Mary Commander, Family Law Blogspot

2012-01-30T06:55:00.001-05:00

Points awarded

Other ways to earn

My husband cheated on me can I get alimony? He only works part time.

His lover called me and left a massage on my phone about them.

Spousal support in Virginia is not a punishment for wrongdoing by a spouse , so his adultery alone would not justify a support award. Instead, spousal support is based primarily on one party's need and the pther party's ability to pay.

Spousal support can be awarded in the Juvenile and Domestic Relations District. This court uses a statutory formula for calculating support. The statute provides:
A. There shall be a presumption in any judicial proceeding for pendente lite spousal support and maintenance under this title that the amount of the award that would result from the application of the formula set forth in this section is the correct amount of spousal support to be awarded. The court may deviate from the presumptive amount as provided in subsection D.

B. If the court is determining both an award of pendente lite spousal support and maintenance and an award of child support, the court shall first make a determination of the amount of the award of pendente lite spousal support, if any, owed by one party to the other under this section.

C. If the parties have minor children in common, the presumptive amount of an award of pendente lite spousal support and maintenance shall be the difference between 28% of the payor spouse's monthly gross income and 58% of the payee spouse's monthly gross income. If the parties have no minor children in common, the presumptive amount of the award shall be the difference between 30% of the payor spouse's monthly gross income and 50% of the payee spouse's monthly gross income. For the purposes of this section, monthly gross income shall have the same meaning as it does in section Sec. 20-108.2, as amended.

D. The court may deviate from the presumptive amount for good cause shown, including any relevant evidence relating to the parties' current financial circumstances that indicates the presumptive amount is inappropriate. (Va. Code Section 16.1-278.17)

Spousal support also can be awarded in the Circuit Court as a part of a divorce case. While there is no formula for support, there are statutory factors which the court is to consider. The statute provides:
E. The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision (3) or (6) of Sec. 20-91 or Sec. 20-95. In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:

1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;

2. The standard of living established during the marriage;

3. The duration of the marriage;

4. The age and physical and mental condition of the parties and any special circumstances of the family;

5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;

6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

7. The property interests of the parties, both real and personal, tangible and intangible;

8. The provisions made with regard to the marital property under Sec. 20-107.3;

9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;

11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential.

12. Other relevant factors, including the tax consequences to either party.

Virginia Code Section 20-107.1

This response does not create an attorney-client relationship and is intended for general information purposes only.

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Criminal Background Check For Foster and Adoptive Parents

2012-01-27T15:11:00.000-05:00

Criminal Background Checks for Prospective Foster and Adoptive Parents

Requirements for Foster Parents
Citation: Virginia Code § 63.2-1721

Foster parents and any adults residing in the home shall undergo background checks prior to approval. Background checks require:

A criminal history record check
A search of the central registry for any founded complaint of child abuse and neglect

Conviction of a ''barrier crime'' shall disqualify an applicant. ''Barrier crime'' includes:

Murder or manslaughter
Malicious wounding
Abduction for immoral purposes
Assaults and bodily wounding
Robbery, burglary, or carjacking
Threats of death or bodily injury
Felony stalking
Sexual assault
Arson
Drive-by shooting
Use of a machine gun or sawed-off shotgun in a crime of violence
Pandering, crimes against nature involving children, incest, or taking indecent liberties with children
Abuse and neglect of children or failure to secure medical attention for an injured child
Child pornography
Abuse and neglect of incapacitated adults
Delivery of drugs to prisoners
Any felony violation relating to possession or distribution of drugs

A foster home also may be disqualified for:

A conviction of any other felony not listed above unless 5 years have elapsed since conviction
A founded complaint of child abuse or neglect

A child-placing agency may approve as a foster parent an applicant who has been:

Convicted of not more than one misdemeanor not involving abuse, neglect, or moral turpitude of a minor, provided 10 years have elapsed following the conviction
Convicted of statutory burglary for breaking and entering a dwelling, home, or other structure with intent to commit larceny, who has had his or her civil rights restored by the Governor, provided 25 years have elapsed
Convicted of felony possession of drugs who has had his or her civil rights restored by the Governor, provided 10 years have elapsed

Guardians Ad Litem For Children

2012-01-27T15:00:00.002-05:00

In child custody and visitation cases, it is the practice of most judges to appoint a Guardian Ad Litem (GAL). This person represents the interests of the child(ren). He or she will investigate the facts and will make a report back to the court. The report often will contain a recommendation as to the resolution of the case. The court also can refer the case to CASA (Court Appointed Special Advocates) who will do their own investigation and report.

The quality of the service provided by GALs varies widely. There are statutory requirements relating to their qualifications and duties.

Qualifications/Training
Citation: Virginia Code §§ 16.1-266.1; 9.1-153
The Judicial Council of Virginia, in conjunction with the Virginia State Bar and the Virginia Bar Association, shall adopt standards for attorneys appointed as GALs. The standards shall, as far as practicable, take into consideration the following criteria:

License or permission to practice law in Virginia
Current training in the roles, responsibilities, and duties of GAL representation
Familiarity with the court system and general background in juvenile law
Demonstrated proficiency in this area of the law

The Judicial Council shall maintain a list of attorneys who are qualified to serve as GALs based upon the standards and shall make the names available to the courts. If no attorney who is on the list is reasonably available, a judge in his or her discretion, may appoint any discreet and competent attorney who is admitted to practice law in Virginia.

The Department of Criminal Justice Services shall adopt regulations governing the qualifications of advocates who shall be deemed to be criminal justice employees. An advocate must be at least age 21, and the program director shall obtain a copy of the advocate's criminal history record and information from the central registry on child abuse and neglect to certify that no records are maintained on him or her.

An advocate shall have no associations that create a conflict of interest or the appearance of such a conflict with his or her duties as an advocate. No advocate shall be assigned to a case of a child whose family has a professional or personal relationship with the advocate.

No applicant shall be assigned as an advocate until successful completion of a program of training required by regulations. The department shall set standards for both basic and ongoing training.

Specific Duties
Citation: Virginia Code § 9.1-153; Va. Sup. Ct. Rule 8:6
The advocate's duties shall include:

Investigating the case to which he or she is assigned to provide independent factual information to the court
Submitting to the court a written report of his or her investigation in compliance with the provisions of § 16.1-274
Upon request of the court, making recommendations as to the child's welfare
Monitoring the case to ensure compliance with the court's orders
Assisting any appointed GAL to represent the child in providing effective representation of the child's needs and best interests
Reporting a suspected abused or neglected child pursuant to § 63.2-1509

The advocate is not a party to the case to which he or she is assigned and shall not call witnesses or examine witnesses. The advocate shall not, with respect to the case to which he or she is assigned, provide legal counsel or advice to any person, appear as counsel in court or in proceedings that are part of the judicial process, or engage in the unauthorized practice of law. The advocate may testify if called as a witness.

The GAL shall vigorously represent the child fully protecting the child's interest and welfare. The GAL shall advise the court of the wishes of the child in any case where the wishes of the child conflict with the opinion of the GAL as to what is in the child's interest and welfare.

Domestic Assault

2012-01-27T14:41:00.001-05:00

was arrested for hitting my boyfriend

I came home to a drunk (should have known) then I decide to leave he starts cussing me and calling my daughters very nasty names in my face I hit him. I sit to get my phone he was on top of me trying to take it. He destroyed my things and I called the police. I got arrested and have never been in trouble before. I ended up with a contusion (not sure of the spelling) and very sore. I did have this noted by the doctor that night. What happens in most cases like this?

My rule is that you should never invite the law into your home (with very few exceptions). It is far from uncommon for the one who calls the Police or Social Services to end up with the punishment.
From the facts that you provided, it appears that you both are guilty of assault. Since you were the initial aggressor, you were arrested. You can file a cross warrant against him for the assault. Go and see the Magistrate about this. In most cases like this, the charges will be dismissed if neither party has a record. The final decision, however, is up to the judge.

This response does not create an attorney-client relationship and is intended for general information purposes only.

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What You Don't Know About Divorce Mediation

2012-01-24T20:19:00.000-05:00

What Most People Don't Know About Divorce Mediation

Despite divorce mediation's well-deserved reputation as a sensible alternative to fighting it out in court, we find that few people know very much about it.

Divorce mediation is not all that the public seems to think it is. This post aims to clear up some of the common misunderstandings associated with it.

Divorce mediation is for reasonable people who cannot resolve their differences by themselves.
As divorce lawyers, we regularly receive phone calls from prospective clients who explain that they and their soon-to-be exes are seeking a divorce, and that they have already reached a settlement on their own. They go on to tell us that they want to use mediation to conclude their case.

We tell them they do not need a mediator. Instead, they should be looking for a lawyer to shepherd their settlement through the legal system. Their situation does not belong in mediation because mediation helps people resolve disputes; and these callers do not have a dispute, they have a resolution of their dispute. They already have the best that mediation could ever give them. If their wish is to save time and money, their best bet is to take their settlement straight to court for a judge's approval.

Divorce mediation is an out-of-court dispute-resolution tool that helps people settle their differences sensibly and with the legal system having only minimal involvement.

It provides a structured process that minimizes the defensiveness and friction that are normally present during spousal settlement conversations. It does this by creating a non-confrontational atmosphere that encourages the spouses to put their best foot forward when they are presenting their thoughts and concerns to one another.

Mediation employs the use of a neutral and impartial third party -- a mediator -- to help the disputants reach a peaceful compromise that they can both find acceptable.

Mediators are not referees, judges, or arbitrators and they cannot make decisions regarding who is going to win or lose. Their only job is to guide the parties during their negotiations, just as air traffic controllers guide air traffic.

We must be at our very best if we hope to persuade our partner to agree to an out of court settlement that he or she is typically inclined to resist. Accomplishing this is often difficult because divorce tends to put us at our worst. This is where the mediator comes in. He or she directs the interaction and dialogue away from potential negotiation hazards and makes it possible for us to be at our best.

We have all heard of friends, family, or coworkers who have gone through divorce mediation with great success. As mediators ourselves, we certainly attest to mediating many successful divorce resolutions. However, we have our reservations about the effectiveness of mediation during the early stages of divorce.

For mediation to be successful, both disputants must be reasonable people who are motivated to negotiate a final settlement. However, this is not what usually happens during the early stages of divorce.

In the initial phase of most marital break ups, emotions often hinder the participants' ability to be reasonable. In addition, it is also very common for only one partner to be ready to divorce.
He or she wishes to begin settlement negotiations, and the other party wishes to work on saving the marriage. This difference in motivation tends to stymie the chances of mediation's success. It is extremely difficult to negotiate a price with someone who is dead set against buying the item at any cost.

The mediation clients with whom we have had successful results during the initial stages of divorce are the exceptions to the general rule. These are the extremely reasonable people with workable factual situations who are highly motivated to reach a cooperative divorce. Our role as mediator usually involves only minimal guidance to assure the couple that their settlement proposals cover all the bases and do not omit any items of importance.

Many people see mediation as an end-all, attorney-free process. However, in most instances, those with a mediated settlement still have to hire at least one attorney to process the divorce through the legal system. In addition, mediators are trained to recommend to both parties that they consult with their own attorneys before formalizing any agreement reached in mediation.

Divorce mediation is not for every couple, and it is not for every situation. However, it has no down-side and can help people save time, energy, and expense, not to mention wear and tear on the family unit.

J. Richard Kulerski and Kari L. Cornelison are partners in the Chicago area, Oak Brook, IL divorce law firm of Kulerski & Cornelison. You may find them at www.civilizeddivorce.com and at their firm's blog dupagedivorcelawyerblog.com.

Richard is the author of The Secret to a Friendly Divorce: Your Personal Guide to a Cooperative, Out-of-Court Settlement.

Follow J. Richard Kulerski and Kari L. Cornelison on Twitter: www.twitter.com/Chicago_Divorce

Follow J. Richard Kulerski on Twitter: www.twitter.com/Chicago_Divorce

VIRGINIA OFFERS ADVANCE HEALTH CARE DIRECTIVE REGISTRY

2011-12-22T09:29:00.001-05:00

The Commonwealth of Virginia is offering a statewide Advance Health Care Directive Registry. The registry, available to all legal Virgnia residents, stores documents that detail and protect health care wishes in the event people are unable tos peak for themselves. These documents include medical power of attorney, do-not-resuscitate orders, and other health care wishes.

To sign up for the health care registry, visit https://www.virginiaregistry.org. People without access to a computer can still be a part of the registry by calling: 1-800-224-0791.

POST- DIVORCE CHECKLIST

2011-12-22T09:24:00.003-05:00

POST- DIVORCE CHECKLIST

After your divorce is finalized by the court, there still may be tasks remaining before your divorce is really final. Some of these you can do yourself. Some may require professional assistance. This non-exhaustive list is designed to help you take all the actions that you need to protect yourself.

- Notify Your Employer. Your employer may have to change information in your employee record, change your health or life insurance plans, or any accounts that regard retirement or a 401(K) program.

- Finances. Implement a budget if you have not done so and monitor all of your income and expenses. Review all of your investments. Obtain a copy of your credit report and make sure that the accounts that you closed were actually closed so and that your credit agency file has been updated.

- Other Important Documents. All of your other important documents such as deeds to real property, automobile titles, stock certificates, bonds, treasury notes and other such items should be reviewed to show correct and accurate information. You may need to transfer ownership to be able to change information on these documents.

- Retirement and Estate Planning. If you have a pension, 401K or an IRA that was divided as a result of the divorce, make sure you obtain a Qualified Domestic Relations Order that was prepared by the attorneys, agreed by the court, and was submitted to the fund administrator and was implemented. Review your estate plan and update it if necessary. If you have a Civil Service retirement, an Order must be entered and sent to the Office of Personnel management in order to receive a portion of a Civil Service Retirement.

- Notify Your Financial Institutions. Make sure all of your joint accounts are closed and that your former spouse’s name has been omitted from all active accounts and financial records. Close any joint safe deposit boxes or post office boxes and if needed, open new ones.

- Military Benefits. If your divorce involved military benefits, you must send a certified copy of the Final Decree of Divorce to the Defense Finance and Accounting Service (DFAS). If there is a requirement of Protection of Survivor Benefit Plan (SBP), you must forward the Final Decree and appropriate form within one year, or the benefit is waived. If a Thrift Savings Plan (TSP) has been divided, the appropriate Order must be entered and sent to the TSP Board.

