] law and policy.”
For richer, for poorer
Now that Rome III has been stymied, a group of nine countries, led by Spain and France, is going ahead under a provision in EU law known as “enhanced co-operation”. This allows like-minded countries to work together, leaving the unwilling behind. And still more international tidying-up operations are in the works. Another Hague Convention tries to harmonise arrangements on cross-border child-support payments—an area that tends to be a bit less contentious than divorce, where views of what is fair differ wildly.
Perhaps the biggest weakness of the system is the advantage that it gives to the richer partner when an international marriage breaks up. Experienced lawyers can operate, if necessary, with high speed to help the poorer spouse—for example, by putting the first hefty legal bill on the husband’s credit card before he is aware of what his wife is up to. In England, that may be followed by a swift move to initiate divorce proceedings, and then an emergency maintenance application that includes provision for legal costs. When the richer party has assets in that jurisdiction, a fair fight is possible. But Kerstin Beyer, a German-British divorce lawyer at the International Family Law Chambers in London, says the tables are often stacked against the poorer (and usually less knowledgable) spouse. Some husbands file for divorce abroad and simply fail to turn up at the English court, hoping that the cost and delay of enforcing the judgment abroad will lead their ex-wife to give up. A client of hers trying to gain the assets she had been awarded in Colorado was faced with a demand for a $15,000 upfront payment from a lawyer there: an impossible expense for someone of her means. Another has been pursuing, expensively and so far fruitlessly, assets in Luxembourg and Germany awarded by a London court. Pensions are particularly tricky. Some countries split them between divorcing couples as a matter of course; others regard such requests from foreign courts coldly.
More fundamentally, divorce arrangements in countries with English-style common law are still liable to be influenced by highly atypical fights between the super-rich, who can afford to take cases to the highest courts. In most marriages there is barely enough money to support one family in one country, notes Ms Spitz. Spreading that between two sides is a stretch, even without an expensive legal fight. As house prices plunge and savings shrivel, divorcing couples are fighting over a shrinking cake.
www.la-familylaw.com
Wednesday, March 18, 2009
Friday, January 02, 2009
Tuesday, March 18, 2008
Paul McCartney Divorce Judgmenet in Full
Telegraph
By Caroline Gammell and Matthew Moore
The judge who heard the Heather Mills and Sir Paul McCartney divorce case has said that Miss Mills was an "inaccurate and inconsistent" witness.
Extracts: Judge's harshest words from the full divorce ruling
The McCartney-Mills judgement in full
Mill's contribution to marriage: an acrylic fingernail
Previously unknown details of the divorce settlement have been made public in Mr Justice Bennett's full judgment, after a court refused Miss Mills's application for secrecy.
Telegraph TV: Outside court Heather Mills yesterday spent 11 minutes attacking the legal system
In it, the judge states that the former model's evidence was "not just inconsistent and inaccurate but also less than candid. Overall she was a less than impressive witness." The judge described Sir Paul evidence as "balanced". He said: "He expressed himself moderately though at times with justifiable irritation, if not anger. He was consistent, accurate and honest." However, Mr Justice Bennett said: "But I regret to have to say I cannot say the same about the wife's evidence.
"Having watched and listened to her give evidence, having studied the documents, and having given in her favour every allowance for the enormous strain she must have been under (and in conducting her own case), I am driven to the conclusion that much of her evidence, both written and oral, was not just inconsistent and inaccurate but also less than candid. Overall she was a less than impressive witness."
The judge said that Miss Mills was a "strong-willed and determined personality" who had shown great fortitude in overcoming her disability.
He said: "She has conducted her own case before me with a steely, yet courteous, determination." He also described her as a "kindly person" who is "devoted to her charitable causes". The decision to make the judgment public is a new blow to Miss Mills, who had wanted the judge's full ruling to remain confidential, arguing that it would compromise their daughter's privacy. Sir Paul had lobbied for it to be released.A summary of the divorce ruling - which left Miss Mills with a fraction of the sum she had demanded - was made public by the High Court yesterday.But her application for an appeal against the judge's preference for releasing the full statement was rejected this morning and the judgment released.
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Miss Mills, who represented herself throughout the divorce hearing, was not at the Court of Appeal to hear the decision.
Sir Paul sealed an emphatic victory over his ex-wife yesterday after a judge awarded her £24.3 million, less than a fifth of the £125 million she had sought from their four year marriage.
While Sir Paul, 65, left the High Court with a smile and no comment, his former wife launched an 11-minute tirade against the British judicial system in front of scores of journalists and the television cameras.
Miss Mills, 40, said the couple's daughter Beatrice, four, was now "meant to travel 'B' class while her father travels 'A' class".
Top ten celebrity divorce settlements
Timeline What they both wanted
In pictures: Epic divorce battle
She alleged that Sir Paul's legal representative Fiona Shackleton had handled the case in the "worst way you could ever, ever imagine".
But the former model insisted she was happy with the ruling and said she would not contest the judgment.
"It was an incredible result in the end to secure mine and my daughter's future and that of all the charities that I obviously plan on helping - because you know it has been my life for 20 years."
The ruling by Mr Justice Bennett was imposed after the couple failed to reach an agreement during a six day hearing last month.
It was disclosed that the ex-Beatle had initially offered Miss Mills £15.8 million, which was rejected.
Warren Shiell is a Los Angeles Divorce Attorney
By Caroline Gammell and Matthew Moore
The judge who heard the Heather Mills and Sir Paul McCartney divorce case has said that Miss Mills was an "inaccurate and inconsistent" witness.
Extracts: Judge's harshest words from the full divorce ruling
The McCartney-Mills judgement in full
Mill's contribution to marriage: an acrylic fingernail
Previously unknown details of the divorce settlement have been made public in Mr Justice Bennett's full judgment, after a court refused Miss Mills's application for secrecy.
Telegraph TV: Outside court Heather Mills yesterday spent 11 minutes attacking the legal system
In it, the judge states that the former model's evidence was "not just inconsistent and inaccurate but also less than candid. Overall she was a less than impressive witness." The judge described Sir Paul evidence as "balanced". He said: "He expressed himself moderately though at times with justifiable irritation, if not anger. He was consistent, accurate and honest." However, Mr Justice Bennett said: "But I regret to have to say I cannot say the same about the wife's evidence.
"Having watched and listened to her give evidence, having studied the documents, and having given in her favour every allowance for the enormous strain she must have been under (and in conducting her own case), I am driven to the conclusion that much of her evidence, both written and oral, was not just inconsistent and inaccurate but also less than candid. Overall she was a less than impressive witness."
The judge said that Miss Mills was a "strong-willed and determined personality" who had shown great fortitude in overcoming her disability.
He said: "She has conducted her own case before me with a steely, yet courteous, determination." He also described her as a "kindly person" who is "devoted to her charitable causes". The decision to make the judgment public is a new blow to Miss Mills, who had wanted the judge's full ruling to remain confidential, arguing that it would compromise their daughter's privacy. Sir Paul had lobbied for it to be released.A summary of the divorce ruling - which left Miss Mills with a fraction of the sum she had demanded - was made public by the High Court yesterday.But her application for an appeal against the judge's preference for releasing the full statement was rejected this morning and the judgment released.
advertisement
Miss Mills, who represented herself throughout the divorce hearing, was not at the Court of Appeal to hear the decision.
Sir Paul sealed an emphatic victory over his ex-wife yesterday after a judge awarded her £24.3 million, less than a fifth of the £125 million she had sought from their four year marriage.
While Sir Paul, 65, left the High Court with a smile and no comment, his former wife launched an 11-minute tirade against the British judicial system in front of scores of journalists and the television cameras.
Miss Mills, 40, said the couple's daughter Beatrice, four, was now "meant to travel 'B' class while her father travels 'A' class".
Top ten celebrity divorce settlements
Timeline What they both wanted
In pictures: Epic divorce battle
She alleged that Sir Paul's legal representative Fiona Shackleton had handled the case in the "worst way you could ever, ever imagine".
But the former model insisted she was happy with the ruling and said she would not contest the judgment.
"It was an incredible result in the end to secure mine and my daughter's future and that of all the charities that I obviously plan on helping - because you know it has been my life for 20 years."
The ruling by Mr Justice Bennett was imposed after the couple failed to reach an agreement during a six day hearing last month.
It was disclosed that the ex-Beatle had initially offered Miss Mills £15.8 million, which was rejected.
Warren Shiell is a Los Angeles Divorce Attorney
Thursday, March 06, 2008
New York Times article on the role of religion in custody disputes
New York Times By NEELA BANERJEEarticle
Published: February 13, 2008
A 27-year-old single mother at the time, Mrs. Snider felt she had ruined her life through a disastrous marriage and divorce. But in her kitchen that night, after reading pamphlets and Bible passages that her boss had pointed her to, she realized she was a sinner, she said, she prayed for forgiveness, and put her trust in Christ.
Four years later, the conservative brand of Christianity Mrs. Snider embraced became the source of a bitter, continuing custody battle over her only child, Libby Mashburn.
Across the country, child-custody disputes in which religion is the flash point are increasing, part of a broader rise in custody conflicts over the last 30 years, lawyers, judges and mediators say.
“There has definitely been an increase in conflict over religious issues,” said Ronald William Nelson, a Kansas family lawyer who is chairman of the custody committee of the American Bar Association’s family law section. “Part of that is there has been an increase of conflicts between parents across the board, and with parents looking for reasons to justify their own actions.” Another factor, he said, is the rise of intermarriage and greater willingness by Americans to convert.
Nobody keeps track of who wins in these religious disputes, but lawyers say that judges are just as likely to rule in favor of the more religiously engaged parent as the other way around. That is because, for constitutional reasons, judges are reluctant to base their rulings primarily on the religious preferences of parents.
Judges do not want to take on custody disputes rooted in religion, said lawyers like Gaetano Ferro, who until recently served as president of the American Academy of Matrimonial Lawyers. Mr. Ferro said, “How will a judge say in any rational fashion that Islam is better than Buddhism, Catholicism better than Judaism, or Methodism better than Pentecostalism?”
As a result, more and more states have tried to keep custody disputes out of court by mandating mediation. But the effect has been piecemeal, and religious disputes have proven to be among the most difficult to resolve, lawyers said.
From the age of 1 month, Mrs. Snider’s daughter had lived with her, and later Mrs. Snider’s new husband, Brian Snider, with occasional visits to her biological father.
