Articles Posted in Parenting Agreements

Blog -winter-snow-storm-2.14.2014.jpgA simple Internet search of “National Divorce Month” will result in a stack of articles discussing how lawyers encounter a heavy volume of calls right after the holidays, giving January the unfortunate moniker of ‘National Divorce Month.’ 2014 has been no different. Last month we once again saw divorce attorneys writing about how the phones began to ring off the hook once the holiday season officially ended. On the surface, it makes sense. Many couples choose to prolong beginning the divorce or separation process until after the already busy and stressful holidays are over. It can be especially difficult for couples with children, because parents are hesitant to interrupt the child’s holiday with news of a divorce. Many people tend to look at the New Year as a “fresh start” and a chance to begin again, so choosing to begin the divorce process in the New Year seems like the best alternative.

Is there ever really a “right” time to initiate a divorce or separation? Many articles written about January divorces point to the many reasons why people choose to begin the process at that time, and why it makes sense to wait until after the holidays. The most important thing, though, is for the spouses to evaluate their own marital life and family. Several of my blogs have made mention of the fact that every family is different and thus, every divorce is also different. This rings true no matter what the highest divorce month may be.

The decision to divorce or separate is an important one, to say the least. Every couple has considerations to keep in mind before deciding if divorce is the right path to take. In making an assessment of the marital life as well as family life, couples should make sure to have open and honest communication, and not rush the process. Some couples find it helpful to sit down with a couples’ counselor or mediator in order to really get everything on the table. A very important aspect of assessing the situation is to become educated on all of the options available. Taking an active role in decision-making is helpful in reaching decisions about what to do.
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There are many different opinions on divorce and its prevalence in our modern society. However, when looking through history or even talking with people of different generations, it is clear that divorce has evolved over the years. It got me to thinking – what are the real roots of divorce in America?

Researching the history of divorce sounds like a quite bland task, but through the course of my reading, I discovered that it was anything but tedious. A woman named Caroline Norton is an important figure, especially in Europe, for being instrumental in divorce legislation in the 1800’s in England. Europe views Norton as being important in Europe, but for history in general. divorce-1122707-s.jpg

The grounds for divorce in the 1800’s in England were few and carried extreme penalties. A couple could be granted a separation through nullity, impotence, insanity, or [potential] incest. If one of these grounds was used, any children born to the couple were rendered illegitimate as a penalty, but the parties were permitted to remarry. Additionally, a couple could be granted a separation because of adultery, sodomy, or physical violence. However, in this case the couple would not be permitted to remarry. The final option for a couple in 1800’s England was to obtain a separation and then sue the other spouse for adultery. In this option, a spouse successful in the adultery lawsuit would eventually be granted a divorce by Parliament and the couple’s children would not be considered illegitimate. While this final option afforded the best result, it was nearly impossible for anyone to achieve; lawsuits were extremely expensive so it eliminated the option for most people.

Caroline Norton’s crusade for divorce rights could be the subject of its own lengthy essay, however the main point is that she singlehandedly changed the landscape of separation and divorce. In a time where married women were low on the totem pole, children were the property of their father, and the Church controlled marriage and divorce, Norton’s peaceful crusade resulted in legislation which allowed for women’s property rights, custodial rights over children, and most of all, divorce.

Reading through details of the evolution of divorce legislation in England is extremely intricate and detailed, but then I dug a little deeper for some American history on divorce. Interestingly enough, America has its first recorded divorce in 1643 – about 200 years before Caroline Norton’s crusade! Anne Clarke, who lived in the Massachusetts Bay Colony, was granted a divorce by the Quarter Court in Boston after her husband abandoned her for another woman and refused to return home. Denis Clarke admitted in a signed affidavit that he had left his wife for another woman with whom he also had children. Denis also stated his refusal to return to his wife. With this, the Court essentially had no choice but to grant a divorce to Anne Clark and stated in the final order that it was due to the abandonment by her husband and his refusal to be with her.
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The holiday season is usually filled with joy as well as lots of stressful activity planning all the festivities. Wouldn’t it be wonderful to have some helpful reminders (“Tips”) to aid families dealing with a divorce or separation process to manage the additional emotional stress? Having a plan in place incorporating the following three tips would help make the holiday season enjoyable for everyone, children and adults, alike.snow-1126676-m.jpg

Number One Tip is to focus on the children. They need to be reassured that they are special and that this is a season for celebration. Children will want to be with both their parents and family members. So planning time together with children may be tricky. It is integral to make sure that the schedule is concrete and set ahead of time. If a parenting schedule has not yet been created, parents should sit down and work to make something that works for both parties and, most of all, for the children. If tensions tend to run high, parents can work with a collaborative attorney or mediator or parenting coordinator to set a schedule. When everyone has set expectations of where they are to be and when, everyone can then have the time to enjoy the time with their loved ones.