- Remarriage. If you plan to remarry, consider a prenuptial agreement.

-Cancel/Change Credit Card Accounts and Other Third Party Accounts. It is important to close all credit card accounts that have both of your names on it you need to make sure that your former spouse’s name is omitted from these accounts. Do not forget to change account information on department store credit cards such as JC Penny, Macy’s, etc. Update the name responsible for paying all utilities, auto insurance, mortgage loans, car payment, etc.

- Update Your Tax Status. Have your tax status changed since you are no longer married and/or change the number of exemptions you claim. If you use someone to prepare your taxes for you, make sure to contact them so they can change your marital status.

- Update Your Insurance Policies. Notify anyone you carry insurance with (health insurance, life insurance, disability insurance, etc.). Make sure your marital status is changed and that these policies have your correct names of beneficiaries and people who are insured under your policy. Obtain life insurance that names your former spouse and/or your children as the beneficiaries as required by the divorce decree. Be sure that you understand the terms and conditions of all insurance policies. You may need to provide a copy of your divorce decree. (If you are on your former spouse’s insurance and you want to pay for an extended amount of coverage, you must contact your insurance company and ask about COBRA rights that will allow you to pay for your own coverage for a period of time).

- Ensure the Accuracy of Your Will and Trusts. Make sure you remove your former spouse’s name as a beneficiary or executor on your will or removed from any trust accounts if you do not wish for them to be a beneficiary and make any other necessary adjustments.

- Powers of Attorney need to be revoked. If your former spouse has a Power of Attorney that was given by you, you will need to make sure that it is revoked in writing. Ensure all copies are destroyed. You will need to notify any third parties that previously relied on the power of attorney or may rely on it in the future that the power of attorney has been revoked. (If the power of attorney was recorded as part of a public record, a revocation should be properly recorded as well).

- Social Security Benefits. Your divorce papers and a copy of your marriage license should always be kept because you may be eligible to claim your former spouse’s social security benefits. If you are married for more than 10 years, or if your former spouse dies while making child support payments, you have the right to receive their social security benefits.

- Child Support and Custody. Make sure the Division of Child Support Enforcement has your correct address. You should make sure that you document the dates and amounts of any payments you make or received in child support. If you are the one making the payments, ensure it is being paid on time. Make sure that you give a receipt if you are the one receiving the support or you receive a receipt if you are the one that is paying. Keep all scheduled visitations with the children and if co-parenting is currently an issue or becomes an issue, records should be kept of how the other parent’s visits with the children went and be detailed on any specific issues that arise. Update all contact information for you and your former spouse with the children’s school, daycares or before/after school programs.

- Changing Your Name. If you decide to change your name, you are required to notify and update your records with: the Department of Motor Vehicles, the Social Security Administration, your employer (to make sure your W-2 is correct), your bank and other financial institutions (to ensure a correct W-4), and all credit card companies with whom you have credit. Get a new passport, driver’s license and social security card.

- Taxes. Get your former spouse’s and children’s social security numbers as they may be needed for tax returns. You should consult an attorney and other experts involved in the divorce to provide something in writing that indicates the portion of fees that may be tax deductible under the IRS Code §212. Make sure you record and copies of all tax returns and supporting documents for at least 3 years. If your former spouse gave you assets in the divorce, request tax basis records immediately after the divorce is finalized.

- Support. Keep accurate, detailed records of all child and/or spousal support payments that you make or receive. Do not make direct payments to your former spouse if you are ordered to pay through the Division of Child Support Enforcement.

Divorce Tax Tips

2011-11-27T12:46:00.001-05:00

Ten Divorce Tax Tips

Getting a divorce is a painful experience for your client, but you can help ease the pain by ensuring that the settlement will protect your client's tax interests. The following ten tips, when used correctly, can save your client, and sometimes both sides, money in a divorce action.

Tip 1: Negotiate the Tax Exemption

If the divorce decree is silent regarding the dependency exemption, it remains with the custodial parent (I.R.C. 152(e)). The custodial parent is defined as the parent who has physical placement of the child for the greater portion of the calendar year (Treas. Reg. 1.152-4(b)).

The exemption is often one of those frustrating issues that has more emotional than financial significance. Much as the custodial parent does not want to give up the exemption, for example, it is not worth the attorney fees to litigate. One suggestion for reaching a settlement: Many states will allow the award of the exemption to be conditional on payments being current by the end of the year. The custodial parent may agree that getting the support on a regular, timely basis during the year is well worth the price of giving up the exemption. Try this language in the decree specifically making the award conditional on support obligations:

Tax Exemptions and Deductions. The wife shall be entitled to claim the youngest child, John, Jr., as an exemption, dependent, and deduction for all tax purposes, state and federal. The husband shall be entitled to claim the oldest child, Linda, as his exemption, dependent, and deduction for all tax purposes, state and federal, provided all support payments provided herein are current and timely. Each party shall duly execute Form 8332 of the Internal Revenue Service to reflect the foregoing.

Please note that support obligations can be read broadly enough to include medical expenses and other child-related obligations.

Tip 2: Don't Waste the Tax Exemption

The tax exemption is wasted under one of two circumstances: If it goes to a parent with not enough income or the one with too much income.

Quite simply, if there is no income, there can be no deduction. For 1996, if the income of a single person is less than $6,400 per year or if the income of a person filing as head of household is less than $8,250 per year, the extra exemption is wasted.

Similarly, don't waste the exemption on the rich. For taxpayers whose adjusted gross incomes for 1996 exceed $114,700 for a single taxpayer, or $143,350 for head of household, personal exemptions phase out by 2 percent for every $2,500 of income over those amounts. The phaseout is complete at $237,200 for a single taxpayer and $265,800 for head of household (I.R.C. 151(d)(3)). It is a waste to give these taxpayers the extra exemption.

Tip 3: Two Can Be Head of Household (Sometimes)

Under IRS rules, head of household status follows placement of children and cannot be negotiated or allocated by a court (I.R.C. 2(b) and Treas. Reg. 1.2-2(b)). However, when there are two or more children and equal placement, parties can arrange for both parents to claim head of household status.

Sample divorce language: Tax Filing Status. For the purposes of tax filing status, the parties agree that Catherine lives the majority of the time with the husband and Laura the majority of the time with the wife. The parties agree not to assert any contrary position with any taxing authority.

The parties may wish to arrange one special day at the end of the year for each child to spend with his or her "tax parent." In fact, this could become a game; parents could spend some of their tax savings on a special activity with their "tax child." How's that for an "everyone wins" scenario? The parents save money on taxes and the kids have a good time.

Tip 4: Some Attorney Fees Can Be Tax Deductible

People hate to pay their divorce lawyers, perhaps more than they hate to pay other types of lawyers. Criminal defendants usually have publicly paid lawyers. Personal injury litigants pay their lawyers with "found" money from their recovery. Business clients treat attorney fees as a cost of doing business. Divorce clients, who are at a financially disadvantageous time in their lives, pay lawyers with personal funds that could be used for other things more enjoyable than a divorce..

Some of the sting can be taken out of attorney fees by maximizing the deductibility to the client. Plus, due to the 2 percent floor, it may encourage the client to pay the fees on a timely basis to save money on taxes.

While the costs of getting the divorce are personal and are not deductible (I.R.C. 262; U.S. v. Gilmore, 372 U.S. 39 (1963)), some of the costs of the divorce are deductible if the client itemizes deductions and the total miscellaneous deductions exceed 2 percent of the payor's adjusted gross income. Deductible costs may include:

Fees for tax planning.
Fees for obtaining taxable income.
Fees for securing interest in qualified retirement plans.

Tax planning will be necessary to maximize the advantage of deductibility. Other tax deductible costs, such as paying for tax return preparation, should be paid in the same calendar year as the attorney fees.

If the attorney fees are paid over more than one year, which is frequently the case when the retainer is paid at the beginning of the action and the balance of fees at the end, the deductible portions of the fees may have to be prorated over the years paid.

Tip 5: Some Attorney Fees Can Be Capitalized

While attorney fees in relation to conservation of interest in property are not deductible, clients may be able to add these costs to the capital basis of the property. Although there may be no immediate tax gain, such capitalization can increase depreciation (if the property is depreciable) or decrease the gain (or increase the loss) when the property is sold.

If a number of assets are involved in the litigation, the fees must be specifically allocated among them, or the IRS can apply a prorated allocation of the costs (Bernard D. Spector, 71 TC 1017, rev'd on other grounds, 641 F.2d 376 (5th Cir. 1981)).

Of course, there must be a basis for deductibility in the legal services performed in the case. Careful billing records should be kept that delineate services on behalf of a particular asset.

Tip 6: Just Calling a Payment "Maintenance" Doesn't Necessarily Make It Tax Deductible

I.R.C. 71, which defines alimony and maintenance payments, applies to any interspousal payments intended to be deductible whether they are labeled spousal support, section 71 cash periodic payments in lieu of maintenance, or family support. If your client intends the payments to be deductible, the requirements of this section must be met. They are:

Payment must be in cash (I.R.C. 71(b)(1)). Services or a transfer of property other than cash cannot be considered alimony.
Payment must be made pursuant to a divorce or separation instrument; that is, a decree of divorce or separate maintenance or a written instrument incident to such decree, a written separation agreement, or a decree requiring payments for spousal support/maintenance (I.R.C. 71(b)(2)).
Payment must be to or on behalf of spouse (I.R.C. 71(b)(1)(A)). Payments to third parties (medical or dental payments, health insurance, rent, mortgage payments, or tuition) may qualify. They cannot be voluntary and must meet all other requirements of I.R.C. 71. For example, payment of a mortgage obligation qualifies only to the extent of the recipient's ownership interest in the property. If in the divorce, title to the real estate was transferred to the recipient spouse, the entire payment may be deductible. However, if the payor has any ownership interest in the property, only part of the payment may be considered alimony, as the payor would be satisfying his or her own obligation on the mortgage and not paying the entire amount on behalf of the recipient.
The divorce or separation instrument cannot designate the payments as nontaxable and nondeductible (I.R.C. 71 (b)(1)(B)). Parties can elect whether payments shall be treated as taxable or nontaxable or the court can so decree. The I.R.C. indicates that in the absence of language to the contrary, it can be assumed that the intent was that the payments are deductible to the payor. Whenever there are interspousal payments, it is much better practice to specifically designate the intended tax result of the payments.
. Payor and payee spouses cannot be members of the same household at the time the payment is made (I.R.C. 71(b)(1)(C)).
The payments must terminate upon the payee's death (I.R.C. 71(b)(1)(D)). There can be no liability to make any payment for any period after the death of the payee (no mention of payor); and there can be no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse. Don't rely upon state law providing for termination of payments upon death. Specifically provide in the final settlement agreement that the payments terminate upon the payee's death. (See Treas. Reg. 1.71-1T Q/A-11 and Q/A-12.)
Don't disguise child support or property division payments as maintenance (I.R.C. 71(c) and (f)).

Tip 7: Avoid the "Child Support" Trap of 71

I.R.C. 71(c) requires that no portion of the payment can be fixed as child support. The word "fix" means that a reader would be able to precisely determine what portion of the payment is alimony and what portion is child support. Reference to a specific dollar amount need not be made in the instrument for a payment to be fixed as child support. (See Sperling v. Commissioner, 726 F.2d 948 (2nd Cir. 1984) and Abramo v. Commissioner, 78 T.C. 154 (1982).)

The IRS recognizes that the laws of most states allow for payments that are a combination of maintenance and child support. In Wisconsin these payments are called family support. With the passage of child support percentage standards, over the years practitioners have heard frequent rumblings from the IRS as to whether these percentages would be imputed in the family support payments, making such portion of the payment nondeductible, as that portion is for child support. If the instrument does not specifically provide a mechanism for determining what portion of each payment is actually for child support, the entire payment will be treated as alimony (Neu-Kraemer v. Commissioner, 52 T.C.M. (CCH) 363 (1986)).

No portion of the payment can be identified as "child support." However, even if the instrument does not identify a portion as child support, if the instrument specifies that the payment is to be reduced upon an event related to a child (such as the child attaining a specific age, marrying, dying, leaving school, or similar contingency) or at a time that could clearly be associated with such contingency, the IRS will treat that payment as child support; it will not qualify as alimony and will not be deductible to the payor. This provision frustrates many family support agreements that provide for automatic step downs as each child reaches the age of majority.

Even if the payments would otherwise qualify as alimony and the instrument does not explicitly provide for a reduction in the payment contingent upon an event related to a child, there are two situations in which the reduction of payments will be presumed to be clearly associated with events relating to a child:

1. The payments are reduced not more than six months before or after a child is to attain the age of 18, 21, or the local age of majority.
The payments are reduced on two or more occasions that occur not more than one year before or after a different child of the payor spouse attains a certain age between the ages of 18 and 24 inclusive. (Treas. Reg. 1.71-1T Q/A-18. See example in the temporary reg.)
Note that a payment may be treated as fixed and payable for the support of a child of the payor even if other separate payments are detailed in the instrument for the support of the child (Treas. Reg. 1.71-1T Q/A-16).

Tip 8: Avoid the Recapture Rules of 71
The recapture rules in I.R.C. 71 are meant to discourage front-end loading and thus discourage disguising property divisions as deductible alimony payments. Unless you're consciously doing some tax planning utilizing this vehicle, you should avoid the recapture rules.

Note that over the past dozen or so years, various minimum term and recapture rules have applied. The 1986 act contained a provision allowing spouses to modify pre-1987 instruments to take advantage of the new legislation (T.R.A. 1843(c)(2)(B)(1986)).

The 1986 act that applies to instruments executed after December 31, 1986, provides for a three-year look back; recapture occurs only in the third year; and the reduction cushion is $15,000. In year three, recapture occurs if: (1) alimony paid in year two exceeds payments in year three by more than $15,000; or (2) alimony paid in year one exceeds the average annual alimony paid in years two and three by more than $15,000. In both cases, the excess is recaptured.

There are exceptions to this rule: When the payment ceases upon the death of either spouse or remarriage of the payee spouse, or when the payments fluctuate and are not within the control of the payor spouse (i.e., payor pays a fixed portion of income from a business or property, or employment compensation).