But in 2003, when Libby was 6, an Alabama court gave primary custody to her father, William Mashburn, after he and Mrs. Snider’s own family argued that the strict religious upbringing Libby received at her mother’s home, which involved modest dress, teachings about sin and salvation, and limited exposure to popular culture, was damaging her.
“We were easy targets because we were made to look like cultists,” Mrs. Snider, 36, said. “I think whether anyone admits it or not, almost all of the ruling had to do with religion. Nothing I had done was called into question except that.”
Generally, custody disputes are resolved outside the courtroom, lawyers said.
Such cases have increased, however, because a generation ago, mothers almost always got custody and were responsible for nearly all aspects of children’s upbringing. But now, both parents are usually involved in raising children after divorce, and that can lead to dispute. Data regarding custody cases are not uniform, according to the National Center for State Courts, but for 10 states for which it has data from 2002, all show an increase in custody cases coming to trial.
Conflicts sometimes arise when an interfaith marriage dissolves or when one parent converts to a different religion after divorce.
In Oregon, a dispute between James Boldt and his former wife, Lia, was recently decided by the State Supreme Court. Mr. Boldt, the custodial parent, converted to Judaism after the divorce and sought to have their son, now 12, convert, and be circumcised.
The court ruled that custodial parents could generally decide if a child should be circumcised. But given the son’s age, it ordered the lower court to ascertain his wishes. If they conflict with his father’s, the court may have to reconsider the custody arrangement, the court ruled.
Tensions can emerge when one parent takes a turn toward fundamentalism. In 2006, the United States Supreme Court let stand a decision by the Supreme Court of Pennsylvania that permitted Stanley Shepp to tell his 14-year-old daughter about polygamy.
Mr. Shepp and his former wife, Tracey Roberts, were Mormons living in York, Pa., when they married. But Mr. Shepp espoused polygamy as a tenet of their faith.
Ms. Roberts contends that Mr. Shepp spoke to one of her daughters from a previous marriage about marrying him, which he denies. She left Mr. Shepp and has primary custody of their daughter. He was excommunicated by the Church of Jesus Christ of Latter-day Saints for his polygamist views and is now part of a Mormon fundamentalist movement in Utah.
Mr. Shepp petitioned for better-defined custody rights for his daughter, but Ms. Roberts objected because he had exposed the child to polygamist Mormon communities. The court upheld Mr. Shepp’s right to teach his daughter about polygamy, saying it could not find evidence that such teaching harmed her physical or mental health.
Judges risk violating the separation of church and state if they try to choose the faith a child should be raised in, legal experts said. But in situations like Libby Mashburn’s, judgments about parenting can become entwined with religion.
In upholding the rulings of lower courts to grant primary custody to Mr. Mashburn, the Supreme Court of Alabama said the Sniders’s involvement in missionary work took Libby away from her extended family in Alabama. The Sniders are quietly, unapologetically fundamentalist. They believe that American culture, even conservative denominations like the Southern Baptist Convention, has drifted perilously far from biblical teachings. They attend a large Independent Baptist church in Madison, where the music, the sanctuary and the congregants are unadorned and old-fashioned.
Women wear skirts as a sign of modesty. They do not swim in mixed company. They eschew rock music and nearly all popular culture. They do not drink, smoke or swear.
The Sniders have raised Libby, now 11, in that tradition. But it has put them at odds with Mr. Mashburn and Mrs. Snider’s family. Mr. Mashburn and his lawyer declined to comment .
Mrs. Snider said she understood that Libby might wear pants at her father’s home or go to the movies. But she insisted that Mr. Mashburn not swear or drink in front of Libby or expose her to inappropriate movies and music, which, she said, he has repeatedly done.
The Sniders have repeatedly appealed to win back primary custody. They are awaiting yet another decision from a hearing in November.
At the last hearing, Libby, who spends about 40 percent of her time with the Sniders, testified against Mr. Mashburn.
“I’m more of my mom’s religion, and my dad sometimes talks bad about my mom,” she said. “He called it a cult, and it’s definitely not a cult. It kind of makes me mad sometimes. Maybe he thinks her religion may be bad for me, but I think mainly he doesn’t like my mom and is using that as an excuse.”
Some states like California and Connecticut have taken innovative steps to get parents to resolve custody issues outside court. In Connecticut, for example, those seeking a court order have to meet with a family-relations specialist in an effort to negotiate. If that fails, they attend a daylong session to settle their differences before a panel that includes a lawyer and a mental health professional.
Even after a case goes to court, little may be resolved.
Aaron Petty of Minneapolis and Gineen Gove of Black River Falls, Wis., had their daughter, Basyl, 17 years ago. The couple split up when Basyl was 4. Soon afterward, Ms. Gove married, and she and her husband converted to Old Order Amish.
As Mr. Petty saw his daughter over the years, he became concerned, he said, when Basyl was about 11 and he learned that the Goves would not let her go to school past eighth grade, a common decision among the Amish.
Mr. Petty petitioned for primary custody so that Basyl might continue her education. “This case wasn’t about religion for me,” he said. “It was about her education.”
He won the case when Basyl was 14, but she disappeared. Mr. Petty said he suspected Basyl was living within the Amish community. The Goves declined to talk about the case.
“I wanted to offer my daughter options for her future, in case she grew up and didn’t remain Amish,” Mr. Petty said in a phone interview. “At 12, 13, 14, making lasting drastic decisions based on faith isn’t an appropriate time.”
Mr. Petty’s voice caught as he continued. “Was that case worth fighting? In hindsight, no. I haven’t seen my daughter in two-and-a-half years.”
Warren Shiell is a Los Angeles Family Law Attorney
Published: February 13, 2008
A 27-year-old single mother at the time, Mrs. Snider felt she had ruined her life through a disastrous marriage and divorce. But in her kitchen that night, after reading pamphlets and Bible passages that her boss had pointed her to, she realized she was a sinner, she said, she prayed for forgiveness, and put her trust in Christ.
Four years later, the conservative brand of Christianity Mrs. Snider embraced became the source of a bitter, continuing custody battle over her only child, Libby Mashburn.
Across the country, child-custody disputes in which religion is the flash point are increasing, part of a broader rise in custody conflicts over the last 30 years, lawyers, judges and mediators say.
“There has definitely been an increase in conflict over religious issues,” said Ronald William Nelson, a Kansas family lawyer who is chairman of the custody committee of the American Bar Association’s family law section. “Part of that is there has been an increase of conflicts between parents across the board, and with parents looking for reasons to justify their own actions.” Another factor, he said, is the rise of intermarriage and greater willingness by Americans to convert.
Nobody keeps track of who wins in these religious disputes, but lawyers say that judges are just as likely to rule in favor of the more religiously engaged parent as the other way around. That is because, for constitutional reasons, judges are reluctant to base their rulings primarily on the religious preferences of parents.
Judges do not want to take on custody disputes rooted in religion, said lawyers like Gaetano Ferro, who until recently served as president of the American Academy of Matrimonial Lawyers. Mr. Ferro said, “How will a judge say in any rational fashion that Islam is better than Buddhism, Catholicism better than Judaism, or Methodism better than Pentecostalism?”
As a result, more and more states have tried to keep custody disputes out of court by mandating mediation. But the effect has been piecemeal, and religious disputes have proven to be among the most difficult to resolve, lawyers said.
From the age of 1 month, Mrs. Snider’s daughter had lived with her, and later Mrs. Snider’s new husband, Brian Snider, with occasional visits to her biological father.
But in 2003, when Libby was 6, an Alabama court gave primary custody to her father, William Mashburn, after he and Mrs. Snider’s own family argued that the strict religious upbringing Libby received at her mother’s home, which involved modest dress, teachings about sin and salvation, and limited exposure to popular culture, was damaging her.
“We were easy targets because we were made to look like cultists,” Mrs. Snider, 36, said. “I think whether anyone admits it or not, almost all of the ruling had to do with religion. Nothing I had done was called into question except that.”
Generally, custody disputes are resolved outside the courtroom, lawyers said.
Such cases have increased, however, because a generation ago, mothers almost always got custody and were responsible for nearly all aspects of children’s upbringing. But now, both parents are usually involved in raising children after divorce, and that can lead to dispute. Data regarding custody cases are not uniform, according to the National Center for State Courts, but for 10 states for which it has data from 2002, all show an increase in custody cases coming to trial.
Conflicts sometimes arise when an interfaith marriage dissolves or when one parent converts to a different religion after divorce.
In Oregon, a dispute between James Boldt and his former wife, Lia, was recently decided by the State Supreme Court. Mr. Boldt, the custodial parent, converted to Judaism after the divorce and sought to have their son, now 12, convert, and be circumcised.
The court ruled that custodial parents could generally decide if a child should be circumcised. But given the son’s age, it ordered the lower court to ascertain his wishes. If they conflict with his father’s, the court may have to reconsider the custody arrangement, the court ruled.
Tensions can emerge when one parent takes a turn toward fundamentalism. In 2006, the United States Supreme Court let stand a decision by the Supreme Court of Pennsylvania that permitted Stanley Shepp to tell his 14-year-old daughter about polygamy.
Mr. Shepp and his former wife, Tracey Roberts, were Mormons living in York, Pa., when they married. But Mr. Shepp espoused polygamy as a tenet of their faith.
Ms. Roberts contends that Mr. Shepp spoke to one of her daughters from a previous marriage about marrying him, which he denies. She left Mr. Shepp and has primary custody of their daughter. He was excommunicated by the Church of Jesus Christ of Latter-day Saints for his polygamist views and is now part of a Mormon fundamentalist movement in Utah.
Mr. Shepp petitioned for better-defined custody rights for his daughter, but Ms. Roberts objected because he had exposed the child to polygamist Mormon communities. The court upheld Mr. Shepp’s right to teach his daughter about polygamy, saying it could not find evidence that such teaching harmed her physical or mental health.
Judges risk violating the separation of church and state if they try to choose the faith a child should be raised in, legal experts said. But in situations like Libby Mashburn’s, judgments about parenting can become entwined with religion.