Something else to keep in mind is whether or not this is the children’s first holiday season with two households. The transition into a two-family household can be easier if a parenting schedule has been made. Children will most likely find the transition easier if they not only know when and where they will be spending holidays, but also have time to understand and to spend other holiday time with the other parent. The transition from one household for specified events to another household becomes less emotional and confusing when a plan is followed.
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brotherhood-at-sunset-1-1361205-m.jpgWhen people discuss child support, it is often through assumptions and generalizations about how it works, who pays, and how much is paid. However, each state has unique laws dealing with child support, and it is important to know how your state works if the time comes for child support to be addressed. New York passed the Child Support Standards Act (CSSA) which outlines and charts the guidelines for child support payments. There is a chart released every year which takes into account the poverty line (as reported by the US Department of Health and Human Services) and allows individuals to calculate the approximate annual child support obligation. There is an option to deviate from the CSSA if using the guidelines would produce an unfair result or the parents agree that an alternative method of child support would be more beneficial to the family.

With all this in mind about the support calculations, the issue then turns to the actual child support payments. Just like people tend to assume sweeping generalities when it comes to how child support is calculated, there are also assumptions about how child support is paid out. Many people focus on the more invasive options like income withholding or liens on bank accounts. However, a recent trend involves the divorced couple setting up a joint bank account for purpose of support payments.

In some cases, parents elect to establish a joint bank account to address the children’s needs. Parents can make an agreement that specifies in detail how the account is to be funded and utilized. The account is then limited by those specifications agreed upon by the parties and memorialized in the agreement solely for the children’s needs. There can also be a joint bank account in addition to traditional child support, for specific purposes depending on the children’s needs. An important thing to remember is that any type of agreement for a joint bank account will be specific and unique to the parents and their situation. The parents can tailor the agreement and type of account so that it works best for them and the children’s needs.
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The recent split between Catherine Zeta-Jones and Michael Douglas was a shock to many. Like any family, Zeta-Jones and Douglas are no strangers to challenge. They have weathered through Douglas’s throat cancer, his son’s legal struggles and ultimate 5-year jail sentence for dealing methamphetamine and cocaine, and Zeta-Jones’s struggle with Bipolar II Disorder. Despite the added stress of having all of their family issues played out in the spotlight, the Hollywood couple stood strong through thirteen years of what appeared to be a happy and loving marriage. footprints-1053161-m.jpg

So what happens now? While still too early to tell whether their separation will ultimately end in divorce or reconciliation, it is not too early to talk about the kids. Though Zeta-Jones and Douglas reportedly have a pre-nuptial agreement discussing financial plans after a split, it is unclear if agreement considers child-related issues. If the prenuptial agreement does not discuss the issues of child support, custody, parenting, and decision-making, it’s time for Douglas and Zeta-Jones to find a good mediator to work out a Parenting Agreement. During this junction before a divorce and even before a separation, it is imperative a couple with minor children have a mutual agreement that lays out a plan to protect the children during this transitional period and continuing into the future.

Many day-to-day decisions involving the children can become devastating issues of contention between separating spouses. Where the children attend school, where will they live, whose family will the children spend the holidays with, who is paying for the kids’ school trip to the Nation’s Capital? These questions and many more were easily decided as a one unit household and seem simple enough to work out between spouses. Unfortunately, the quickest turn down the ugly divorce path tends to be over a dispute in regards to the children. Taking the simple step of sitting down with a professional mediator allows the couple to answer these looming questions, mutually work out an agreement to promote the best interest of the children, and ultimately avoid a future court battle. Furthermore, opting to have a mediator help with a Parenting Plan allows a separating couple to have more control over what goes into the plan, rather than leaving it to the court to decide.
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1205200_family.jpgArtificial insemination can result in unexpected legal consequences depending on the marital status of the woman undergoing the procedure. It is important to understand the law as part of the decision making process.
Under New York Domestic Relations (DRL) § 73, a married woman can be artificially inseminated and her husband will be deemed the father of the child, even if the husband was not the sperm donor, so long as the married couple and the physician enter into a written agreement reflecting this arrangement. However, DRL § 73 only applies to married couples. As a result, an unmarried couple wishing to create a child through artificial insemination is presented with unique legal challenges. These challenges can create unfair results.
DRL § 70 allows either parent to seek guardianship or custody of the child. In Alison D. v. Virginia M., a landmark 1991 case that remains good law today, the Court of Appeals of New York held that “parent” under DRL § 70 refers only to the biological parent of the child and not the non-biological parent.
Therefore, the non-biological party in an unmarried couple is excluded from the automatic rights afforded to married parties under both § 70 and § 73 of the DRL. Moreover, in the event that the unmarried couple ends their relationship, the non-biological parent faces additional challenges if he or she wants to seek custody or visitation of the child.
Different legal devices are available to the non-biological parent. DRL § 110 provides that an unmarried individual, two unmarried individuals, or a married couple may adopt another person. New York also recognizes second-parent adoptions, as held by the Court of Appeals of New York in 1995’s Matter of Jacob. A second-parent adoption is where a second person petitions to adopt the child, even though the child already has one legal parent. A second-parent adoption does not affect the first parent’s rights to the child. For example, if a woman gives birth to a child as the result of artificial insemination, she is considered the child’s legal and biological parent. Under a second-parent adoption, the woman’s boyfriend, who is unrelated to the child, may adopt the child. A second-parent adoption confers the same parental rights and responsibilities on the boyfriend as the birth mother.
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