Tip 9: Transfers of Property Between Spouses Tax Free
The Deficit Reduction Act of 1984 enacted I.R.C. 1041 and sought to alleviate many problems and inconsistencies relating to the transfer and taxability of appreciated property under the Davis case (Davis v. U.S., 370 U.S. 65 (1962)).

Property transfers between spouses are governed by I.R.C. 1041. The general rule is that no gain or loss is recognized on a transfer of property from an individual to a spouse or former spouse; but in the case of a former spouse, no gain or loss is recognized only if the transfer is incident to a divorce. A transfer of property is incident to a divorce if the transfer (1) occurs within one year after the date on which the marriage is dissolved, or (2) is related to the cessation of the marriage. The temporary regulations provide that transfers related to the cessation of marriage must be pursuant to the divorce or separation instrument (including modifications) and must occur within six years of the date the marriage ends.

The transfer is treated as a gift and the transferee spouse acquires the transferor spouse's basis. Likewise, the holding period of the transferor will carry over and "tack" and become the holding period of the transferee. I.R.C. 1041 nonrecognition treatment applies to losses as well as gains.

Note that transfers of property prior to marriage are not covered by I.R.C. 1041. Premarriage transfers of property pursuant to the terms of a prenuptial agreement will result in the recognition of gain or loss.

The sale or transfer of the marital home, however, requires special considerations. Timing of the sale can save the parties significant taxes and benefits. You should be familiar with the I.R.C. sections relating to deferment of recognition if the proceeds are reinvested in a new residence within two years and the one-time exclusion of $125,000 of gain under I.R.C. 121. For more information, consult the many excellent articles written on this subject and enlist the advice of a good accountant familiar with tax law in this area.

Tip 10: U.S. Savings Bond Interest Accrued Must Be Recognized on Transfer of Bonds
Generally, transfers of publicly traded securities pursuant to a divorce instrument result in no recognition of tax at the time of transfer. U.S. Savings Bonds are an exception. The transferor must report as income all interest on the bond that has been earned up to the date of transfer that has not been previously reported. The transferee spouse will be taxed on interest earned after the transfer, which can usually be deferred until the bond is cashed in or matures.

Sidebar: For More Information
There are many excellent publications available from the IRS free of charge that contain a wealth of information, including:

Publication 503: Child and Dependent Care Expenses
Publication 504: Divorced or Separated Individuals
Publication 523: Selling Your Home
Publication 554: Tax Information for Older Americans
Publication 555: Federal Tax Information on Community Property

Sidebar: Alimony Recapture Worksheet

Step 1: Calculate Recapture for Year 2
1. Alimony paid in year 2 $______
2. Alimony paid in year 3 $______ plus $15,000 ______
3. Subtract line 2 from line 1 (not less than zero)______

Step 2: Calculate Recapture Base for Year 1
4. Alimony paid in year 2 ______

5. Amount from line 3 above (year 2 recapture) ______
6. Subtract line 5 from line 4 (not less than zero)______
7. Alimony paid in year 3 ______
8. Add lines 6 and 7 ______
9. Divide line 8 by 2 ______
10. Floor for recapture 15,000
11. Add line 9 to line 10 ______

Step 3: Calculate Recapture for Year 1
12. Alimony paid in year 1 ______
13. Amount from line 11 above ______
14. Subtract line 13 from line 12 (not less than zero) ______

Step 4: Calculate Total Recapture
15. Amount from line 3 ______
16. Amount from line 14 ______
17. Add line 15 to line 16 ______

Line 17 is the total recapture amount

This article, was NOT written by Law Offices of Commander & Carlson, but is placed in our web to avoid you having to jump to www.abanet.org/genpractice/compleat/su96herm.html to get it The article is still current even after all these years . It was written BY SHARON DREW AND GREGG HERMAN of Milwaukee. and originally appearred inThe Compleat Lawyer, Summer 1996, Vol. 13, No. 3

Post-Divorce Checklist

2011-11-27T12:30:00.001-05:00

Post-Divorce Checklist

General

Divide all property according to divorce decree.
Re-title ownership of assets, including your home and all motor vehicles, and inform mortgage company, if any, of changes in ownership of real estate.
Change the name of responsible party on utility bills, and notify auto insurer.
Update your mailing address with credit card companies, banks, state motor vehicle department and insurance companies.
If your name was changed as a result of the divorce, get a new social security card, driver’s license, passport and credit cards.

Financial Conditions

Review your budget by monitoring income and expenses.
Update financial plan and review all investments.
Change beneficiary designations on life insurance, 401ks, pensions and IRA accounts.
Close joint safe deposit boxes and post office boxes, and open new ones, if needed.
Obtain a new copy of your credit report to make sure that the accounts you intended to close were actually closed and that your credit agency file has been updated.
If you were married for at least 10 years before divorce, you are entitled to make a claim against your former spouse’s Social Security.

Retirement and Estate Planning

If a pension, 401k or IRA was divided as a result of the divorce, make sure a Qualified Domestic Relations Order was prepared by the attorneys, agreed to by the court, submitted to the fund administrator and implemented.
Prepare new wills and trust documents.
Review your estate plan, and update if necessary.

Insurance

Obtain life insurance naming your former spouse and/or children as beneficiaries to ensure continued support if you should die, if required by the divorce decree.
Make sure you are covered by health insurance, either through COBRA benefits, through your employment or via self-insurance.
Make sure you understand the terms and conditions of all insurance policies.

Taxes

Get social security numbers of your ex-spouse and children, as they may be needed for tax returns.
Ask lawyers and experts involved in the divorce to provide a written document indicating the portion of fees that can be deducted under IRS Code §212.
Retain all taxes returns and supporting papers for at least 3 years.
If you received assets from your former spouse in the divorce, request tax basis records immediately after the divorce is finalized.

Child Support, Alimony and Custody

Keep records of alimony and child support payments made to, or received from, your former spouse.
Since alimony and child support are typically paid as a percentage of the former spouse’s income, spouses should request W-2s, Form 1099, Schedule K-1 and Form 1040 from a former spouse after January 1st to verify income and calculate proper support.
Keep records of your children’s medical costs, including insurance claims, copays and unreimbursed medical expenses. Such costs are typically split in some percentage after the first $250.
Custodial parent should maintain a record of the costs of raising the children and compare the costs with the child support being paid by the non-custodial parent.
Track all costs once children enter college. Contribute to college savings and tuition payments in accordance with divorce agreement or judgment.
If co-parenting is an issue in the divorce, keep records of how the other parent’s visits with children went and identify any specific problems that arose.
Keep your scheduled visitation times with your children.
Pay all support when due.
Update children’s school records about contact information for you and your former spouse.

(This excellent Post-Divorce Checklist was distributed by WithumSmith+Brown, PC, Certified Public Accountants, at the 18th Annual Conference of the New Jersey Association of Professional Mediators (NJAPM).

The Stranger Isn't The Danger

2011-11-25T12:17:00.002-05:00

When I was speaking at a conference last week, one of the women in the audience bemoaned the fact that "Stranger Danger" is no longer the focus of child safety education, training and publicity, as it was previously. I explained to her that the reason for this is that the entire focus on strangers was a mistake! The real danger to children rarely comes in the form of abduction or molestation by a stranger. Statistics regularly show that in 85-90% of the cases the victimizer is an adult who is known to the child. Often it is a trusted member of the family- the uncle, cousin, step-father and even the natural parents. Other times it is the teacher, coach or minister. These are people who have close and repeated access to the child. These are the people who children (and parents) need to watch closely.

It also is true that children who have not been abused rarely report abuse. It is difficult for them to come forward and talk about what happened because it does involve a person with whom they have a relationship. Often they are faced with disbelief and lack of support from their own family! When they do make a report, they need to be evaluated by an expert in the field and given the assistance that they require in dealing with the situation, even if it disrupts the family unit.

If You See Something, Say Something

2011-11-15T09:32:00.003-05:00

The recent events at Penn State involving the child abuse by long-time coach Jerry Sandusky with the apparent knowledge of a number of people on the coaching staff and in the university administration reminded me of my own experience 13 years ago when my daughter had just started kindergarten at a small school. It came to light that the director of the after school program was a pedophile. He was arrested for taking photographs of the boys in the locker room. It subsequently came to light that more was involved. All of the parents received calls that we needed to explain to our children that it would be on the news that night that he was arrested and that he was a pedophile. That would seem to be a pretty tall order for the parent of a kindergartner except that my daughter had already told me that he was a pedophile (not using the term, of course), and I had done nothing about it.

She had told me that Mr. B always had the boys sit on his lap to do their homework. He did not let the girls do that. He was "mean" to them. He would hug the boys and wrestle with them. He would go watch the boys sports practices at 6:00 a.m. every morning even though he wasn't a coach. He would like to be in the locker room. This is classic pedophile behavior.

I did not say anything because quite frankly I had a daughter, so I knew she was not at risk. I also was new to the school and did not want to look like a troublemaker. I was counting on someone else who had been there longer to take care of it. I assumed that if a child in kindergarten could spot the problem that a teacher, parent or administrator could see it too. Apparently not!

When the story broke, it was a media sensation because of the prestige of the school. There was television coverage, and a public meeting was held at which the Commonwealth's Attorney appeared to assure the parents that Mr. B would be locked up forever. School officials and parents spoke one after another about how crafty and sly he was to be able to ingratiate himself into the school community and cover up his pedophile tendencies without anyone knowing. Finally, in frustration, I stood and spoke and told them that that the problem was not how crafty he was but how people who saw something didn't say anything. That would include me. If a kindergarten student saw it. Others surely did too. I should have said something. They should have too! It was silence that allowed him to continue! I have changed a lot in 13 years. Today if I see something, I say something. Everyone should.

Dropping Criminal Charges

2011-11-13T15:38:00.001-05:00

I was hit and filed assault and battery, I was not able to drop charges afterwards. If I don't go to court will I get in trouble?

I was in an argument with my boyfriend's mom. She swung at me. I blocked her but she still hit my arm, I filed charges. I'm leaving state and haven't even been served yet but I 'want to go to court.

If it was important enough to tie up the services of the authorities to file the charge to begin with, it should be important enough to return for trial. If it was not, then you probably should not have started this. Part of the reason that the courts are clogged up is just because of situations like this. Despite this, if you have not been served with a subpoena, you will not be able to be charged with a failure to appear. Your non-appearance will cause at least two court appearances, in all likelihood and will inconvenience all involved.
What people do not understand is that once they invite the law into their lives, they cannot say "never mind" when it no longer interests them to proceed. The bottom line is that you should not invite the law in unless you plan to follow through with what you began.

Legal disclaimer: This response does not create an attorney-client relationship and is intended for general information purposes only.

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Modification of Spousal Support

2011-11-13T15:25:00.001-05:00

What date do spousal support arrears start - from date papers filed or dater party served

Ex filed a motion( papers in court) before I was served with paperwork. Wants to reduce spousal support. IF REDUCED- what date would reduction start from? Date I was officially served? OR date papers filed in court? Virginia

Pursuant to Virginia Code Section 20-109, the court can modify spousal support set by the court.
This statute provides:
A. Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance that may thereafter accrue, whether previously or hereafter awarded, as the circumstances may make proper. Upon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more commencing on or after July 1, 1997, the court shall terminate spousal support and maintenance unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable. The provisions of this subsection shall apply to all orders and decrees for spousal support, regardless of the date of the suit for initial setting of support, the date of entry of any such order or decree, or the date of any petition for modification of support.

B. The court may consider a modification of an award of spousal support for a defined duration upon petition of either party filed within the time covered by the duration of the award. Upon consideration of the factors set forth in subsection E of Sec. 20-107.1, the court may increase, decrease or terminate the amount or duration of the award upon finding that (i) there has been a material change in the circumstances of the parties, not reasonably in the contemplation of the parties when the award was made or (ii) an event which the court anticipated would occur during the duration of the award and which was significant in the making of the award, does not in fact occur through no fault of the party seeking the modification.

With regard to the date of retroactivity, Virginia Code Section 20-74 governs. This statute provides:
"No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for modification in any court, but only from the date that notice of such petition has been given to the responding party."

Legal disclaimer: This response does not create an attorney-client relationship and is intended for general information purposes only.

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I SEE STUPID PEOPLE

2011-11-10T13:41:00.004-05:00

Several years ago my accountant gave me a mug which had the inscription, "I See Stupid People." It was funny. It was not entirely accurate though. Usually, I see people who are smart enough but who are doing some fairly stupid things. It can be the situation that they are in or the emotions that they are feeling that cause this.

I have written before about how parents in custody cases make mistakes by bringing their children into the fray or by using their children as messengers, among other things. I also have suggested that you are ill-advised to invite the law into your home by initiating Child Protective Service Complaints or filing criminal charges, unless there is a compelling reason to do so.

The most unbelieveable actions, however, are in the financial area. People often are more than willing to take themselves down so long as their spouse goes down too. Jobs are quit. Businesses are lost. Houses are foreclosed on. Cars are repossessed. Everyone's credit is trashed!

It is true that nothing is certain but death and taxes. It also is true that the average non-corporate American pays plenty in taxes. Under normal circumstances, would anyone volunteer to pay extra? Probably not. In divorce cases, a still married, but separated, spouse will file an income tax return using the married filing separately status...just because he or she can. Even though it is the highest tax rate. Even though it costs them money! It is as if paying extra taxes themselves is worth it so that their spouse will have to pay too. Note that there are occasions when there are valid reasons (financial or legal) for using this filing status instead of filing a joint return. This should be a business decision, not an emotional one. Talk to your lawyer and your accountant about the best filing status. The goal should be to pay your fair share, but nothing extra, in taxes.

Federal Adoption Tax Credit

2011-11-06T16:10:00.000-05:00

Federal Adoption Tax Credit

Since 2003, families who adopted a child with special needs from foster care could claim a federal adoption tax credit even if they had no adoption expenses. Children who receive adoption assistance/subsidy are considered children with special needs. Other adoptive families are also eligible for the credit, but must have (and be able to document, if requested by the IRS) qualified adoption expenses.

The tax credit became refundable for 2010 and 2011. A refundable tax credit is one you get back regardless of what you owe or paid in taxes for the year.
Families who adopted from 2005 to 2009 may be able to benefit from the refundable credit because credits from those years can be carried forward until 2010. (Families who adopted in 2003 and 2004 may be able to take some limited advantage of the credit but will not benefit from refundability. Families who adopted earlier will not benefit from the credit if they did not take it already.)