In upholding the rulings of lower courts to grant primary custody to Mr. Mashburn, the Supreme Court of Alabama said the Sniders’s involvement in missionary work took Libby away from her extended family in Alabama. The Sniders are quietly, unapologetically fundamentalist. They believe that American culture, even conservative denominations like the Southern Baptist Convention, has drifted perilously far from biblical teachings. They attend a large Independent Baptist church in Madison, where the music, the sanctuary and the congregants are unadorned and old-fashioned.
Women wear skirts as a sign of modesty. They do not swim in mixed company. They eschew rock music and nearly all popular culture. They do not drink, smoke or swear.
The Sniders have raised Libby, now 11, in that tradition. But it has put them at odds with Mr. Mashburn and Mrs. Snider’s family. Mr. Mashburn and his lawyer declined to comment .
Mrs. Snider said she understood that Libby might wear pants at her father’s home or go to the movies. But she insisted that Mr. Mashburn not swear or drink in front of Libby or expose her to inappropriate movies and music, which, she said, he has repeatedly done.
The Sniders have repeatedly appealed to win back primary custody. They are awaiting yet another decision from a hearing in November.
At the last hearing, Libby, who spends about 40 percent of her time with the Sniders, testified against Mr. Mashburn.
“I’m more of my mom’s religion, and my dad sometimes talks bad about my mom,” she said. “He called it a cult, and it’s definitely not a cult. It kind of makes me mad sometimes. Maybe he thinks her religion may be bad for me, but I think mainly he doesn’t like my mom and is using that as an excuse.”
Some states like California and Connecticut have taken innovative steps to get parents to resolve custody issues outside court. In Connecticut, for example, those seeking a court order have to meet with a family-relations specialist in an effort to negotiate. If that fails, they attend a daylong session to settle their differences before a panel that includes a lawyer and a mental health professional.
Even after a case goes to court, little may be resolved.
Aaron Petty of Minneapolis and Gineen Gove of Black River Falls, Wis., had their daughter, Basyl, 17 years ago. The couple split up when Basyl was 4. Soon afterward, Ms. Gove married, and she and her husband converted to Old Order Amish.
As Mr. Petty saw his daughter over the years, he became concerned, he said, when Basyl was about 11 and he learned that the Goves would not let her go to school past eighth grade, a common decision among the Amish.
Mr. Petty petitioned for primary custody so that Basyl might continue her education. “This case wasn’t about religion for me,” he said. “It was about her education.”
He won the case when Basyl was 14, but she disappeared. Mr. Petty said he suspected Basyl was living within the Amish community. The Goves declined to talk about the case.
“I wanted to offer my daughter options for her future, in case she grew up and didn’t remain Amish,” Mr. Petty said in a phone interview. “At 12, 13, 14, making lasting drastic decisions based on faith isn’t an appropriate time.”
Mr. Petty’s voice caught as he continued. “Was that case worth fighting? In hindsight, no. I haven’t seen my daughter in two-and-a-half years.”
Warren Shiell is a Los Angeles Family Law Attorney
Friday, February 29, 2008
In First, N.Y. Judge Allows Gay Divorce
In First, N.Y. Judge Allows Gay Divorce
Trial Court Ruling Appears to Be State's First Allowing Divorce From Same-Sex Marriage
In what appears to be the first ruling of its kind, a New York judge will allow a lesbian couple who married in Canada to sue for divorce.
Though New York does not allow same-sex marriages, a state trial court judge refused to dismiss a divorce and child custody suit brought by a woman, identified only as Beth R., against her former partner Donna M. Read article
Warren Shiell is a family law attorney in Santa Monica, Los Angeles, Beverly Hills
Sunday, February 24, 2008
Jewish women look to courts to obtain traditional divorce decree
SOURCE: Lisa J. Huriash South Florida SUN SENTINEL
Freedom will come soon, in the form of a handwritten paper with 12 lines of Hebrew and Aramaic.Since Karen Gruber-Colp's marriage came apart a year ago with a divorce filing, her ex-husband has failed to give her a "get," a Jewish divorce document that permits her to remarry.On Valentine's Day, she appealed to Broward Circuit Judge Jack Tuter to force her ex-husband to give her the document. Tuter's order requires him to comply by Thursday."Thank God," Colp said after the hearing. "This was huge. This could have gone on for the rest of my life."The 35-year-old Colp, of Dania Beach, is one of a growing number of observant Jewish women throughout the country turning to the secular civil courts to fix what religious leaders are calling a crisis in the community. For the last year, Colp has been an "agunah," a Hebrew word meaning "a woman chained to a dead marriage."Observant women need their husbands to grant them a divorce. But some Jewish leaders say angry men are keeping their wives in limbo to get a greater share of money or property or just for spite.To help women like Colp, the South Florida chapter of the Women's International Zionist Organization, or WIZO, is proposing legislation that would impact the distribution of assets in a divorce if one spouse imposes "barriers to remarriage" that are either religious or secular.The legislation has one sponsor so far: state Sen. Dave Aronberg, D-Greenacres. If WIZO finds a House sponsor, the issue could be debated in Tallahassee in March."This to me is not a religious issue as much as it is a fairness issue," Aronberg said.New York has had what is known as a "Get Law" since the early 1980s. It provides that a civil divorce will not be granted unless all impediments to remarriage have been removed. Legislators in Maryland are considering a similar bill.Others with get laws include Scotland, Canada, England and South Africa. In Israel, where the religious courts have enforcement powers, men who refuse to give a get can lose a driver's license, the ability to hold public office, their credit cards, bank accounts and civil service jobs. They can even be sent to prison.In Israel's most notorious case, a Yemenite Jew spent 35 years in prison until he died, saying he would never give his wife a get. His wife was 65 when he died and she married a month later, said Sharon Shenhav, a Jerusalem-based women's rights lawyer."The problem exists in every Jewish community in the world," she said. "When you're getting divorced, people aren't usually too happy with each other and there's a lot of anger." She said a man holding out on the get "is sheer blackmail."To help the women, more rabbis are encouraging couples to sign a pre-nuptial agreement containing sanctions for not signing a get, said Rabbi David Lehrfield, of the Young Israel synagogue in North Miami Beach, and some are even refusing to marry couples unless both sign.In addition, some Jewish newspapers publish the names of men who refuse to give their wives a get in an effort to embarrass them into compliance. For example, on Feb. 9 The Jewish Press, a national newspaper, published the names of nine men who had been ordered to give their wives a get dating back to 2002.Also, the Jewish Orthodox Feminist Alliance in New York began a telephone support program this past fall, said Batya Levin, the co-chairwoman of the Agunah Task Force. "It's hand holding," said Levin. "Women in this situation get to feel so lonely."And Yehoshua Zev, the executive director of ORA (The Organization for the Resolution of Agunot) in New York, said he organizes "social pressure" to the men "to convince them to fulfill their moral, ethic and religious obligation to free their wives."First ORA appeals to their common sense, Zev said. If that doesn't work, ORA offers to pay the estimated $500 to have a scribe write the get. The next step is supplying names to Jewish newspapers. In a last resort, the group will have men demonstrate in front of his home and work place.A rally this week is being contemplated for the front of one man's house in south Palm Beach County, although ORA declined to release details about the man. "He hasn't given his wife a `get' for 10 years," Zev said. "We worked it out with the police. The goal isn't to harm the person. It's to educate him he has to do the right thing."Colp said her life has been on hold until now. Without a get, "no rabbi will marry you," she said. "And in most religious communities, most observant Jews will not even date you if you don't have a get -- you are considered to be married and you are considered to be committing adultery. So I can't even date."
Warren Shiell is a divorce and family law lawyer in Los Angeles, Santa Monica, Beverly Hills
Freedom will come soon, in the form of a handwritten paper with 12 lines of Hebrew and Aramaic.Since Karen Gruber-Colp's marriage came apart a year ago with a divorce filing, her ex-husband has failed to give her a "get," a Jewish divorce document that permits her to remarry.On Valentine's Day, she appealed to Broward Circuit Judge Jack Tuter to force her ex-husband to give her the document. Tuter's order requires him to comply by Thursday."Thank God," Colp said after the hearing. "This was huge. This could have gone on for the rest of my life."The 35-year-old Colp, of Dania Beach, is one of a growing number of observant Jewish women throughout the country turning to the secular civil courts to fix what religious leaders are calling a crisis in the community. For the last year, Colp has been an "agunah," a Hebrew word meaning "a woman chained to a dead marriage."Observant women need their husbands to grant them a divorce. But some Jewish leaders say angry men are keeping their wives in limbo to get a greater share of money or property or just for spite.To help women like Colp, the South Florida chapter of the Women's International Zionist Organization, or WIZO, is proposing legislation that would impact the distribution of assets in a divorce if one spouse imposes "barriers to remarriage" that are either religious or secular.The legislation has one sponsor so far: state Sen. Dave Aronberg, D-Greenacres. If WIZO finds a House sponsor, the issue could be debated in Tallahassee in March."This to me is not a religious issue as much as it is a fairness issue," Aronberg said.New York has had what is known as a "Get Law" since the early 1980s. It provides that a civil divorce will not be granted unless all impediments to remarriage have been removed. Legislators in Maryland are considering a similar bill.Others with get laws include Scotland, Canada, England and South Africa. In Israel, where the religious courts have enforcement powers, men who refuse to give a get can lose a driver's license, the ability to hold public office, their credit cards, bank accounts and civil service jobs. They can even be sent to prison.In Israel's most notorious case, a Yemenite Jew spent 35 years in prison until he died, saying he would never give his wife a get. His wife was 65 when he died and she married a month later, said Sharon Shenhav, a Jerusalem-based women's rights lawyer."The problem exists in every Jewish community in the world," she said. "When you're getting divorced, people aren't usually too happy with each other and there's a lot of anger." She said a man holding out on the get "is sheer blackmail."To help the women, more rabbis are encouraging couples to sign a pre-nuptial agreement containing sanctions for not signing a get, said Rabbi David Lehrfield, of the Young Israel synagogue in North Miami Beach, and some are even refusing to marry couples unless both sign.In addition, some Jewish newspapers publish the names of men who refuse to give their wives a get in an effort to embarrass them into compliance. For example, on Feb. 9 The Jewish Press, a national newspaper, published the names of nine men who had been ordered to give their wives a get dating back to 2002.Also, the Jewish Orthodox Feminist Alliance in New York began a telephone support program this past fall, said Batya Levin, the co-chairwoman of the Agunah Task Force. "It's hand holding," said Levin. "Women in this situation get to feel so lonely."And Yehoshua Zev, the executive director of ORA (The Organization for the Resolution of Agunot) in New York, said he organizes "social pressure" to the men "to convince them to fulfill their moral, ethic and religious obligation to free their wives."First ORA appeals to their common sense, Zev said. If that doesn't work, ORA offers to pay the estimated $500 to have a scribe write the get. The next step is supplying names to Jewish newspapers. In a last resort, the group will have men demonstrate in front of his home and work place.A rally this week is being contemplated for the front of one man's house in south Palm Beach County, although ORA declined to release details about the man. "He hasn't given his wife a `get' for 10 years," Zev said. "We worked it out with the police. The goal isn't to harm the person. It's to educate him he has to do the right thing."Colp said her life has been on hold until now. Without a get, "no rabbi will marry you," she said. "And in most religious communities, most observant Jews will not even date you if you don't have a get -- you are considered to be married and you are considered to be committing adultery. So I can't even date."