The amount of the credit is based on the year the adoption finalized:

2012	$12,650
2011	$13,360
2010	$13,170
2009	$12,150
2008	$11,650
2007	$11,390
2006	$10,960
2005	$10,630
2004	$10,390
2003	$10,160

The credit is claimed one time for each adopted child with special needs.
Below, we explain the basics of the adoption tax credit.

To be eligible for the credit, you must:

Have adopted a child other than a stepchild — Children who receive a monthly adoption subsidy payment have been determined by the state to have special needs, so these children are eligible for the full tax credit without documenting expenses. Families who adopted children without special needs are also eligible, but need to have (and be able to document, if asked) qualified adoption expenses.
And be within the income limits — How much of the credit you can claim is based on income. In 2010, families with a federal modified adjusted gross income above $222,520 cannot claim the credit; families with incomes above $182,520 can claim part credit. Adoptions from previous years had different income limits.

You will need to prove the adoption by providing the IRS with a copy of the adoption decree. Families who adopted a child with special needs must also provide a copy of the adoption assistance agreement or a letter from the state determining that the child has special needs.

If You Adopted in 2011

You will claim the credit when you file your 2011 taxes, typically in early 2012. The forms for the 2011 adoption tax credit have not been released yet. Read our fact sheet for more information.

If You Adopted in 2010

To claim the credit, you complete IRS Form 8839 with your IRS Form 1040. On line 5 of 8839, which asks for qualified adoption expenses, enter $13,170 as long as your child receives adoption assistance. Others should enter their qualified adoption expenses. Read our fact sheet for more information.

If You Adopted before 2010
Read our fact sheet for more information.

If you Adopted between 2005 and 2009 and Claimed the Credit the Year You Finalized

If you finalized in 2005 or later, claimed the credit that year, and carried forward the adoption tax credit on each year’s returns, just carry forward the remaining amount of the credit from your 2009 return to 2010. You can claim the full amount remaining as a credit on your 2010 return.

If you claimed the credit the year you finalized, but didn’t carry it forward to subsequent years’ tax forms, you’ll need to amend returns for those years.

If You Adopted in 2008 or 2009 and Didn’t Claim the Credit

You must file for the adoption tax credit in the year you finalized the adoption, so you need to amend your tax return for the year the adoption was finalized and any subsequent years, carrying forward the amount of the adoption tax credit that you are not able to use each year. Any part of the credit not paid before 2010 can be used fully with the 2010 return.

If You Adopted from 2005 to 2007 and Didn’t Claim the Credit

Adoptions finalized from 2005 to 2007 are more complicated because the IRS allows people to amend returns to claim a credit only for the past three tax years. These are now considered closed tax years. The IRS has written, though, that these older credits can be accessed.

If you adopted in 2005, 2006, or 2007, you should amend your returns starting the year you finalized. Because it’s longer than three years ago, you cannot be paid a refund for any of the credit that you would have been due in 2005, 2006, or 2007. You must still complete the 2005, 2006, and/or 2007 return as if you are getting a refund for the credit used, but any credit that could have been refunded in these years will be lost. When you amend your 2008 taxes and forward, you can use any credit due that year. Whatever amount remains after you do your 2009 taxes can be carried over and refunded in 2010. Please note that the IRS may reject your amendment but we encourage you to appeal. A taxpayer advocate may be helpful in the appeal.

If you didn’t file in 2005, 2006, or 2007 and had sufficient tax liability in those years to use up the whole credit, you will not benefit. You need to have some credit carried forward to 2008 to get a payment.

If You Adopted in 2003 and 2004 and Didn’t Claim the Credit

If you finalized an adoption in 2003 or 2004, the issue about amending returns more than three years old applies so you are less likely to benefit. You cannot carry the credit forward to 2010 when the credit becomes refundable.

A family with significant tax liability may use up all of the adoption tax credit in the years before 2008, but they cannot get a refund for these years. Those families who have a moderate tax liability might be able to carry forward some of the credit to 2008 or 2009, when they could get a refund for whatever tax liability they had that year.

Below are links to a number of resources for adoptive families.

NACAC's fact sheet on adoptions finalized in 2011
NACAC's fact sheet on adoptions finalized in 2010
NACAC's fact sheet on adoptions finalized from 2003 to 2009
IRS Form 8839 for the adoption tax credit and the form to amend previous years' tax returns
The IRS's frequently asked questions on the adoption tax credit (see question 13 for documentation of special needs)

NACAC's resources focus on adoptions of children with special needs from foster care, but may also be of use to other adoptive families.

North American Council on Adoptable Children (NACAC)
970 Raymond Avenue, Suite 106
St. Paul, MN 55114
phone: 651-644-3036
fax: 651-644-9848
e-mail: info@nacac.org
Feedback

Ten Things Every Adopting Foster Parent Should Know

2011-11-06T16:03:00.002-05:00

10 Things Every Foster-to-Adopt Parent in Virginia Should Know

The Home Study
Every family adopting from foster care must be evaluated for fitness in caring for the particular child they wish to adopt. The home study should also be considered your tool for getting answers to many questions about adoption. The home study will include a background and reference check for every adult family member living in the home.
The Adoption Placement Agreement
When a foster child is placed in your home with the intention of adoption an Adoption Placement Agreement should be considered. Under a normal foster care agreement a child can be removed from a home at any time without reason. The Adoption Placement Agreement states that the child can only be removed for specific reasons. Find a sample agreement at: http://www.dss.virginia.gov/files/division/dfs/ap/forms/032-02-0023-03-eng.pdf. Please be aware that if you do sign an adoption placement agreement, you can not later decided to petition the court for adoption without the approval of the department of social services.
The Adoption Assistance Agreement
This document will be negotiated before finalization of the adoption. You may also include services needed such as daycare costs and in-home counseling. Find a sample document at: http://www.dss.virginia.gov/files/division/dfs/ap/forms/032-02-0062-03-eng.pdf. Items 4, 5, 6, and 7 of this document are standard items for consideration in the Adoption Assistance Agreement.
Adoption Subsidy
Federal and state resources are available to help support the needs of children you adopt from the foster care system. Every child adopted from foster care is eligible for an adoption subsidy equal to the basic foster care maintenance rate, if they have special needs. In Virginia, special needs are defined as 6-18 years of age with special circumstances or with a significant tie to the foster parents who cannot afford adoption without a subsidy. Learn more at the FACES website: www.facesofvirginia.org and click on adoption. Please be sure to note that local departments do not pay the costs associated with subsidy. The costs are paid by a combination of federal and state dollars, or if the child is not eligible for federal funding, then it is paid entirely by the state.
Special Payments for Children with Intensive Supervision Needs
As of October 1, 2009, any child adopted with special needs is eligible for an assessment using the Virginia Enhanced Maintenance Assessment Tool (VEMAT). This tool determines additional supervision needed by the child relative to behavior, emotional, or medical needs. To learn more about the VEMAT visit: www.facesofvirginia.org and click on adoption. The payments from the VEMAT can range from $1900-$3200 based on the significance of child needs for supervision. This is a combination of federal and/or state funding for the children and no local dollars.
Adoption Non-recurring Costs Assistance
When a family adopts from foster care certain non-recurring costs up to $2000 can be reimbursed to the family. Non-recurring costs may include attorney fees to finalize the adoption, transportation costs, special examinations, or other related costs. There are no local funds used for this expense.
Medicaid Coverage
Children adopted from foster care with special needs are eligible for Medicaid coverage. Be sure to ask for this assistance when negotiating the child's adoption subsidy. In addition, you may request reimbursement for mileage to all Medicaid eligible appointments through Logisticare (http://www.dmas.virginia.gov/downloads/pdfs/tr-UserGuide_MedTransp.pdf).
Post-Adoption Services
Virginia contracts with UMFS to manage the Adoptive Family Preservation Program. This program provides essential services to families who find they are struggling to preserve the adoption. The program can also provided needed respite for families, as well. There are times when children will become more challenging after the adoption has been finalized, be sure to ask for help when and if this happens to your family. Learn more about Adoptive Family Preservation services in Virginia by visiting www.facesofvirginia.org and clicking on the adoption tab.
Open Communications Contract
Virginia now has an option of Open Adoption. If a birth parent wants to be able to stay in communication with their child, and you are agreeable to this, then the court can approve an Open Communications Contract. Please know that if after the signing of the contract, you no longer believe this contact is beneficial to the child you can stop participating and it will not impact the status of the adoption. The adoption cannot be severed just because you are not abiding by the Open Communications Contract. The option is available in Virginia in order to help birth parents become more comfortable with termination of their parental rights and to help older children, especially, be more comfortable with adoption.
Legal Custody versus Adoption
There may be a time when your child-placing agency worker asks you about or informs you of the option for taking legal custody of the child in your foster home. This is sometimes done to be sure that you can retain the child in your home, since foster parents have no rights to specific placements. Be informed!

If a child in your foster home is not eligible at the time of adoption for federal Supplemental Security Income (SSI), then they may not be able to receive any adoption assistance payments or services once you take legal custody. While the child may not have any special needs at the time you are considering legal custody, please be aware that many times these special needs may not become evident for years. In addition, for a child to become SSI eligible after adoption is much more difficult for families. We know that adopting a child is NOT about the money, but the child may need some very special assistance that you cannot afford, so please weigh this option very carefully.

Another caution about legal custody if the parental rights have NOT been terminated, then you are the only person who will be working with the courts and the birth family. You will not have a local social services staff person able to intervene on your behalf, any more.

National Adoption Day Celebration

2011-11-05T12:06:00.003-04:00

On Monday, November 7, the office will set up refreshments for the annual Department of Human Services Adoption Day celebration to be held at the Norfolk Juvenile & Domestic Relations District Court. This honors all children who were adopted from foster care in 2011.
Judge Williams will preside over the ceremony in the main courtroom, followed by the refreshments we will provide (including cupcakes with frosting hearts) and gifts for the children provided by the Norfolk Sheriff's Department.
Our office has been involved in many of these adoptions and takes great pleasure each year in coming to the celebration.
Foster care is a great place for those who are looking to adopt a child!

NOVEMBER IS MEDIATION MONTH

2011-11-03T15:47:00.003-04:00

November is Mediation Month. It is the perfect time to schedule a mediation session with our office. You can use this opportunity to work out holiday visitation schedules or to tie up loose ends in 2011.
Check out our Mediation Website at www.mediate-atcandc.com or call 757.533.5400 to schedule a convenient time to come in.

I Want To Contest A Divorce

2011-11-03T06:55:00.001-04:00

I want to contest a divorce

I want to contest the divorce because I don't want a divorce.

Mary G. Commander

Only one party has to intend to separate. Once the separation period ( 12 months or 6 months with a written Agreement and no children under 18) has expired, a divorce will be granted.

Legal disclaimer: This response does not create an attorney-client relationship and is intended for general information purposes only.

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Name Change and Adoption Notice

2011-10-29T12:06:00.001-04:00

Involuntary termination of parental rights and name change

My ex has had nothing to do with my now 13 year old child. He is on the birth certificate, and was sent to jail for domestic abuse, and a "peace bond" was ordered for a year. I know he had been released from jail, and I have been granted a divorce, with no child support ordered because I have no idea where he is. He has never made contact, or attempted to make contact with me. My child wishes tot take my last name, and I would like my fiance to be able to adopt and not have to seek "permission" from a non-existent party. I live in Virginia, and would like to find out if the time that has passed is considered abandonment.

Mary G. Commander

You do not need permission, but you do need to give notice to the father. If you cannot locate an address for him, he can be given notice through an Order of Publication entered by the court and run in the newspaper. This is true for both a name change and a step-parent adoption (once you and your fiance marry).

Legal disclaimer: This response does not create an attorney-client relationship and is intended for general information purposes only.

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Straight Talk From Your Lawyer

2011-10-25T08:07:00.003-04:00

I have "lost" many a client at the initial consultation (and beyond) for being bluntly honest in evaluating a case. I have been accused of being on the other party's side, of not being willing to "fight for" the client, among others. In fact, I am doing what I would want my lawyer, my doctor or any professional to do- give it to me straight. Especially in a divorce/custody case, the truth is often the last thing that a client wants to hear. It is better to hear it in the privacy of the office rather than going to court and having a judge deliver the news.

Read the following Huffington Post blog for insight from another lawyer about the issue.

9 Questions To Keep Your Divorce Lawyer Honest

There is a lot of incentive for litigation attorneys to blow sunshine up your skirt and tell you what you want to hear. In that first consultation at the beginning of your case, we lawyers are, after all, salespeople. We start with an optimistic overview of your case, and it will be awhile before we start to talk to you about any potential downside.

Plus, it's human nature to decide what you want to do, and then amass evidence supporting your position and discount evidence to the contrary. So we're going to help you do that, particularly at the beginning of your case.

Let's face it, nobody wants to hear bad news. But as an informed client, you need to be prepared for whatever might happen so that you can decide how to best handle your case.

If your lawyer is being honest, he or she will answer the following 9 questions:

What is my best case scenario in this case? If the Judge agreed with everything I say, and nothing that my spouse says, what do you predict the outcome to be?
What's my worst case scenario in this case? If the Judge doesn't agree with anything I say, but agrees with everything my spouse says, what do you predict the outcome to be?
What's an optimistic, but realistic outcome?: Let's say the Judge agrees with a good part of what I have to say, and some of what my spouse has to say, what do you predict the outcome to be?
What's a pessimistic, but realistic outcome?: If the Judge agrees with a good part of what my spouse has to say, and only some of what I have to say, what do you predict the outcome to be?
Will you play devil's advocate?: Pretend for a minute that you are my spouse's attorney. What would you tell my spouse based on what you've heard today? Please do not sugar coat your "advice" to my spouse.
What's the local reality?: I know you can show me copies of the law and legal cases. But based on what you're seeing down at the local courthouse, in the family court mediation and custody evaluation office, with the judges, and typical lawyer to lawyer negotiations, what are the realities of settling cases and trial outcomes? As a practical matter, what really goes on?
Is it worth it to enforce my rights?: Can you quantify the amount of money which is in question? If I enforce all of my rights in this case, as opposed to settling for something less, how will that compare with the legal fees and experts' fees it will cost to get everything I'm entitled to?
What's the range of cost?: If we went to court, what is the range of cost you'd see, given your experience with prior cases similar to mine, both high and low? Are you willing to put that estimate in writing?
Will you put my money where your mouth is?: It sounds to me like you're pretty certain of the result you can get for me in my divorce case. Would you please put that in writing? And if you're not willing to do that, why not?