Warren Shiell is a divorce and family law lawyer in Los Angeles, Santa Monica, Beverly Hills
Parental alienation: The latest weapon in nasty divorces
Source Lawyers USA
"Welcome to the swamp."
That's what a judge once told a client of Anchorage divorce attorney Steve Pradell when accusations of parental alienation were leveled against the client in a custody hearing.
Parental alienation syndrome - a controversial diagnosis to describe a child who compulsively denigrates one parent in response to consistent brainwashing by the other parent - has become a common weapon in custody cases.
"It happens all the time," said Michael R. Walsh, a divorce attorney in Orlando, Fla. "If Mom can't hurt Dad another way, what has she got left after she's tried to rake him over the coals on everything else?"
According to Richard Gardner, the psychologist who is considered the father of the syndrome, it typically manifests itself as a campaign of denigration by one parent against the other, which is accompanied by weak, frivolous and absurd rationalizations for the deprecation. As a result of this steady campaign of insult, the child reflexively supports the alienating parent and experiences no guilt over their own cruelty towards the targeted parent.
But the mental health profession is far from agreement about the existence of the syndrome. Noting the lack of supporting data, the American Psychological Association has "no official position on the purported syndrome," according to a statement in its website.
The legal community is divided as well.
While many family lawyers believe the syndrome is a legitimate psychological diagnosis, others view it as nonsense. They say it's used primarily by parents who want someone to blame for their poor relationship with their children.
"I think it's more of a code word that gets used in trial because one parent is not maintaining the relationship with the children and believes the other parent is interfering with the relationship," said Minneapolis divorce attorney Susan Gallagher.
Like it or not, parental alienation has become a common weapon in courts across the country. Even in jurisdictions that don't recognize it as a diagnosable syndrome in children, lawyers can still argue straight parental alienation - that one parent's attempts to turn the child against the other parent indicates that the first parent is not fit to have custody.
Sometimes the behavior that prompts charges of parental alienation is subtle - frequent disparaging remarks within earshot of the child or setting up appointments and activities for the child during times when the other parent is scheduled to have visitation. Other times it is openly aggressive, such as unfounded accusations of child abuse or neglect.
In some cases, a parent is deluded enough to believe their unfounded accusations - and other times when the accusations are true - so sorting out what is real and what is not can be a tall order for the courts.
"I can't tell you if the syndrome exists psychologically, but I can say it's very troubling and one of the hardest things for a judge to figure out if it's really happening," said Pradell.
It's also possible for the child to be alienated from one parent without any campaign of denigration by the other.
"Just for the sake of illustration, a 13-year-old girl finds out before Mom that Dad is cheating on Mom. That 13-year-old girl may become alienated from Dad, not because of Mom, but the alienation is there," said Patrick O'Reilly of Buffalo, head of the Family Law Section of the New York Bar Association.
As the Anchorage judge said: "Welcome to the swamp."
Making it stick
Although parental alienation has become a common weapon in custody cases around the country, proving it can be a tall order.
"It's like everything else in a custody case - it all comes down to what you can prove at trial. A lot of bad things happen, but they're very difficult to prove," said Ben Stevens of Stevens MacPhail in Spartanburg, S.C.
The best place to begin is with witnesses - anyone who was present when one of the alienating interactions occurred. In some states, clients can record telephone calls or other conversations to create audio evidence.
O'Reilly suggested that lawyers encourage their clients to communicate via e-mail and voice mail to create a tangible record. This will be far more effective in court than the typical he-said/she-said battles that dominate most custody battles.
But the heart of any parental alienation case is the expert testimony, according to Stevens.
"Take the child to a mental health professional and let him do testing," he suggested. "Then you've got an expert witness to come and say, 'In my expert opinion, this is what's going on.'"
It many cases the judge will require a court-appointed psychologist to work with both parents and the children in order to obtain a non-partisan expert opinion. In a similar vein, lawyers may want to ask the court to appoint a guardian ad litem who will advocate on behalf of the child to determine whether parental alienation has occurred.
In the end, though, lawyers should be prepared for a tough battle.
"It's very hard to prove, because if you have the client from whom the children are estranged, you don't have a child willing to cooperate with the process, and that's where most of the proof would be," O'Reilly said.
efending against a charge
These same strategies, and a few others, are useful if unfounded allegations of alienation are leveled against your client.
"Obviously they have the burden to prove the client's doing something," said O'Reilly. "It's not, 'The child doesn't talk to me, res ipsa it's your fault.' You have a little bit of advantage."
First, make sure your client always takes the high road. Although the natural instinct of clients is to become indignant and defend themselves vehemently, protesting too loudly could undermine their credibility in the eyes of the court, said Gallagher.
Instead, develop an action plan for how your client can build a stronger relationship with the children. Change any behavior that is suspect. Have clients tell the judge that while they don't feel there is evidence to support the allegation, they are seeking the help of a professional as a precaution, and are prepared to change any behavior that is deemed inappropriate.
"Who is not confident in a parent who is going to do and say that?" Gallagher asked.
But just as in the case of the accuser, the most powerful weapon for a client who is accused of alienation is the psychological expert.
"A good forensic expert has credibility because that person doesn't represent your guy and doesn't represent the other party - he's appointed by the court," said Tom Carnes of Carnes Ely in Houston.
Third-party witnesses can also be a powerful weapon in court.
"Try to line up witnesses that would have had the opportunity to see [the parent] interact with the child. Teachers, scout leaders, dance teachers, karate teachers - people who see them during times when parents let their guard down and can say, 'I've never seen Dad say anything bad about Mom or Mom say anything bad about Dad,'" Stevens suggested.
Finally, Carnes suggests that lawyers request more visits between the targeted parent and child in an effort to strengthen the relationship between them.
Of course, the best defense against an alienation charge is to make sure it's never made in the first place. Advise your client not to get in the middle of disputes between the child and the other parent, O'Reilly advised. If a child refuses to go with the non-custodial parent, the custodial parent should insist. He or she should tell the child that the judge has required the visit.
"I encourage my clients to act reasonably, assume anything they do or say could be shown to the judge - or better yet, that the judge is standing there watching," said Stevens. "I don't know if that's great advice or I've just had good clients, but I haven't had many alienation claims alleged against my clients."
Keep your sanity
Custody cases are among the most frustrating cases a lawyer takes on, O'Reilly said.
Although he said he doesn't duck under his desk when a potential client walks into his office with an alienation claim, "there's certainly a gastro-intestinal response that says, 'Oh jeez.'"
And there's more than your professional satisfaction at stake. Choosing the wrong clients could damage your firm's reputation.
"We represent the alleged perpetrator more often, but we make sure we think they're not a pervert or hitting their kids before we ever take them on," said Carnes. "If we take people who are in the gray area, the court is going to develop a different view of us over time."
Stevens is also careful to take cases he believes in strongly.
"It's not worth it to me to deal with clients who are acting deliberately," he said. "If they're going to do that to their child's parent, I'm going to have a problem with them at some point."
But that approach concerns Pradell, who worries it will make it difficult for the parent who really is guilty of alienation to find adequate counsel. He believes lawyers should take the assertions of prospective clients at face value, while maintaining a willingness to fire any client who wants them to do something unethical.
To maintain his sanity, Carnes periodically takes time off from custody cases and concentrates on his business litigation practice.
As gut-wrenching as custody cases can be, Pradell said there is something that keeps him coming back for more. He recalled a case he took on when he was starting to burn out after 15 years of family law.
His client was a father who was awarded custody of his child and an unborn sibling because the mother and her boyfriend physically abused the child. The woman disappeared before the birth. But many months later, Pradell received a call from the police in Washington, who had just raided the home of the mother and boyfriend. The officer found a copy of the signed order giving custody of the unborn child to Pradell's client. The baby girl had a broken arm, but doctors expected her to be okay. The state confiscated the child and delivered her to her father.
Six months ago, Pradell, who is also a magician, performed a show at the little girl's birthday party. "At the end of the show I sat with her and I said, 'I knew you before you were born,' and she goes, 'You must be magic.'"
"That case changed me - now I know I make a difference."
By Amy Johnson Conner Contributing writer
Warren Shiell is a Family Law attorney serving Santa MOnica, Beverly Hills, Los Angeles
"Welcome to the swamp."
That's what a judge once told a client of Anchorage divorce attorney Steve Pradell when accusations of parental alienation were leveled against the client in a custody hearing.
Parental alienation syndrome - a controversial diagnosis to describe a child who compulsively denigrates one parent in response to consistent brainwashing by the other parent - has become a common weapon in custody cases.
"It happens all the time," said Michael R. Walsh, a divorce attorney in Orlando, Fla. "If Mom can't hurt Dad another way, what has she got left after she's tried to rake him over the coals on everything else?"
According to Richard Gardner, the psychologist who is considered the father of the syndrome, it typically manifests itself as a campaign of denigration by one parent against the other, which is accompanied by weak, frivolous and absurd rationalizations for the deprecation. As a result of this steady campaign of insult, the child reflexively supports the alienating parent and experiences no guilt over their own cruelty towards the targeted parent.
But the mental health profession is far from agreement about the existence of the syndrome. Noting the lack of supporting data, the American Psychological Association has "no official position on the purported syndrome," according to a statement in its website.
The legal community is divided as well.
While many family lawyers believe the syndrome is a legitimate psychological diagnosis, others view it as nonsense. They say it's used primarily by parents who want someone to blame for their poor relationship with their children.