If this feels confrontational, you can feel free to print this out and hand it to your lawyer. Tell him or her that while you think it's crazy and overkill, your Huffington Post friend said to talk to them about this because it's really important.

Like I said above, there is overwhelming incentive for litigation attorneys to tell you what you want to hear. Read this "Open Letter from Your Divorce Attorney" for a real eye-opener, and the truth about why this happens all too often.

Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Perigee 2010). Join the conversation and community on our video blog and check out Diana's divorce blog on the Huffington Post

This Blogger's Books from

Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life
by Diana Mercer, Katie Jane Wennechuk

Your Divorce Advisor : A Lawyer and a Psychologist GuideYou Through the Legal and Emotional Landscape of Divorce
by Diana Mercer, Marsha Kline Pruett

Follow Diana Mercer on Twitter: www.twitter.com/dianamercer

Child Custody Case-Will I Win or Lose?

2011-10-24T07:44:00.001-04:00

Will my daughter lose her son?

Asked about 6 hours ago - Wise, VA

Child Custody

Practice area: Child Custody - Edit

My 17 yr old daughter has an 11 month old son with a 16 yr old boy. My daughter and her son live in my home and my grandson has lived here since he was born. The father is now taking my daughter to court for legal and physical custody. My daughter works 30 hours a week and is a senior in high school with a 4.0 gpa and is in the honor society. My husband and I take care of our grandson 3-4 nights a week so our daughter can work. The father of my grandson works as well and he gets our grandson Friday evenings through Monday mornings (when he has to take the baby back to daycare.) Neither my daughter or the baby's father does drugs or are bad kids. Do I have anything to be worried about? We go to church and are good people and live life right. Help?

Attorney answers (1)

Mary G. Commander

First, I doubt that a 16 year old boy wants custody. It is his parents who want custody. I suggest that you try to meet with the family and discuss this. If there is some communication issue between the families, you need to work to overcome this. Mediation often is useful.
There is no way to predict the outcome of a custody case-even if you have actually met the parties. People say things in court that often are exaggerated or just plain untrue. It is difficult to anticipate everything that might be said.
Also, the judge must determine what is in the best interests of the child. While there are statutory factors that the judge is to consider, in the absence of any of these pointing strongly in favor or against one party, much depends on the impression that the parties make on the judge in court. The judge also could appoint a Guardian Ad Litem, an attorney for the child, who can make a recommendation to the judge about custody. Since this person has yet to be appointed, we do not have any idea what he or she may say.
For these reasons, settlement is always the best option.

Legal disclaimer: This response does not create an attorney-client relationship and is intended for general information purposes only.

Family Law Website

Family Law Blog

Mediation Website

Effect of Separate Bank Accounts

2011-10-22T22:39:00.001-04:00

http://www.avvo.com/legal-answers/what-is-the-effect-of-separate-bank-accounts-in-vi-557711.html?answered=true

Am I A Parent Alienator?

2011-10-22T18:51:00.002-04:00

Am I a Parent Alienator?
by Jayne A. Major, Ph. D.

Please answer unconditionally.
This is strictly for your own benefit.

	YES	NO
1. Have I ever criticized or spoken negatively about the other parent or his/her family or friends in front of my child or where the child can hear me?
2. Have I ever forced my child to assure me that he/she loves me more than the other parent?
3. Do I talk about child support, money, or legal issues in front of my child?
4. Do I ever limit time with the other parent because I feel I am the only one that knows what is best for my child?
5. Do I ask my child to keep secrets, lie or hide things from the other parent?
6. Do I pump my child to get detailed information of where they go and what they do when they are with the other parent?
7. Do I prevent my child from speaking with the other parent by blocking phone messages, not returning phone calls, erasing email messages, not giving them mail or gifts?
8. Do I interrupt my child's time with the other parent by calling too much or planning activities during their time together?
9. Have I ever sabotaged any activity that my child is doing with the other parent?
10. Do I encourage my child to blame the other parent or to choose sides?
11. Do I use my child as a therapist or my special friend to share my deep and upsetting emotions?
12. Do I let my child know that I feel badly when he/she has a good time with the other parent?
13. Do I ask my child to spy for me while with the other parent?
14. Do I ever instill guilt for liking the other parent or insist that my child reject the other parent?
15. Do I make a contest of how much love, care, and attention my child gives to the other parent and his/her family and friends versus how much attention I receive?
16. Do I stop my child from expressing his/her feelings (e.g., love, happiness, excitement, anger, fear, sadness) when I don't like what is being said?
17. Have you ever made false accusations, such as implying drug abuse or inappropriate sexual behavior, to the police or Department of Child and Family Services?

If you answered "YES" to any of these questions, you need to evaluate to what extent you are engaging in parental alienation.

Children need to be free to love both parents. If you don't like the other parent or feel that they are inappropriate for your child, you need to solve the problem without resorting to destroying that child's relationship with this parent. Your child can make up his or her own mind about how much they love or even like the other parent without being unduly influenced by you.

Obsessed parent alienators will stop at nothing to damage or even sever a child's relationship with a parent. This is a serious form of child abuse where a child is not allowed to have loving feelings for the targeted parent, or his or her extended family and friends. These people represent half of the child's heritage. Most parents "slip up" once in a while, however, parents who really care about their child's best interest will do all they can to keep their children out of the middle and allow them to love both parents.

The best parent is both parents.

Jayne A. Major, Ph.D. is the founder of Breakthrough Parenting Services, Inc. and the author of Breakthrough Parenting: Moving Your Family from Struggle to Cooperation. She is nationally recognized as an award-winning expert in family education and parental alienation. She can be reached at (310) 823-7846. Visit her websites at www.breakthroughparentingonline.com and www.stopparentalalienation.org.

For more articles on Parental Alienation Syndrome , visit http://divorcemag.com/articles/Parental-Alienation-Syndrome/.

Child Protective Service Investigationshttp://www.avvo.com/legal-answers/i-ve-recently-been-told-i-am-under-investigation-f-549850.html?answered=true

2011-10-11T07:52:00.000-04:00

Spousal Support - Avvo.com

2011-09-27T21:08:00.000-04:00

Spousal Support - Avvo.com

VALUE v. COST

2011-09-26T16:36:00.001-04:00

VALUE VERSUS COST

It is a reality of life that people consider cost when purchasing products and services. The age old problem has been determining whether you are getting value for the price that you pay. This is especially true when you are purchasing legal services because it is difficult to compare such services. One certainty is that comparisons cannot be made on the basis of price alone for several reasons. First, most lawyers bill based on an hourly rate. It would seem that the lower the hourly rate the less the overall cost would be, but that often is not the case. A more experienced lawyer may be able to perform a task in less time or may know that a task is not even necessary. Additionally, some bargain lawyers charge extra amounts for services that actually are included in what appeared to be the higher priced lawyer’s fees, thus increasing the rates to points that may even exceed the “higher” rates.

There can be no debate about the value of receiving correct and competent legal advice and representation. Unfortunately, true competence rarely is found in someone without experience. There is no shortage of choices of lawyers, and for simple matters, you may be content to have a relatively inexperienced practitioner handle your case, but if your future is on the line, you should think twice.

To get the value for your money, look to see whether the lawyer has experience and expertise in handling this type of case (you do not want a “general practitioner”); whether your case will be handled by the lawyer you hired or whether it will be doled out to someone else; whether your lawyer is respected by the local judges and lawyers in the area and whether you can relate to and communicate with that lawyer.

I have been told by a judge in a circuit court divorce case that I can't file a motion to quash only Atty can file this motion - Avvo.com

2011-09-26T14:29:00.000-04:00

I have been told by a judge in a circuit court divorce case that I can't file a motion to quash only Atty can file this motion - Avvo.com

If I have a chilid and my name is NOT on the birth certificate, can I be obligated to pay chilid support? - Avvo.com

2011-09-26T14:21:00.000-04:00

If I have a chilid and my name is NOT on the birth certificate, can I be obligated to pay chilid support? - Avvo.com

Don't Be Your Own Worst Enemy

2011-09-26T07:24:00.002-04:00

I answer questions on the Avvo.com website as a public service to people who have legal issues. Often these are people who are getting second opinions about the manner in which their lawyer is handling their case or venting about how their lawyer is mishandling their case. More and more frequently it seems, however, the questions are coming from people who have fired their lawyers for not doing what they wanted and who have then ventured out to handle their cases on their own with bad results following. Most recently, the questioner was a woman who had been through three lawyers, then represented herself and managed to antagonize the judge and the Guardian Ad Litem to the point that she lost custody of her children and had to pay her husband's attorney's fees. She complained that no one would listen to her.

While it is quite possible to hire one lawyer who does not listen well, it is unlikely that you will have the misfortune to find three in a row. That should be a sign that there is a problem with what you are saying. And when the stakes are as high as custody of your children, you should be listening to the advice of the experts that you are paying. Unfortunately, clients often come to lawyers with preconceived ideas about how the lawyers should be doing their jobs. When the lawyers do not perform on cue, dissatisfaction occurs. This is damaging to the success of the client's case. Often, the client then embarks on self-defeating conduct like lawyer switching or representing themselves. The result is predictable, like the case of the Avvo.com questioner. Still the blame is placed on the three lawyers, the judge, the Guardian Ad Litem. The reality is that the blame is much closer to home. It is always easier to blame someone else for failure, but in the long run it is better to have a good result. That requires working with, instead of against, your lawyer. Don't be your own worst enemy!

What is the likely results from the show cause i filed? - Avvo.com

2011-09-25T16:09:00.000-04:00

What is the likely results from the show cause i filed? - Avvo.com

How do I have mothers parental rights taken away - Avvo.com

2011-09-24T20:24:00.000-04:00

How do I have mothers parental rights taken away - Avvo.com

My boyfriend was arrested for violation of a protective order, 3rd offense in VA. Why does he not have a bail bond? - Avvo.com

2011-09-24T20:13:00.000-04:00

My boyfriend was arrested for violation of a protective order, 3rd offense in VA. Why does he not have a bail bond? - Avvo.com

Children And Divorce

2011-09-20T21:23:00.001-04:00

Children And Divorce
American Academy of Child and Adolescent Psychiatry

One out of every two marriages today ends in divorce and many divorcing families include children. Parents who are getting a divorce are frequently worried about the effect the divorce will have on their children. During this difficult period, parents may be preoccupied with their own problems, but continue to be the most important people in their children's lives.

While parents may be devastated or relieved by the divorce, children are invariably frightened and confused by the threat to their security. Some parents feel so hurt or overwhelmed by the divorce that they may turn to the child for comfort or direction. Divorce can be misinterpreted by children unless parents tell them what is happening, how they are involved and not involved, and what will happen to them.

Children often believe they have caused the conflict between their parents. Many children assume the responsibility for bringing their parents back together, sometimes by sacrificing themselves. Vulnerability to both physical and mental illnesses can originate in the traumatic loss of one or both parents through divorce. With care and attention, however, a family's strengths can be mobilized during a divorce, and children can be helped to deal constructively with the resolution of parental conflict.

Talking to children about a divorce is difficult. The following tips can help both the child and parents with the challenge and stress of these conversations:

Do not keep it a secret or wait until the last minute.
Tell your child together with your spouse.
Keep things simple and straight-forward.
Tell them the divorce is not their fault.
Admit that this will be sad and upsetting for everyone.
Reassure your child that you both still love them and will always be their parents.
Do not discuss each other’s faults or problems with the child.

Parents should be alert to signs of distress in their child or children. Young children may react to divorce by becoming more aggressive and uncooperative or by withdrawing. Older children may feel deep sadness and loss. Their schoolwork may suffer and behavior problems are common. As teenagers and adults, children of divorce can have trouble with their own relationships and experience problems with self-esteem.

Children will do best if they know that their mother and father will still be their parents and remain involved with them even though the marriage is ending and the parents won't live together. Long custody disputes or pressure on a child to "choose" sides can be particularly harmful for the youngster and can add to the damage of the divorce. Research shows that children do best when parents can cooperate on behalf of the child.

Parents' ongoing commitment to the child's well-being is vital. If a child shows signs of distress, the family doctor or pediatrician can refer the parents to a child and adolescent psychiatrist for evaluation and treatment. In addition, the child and adolescent psychiatrist can meet with the parents to help them learn how to make the strain of the divorce easier on the entire family. Psychotherapy for the children of a divorce, and the divorcing parents, can be helpful.

For additional information see Facts for Families:
#8 Children and Grief
#34 Children’s Sleep Problems
#4 The Depressed Child
#27 Stepfamily Problems
#52 Comprehensive Psychiatric Evaluation
#00 Definition of a Child and Adolescent Psychiatrist

See also: Your Child (1998 Harper Collins) / Your Adolescent (1999 Harper Collins)

If you find Facts for Families© helpful and would like to make good mental health a reality for all children, please consider donating to the Campaign for America's Kids. Your support will help us continue to produce and distribute Facts for Families, as well as other vital mental health information, free of charge.

You may also mail in your contribution. Please make checks payable to the AACAP and send to Campaign for America's Kids, P.O. Box 96106, Washington, DC 20090.

The American Academy of Child and Adolescent Psychiatry (AACAP) represents over 7,500 child and adolescent psychiatrists who are physicians with at least five years of additional training beyond medical school in general (adult) and child and adolescent psychiatry.

Facts for Families© information sheets are developed, owned and distributed by the American Academy of Child and Adolescent Psychiatry (AACAP) and are supported by a grant from the Klingenstein Third Generation Foundation. Hard copies of Facts sheets may be reproduced for personal or educational use without written permission, but cannot be included in material presented for sale or profit. All Facts can be viewed and printed from the AACAP website (www.aacap.org). Facts sheets many not be reproduced, duplicated or posted on any other Internet website without written consent from AACAP. Organizations are permitted to create links to AACAP's website and specific Facts sheets. To purchase complete sets of Facts for Families, please contact the AACAP's Development and Communications Assistant at 800.333.7636, ext. 140.