"I think it's more of a code word that gets used in trial because one parent is not maintaining the relationship with the children and believes the other parent is interfering with the relationship," said Minneapolis divorce attorney Susan Gallagher.
Like it or not, parental alienation has become a common weapon in courts across the country. Even in jurisdictions that don't recognize it as a diagnosable syndrome in children, lawyers can still argue straight parental alienation - that one parent's attempts to turn the child against the other parent indicates that the first parent is not fit to have custody.
Sometimes the behavior that prompts charges of parental alienation is subtle - frequent disparaging remarks within earshot of the child or setting up appointments and activities for the child during times when the other parent is scheduled to have visitation. Other times it is openly aggressive, such as unfounded accusations of child abuse or neglect.
In some cases, a parent is deluded enough to believe their unfounded accusations - and other times when the accusations are true - so sorting out what is real and what is not can be a tall order for the courts.
"I can't tell you if the syndrome exists psychologically, but I can say it's very troubling and one of the hardest things for a judge to figure out if it's really happening," said Pradell.
It's also possible for the child to be alienated from one parent without any campaign of denigration by the other.
"Just for the sake of illustration, a 13-year-old girl finds out before Mom that Dad is cheating on Mom. That 13-year-old girl may become alienated from Dad, not because of Mom, but the alienation is there," said Patrick O'Reilly of Buffalo, head of the Family Law Section of the New York Bar Association.
As the Anchorage judge said: "Welcome to the swamp."
Making it stick
Although parental alienation has become a common weapon in custody cases around the country, proving it can be a tall order.
"It's like everything else in a custody case - it all comes down to what you can prove at trial. A lot of bad things happen, but they're very difficult to prove," said Ben Stevens of Stevens MacPhail in Spartanburg, S.C.
The best place to begin is with witnesses - anyone who was present when one of the alienating interactions occurred. In some states, clients can record telephone calls or other conversations to create audio evidence.
O'Reilly suggested that lawyers encourage their clients to communicate via e-mail and voice mail to create a tangible record. This will be far more effective in court than the typical he-said/she-said battles that dominate most custody battles.
But the heart of any parental alienation case is the expert testimony, according to Stevens.
"Take the child to a mental health professional and let him do testing," he suggested. "Then you've got an expert witness to come and say, 'In my expert opinion, this is what's going on.'"
It many cases the judge will require a court-appointed psychologist to work with both parents and the children in order to obtain a non-partisan expert opinion. In a similar vein, lawyers may want to ask the court to appoint a guardian ad litem who will advocate on behalf of the child to determine whether parental alienation has occurred.
In the end, though, lawyers should be prepared for a tough battle.
"It's very hard to prove, because if you have the client from whom the children are estranged, you don't have a child willing to cooperate with the process, and that's where most of the proof would be," O'Reilly said.
efending against a charge
These same strategies, and a few others, are useful if unfounded allegations of alienation are leveled against your client.
"Obviously they have the burden to prove the client's doing something," said O'Reilly. "It's not, 'The child doesn't talk to me, res ipsa it's your fault.' You have a little bit of advantage."
First, make sure your client always takes the high road. Although the natural instinct of clients is to become indignant and defend themselves vehemently, protesting too loudly could undermine their credibility in the eyes of the court, said Gallagher.
Instead, develop an action plan for how your client can build a stronger relationship with the children. Change any behavior that is suspect. Have clients tell the judge that while they don't feel there is evidence to support the allegation, they are seeking the help of a professional as a precaution, and are prepared to change any behavior that is deemed inappropriate.
"Who is not confident in a parent who is going to do and say that?" Gallagher asked.
But just as in the case of the accuser, the most powerful weapon for a client who is accused of alienation is the psychological expert.
"A good forensic expert has credibility because that person doesn't represent your guy and doesn't represent the other party - he's appointed by the court," said Tom Carnes of Carnes Ely in Houston.
Third-party witnesses can also be a powerful weapon in court.
"Try to line up witnesses that would have had the opportunity to see [the parent] interact with the child. Teachers, scout leaders, dance teachers, karate teachers - people who see them during times when parents let their guard down and can say, 'I've never seen Dad say anything bad about Mom or Mom say anything bad about Dad,'" Stevens suggested.
Finally, Carnes suggests that lawyers request more visits between the targeted parent and child in an effort to strengthen the relationship between them.
Of course, the best defense against an alienation charge is to make sure it's never made in the first place. Advise your client not to get in the middle of disputes between the child and the other parent, O'Reilly advised. If a child refuses to go with the non-custodial parent, the custodial parent should insist. He or she should tell the child that the judge has required the visit.
"I encourage my clients to act reasonably, assume anything they do or say could be shown to the judge - or better yet, that the judge is standing there watching," said Stevens. "I don't know if that's great advice or I've just had good clients, but I haven't had many alienation claims alleged against my clients."
Keep your sanity
Custody cases are among the most frustrating cases a lawyer takes on, O'Reilly said.
Although he said he doesn't duck under his desk when a potential client walks into his office with an alienation claim, "there's certainly a gastro-intestinal response that says, 'Oh jeez.'"
And there's more than your professional satisfaction at stake. Choosing the wrong clients could damage your firm's reputation.
"We represent the alleged perpetrator more often, but we make sure we think they're not a pervert or hitting their kids before we ever take them on," said Carnes. "If we take people who are in the gray area, the court is going to develop a different view of us over time."
Stevens is also careful to take cases he believes in strongly.
"It's not worth it to me to deal with clients who are acting deliberately," he said. "If they're going to do that to their child's parent, I'm going to have a problem with them at some point."
But that approach concerns Pradell, who worries it will make it difficult for the parent who really is guilty of alienation to find adequate counsel. He believes lawyers should take the assertions of prospective clients at face value, while maintaining a willingness to fire any client who wants them to do something unethical.
To maintain his sanity, Carnes periodically takes time off from custody cases and concentrates on his business litigation practice.
As gut-wrenching as custody cases can be, Pradell said there is something that keeps him coming back for more. He recalled a case he took on when he was starting to burn out after 15 years of family law.
His client was a father who was awarded custody of his child and an unborn sibling because the mother and her boyfriend physically abused the child. The woman disappeared before the birth. But many months later, Pradell received a call from the police in Washington, who had just raided the home of the mother and boyfriend. The officer found a copy of the signed order giving custody of the unborn child to Pradell's client. The baby girl had a broken arm, but doctors expected her to be okay. The state confiscated the child and delivered her to her father.
Six months ago, Pradell, who is also a magician, performed a show at the little girl's birthday party. "At the end of the show I sat with her and I said, 'I knew you before you were born,' and she goes, 'You must be magic.'"
"That case changed me - now I know I make a difference."
By Amy Johnson Conner Contributing writer
Warren Shiell is a Family Law attorney serving Santa MOnica, Beverly Hills, Los Angeles
Divorce: Whether to move out of the house
Source: "Should I Move Out?" by attorney Eric C. Nelson at www.divorcenet.com.
A question considered by most people contemplating divorce is whether they should move out of the marital home prior to or upon filing for divorce. Generally speaking, if child custody, parenting time, or possession of the home might be an issue in your divorce, I advise against moving out. Instead, try to stay put until the temporary order hearing, which is your first opportunity to legally compel your spouse to move out.
Although no legal precedent is created by your moving out of the marital residence, it will give your spouse's lawyer the opportunity to argue that:
1. Temporary custody of the child(ren)should be awarded to your spouse because he/she is already living in the house which has been the children's home. Forcing the children to move would only bring more disruption to their lives.
2. Temporary possession of the home should be awarded to your spouse because he/she is already living there. Since you made the decision to move out, it makes more sense to leave everyone where they now are instead of requiring both spouses to make another move.
These same arguments can be made not only for purposes of the temporary order, but also regarding your permanent divorce decree. And while the arguments may not prevail in the end, they very likely will have some influence on the judge since one of his/her primary motivations is to preserve the status quo.
If you must move out of the home due to an abusive or otherwise insufferable situation for yourself or the children, take the following precautions.
First, if custody is an issue, try to move the children with you if this can be accomplished without too much disruption in their lives. If you can't move the children with you, try to spend as much time with them in your care as you are requesting in the divorce. Otherwise, the longer you acquiesce to a pattern of parenting time that is less than you desire, the more of an argument the other party will make of it against you. Often arguments like the following are heard:
"Your Honor, the Petitioner moved out four months ago, and since then he has only had the children every other weekend, by his own acquiescence. Now all of a sudden he wants custody (or more parenting time, as the case may be). This is clearly a disingenuous request which should be summarily denied. The schedule the parties have been following has worked well for the children, and for the sake of their sense of stability and continuity, it should continue."
After a period of time has passed, nobody will much care if the reason you only had every other weekend was because the other parent truly wouldn't "let" you have more time. Although that may very well be the case, and although you may have let your spouse control the situation in order to spare the children the trauma of parental conflict, in my experience the courts are more swayed by the pattern of contact rather than by these "excuses."
Second, when you move out, take with you all of the household goods, furnishings, and other items of personal property which you want to keep. And perform an inventory of the items you have taken. The old adage "possession is nine tenths of the law" is very applicable here. Litigating personal property issues is usually prohibitively expensive, because it normally costs more to litigate than the stuff is worth. So if you ever want to see it again, it is much simpler and easier to take it with you when you leave. However, don't get too greedy. If you empty the place out and leave your spouse and children to sleep and eat on a bare concrete floor, you will have become your own worst enemy. Your reprehensible behavior will give ammunition to your spouse's attorney that will likely cause you to end up in the judge's doghouse, a blunder from which you may never recover.
Warren Shiell is a Family Law Attorney in Los Angeles
A question considered by most people contemplating divorce is whether they should move out of the marital home prior to or upon filing for divorce. Generally speaking, if child custody, parenting time, or possession of the home might be an issue in your divorce, I advise against moving out. Instead, try to stay put until the temporary order hearing, which is your first opportunity to legally compel your spouse to move out.
Although no legal precedent is created by your moving out of the marital residence, it will give your spouse's lawyer the opportunity to argue that:
1. Temporary custody of the child(ren)should be awarded to your spouse because he/she is already living in the house which has been the children's home. Forcing the children to move would only bring more disruption to their lives.
2. Temporary possession of the home should be awarded to your spouse because he/she is already living there. Since you made the decision to move out, it makes more sense to leave everyone where they now are instead of requiring both spouses to make another move.
These same arguments can be made not only for purposes of the temporary order, but also regarding your permanent divorce decree. And while the arguments may not prevail in the end, they very likely will have some influence on the judge since one of his/her primary motivations is to preserve the status quo.
If you must move out of the home due to an abusive or otherwise insufferable situation for yourself or the children, take the following precautions.
First, if custody is an issue, try to move the children with you if this can be accomplished without too much disruption in their lives. If you can't move the children with you, try to spend as much time with them in your care as you are requesting in the divorce. Otherwise, the longer you acquiesce to a pattern of parenting time that is less than you desire, the more of an argument the other party will make of it against you. Often arguments like the following are heard:
"Your Honor, the Petitioner moved out four months ago, and since then he has only had the children every other weekend, by his own acquiescence. Now all of a sudden he wants custody (or more parenting time, as the case may be). This is clearly a disingenuous request which should be summarily denied. The schedule the parties have been following has worked well for the children, and for the sake of their sense of stability and continuity, it should continue."
After a period of time has passed, nobody will much care if the reason you only had every other weekend was because the other parent truly wouldn't "let" you have more time. Although that may very well be the case, and although you may have let your spouse control the situation in order to spare the children the trauma of parental conflict, in my experience the courts are more swayed by the pattern of contact rather than by these "excuses."
Second, when you move out, take with you all of the household goods, furnishings, and other items of personal property which you want to keep. And perform an inventory of the items you have taken. The old adage "possession is nine tenths of the law" is very applicable here. Litigating personal property issues is usually prohibitively expensive, because it normally costs more to litigate than the stuff is worth. So if you ever want to see it again, it is much simpler and easier to take it with you when you leave. However, don't get too greedy. If you empty the place out and leave your spouse and children to sleep and eat on a bare concrete floor, you will have become your own worst enemy. Your reprehensible behavior will give ammunition to your spouse's attorney that will likely cause you to end up in the judge's doghouse, a blunder from which you may never recover.
Warren Shiell is a Family Law Attorney in Los Angeles
Women increasingly paying spousal support
Women Increasingly Paying Alimony by Betsy Schiffman from Forbes Magazine.Article The picture of equality looks awfully strange to Kim Shamsky. The 47-year-old business owner pays her ex, a 65-year-old retired Major League Baseball player, thousands per month in temporary spousal support. He's not seeking alimony to help pay for the kids' birthday parties, since they don't have children. Nor was he instrumental in building her business. They married seven years after she started a handful of staffing firms and amassed a small fortune on her own. The daughter of a New York City taxi driver, Shamsky started her first staffing agency at age 27 with the help of a 21% loan. Not only was she able to make her first business profitable, but she's also worked furiously to ensure the success of all five businesses she's started since. Small wonder she is outraged at having to pay thousands of dollars a month to her ex. "He used to scream and throw tantrums and demand more money," Shamsky says of her ex-husband. "It was like he thought, 'Hey, you have money, why shouldn't I?'" She adds flatly: "I will never marry again. And I'm getting T-shirts made with the word 'prenup' written across the chest." No doubt Shamsky would find more than a few buyers for the shirts. The idea that men can receive spousal support from their wives may feel like a freakish concept, but as women have become higher earners, it's increasingly common. And as men set their sights on women's earnings, women have become more protective of those dollars. In fact, according to the American Academy of Matrimonial Lawyers, 44% of attorneys included in a recent survey said they've seen an increase in women asking for prenuptial agreements over the last five years, where in previous decades, prenuptial agreements were almost always sought by men. A lot of women are indignant now that the shoe is increasingly on the other foot, says Carol Ann Wilson, a certified financial divorce practitioner in Boulder, Colo. "There's this sense of, 'What's yours is ours, but what's mine is mine,'" Wilson says. "My first response to that is, 'All these years we have been looking for equality; well, this is what it looks like.' I think women get angrier about having to pay than men do." The ordeal has been played up in gossip magazines and tabloids, which have closely followed countless examples of celebrity breakups in which men have sought, or have threatened to seek, spousal support. Teen idol and crooner Nick Lachey reportedly requested the right to seek spousal support from ex-wife pop singer Jessica Simpson last year. (Lachey is seven years older than Simpson and reportedly worth significantly less.) In another splashy case, Hardy Boy Parker Stevenson sought $18,000 per month from actress Kirstie Alley when they divorced, just to cover the rent on his Bel Air home. But Wilson emphasizes that it's not just actresses or the wealthiest women who are seeking prenuptial agreements or paying spousal support. "I've seen thousands of clients," she says, "and almost every time I've seen a stay-at-home dad seek alimony, the wife--she's usually a software executive--goes ballistic." Some women find it's not a battle worth fighting, according to Cheryl Lynn Hepfer, the Rockville, Md.-based president of the American Academy of Matrimonial Lawyers. Hepfer says she's seen women who have happily chosen to pay off their husbands in an effort to maintain their sanity and keep the peace. "I once represented a wealthy woman who had the wherewithal to pay $6,000 a month to her husband--and this was probably 10 years ago--so she paid him," Hepfer says, adding that the client also gave her ex the boat and the house on the water. "She wasn't bitter about it at all. She was a business woman, and for her, this was a business decision." Hepfer says she did it to preserve the relationship with her former husband and their two children. "She knew it would be beneficial for the kids." Just as some women object to men's request for spousal support, some men are particularly uncomfortable seeking it. Either they find it emasculating to ask, or they find the idea of receiving an allowance from their ex-wives humiliating, according to divorce attorneys. "The fact is that you still don't see too many cases where men seek alimony," says William Beslow, a divorce attorney in New York City. "One reason is that although women may earn more than men, they often wind up with custody of the children, and when a woman takes up primary responsibility for the children, men don't request maintenance." Some men avoid the embarrassment by seeking a bigger bite of the marital assets instead of asking for alimony. Not only do lump-sum payments save them the humiliation of accepting monthly support, but they also reduce the ex-husband's taxes, since spousal support payments are taxed, while assets are not. On the flip side, in those situations when men receive assets, women lose their tax benefit, because spousal support is tax-deductible, Hepfer notes. The upshot: Even if it's easier to settle with one swift payment, consult an accountant first to learn the tax consequences. It may be better for you financially to pay alimony. Kim Shamsky admits she's angry about paying her ex-husband spousal support mostly because he's a man. After all, men are supposed to be breadwinners, not bread takers. "A real man just wouldn't do this sort of thing," she says. "Maybe it's my Italian upbringing, but I don't think it's right." Right or not, as women's earnings grow, so will their financial responsibility during divorce. That's equality for you.
California spousal support
California spousal support
Bankruptcy in Divorce
From Forbes Magazine, Written by Marlene M. Browne Esq.Link Just over two years ago, President George W. Bush signed the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005, which became effective Oct. 17, 2005. If you are getting divorced, this new bankruptcy law could concern you. Reason: While you may not realize it, in this country, our high divorce rate and bankruptcy commonly intersect. Here’s how. Until the enactment of the BAPCPA, the bankruptcy process was seen by some, and used by many, as a tool to permanently evade (or, to use bankruptcy terminology, “discharge”) family obligations foisted upon them by agreement or court order after a marital dissolution. Plus, once a person filed a bankruptcy petition--for liquidation under Chapter 7 or reorganization under Chapter 13 (or, less commonly, Chapter 11)--he gained the protection of an “automatic stay,” preventing creditors from taking any actions against him, his income or his property to collect their debts.
If the “debtor’s” income was less than the sum needed to maintain his lifestyle, including debt service, he would generally opt for the Chapter 7 liquidation, taking advantage of whatever homestead and property exemptions his state allowed, thus protecting his assets from creditors. If any nonexempt property existed, the bankruptcy trustee would liquidate it to pay secured creditors first, with unsecured creditors, such as ex spouses (who lacked collateral or guarantees) at the back of the line.
While Chapter 7 liquidation was not a means to avoid a mortgage or shirk taxes secured by liens, it did provide the debtor a clean slate, free from pesky consumer debt--credit cards, loans from friends and family, legal or medical bills--and whatever equitable distribution payments he couldn’t comfortably afford. Plus, if a person happened to live in Florida, Iowa, Kansas Oklahoma, South Dakota or Texas, he could really make out like a bandit because these states had (and still have) limitless homestead--and generous property--exemptions.
Consequently, for the cost of a court filing and the administrative fees of the bankruptcy proceeding (the trustee’s fees, typically a minor percentage of the value of the “estate,” i.e., nonexempt property existing when the petition is filed), one could continue to own and enjoy, post discharge, a multimillion-dollar residence--provided he paid the mortgage.
On the other hand, if a person had sufficient income to pay his debts over time, but needed a breather to call off court actions and collection efforts--or he didn’t want to liquidate his nonexempt property (which, in the Atlantic Coast states, with little to no homestead exemptions, could be substantial)--he could file a Chapter 13 “reorganization” plan, allowing him to pay his debts (or some fraction of them) under a court-approved plan, over a period of three to five years. Once completed, the person emerged debt free, with a fresh start (and a blot on his credit report for 10 years). Still for many, the calculus of the decision made sense.
But that was then, this is now. Since Oct. 17, 2005, to automatically qualify as a Chapter 7 filer, you must make less than the median income in your state, given the number of people in your household. If your income equals or is greater than the median for your state, you still might qualify as a Chapter 7 filer, depending on whether you can afford to pay $100 to $166 per month, over the course of five years, to your unsecured creditors.
If you make too much money to qualify for Chapter 7, and you meet the requirements for a Chapter 13 (you have regular income and your secured debt is less than $922,975, and your unsecured debt is less than $307,675), you can seek relief from your creditors under a reorganization plan. After the specified three or five years of paying under the court-approved plan, you’ll have canceled debts without the typical tax consequences. No matter which Chapter you file under, BAPCPA requires that you obtain credit counseling and participate in special debt management programs.
Perhaps even more important than the means test and mandatory financial management education is the fact that BAPCPA has made it much more difficult for debtors to shirk domestic relations responsibilities. Unlike the old law (BRA) which, as amended in 1984, allowed debtors to discharge nonsecured property settlement obligations to former spouses (think payouts for businesses, professional practices, or other assets distributed in a divorce), the new law forbids this. Now, any domestic support obligation “DSO” becomes a “first priority claim,” ineligible for discharge.