The information on this website is provided for general reference purposes. It does not constitute medical or other professional advice and should not be used as a substitute for the medical care and advice of your child and adolescent psychiatrist or other physician. Only a qualified, licensed physician can determine the individual treatment that is appropriate for your particular circumstances. All decisions about clinical care should be made in consultation with a physician.

If you need immediate assistance, please dial 911.

How does my sister go about giving me full custody of her daughter? - Avvo.com

2011-09-20T21:16:00.000-04:00

How does my sister go about giving me full custody of her daughter? - Avvo.com

The Power of Forgiveness in Divorce

2011-09-18T21:25:00.000-04:00

The Power of Forgiveness in Divorce

When is it Over? Divorce Process - Avvo.com

2011-09-18T18:21:00.000-04:00

When is it Over? Divorce Process - Avvo.com

When i was 16 i had a baby girl. now her biological father is back in our lives our daughter is 30 now and he wants to be on her - Avvo.com

2011-09-18T18:15:00.000-04:00

When i was 16 i had a baby girl. now her biological father is back in our lives our daughter is 30 now and he wants to be on her - Avvo.com

What can I do if my wife had a custody hearing without telling me. - Avvo.com

2011-09-10T21:14:00.000-04:00

What can I do if my wife had a custody hearing without telling me. - Avvo.com

Should I be penalized for having a successful career and making significant amounts of money above and beyond my ex-spouse? - Avvo.com

2011-09-10T21:13:00.000-04:00

Should I be penalized for having a successful career and making significant amounts of money above and beyond my ex-spouse? - Avvo.com

Try To Communicate Better

2011-08-26T20:56:00.001-04:00

From the California Courts' Website:
Ways to Communicate
How you talk to each other and to your children can make a big difference. Try to think about the other parent as a business partner. Acting "businesslike" might help get your mind off the pain and stress so you can focus better on your children.

Here are some tips:

Be polite, just like you would be at work.
Stay on the subject. Focus on doing what is best for your child.
Control your emotions, just like you would do at work.
Be clear and specific when you talk to the other parent. Write things down and keep businesslike records of important agreements.
Keep your promises. Your children need to be able to trust and rely on you. This is very important right now.
Watch the words you use when you talk about divorce.

INSTEAD OF SAYING: TRY SAYING:
wife, husband, ex-wife, ex-husband, my "ex" children's mother, children's father
has visitation with stays with, comes over
custody and visitation agreement parenting plan

National Family Law Symposium

2011-08-23T20:17:00.000-04:00

National Family Law Symposium: State of the Family 2011

The Impact of Twenty-First Century Science and Technology on the Family
The National Center for Family Law and Virginia CLE® present an all-star faculty of family law attorneys, judges, professors, and mental health professionals from across the nation, bringing you the opportunity to learn, discuss, and debate the law, the research, and social policies impacting children, marriages, and families — and the opportunity to enjoy a beautiful September getaway in historic Richmond.

For family law practitioners, judges, professors, mental health professionals, and others interested in the law and social policies impacting families and children.

This symposium will provide:

A unique opportunity to learn, discuss, and debate the law, the research, the technology, and social policies impacting children, marriages, and families
All-star faculty of attorneys, judges, professors, and mental health professionals from across the country
Opportunity to network with other family law professionals from across the country
Great location and great price (dinner, two lunches, and two continental breakfasts included with Symposium fee)

When: Sept. 12-13

Where: Jepson Alumni Center, University of Richmond

MCLE credits: 12.0

Cost: Tuition for the Symposium is $475 ($239 for law professors). This fee includes continental breakfasts on Monday and Tuesday, lunches on Monday and Tuesday, and a cocktail party/buffet dinner on Monday night. Space is limited.

For complete details, and to register, visit Virginia Continuing Legal Education.

When a father violates a supervised court order. what do i do from there? - Avvo.com

2011-08-21T19:58:00.000-04:00

When a father violates a supervised court order. what do i do from there? - Avvo.com

If The Buddha Divorced

2011-08-20T21:41:00.000-04:00

If The Buddha Divorced- A First Aid Kit
By Norm Gibson

You may be saying:

“This is not happening to me!”
“I can’t believe she wants a divorce.”
“I finally had to leave. It was awful!”

Newly separated, moved to my friend’s basement, I needed concrete help, not platitudes. I found I was dealing with death, relationship death, the ending of a life. I discovered that concrete help– for the long haul but also First Aid, for here and now. Let’s begin with the First Aid Kit Instructions:

Respire. Use mindful breathing to relax and calm your mind. Start by sitting comfortably on a chair or cushion with your spine straight (off the chair back). Take a nice, big breath and slowly exhale. Now all that’s left to do is to notice your simple in-breath and out-breath, just as it is. When thoughts begin to crop up, that’s natural. Just silently label them “thinking”, and bring your attention back to your breath. Continue this process for 5 or 10 minutes, taking a break and then repeating again. This basic meditation powered the Buddha’s teaching for 2,400 years.

Replenish. Relationship stress can take the mind out of the body. Get serious about drinking 64 ounces of water daily– it’s the quickest way to combat anxiety and depression. Stop reading this now, fill a glass with cold water and drink all of it before setting the glass down. Eat 5 nutritious meals per day. Take a good multi-vitamin. Walk or run mindfully 30 minutes per day. By “mindfully” we mean knowingly, in the present, and with awareness.

Round-up the support of friends. Isolation is the major risk behavior after a break-up. Remember, were the roles reversed, you would be there for a friend. Make a list of friends, family and helping professionals, dividing them up into the categories, 1) To Listen to Me, 2) To Spend Time With, and To Avoid– friends that drain you. If you’re helping others too much, it’s just another form of isolating.

Realize that the strong emotions you may be feeling—anger, grief and fear– are temporary, and are based in the past or future. Your work is to get more and more free from them by living more and more in the present. The tools in this kit will help you do that. You can also consciously begin a positive future by marking your calendar with some enjoyable plans for this month and next month.

Relieve your stress and confusion by journaling. Pick up a good quality journal and a fast-writing pen. Your Inner Critic is not invited. Let the words flow. Try timing yourself for 10 minutes, writing without stopping for spelling or cross -outs. This can be a great release, and great learning when you come back to read it later on.

Rinse and Repeat. Make a pact with yourself to repeat one or more of the above daily for 2 weeks.
Good luck and good healing!

-Norm Gibson, LCSW.

How Lawyers Charge In Divorces

2011-08-20T20:13:00.002-04:00

Financial Matters: Dealing with Legal Fees

by Joseph Warren Kniskern

Regardless of which attorney you select, you must understand fee arrangements and be aware of how to keep your legal costs reasonable.

Negotiating Fee Arrangements

How fees are set.
Attorneys' fees are often negotiable, although most experienced lawyers do not want to lower their fees. Most lawyers set their rates based upon these factors: time, labor, novelty, the difficulty of the legal issues involved, and the legal skills necessary to work the case properly; the likelihood that acceptance of the case will prevent other employment, either because of time or conflicts of interest; the customary fees usually charged in the area for similar legal services; the amount involved and results obtained; the time limitations imposed by the client or circumstances; the nature and length of the professional relationship with the client; the experience, reputation, and ability of the lawyer performing the services; and overhead (library costs, secretarial help, office rent, and costs of equipment, etc.). The lawyer will be very familiar with what can and cannot be done in setting a reasonable fee for your case. Even so, negotiate for lower fees. Above all, make sure fees are in line with what other local lawyers charge for doing the same type of work.

Most attorneys realize that the practice of law is no longer just a service profession but is also a business. No one can ignore business considerations and practice for very long. Therefore, many attorneys are diligent in advising their clients up-front what they charge. You should expect regular bills during the case, as well as a collection system for late payments.

Types of fee arrangements.
There are three traditional methods for setting fees: fixed fees; hourly rates for work of uncertain duration; and contingency fees (a percentage of whatever a lawyer wins for the client).

Fixed fees are unusual in litigation cases because no one can reasonably foresee when and how the case will end. Although fixed fee arrangements may force the lawyer to work more efficiently and prevent misunderstandings about the final bill, lawyers know that clients can take advantage of them by excessive calls and conferences. Consequently, the lawyer may lose interest in the case and assign it a low priority.

Contingency fee arrangements in dissolution of marriage cases are illegal in most states. Such arrangements create many conflicts of interest at the expense of shattered marriages and broken lives. Therefore, you should expect your lawyer to charge a negotiated hourly rate for your case.

Retainers.
Many lawyers want an advance retainer or deposit against your fees and costs. You should receive full credit for this retainer against your legal expenses. Negotiate now for a refund of all unearned portions of the retainer when your lawyer's representation ends.

Legal representation agreements.
Fee and representation requirements are usually written into an agreement or letter signed by you and your lawyer. Carefully read this agreement. It will control how you and your attorney work together in handling your case. If you have any questions or concerns about the lawyer or the work involved, have your understanding written into your agreement. These agreements help avoid misunderstandings and assure effective communication about mutual expectations.

Billing statements.
You have a right to know about work completed on your behalf in enough detail to be sure that fees are reasonable and comply with your fee agreement. If you do not ask for a detailed bill, many attorneys will simply send a short, one-page statement that states "For Services Rendered" and list a lump sum fee due. This saves time for the attorney, but even the most honest of lawyers can make mistakes in figuring fees. Without a detailed bill, you cannot correct those errors. Therefore, always ask for a statement with a daily accounting of tasks performed, hours per task, individuals who did the work, and the hourly rate for each.

In examining your fee statement, be aware of a few overbilling problems like these: overuse of conferences among lawyers in the same office about your case; repeatedly passing your file on to new lawyers who will bill you for reviewing your case; overstaffing your case by having more than one person attend hearings and depositions; over-researching issues and padding legal research hours; charging a high hourly rate for existing computerized form documents usable in many cases; charging for services at improper rates such as billing secretaries as paralegals, paralegals as lawyers, and lawyers not yet admitted to the bar as admitted lawyers; billing for work product that cannot be produced to you; markups on fixed costs such as computerized legal research, photocopying and facsimile charges, meals, and airline tickets; and summarizing depositions to an unwarranted degree. If you prohibit these matters in your fee agreement, you avoid many expensive misunderstandings during your case.

Billing frequency.
Most lawyers bill on a monthly cycle under the theory that regular billing helps assure regular payment. It also reduces your shock in receiving one enormous bill at the end of your case. However, billing at the end makes it easier to talk to your lawyer about adjusting the bill if the result is worse than expected due to decisions he or she made.

Payment of fees.
Most lawyers have a precise system for collection of fees. After 30 days, the lawyer may send out a second statement. A letter follows after 45 days, with a personal telephone call after 60 days. Slow-paying accounts receive low priority for the lawyer’s time if other clients pay promptly. Also, although lawyers do not like to arbitrate or litigate fees with clients, they will do so if the potential loss is large enough to warrant it. Be wise and promptly pay your bills within 30 days. Your lawyer will appreciate you as a client and work harder for you.

How to Cut Your Legal Fees and Costs

Developing a strategy and budget.
Many variables are difficult to control in a divorce, such as whether your spouse and opposing attorney will settle, fight discovery, or use delay tactics. Developing a strategy and budget for your case -- and updating it before major hearings or conferences -- will provide you and your attorney with a clear understanding of the proper level and limits of the work.

Try to set a maximum fee cap on the case that should not be exceeded without prior written approval. This helps you monitor expenses and avoid surprises in your final bills.

Your lawyer should watch fees and expenses to make sure you are billed fairly under your fee agreement. Before your budget for legal expenses in any phase is exceeded, you should be notified promptly so that you can decide whether to revise your budget or modify the strategy. Then you can give your prior written approval of the excess amount.

Encourage your lawyer always to be alert for a creative or less expensive way to proceed -- even if the work is within your budget -- and to discuss these matters with you promptly. Above all, in developing a strategy and budget, use a laser rather than a shotgun in addressing your issues and problems. Be precise and efficient.

Cost limitations.
Ask your lawyer to be sensitive to the costs of multiple representation at meetings and hearings, high staffing levels, rotating persons onto matters with which they are unfamiliar, and training young lawyers on your case.

Since your lawyer can handle most of your case in the office, the need for overnight travel is slight. However, if out-of-town travel is necessary, have your lawyer agree that only one attorney should travel; expenses for lodging, restaurants, or transportation should not be extravagant; and charges for airfare should be at the coach rate only.

If you require extra or unnecessary legal work, such as excessive telephone calls or conferences or filing unwarranted court pleadings, you should expect to pay for these. Similarly, your lawyer should agree that if work completed is not budgeted or approved, is not properly done, or requires correction, you will not be billed. Find out what your lawyer's minimum billing increment is. Lawyers often charge in tenths or quarters of an hour. If you are charged a quarter-hour for a two-minute phone call, prepare for this call and use the full fifteen minutes to your benefit.

Does your attorney double-bill you and other clients for work benefiting everyone? If so, object to this and work out a fair fee allocation.

Assist your lawyer in finding documents or information to lower your legal expense. Offer to locate witnesses, secure property appraisals, and copy lengthy documents at discount copy centers.

Develop a friendly working relationship with your lawyer's secretary. You will receive information about your case at no additional cost, since time for secretaries is not usually billed to clients and they are quite familiar with cases. Happy secretaries will also work to keep your case a priority.

Hourly rates almost always include your lawyer's overhead, which should not be added separately onto your bill. Reimbursement of expenses to third-party suppliers should be at documented, actual cost.

Unless agreed upon in advance and in writing with your lawyer, try to avoid or limit paying for these costs:

Administrative time by the attorney;
Secretarial overtime, unless it is a legitimate emergency for your case alone;
Time spent preparing bills and discussing billing matters with you;
Photocopies made internally in excess of a good faith estimate of actual cost;
Internal office messenger expense in excess of the cost of comparable outside services;
Meal costs, except for a reasonable cost if a matter necessary to advance your case must be discussed with an outside party during the meal;
Auto mileage in excess of a reasonable cost per mile (AAA rates or IRS allowances).

Communication.
When you meet or talk with your lawyer, be prompt. Organize papers and have information ready with a list of carefully thought-out matters you need to discuss. Avoid deluging your lawyer with information unless it is requested. Always listen carefully to your lawyer's advice. Promptly follow the instructions carefully.