Still, scholars see potential areas of abuse. If you have a property agreement or divorce decree wherein your ex assumes existing marital debt (outstanding credit cards run up during your marriage) and agrees to pay the credit card companies directly--“holding you harmless” in the meantime--beware. That obligation might be subject to discharge or reduced payment under the new bankruptcy law. Why? Payments made to a third party, i.e., someone other than, “a spouse, former spouse or child of the debtor” might not receive protection under the new 11 U.S.C. 523(a) (15). (For an excellent article on the details of this danger, log on here.)
On the other hand, any obligation undertaken in a divorce, owed to a third party and in the nature of support (say, an ongoing mortgage or auto loan) is probably safe from discharge under BAPCPA. Best idea: Insist on having your spouse pay old, nonsecured consumer debt, directly, from his--or her--share of money received from the sale of a house or distribution of other assets at the time of the divorce. A promise to pay is nice, but security (or cash) is king.
BAPCPA also provides “domestic support obligations” first priority status over other nonsecured debt. (But, this fact might not be as useful as it sounds as BAPCPA expands the reach and strength of secured creditors. So, it’s possible less will be left for all unsecured creditors, regardless of priority status.) Furthermore, the automatic stay provisions of the code no longer apply to divorce or support actions filed in state courts. Though you won’t be able to divide the debtor’s property, you will be able to address support, domestic violence and custody matters without having to appear in federal bankruptcy court to “lift” the stay.
Also, under BAPCPA, a bankruptcy filing won’t affect your rights to receive support via wage garnishment or other common collection means. Likewise, pre-filing payments of domestic support obligations to a spouse (so-called “pre-petition transfers”) won’t be “voidable” as preferential payments. Plus, per BAPCPA, no payment plan debtor will receive an order of discharge until he or she confirms that all domestic support obligations are current.
What’s more, BAPCPA requires a debtor to reside in a state more than 40 months before he or she files for bankruptcy protection to take advantage of that state’s exemptions; thus eliminating “forum shopping,” where debtors moved to states like Florida or Texas just before filing bankruptcy petitions, in an effort to convert nonexempt property into an exempt homestead, wiping out their nonsecured debt in the process.
So much for the debtor. As a DSO creditor in the age of BAPCPA, you will receive notice from the trustee of your rights to collect support through federal enforcement agencies. You will also receive the most recent address of the debtor, where he works and details about other affirmed creditors remaining after the bankruptcy action.
While BAPCPA can make life more difficult for those who have suffered from sudden unemployment, sickness or other misfortune, it’s probably the best thing to have happened to unsecured divorce creditors since 1898. Still, BAPCPA is recent law and courts have yet to settle all the issues arising from its new provisions. If your ex files for bankruptcy protection, consult with an expert. Ask how to protect your DSO (domestic support obligation) creditor’s rights by filing any necessary adversary complaints or proofs of claims. For instance, under a Chapter 13 plan, a debtor can still escape paying some, or all, accumulated support arrears, so you must be vigilant.
And, don’t forget to obtain copies of all the debtor’s bankruptcy schedules (disclosing his income, real and personal property, and the like). As BAPCPA provides the possibility of using exempt property to collect what you are owed as a nondischarged creditor, these schedules will be a rich source of useful information. Happy hunting.
Written by Marlene M. Browne Esq.
Warren Shiell is a divorce lawyer serving Los Angeles, Beverly Hills, Santa Monica
If the “debtor’s” income was less than the sum needed to maintain his lifestyle, including debt service, he would generally opt for the Chapter 7 liquidation, taking advantage of whatever homestead and property exemptions his state allowed, thus protecting his assets from creditors. If any nonexempt property existed, the bankruptcy trustee would liquidate it to pay secured creditors first, with unsecured creditors, such as ex spouses (who lacked collateral or guarantees) at the back of the line.
While Chapter 7 liquidation was not a means to avoid a mortgage or shirk taxes secured by liens, it did provide the debtor a clean slate, free from pesky consumer debt--credit cards, loans from friends and family, legal or medical bills--and whatever equitable distribution payments he couldn’t comfortably afford. Plus, if a person happened to live in Florida, Iowa, Kansas Oklahoma, South Dakota or Texas, he could really make out like a bandit because these states had (and still have) limitless homestead--and generous property--exemptions.
Consequently, for the cost of a court filing and the administrative fees of the bankruptcy proceeding (the trustee’s fees, typically a minor percentage of the value of the “estate,” i.e., nonexempt property existing when the petition is filed), one could continue to own and enjoy, post discharge, a multimillion-dollar residence--provided he paid the mortgage.
On the other hand, if a person had sufficient income to pay his debts over time, but needed a breather to call off court actions and collection efforts--or he didn’t want to liquidate his nonexempt property (which, in the Atlantic Coast states, with little to no homestead exemptions, could be substantial)--he could file a Chapter 13 “reorganization” plan, allowing him to pay his debts (or some fraction of them) under a court-approved plan, over a period of three to five years. Once completed, the person emerged debt free, with a fresh start (and a blot on his credit report for 10 years). Still for many, the calculus of the decision made sense.
But that was then, this is now. Since Oct. 17, 2005, to automatically qualify as a Chapter 7 filer, you must make less than the median income in your state, given the number of people in your household. If your income equals or is greater than the median for your state, you still might qualify as a Chapter 7 filer, depending on whether you can afford to pay $100 to $166 per month, over the course of five years, to your unsecured creditors.
If you make too much money to qualify for Chapter 7, and you meet the requirements for a Chapter 13 (you have regular income and your secured debt is less than $922,975, and your unsecured debt is less than $307,675), you can seek relief from your creditors under a reorganization plan. After the specified three or five years of paying under the court-approved plan, you’ll have canceled debts without the typical tax consequences. No matter which Chapter you file under, BAPCPA requires that you obtain credit counseling and participate in special debt management programs.
Perhaps even more important than the means test and mandatory financial management education is the fact that BAPCPA has made it much more difficult for debtors to shirk domestic relations responsibilities. Unlike the old law (BRA) which, as amended in 1984, allowed debtors to discharge nonsecured property settlement obligations to former spouses (think payouts for businesses, professional practices, or other assets distributed in a divorce), the new law forbids this. Now, any domestic support obligation “DSO” becomes a “first priority claim,” ineligible for discharge.
Still, scholars see potential areas of abuse. If you have a property agreement or divorce decree wherein your ex assumes existing marital debt (outstanding credit cards run up during your marriage) and agrees to pay the credit card companies directly--“holding you harmless” in the meantime--beware. That obligation might be subject to discharge or reduced payment under the new bankruptcy law. Why? Payments made to a third party, i.e., someone other than, “a spouse, former spouse or child of the debtor” might not receive protection under the new 11 U.S.C. 523(a) (15). (For an excellent article on the details of this danger, log on here.)
On the other hand, any obligation undertaken in a divorce, owed to a third party and in the nature of support (say, an ongoing mortgage or auto loan) is probably safe from discharge under BAPCPA. Best idea: Insist on having your spouse pay old, nonsecured consumer debt, directly, from his--or her--share of money received from the sale of a house or distribution of other assets at the time of the divorce. A promise to pay is nice, but security (or cash) is king.
BAPCPA also provides “domestic support obligations” first priority status over other nonsecured debt. (But, this fact might not be as useful as it sounds as BAPCPA expands the reach and strength of secured creditors. So, it’s possible less will be left for all unsecured creditors, regardless of priority status.) Furthermore, the automatic stay provisions of the code no longer apply to divorce or support actions filed in state courts. Though you won’t be able to divide the debtor’s property, you will be able to address support, domestic violence and custody matters without having to appear in federal bankruptcy court to “lift” the stay.
Also, under BAPCPA, a bankruptcy filing won’t affect your rights to receive support via wage garnishment or other common collection means. Likewise, pre-filing payments of domestic support obligations to a spouse (so-called “pre-petition transfers”) won’t be “voidable” as preferential payments. Plus, per BAPCPA, no payment plan debtor will receive an order of discharge until he or she confirms that all domestic support obligations are current.
What’s more, BAPCPA requires a debtor to reside in a state more than 40 months before he or she files for bankruptcy protection to take advantage of that state’s exemptions; thus eliminating “forum shopping,” where debtors moved to states like Florida or Texas just before filing bankruptcy petitions, in an effort to convert nonexempt property into an exempt homestead, wiping out their nonsecured debt in the process.
So much for the debtor. As a DSO creditor in the age of BAPCPA, you will receive notice from the trustee of your rights to collect support through federal enforcement agencies. You will also receive the most recent address of the debtor, where he works and details about other affirmed creditors remaining after the bankruptcy action.
While BAPCPA can make life more difficult for those who have suffered from sudden unemployment, sickness or other misfortune, it’s probably the best thing to have happened to unsecured divorce creditors since 1898. Still, BAPCPA is recent law and courts have yet to settle all the issues arising from its new provisions. If your ex files for bankruptcy protection, consult with an expert. Ask how to protect your DSO (domestic support obligation) creditor’s rights by filing any necessary adversary complaints or proofs of claims. For instance, under a Chapter 13 plan, a debtor can still escape paying some, or all, accumulated support arrears, so you must be vigilant.
And, don’t forget to obtain copies of all the debtor’s bankruptcy schedules (disclosing his income, real and personal property, and the like). As BAPCPA provides the possibility of using exempt property to collect what you are owed as a nondischarged creditor, these schedules will be a rich source of useful information. Happy hunting.
Written by Marlene M. Browne Esq.
Warren Shiell is a divorce lawyer serving Los Angeles, Beverly Hills, Santa Monica
Transferring IRA's in a Divorce
IRAs and Divorce From Divorce Magazine
If you're transferring your interest in an IRA to your (former) spouse, you could get hit with extra tax and penalties if the transfer is not made correctly. Here's the right way -- and a couple examples of the wrong way -- to transfer these funds.
By Bruce L. Richman, CPA, ABV, CVA
We have all heard about "substance over form", but when it comes to transferring IRAs, it is "form over substance". The IRS is very clear that an early distribution from an IRA is subject to a 10% penalty as provided in Section 72(t) of the Internal Revenue Code ("IRC"). The IRC also provides that any amount distributed from an IRA "...shall be included in gross income by the payee or distributee, as the case may be, in the manner provided under IRC Section 72". However, the IRC does provide for an exception -- which is contained in IRC Section 408(d)(6) -- whereby a transfer of an individual's interest in an IRA to his/her spouse or former spouse under a divorce or separation instrument is not considered a taxable transfer. This exception only applies if the following two requirements are met:
(a) there must be a transfer of the IRA participant's interest in the IRA to his/her spouse or former spouse; and(b) such transfer must have been made under a divorce or separation instrument.
It is important to note that IRC Section 408(d)(6) deals with the "transfer" of an individual's interest in an IRA and does not deal with "distributions" from an IRA.
If, as part of the divorce or legal separation, you are (or your client is) required to transfer some or all of the assets in a traditional IRA to your spouse or former spouse, there are two commonly used methods to effect this transfer. IRS Publication 590 describes the two methods for transferring an interest in an IRA tax-free as follows:
(a) "Change the name on the IRA" -- if you are transferring all of the assets of the IRA, you can simply make the transfer by changing the name on the IRA from your name to the name of your spouse or former spouse.(b) "Direct transfer" -- simply direct the trustee of your traditional IRA to transfer specific assets to the trustee of a new or existing IRA set up in the name of your spouse or former spouse.
This appears to be straightforward, but these simple rules often are not followed, and problems arise. This is illustrated in two recent tax cases, which demonstrate the importance of "form over substance". In Jones v. Commissioner TC Memo 2000-219, the taxpayer had an IRA. In 1992, the taxpayer and his wife filed for divorce. In April of 1994, the husband and wife drafted a marital settlement agreement requiring the husband to transfer his IRA to his wife as part of the property settlement. In May of 1994, the husband cashed out his IRA (he received a check for $68,000) and endorsed the check he received to his wife. The IRS sought to have the $68,000 included in the taxpayer's income for 1994. It was the Court's opinion that the endorsement of the check to the wife was not a "transfer" of the husband's interest in the IRA, because his interest in the IRA was depleted at the time he withdrew the funds. It is important to note that the fact that the check for the IRA balance was endorsed rather than deposited into the husband's account did not affect the outcome of the case. The courts stated that the transfer of IRA assets by a distributee to a non-participant spouse does not constitute the "transfer" of an interest in the IRA under IRC Section 408(d)(6). The purpose of IRC Section 408(d)(6) was to offer a means to avoid having the interest transferred treated as a distribution. It does not permit the IRA participant to allocate to a non-participant spouse the tax burden of an actual distribution.
Following the same logic was the case of Bunney v. Commissioner 114 TC No. 17 (April 2000). The husband and wife, both residents of California, a community property state, were divorced in 1992. Per their divorce settlement, the husband's IRA, which was funded with contributions that were community property, was to be divided equally between the husband and wife. The husband withdrew the $125,000 balance of his IRA and deposited the proceeds into his money-market savings account. During the same year, he transferred $111,600 to his former spouse as part of divorce settlement. Mr. Bunney only reported $13,400 of the IRA distribution on his 1993 federal income tax return.
Just as in the Jones case, the main issue revolved around the question of whether the husband's gross income should include the distributions he received from his IRA. Again, the Court turned to the two requirements that must be fulfilled in order for the exception of IRC Section 408 (d) (6) to apply, and again the husband did not satisfy the first requirement calling for a 'transfer" of the IRA interest to the spouse. Mr. Bunney cashed out his IRA, deposited the funds into his money-market savings account, and then paid his former spouse some of the proceeds.
As demonstrated by these two cases, the simple "form over substance" is important in transferring an IRA tax free pursuant to a divorce or separation agreement. An easy way to avoid any potential problems is to have the actual transfer papers made available and incorporated into the divorce settlement. A mishap with the form of the transaction can have significant tax consequences.
Since 1980, Bruce Richman (CPA/ABV, CVA, CDFA™) has been actively involved in valuations, mergers and acquisitions and other financial and tax consulting matters. He is a Managing Director of Trenwith Valuation, LLC and until June 2004 was Partner in the Business Valuation Consulting Services Group for BDO Seidman, LLP. In his current position, Mr. Richman is responsible for various valuation projects and consulting services in the United States and, for U.S. clients, internationally. You can read about his firm in his Divorce Magazine profile or visit his website at www.trenwith.com/valuation/. or visit his website at .
Warren Shiell is a Divorce Lawyer in Beverly Hills
If you're transferring your interest in an IRA to your (former) spouse, you could get hit with extra tax and penalties if the transfer is not made correctly. Here's the right way -- and a couple examples of the wrong way -- to transfer these funds.
By Bruce L. Richman, CPA, ABV, CVA
We have all heard about "substance over form", but when it comes to transferring IRAs, it is "form over substance". The IRS is very clear that an early distribution from an IRA is subject to a 10% penalty as provided in Section 72(t) of the Internal Revenue Code ("IRC"). The IRC also provides that any amount distributed from an IRA "...shall be included in gross income by the payee or distributee, as the case may be, in the manner provided under IRC Section 72". However, the IRC does provide for an exception -- which is contained in IRC Section 408(d)(6) -- whereby a transfer of an individual's interest in an IRA to his/her spouse or former spouse under a divorce or separation instrument is not considered a taxable transfer. This exception only applies if the following two requirements are met:
(a) there must be a transfer of the IRA participant's interest in the IRA to his/her spouse or former spouse; and(b) such transfer must have been made under a divorce or separation instrument.
It is important to note that IRC Section 408(d)(6) deals with the "transfer" of an individual's interest in an IRA and does not deal with "distributions" from an IRA.
If, as part of the divorce or legal separation, you are (or your client is) required to transfer some or all of the assets in a traditional IRA to your spouse or former spouse, there are two commonly used methods to effect this transfer. IRS Publication 590 describes the two methods for transferring an interest in an IRA tax-free as follows:
(a) "Change the name on the IRA" -- if you are transferring all of the assets of the IRA, you can simply make the transfer by changing the name on the IRA from your name to the name of your spouse or former spouse.(b) "Direct transfer" -- simply direct the trustee of your traditional IRA to transfer specific assets to the trustee of a new or existing IRA set up in the name of your spouse or former spouse.
This appears to be straightforward, but these simple rules often are not followed, and problems arise. This is illustrated in two recent tax cases, which demonstrate the importance of "form over substance". In Jones v. Commissioner TC Memo 2000-219, the taxpayer had an IRA. In 1992, the taxpayer and his wife filed for divorce. In April of 1994, the husband and wife drafted a marital settlement agreement requiring the husband to transfer his IRA to his wife as part of the property settlement. In May of 1994, the husband cashed out his IRA (he received a check for $68,000) and endorsed the check he received to his wife. The IRS sought to have the $68,000 included in the taxpayer's income for 1994. It was the Court's opinion that the endorsement of the check to the wife was not a "transfer" of the husband's interest in the IRA, because his interest in the IRA was depleted at the time he withdrew the funds. It is important to note that the fact that the check for the IRA balance was endorsed rather than deposited into the husband's account did not affect the outcome of the case. The courts stated that the transfer of IRA assets by a distributee to a non-participant spouse does not constitute the "transfer" of an interest in the IRA under IRC Section 408(d)(6). The purpose of IRC Section 408(d)(6) was to offer a means to avoid having the interest transferred treated as a distribution. It does not permit the IRA participant to allocate to a non-participant spouse the tax burden of an actual distribution.
Following the same logic was the case of Bunney v. Commissioner 114 TC No. 17 (April 2000). The husband and wife, both residents of California, a community property state, were divorced in 1992. Per their divorce settlement, the husband's IRA, which was funded with contributions that were community property, was to be divided equally between the husband and wife. The husband withdrew the $125,000 balance of his IRA and deposited the proceeds into his money-market savings account. During the same year, he transferred $111,600 to his former spouse as part of divorce settlement. Mr. Bunney only reported $13,400 of the IRA distribution on his 1993 federal income tax return.
Just as in the Jones case, the main issue revolved around the question of whether the husband's gross income should include the distributions he received from his IRA. Again, the Court turned to the two requirements that must be fulfilled in order for the exception of IRC Section 408 (d) (6) to apply, and again the husband did not satisfy the first requirement calling for a 'transfer" of the IRA interest to the spouse. Mr. Bunney cashed out his IRA, deposited the funds into his money-market savings account, and then paid his former spouse some of the proceeds.
As demonstrated by these two cases, the simple "form over substance" is important in transferring an IRA tax free pursuant to a divorce or separation agreement. An easy way to avoid any potential problems is to have the actual transfer papers made available and incorporated into the divorce settlement. A mishap with the form of the transaction can have significant tax consequences.
Since 1980, Bruce Richman (CPA/ABV, CVA, CDFA™) has been actively involved in valuations, mergers and acquisitions and other financial and tax consulting matters. He is a Managing Director of Trenwith Valuation, LLC and until June 2004 was Partner in the Business Valuation Consulting Services Group for BDO Seidman, LLP. In his current position, Mr. Richman is responsible for various valuation projects and consulting services in the United States and, for U.S. clients, internationally. You can read about his firm in his Divorce Magazine profile or visit his website at www.trenwith.com/valuation/. or visit his website at .
Warren Shiell is a Divorce Lawyer in Beverly Hills
CBS Television's Early Show airs series on divorce
CBS News' Early Show is running a series on divorce. Articles and videos available on their website that professors may find useful in their teaching include:
Putting An End To Divorce Wars. Reconcilable Differences: Some Couples Seek Mediation, Not Litigation, To Keep The Peace. article
Divorce Among Senior Couples. Deirdre Bair, author of "Calling It Quits: Late-Life Divorce And Starting Over," speaks with Harry Smith. video
How Divorce Wars Take A Toll On Kids. Children Are Often Caught In The Middle Between Feuding Parents article
Making divorce easier on kids article
Warren Shiell is a Divorce and Family Law Attorney in Los Angeles
Putting An End To Divorce Wars. Reconcilable Differences: Some Couples Seek Mediation, Not Litigation, To Keep The Peace. article
Divorce Among Senior Couples. Deirdre Bair, author of "Calling It Quits: Late-Life Divorce And Starting Over," speaks with Harry Smith. video
How Divorce Wars Take A Toll On Kids. Children Are Often Caught In The Middle Between Feuding Parents article
Making divorce easier on kids article
Warren Shiell is a Divorce and Family Law Attorney in Los Angeles
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