Tell your lawyer you do not want "surprises". As the expert, your attorney should expect and warn you in advance of matters that may affect you or your case so that you can properly prepare yourself.

Make sure your lawyer does not negotiate away any of your rights or give away any personal information without your prior written approval.

Tell your lawyer that you will not call unless you have an important legal concern. (Remember, you are not your lawyer's only client.) Your attorney should return telephone calls within 24 hours unless he or she is out of town or reasonably indisposed.

Keep your case files up-to-date. Ask your lawyer to copy for you significant memoranda or pleadings prepared on your behalf so that you can monitor your case progress. This also allows you to stop any activities that may be too expensive or overly combative with the other side.

Encourage your lawyer to alert you to anything you do that interferes with your case. Similarly, advise your lawyer that you want to discuss any of your concerns directly with him or her as well.

If your questions cannot be answered within 15 minutes by telephone, write your attorney a letter. This will give him or her time to focus on your needs and give you a more thoughtful response. Letters allow you to share more information with your lawyer in a shorter period of time while also documenting your concerns. Always keep a copy of your letter for your files. Use it as a checklist when your lawyer responds.

Disagreements and termination of representation.
If you have any disagreements with your lawyer, discuss problems directly without delay.

If you and your lawyer cannot agree on a fair settlement of the dispute, your attorney should agree to promptly secure court approval to withdraw so you can secure alternate counsel without jeopardizing your case.

Pay your first lawyer a reasonable fee to the date you change lawyers. To avoid disputes about fees in this instance, have your lawyer agree in advance to arbitration or mediation of the dispute. If this is not available, then you and your attorney can pursue whatever legal remedies are available.

If your lawyer has violated rules of professional conduct (such as missing filing deadlines or misappropriating trust account funds), you should consider filing a formal complaint with your state bar association. This association also may have a client security fund to reimburse you if your funds or property have been embezzled by your lawyer.

Joseph Warren Kniskern is an attorney in Raleigh, North Carolina with more than 32 years of experience, who has been cited in Who's Who in American Law. This article has been edited and excerpted from When the Vow Breaks: A Survival and Recovery Guide for Christians Facing Divorce (B&H Publishing Group, revised edition copyright @ 2008).

When Sharing Parenting Does Not Work

2011-08-20T18:15:00.001-04:00

A few words of warning

by Jill Burrett and Michael Green

Shared parenting doesn’t work for children when:

1.There are very high levels of intractable conflict between the parents
2.The parents are more focused on getting their fair share of time than on the real interests of their children
3.It’s a regime imposed because the parents couldn’t come to an amicable arrangement, and they lack the goodwill to make it work
4. A parent has plenty of time technically with the children but is not really there for them
5.A parent’s inattention causes children to feel unsettled or like visitors
6.Children do not feel at home in both households
7.There is inflexibility about the arrangements over time

Shared Parending

This article has been edited and excerpted from Shared Parenting: Raising Your Children Cooperatively After Separation. Copyright © 2009 by Jill Burrett and Michael Green, Celestial Arts, an imprint of Ten Speed Press, a division of the Crown Publishing Group, Berkeley, CA.

Misconceptions About Court

2011-08-20T18:05:00.001-04:00

10 Detrimental Misconceptions about What Really Happens in Court
By Judge Michele Lowrance

Preparing for trial requires superhuman strength. Many people try to simultaneously mobilize sufficient reserves of the required negative emotion while trying to remain on moral high ground. An angry confrontation can alter the course of negotiations and with the flick of a switch lead a lost couple into a nasty divorce.

When you find yourself at the end of your marital journey, it is excruciating to witness the brutality in the spouse you once loved, and to have a glimpse of your own brutal nature. You have shocked yourself with how easily, and even candidly, you revealed your spouse's personal secrets to your attorney and then published those private embarrassments in a public court record. There are rare exceptions, but in order to find yourself in court you have almost certainly had to align yourself with negative and often erroneous assumptions. Here are ten of the most detrimental misconceptions about what really happens in court:

1. Destruction of your spouse is an acceptable means for getting what you need.
2. Your goals can be accomplished and sure victory attained by putting on a good fight. However, unlike traditional battle, where you can destroy and walk away, you might have to deal with your adversary for years to come.
3. Once you ignite a match in the courtroom, you can control the direction and intensity of the flames.
4. Your attorney will understand and execute your goals and desires in a way that satisfies your sensitivities and needs.
5.Your concept of fairness will approximate that of the judge's. You believe there is a clear-cut, nondiscretionary standard of justice that is not dependent upon the judge's personal values.
6.Your habitual negative thought patterns, fueled by well-developed propaganda to "create the enemy," will cease once the trial is over.
7.It is your spouse's fault you are at trial.
8.The judge wields a wand, not a gavel, and can magically solve your problems, no matter how much damage has been done to the family.
9.The court process will not hurt you, because you are invulnerable. In any case, whatever pain you feel will go away once the trial is over.
10. Your attorney can be vicious to your spouse, because that is your attorney's conduct, not yours. And people who are abusively cross-examined in court never hold it against their spouse.

Too often, people end up in trial because they can't tolerate any more negotiations. You think you are at the end of your collective ability to problem-solve. But that is not true. You may not really be at a stalemate; you may just have stale negotiations.

This article has been excerpted from the book The Good Karma Divorce by Judge Michele Lowrance (HarperCollins). Judge Michele Lowrance spent 20 years as a domestic relations lawyer prior to becoming a Domestic Relations Judge in the Circuit Court of Cook County, Illinois in 1995. She has been a guest on Good Morning America, The CBS Morning Show, CNN, ABC and other shows. She also appeared, produced and hosted radio shows and is a regular guest lecturer.

Can You Have A Good Divorce?

2011-08-20T17:28:00.001-04:00

Can You Have a Good Divorce?
From Huffington Post Divorce

Are "good" and "divorce" in the same sentence an impossibility? I believe it is possible to have a good divorce. Following are some tips on how to have a good divorce even though you are going through one of the worst times in your life.

1. Are you sure that your marriage is over and cannot be saved? Have you tried counseling and exhausted all possibilities of saving the marriage? Divorce should be the last resort, not your first. Having counseling during the divorce as well can be very helpful towards a good divorce.

2. Can you treat your spouse with respect and dignity? Remember that at one time you loved each other.

3. If you have children, can you put their best interests ahead of your wants or needs? This is difficult, and too often people in the heat of emotion will do things to put children in the middle. Don't do this

4. Can you talk issues through? At one time you were able to communicate. It is difficult, but the more that you and your spouse can communicate, the better your divorce will be.

5. Can you stay out of court? The more that you go to court, the more you will lose control and the less input you will have over decisions impacting upon the rest of your life and the lives of your children.

6. Can you find an attorney who works for you, and is a problem-solver? For a good divorce you want an attorney who helps solve problems, is creative, and does not turn a good divorce into a war of the roses.

7. Can you be mature, even though you feel totally out of control and overwhelmed? This is where therapy is helpful. Also, it is important to think, and count to ten before you speak or do something. Be constructive and not destructive.

8. Can you be selfless instead of greedy? Remember that pigs get slaughtered.

9. Can you have a game plan? Set goals. What do you want? What is best for your children? Be realistic about your children, your property, and other financial issues.

10. Can you be honest and not play games? Too many spouses play games and do everything possible to manipulate and try one-ups-man-ship. This is not the way to have a good divorce.

Remember that divorce is a process. The better you make the divorce, the better you will feel about yourself and your spouse and your children. Your thoughts, experiences of your divorces, and comments are welcome.

How can I stop my wife from delaying divorce any longer? - Avvo.com

2011-08-20T14:03:00.000-04:00

How can I stop my wife from delaying divorce any longer? - Avvo.com

What is the process for entering a divorce decree into local jurisdiction? - Avvo.com

2011-08-20T13:55:00.000-04:00

What is the process for entering a divorce decree into local jurisdiction? - Avvo.com

How often does the person paying child support get to claim both children for tax exemption? - Avvo.com

2011-08-20T13:48:00.000-04:00

How often does the person paying child support get to claim both children for tax exemption? - Avvo.com

Mediation

2011-08-20T13:40:00.001-04:00

http://mediate-at-candc.com/Home_Page.html

http://www.avvo.com/legal-answers/17-year-old-will-be-18-in-two-months--wants-to-liv-517081.html?ref=result_2_title

2011-08-17T10:09:00.000-04:00

http://www.avvo.com/legal-answers/17-year-old-will-be-18-in-two-months--wants-to-liv-517081.html?ref=result_2_title

http://www.avvo.com/legal-answers/my-mother-in-law-is-bi-polar-and-manic--she-has-sp-516704.html?ref=result_4_title

2011-08-17T10:02:00.000-04:00

http://www.avvo.com/legal-answers/my-mother-in-law-is-bi-polar-and-manic--she-has-sp-516704.html?ref=result_4_title

http://www.avvo.com/legal-answers/i-m-a-father-that-has-joint-legal-custody-of-my-da-517276.html?ref=result_1_title

2011-08-17T09:57:00.000-04:00

http://www.avvo.com/legal-answers/i-m-a-father-that-has-joint-legal-custody-of-my-da-517276.html?ref=result_1_title

Are Cohabiting Parents Bad For Kids?

2011-08-17T07:23:00.001-04:00

Study: Are Cohabiting Parents Bad For Kids?

by Jennifer Ludden, National Public Radio

August 16, 2011

As more and more U.S. couples decide to have children without first getting married, a group of 18 family scholars is sounding an alarm about the impact this may have on those children.

In a new report out on Tuesday, they say research shows the children of cohabiting parents are at risk for a broad range of problems, from trouble in school to psychological stress, physical abuse and poverty.

The study is put out by the National Marriage Project and the Institute for American Values, groups whose missions include strengthening marriage and family life. It suggests a shift in focus is needed away from the children of divorce, which has long been a preoccupying concern for such scholars.

Brad Wilcox, a report co-author and head of the National Marriage Project, says divorce rates have steadily dropped since their peak in 1979-80, while rates of out-of-wedlock childbearing have soared. Forty-one percent of all births are now to unwed mothers, many of them living with — but not married to — the child's father.

Wilcox notes that the iconic 1979 movie of the divorce revolution, Kramer vs. Kramer, is no longer emblematic of the drama facing families today.
Percent of Children Experiencing Divorce/Separation and Cohabitation (2002-2007)

By the time they are 12, children today are more likely to have their unmarried parents live together or with others than to have their married parents divorce or separate.
Children Experiencing Parental Divorce/Separation And Parental Cohabitation, by Age 12 (2002-2007)

Source: National Survey of Family Growth

Credit: Stephanie d'Otreppe, Sheela Kennedy and Larry Bumpass, 2011

"It'd be Kramer vs. Kramer vs. Johnson and Nelson," he says with a small laugh. "We're moving into a pattern where we're seeing more instability, more adults moving in and out of the household in this relationship carousel."

Wilcox says the children of the divorce revolution grew up to be understandably gun-shy about marriage. Many are putting it off, even after they have kids. But research shows such couples are twice as likely to split.

"Ironically," he says, "they're likely to experience even more instability than they would [have] if they had taken the time and effort to move forward slowly and get married before starting a family."

In fact, another recent study finds that a quarter of American women with multiple children conceived them with more than one man. Psychologist John Gottman, a co-author of Tuesday's report, says that kind of instability can have a negative impact on kids in all kinds of ways.

"Both in externalizing disorders, more aggression," Gottman says, "and internalizing disorders, more depression. Children of cohabiting couples are at greater risk than children of married couples."

This is true, says marriage historian Stephanie Coontz, "but the question is why it's true."

Coontz teaches family studies at Evergreen State College in Washington state and is research director for the Council on Contemporary Families. She says people are more likely to get married if they have the things that make a union strong: mutual respect, problem-solving skills and — especially — economic security.

That's something many working-class men have lost as wages stagnated in recent decades. In fact, Coontz notes that a huge marriage gap has emerged, with lower-income Americans much less likely to wed.

"Cohabitation and out-of-wedlock childbearing is as much a symptom of the instability of children's lives as it is a cause of it," Coontz says. Coontz worries that too many Americans who break up with a partner rush into another relationship, thinking this will provide more stability for their children. As Tuesday's report notes, the appearance of a new caregiver can also be traumatic for children, many of whom appear to fare better with a loving single parent.

To be sure, not all marriages are good, and some cohabiting couples create perfectly healthy families. But psychologist Gottman says for whatever reason — and it's a mystery to researchers — cohabiting partners are not as stable in the U.S. as in some European countries, where family-building outside marriage is more of a norm.

For Americans, Gottman says the evidence for marriage is strong. The institution's wide-ranging benefits — better health, longevity, greater wealth — are not conferred on those who cohabit.

"Because," he says, "they're basically saying, 'If you get into trouble, baby, you're on your own; I'm not there for you.' I think that's the big problem."

Gottman's advice, even if you decide not to tie the knot: pick a partner carefully, then hang in there — for better, or worse.
Related NPR Stories
Unmarried With Kids: A Shift In The Working Class Dec. 6, 2010

Back To School Tips For Co-Parents

2011-08-15T10:38:00.000-04:00

BACK TO SCHOOL TIPS FOR CO-PARENTS
A repost of an article by Jai Kissoon, of OurFamilyWizard.com. We recommend that all divorced parents explore the site as a possibility of making co-parenting easier and more effective.

The new school year is quickly approaching and its time to start preparing. If you and your co-parents both take part in the upbringing of your child than this can be a challenging task. Preparing your child for a new school year requires a lot of coordination and cooperation between you and your co-parent. This is an important time for your child to feel support from both you and your co-parent and to know that you both care. Here are some tips to remember to make going back to school as smooth as possible for you and your child.

Keep everyone on the same page

Some co-parents have implemented the use of weekly or monthly family meetings to keep everyone updated on what’s going on in everyone’s lives. This is a good way for children to get to talk to both you and your co-parent in the same room but it is more useful to keep both you and your co-parent updated on your child’s life.

Simple responsibilities, such as remembering to bring your son's soccer cleats for his after school game, can become a daunting task if communication with the other parent is poor. Communication hurdles can be difficult to overcome for parents with a good relationship, and separated co-parenting can become an even more challenging environment.

For family law professionals, the OurFamilyWizard website can provide an in-depth look into the parents' communications. This newly found accountability is giving parents a reason to get along with the other parent, because action and inaction are both documented. The end result is parents who communicate, children who are kept out of the middle and professionals who can spend their time more effectively helping the clients they serve.

We would add that parents should exchange schedules for school and activities.

Shopping is a job for both co-parents

It is extremely important to coordinate the back to school shopping with your co-parent. This is a big job and should not all be dumped on either one co-parent. Back to school shopping includes shopping for school supplies as well as clothes. If you and your co-parent are in a high conflict relationship try to remember to not sweat the small stuff. If you don’t agree on your co-parent’s choice of clothing or school supplies try to compromise as best you can.

Don’t bring up child support issues

Child support is a touchy subject and should generally not be discussed around your child. The beginning of a new school year is a time where kids show off all of their new stuff to their friends. This desire for the latest and greatest things can put a strain on your wallet. It’s important not to blame your inability to buy the most expensive things for you child on your child support payments or lack of child support. Do all that you can to avoid talking bad about your co-parent in front of your child.

Help your child with their daily schoolwork and projects

Regardless of whether or not your child is a fast or slow learner, when your child is residing at your home you should be sitting down with them as they work on their schoolwork. The same goes for your co-parent as well. The most important thing is to just be there for your child so that they can call on your whenever they need you. This will show them that you’re there to support them in whatever they are doing, not just schoolwork. Also try to coordinate with your co-parent regarding your child’s schoolwork. Let your co-parent know about important due dates and if your child did not complete something before it was time to switch between homes.

Attend important school events with your co-parent

This may not always be possible if you and your co-parent are in a high conflict relationship or if you have a no contact order by the court. If it is possible, it's much more effective when you and your co-parent are both able to sit down at school orientation, parent-teacher conference, or any other important event on behalf or your child. This is much better than one co-parent attending and relaying the information to the other co-parent.

Keep the focus on your child

Don’t get caught up in unnecessary competition or arguments with your co-parent. It’s important to keep the focus on your child during this time and to let your child know that both you and your co-parent are there for comfort and support. Be as civil as possible given the situation between you and your co-parent.

Have a backpack for the parents

Having a separate backpack for the parents to transmit items and forms is a great way to keep the kid out of the middle. This way it is the parent's responsibility to make sure the bag makes it to the other parent, taking the pressure off of the kids. Additionally, this takes possible inappropriate items from being seen by the kids.

My fiancee wants to adopt my daughter. There is no birth father listed on her birth certificate. How do we do this? - Avvo.com

2011-08-14T18:00:00.000-04:00

My fiancee wants to adopt my daughter. There is no birth father listed on her birth certificate. How do we do this? - Avvo.com

Insider's Guide to Divorce Blog

2011-08-14T08:15:00.001-04:00

So here's the inside scoop. I've been a divorce attorney for 23 years and as a result, every single one of my friends (both actual friends, and Facebook friends) ask me for my advice when they're facing a divorce.

When I have friends who are getting divorced, and they ask me for advice, here's what I tell them. The real deal, the confidential, back-channel skinny. Beyond legal advice, which they can get anywhere.

These are my top tips for staying out of trouble:

Ignore Legal Smack Talk from Your Spouse: I love that spouses try and give each other legal advice. Really? Since when did your spouse go to law school and become a divorce lawyer? And you're listening? Heck, even if they're dishing out good advice, it pays to double check.

Question "My Friend Said": If your spouse talks about friends' divorces or what the lawyer plans on doing to you legally, ask:

• How many years did that friend's divorce take?
• How much did it cost?
• How much did your lawyer say that taking me to the cleaners would cost in legal fees?
• Is your lawyer willing to put it in writing that they guaranteed that their result will be better than what I'm prepared to offer voluntarily?

You're safe with that last one---no lawyer would guarantee anything or put fees in writing so this will force your spouse to have an honest discussion with the lawyer about the pros and cons of pursuing any given action.

Watch Out For Non-Monetary Games: Keep an eye out for your spouse manipulating the kids. Make sure your bond with them remains strong. Don't bad-mouth your spouse---your kids will figure that out later and hate you, so keep the long term in mind.

Your spouse may think he or she is plotting and being strategic like some sort of Divorce 007. But at the end of the day, it's a business deal and a parenting plan. It is what it is. So don't let your imagination run away with you.

You can keep costs (and suspicion, and plotting) down by:

1. Being organized. Make a notebook with labeled dividers with all of the financial records (recent ones, at least) and tax returns (as many as you have copies of), a comparative market analysis (free from any realtor) of the value of your house, your most recent pay stub...and ideally you'll make your spouse a notebook, too.

I know that might sound crazy (making your adversary a notebook) but your spouse's attorney will charge for making a notebook and getting the records together (which could run up the bill by several thousand dollars) so if you can take the wind out of those sails from the get go (your spouse is entitled to all that info pursuant to law anyway) and all of the mystery out of your financial situation, you're ahead of the game.

Don't get paralyzed by your emotions. It's easy to sit down with a hole punch and a notebook and put stuff in by date. You don't need all your faculties to do that, so it's a good activity for when you're feeling lost.

2. Staying Sane. Make appointments with your therapist, make time for your kids (and don't talk about your spouse), play golf or ride bikes (ideally with your kids), make time with friends. Take care of yourself. Eat right and work out.

3. Don't taking the bait: Your spouse will say stuff to you just to get you riled up. Ignore it. "Obviously, this is a hot topic for both of us, so I'm not going to respond at this point. I do hope we can work all of this out, though, at some point." Then change the subject. Say that as many times as you have to.

Eventually, your spouse will get bored when it's clear you aren't going to fight back. This will freak your spouse out a little, particularly at first, so feel free to chuckle. When you start to behave differently than you have over the last eleventy-million years they're going to wonder what's up and watching that might be a little amusing as the old tricks don't work on you anymore.

4. Find that Special Someone--Quietly: If you decide you want to date or get laid, don't let anyone find out about it. Not under any circumstances. Your spouse will go bananas if you're with someone else, so avoid that at all costs. It doesn't matter if it's your spouse who suggested the divorce or found a new lover first. They still go nuts when they see you've moved on, too. I'm not saying don't do it. I'm saying don't let anyone find out.

Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Perigee 2010). Join the conversation and community on our video blog and check out Diana's divorce blog on the Huffington Post

a restraining order was filed against my son. on one of the dates he was out of town working at his job. he leaves on monday mor - Avvo.com

2011-08-07T18:05:00.000-04:00

a restraining order was filed against my son. on one of the dates he was out of town working at his job. he leaves on monday mor - Avvo.com

Can You help tell us if we have a valid case and if we stand a chance? Can we get therapy for boys and mother ? - Avvo.com

2011-08-07T18:00:00.000-04:00

Can You help tell us if we have a valid case and if we stand a chance? Can we get therapy for boys and mother ? - Avvo.com

Survivor Benefit Program (Military) -- Insurance policy - What is fair and equtable distribution? - Avvo.com

2011-08-07T17:59:00.000-04:00

Survivor Benefit Program (Military) -- Insurance policy - What is fair and equtable distribution? - Avvo.com

Who Works for Whom?

2011-08-06T13:35:00.002-04:00

Find a lawyer with your interests at heart. Read the blog post.

Picasso's Napkin

2011-08-05T08:07:00.002-04:00

Picasso’s napkin
Picasso was sitting in a Paris café when an admirer went up to him and asked if he would do a quick sketch for him on a paper napkin. Picasso politely agreed, did a quick sketch and handed back the napkin — but not before asking for a rather large amount of money. The admirer was horrified: “How can you ask so much? It only took you a minute to draw this!” “No”, Picasso replied, “It took me 40 years”

The reason that I posted this is because there is a lot of talk in the cut-rate legal community of their lower hourly rates. There is a good reason for that. They are worth less money. The problem is that while they are fumbling around trying to figure out how to do it, they are charging the client by the hour. The end result of the greater hours spent is a bigger bill. Often a bigger overall bill-not to mention result issues-than you would have with an experienced attorney. Think about Picasso when you are looking at lawyers.

A Consultation May Be All You Need

2011-08-05T07:54:00.002-04:00

There are many things that can be done in the legal system which are lawyer-optional. Sometimes, it is unclear which things really require a lawyer and which do not. Other times, you just need some guidance to get the process going in the right direction or some follow-up advice as the case goes on.

There are other things that are just not a good idea to do at all, with or without a lawyer, even though they are possible.

In these instances, the advice of a lawyer for a consultation can be invaluable. You have one session, but can return, if needed. You do not have to commit to any Retainer Agreements. You get the advice you need and are on your way.

Be aware, however, that generally the "free consultations" do not provide much legal advice. They are marketing devices to get you to commit to hiring the lawyer.

If you have questions, consider scheduling a consultation.

I have a child support court order dated 2007. My ex has filed to have support reduced based on his reduction in salary. - Avvo.com

2011-08-04T22:48:00.000-04:00

I have a child support court order dated 2007. My ex has filed to have support reduced based on his reduction in salary. - Avvo.com

Who has jurisdiction? - Avvo.com

2011-08-04T22:38:00.001-04:00

Who has jurisdiction? - Avvo.com

Is there any way to avoid jail? - Avvo.com

2011-08-04T22:38:00.000-04:00

Is there any way to avoid jail? - Avvo.com

How Do You Stay Sane?

2011-08-04T08:36:00.003-04:00

I was talking with a psychiatrist this week (we won't go too deeply into the reason why). I was just casually discussing a call that I had with another lawyer about a case just before our meeting. It was a fairly routine case with clients engaging in what would be totally socially unacceptable behavior in the real world, but behavior that is not unusual in divorce cases. The case involvolved threats of physical violence, infidelity, tug of war over the children and the usual he said/she said. The doctor said to me in all seriousness-How do you stay sane? I will not reveal my answer .

If a psychiatrist wonders how a family law attorney can remain sane handling these cases, the even more important question is how can the parties who are actually living this remain sane. Your greatest chance of retaining some semblance of sanity is to use alternative dispute resolution and avoid court like the plague. Litigation encourages mental illness.

People also need to evaluate what is worth fighting about and what is not. Most tangible pieces of property are not worth fighting about. Children are not property. You do not divide them. You determine what is best for them, not for you.

You get help from the professionals that you need. If you have financial problems, you get financial help. If you have mental health issues, which can include just the pressure of handling this situation, you get mental health help.

You do not play games or participate in games that the other person starts. Sometimes you have to act like you just did not hear what they said to you. It takes two to play tug of war!

You also need to do what your lawyer tells you. This will help keep both of us sane!

Too Much Fact or Fiction

2011-08-02T16:34:00.004-04:00

Some parents feel the need to include their children in all of the family discussions and traumas. Their position is that all that happens has an impact on the child so the child should be aware of everything-in detail.

Other parents take the directly opposite approach that children should be shielded from everything that could possibly upset them and told that there is nothing wrong in their world. They should be kept completely in the dark until one day one of their parents is no longer living in the house any more.

Still other parents take the approach that it is important for the children to think of that parent as blameless in any problem and to view the other parent as the "bad" one. They create fictional parents.

While it would seem like these must be three extremes, and you would think that that most cases would have some of each, the reality is that the extremes are the norm in contested family law cases. The reason may be because people who have those type of cases also have those types of parenting styles. Winner take all. Black or white. My way or the highway.

In parenting, in law, in life, few things are all or nothing. There are times when there can be too much fact. Everyone does not have to know everything all of the time. There are even times when there should be some "fiction"- not lying, but at least pretending to get along for the sake of the children during visitation exchange; times when you say a good word about the other parent or at least, say nothing at all.

Children should not be privy to the minute details of their parents' domestic problems. They should never become a parent's confidante or ally. They are the children of both parents. If you need to vent, talk to a professional. They are paid to listen and have the expertise to actually help you through the situation. Children are damaged by this conduct. It takes its toll on them personally and in their future relationships. They are not equipped to handle the fact or the fiction...so tell them what they need to know as children and keep the rest to yourself.

We live in VA and my son just turned 12. He wants to go live with his dad! What do I need to do to make sure that don't happen? - Avvo.com

2011-07-27T18:12:00.000-04:00

We live in VA and my son just turned 12. He wants to go live with his dad! What do I need to do to make sure that don't happen? - Avvo.com

how early can we file for a no fault divorce if we are still cohabitating because we both wanted to be close to our child? - Avvo.com

2011-07-27T07:01:00.000-04:00

how early can we file for a no fault divorce if we are still cohabitating because we both wanted to be close to our child? - Avvo.com

Defenses to Adultery in Virginia Divorce Actions - Avvo.com

2011-07-26T19:37:00.000-04:00

Defenses to Adultery in Virginia Divorce Actions - Avvo.com

How to I enforce an issue regarding my divorce decree pertaining to our daughter's college tuition? - Avvo.com

2011-07-26T19:13:00.000-04:00

How to I enforce an issue regarding my divorce decree pertaining to our daughter's college tuition? - Avvo.com

Do I need a family law attorney? - Avvo.com

2011-07-26T16:24:00.000-04:00

Do I need a family law attorney? - Avvo.com

I took my divorce settlement through a QUADRO. The settlement reads that my ex-husband had to pay the tax burden when the - Avvo.com

2011-07-26T13:45:00.000-04:00

I took my divorce settlement through a QUADRO. The settlement reads that my ex-husband had to pay the tax burden when the - Avvo.com

Choosing Sides

2011-07-25T18:13:00.002-04:00

Today I had the experience of spending some time in the waiting area at the Newport News Juvenile & Domestic Relations District Court. It did show some examples of humanity at its worst.

First of all, a court is no place for children. Yet the waiting area was filled with kids. They were there to see their parents fight over them. Both in and out of the courtroom.

There also were the grandparents who were in charge of taking care of their grandchildren, as well as their own children- some of whom were in their 40's. No person in their 60's or 70's should have to be responsible for two generations of their family.

Worst of all were the parents who were trying to entice their children to sit with one or the other of them-to pick sides. After the sides were picked they would then look over at those on the other side conspiratorially and whisper.

Children should never be put in the middle or be made to feel like they have to pick sides. Sometimes it does not even take words to make them feel that they are being disloyal to a parent by enjoying a visit with the other parent or having a phone conversation. This is wrong! It is a parent's duty to behave appropriately and to encourage contact with and love for the other parent-even if it hurts to do it.