Category Archives: Visitation Disputes

Pitfalls In Handling Your Own Divorce

I have seen an increase in people trying to draft their own Divorce Judgment and Decree, which often leads to numerous problems and additional fees and expense to redraft the Decree or for the need to move to amend it because of ambiguities. Some terms or omissions can be impossible to correct afterwards.

If you have children, real estate, assets in excess of $20,000, pensions or issues relating to custody, parenting time, spousal maintenance or child support it is best to retain an experienced family law attorney to draft the final paperwork.

I have represented numerous clients when their paperwork has been rejected by the trial court or worse has been accepted, but has failed to properly address all issues or foreseeable issues. Family law is complicated and has extensive statutes and common law set forth in a large scope of cases that a layman will not understand or properly address. Neither the court or the clerk’s office can or will give legal advice.

Once the Decree is accepted and filed many of the terms are not modifiable at a later time. Property settlements become final. Other terms may be modifiable if there is a substantial change in circumstances, but still may be difficult and expensive to attempt to modify.

There are numerous nuances in drafting custody and parenting plans that would benefit the input of an experienced divorce attorney. These agreements are generally not easy to change or modify. Vague or incomplete parenting plans often leads to numerous disputes and issues that can cause the noncustodial parent to lose important parenting time when a dispute arises.

Determining child support under the calculator is not as easy as it seems as there are numerous collateral issues that may not be properly addressed such as imputing income for less than full-time employment, bonus income, or issues and complexities when dealing with self employment, or overtime income. There are also numerous complexities in determining what the actual percentage of parenting time is for each parent is under parenting time schedules. A lawyer can also make sure the issue of the child dependency tax exemptions are properly addressed and drafted in the decree as well as other matters such as security in life insurance is included to make sure there is adequate support in the event of a death.

Spousal maintenance terms have to be dealt with extremely carefully or unintended results can easily happen. If proper waivers are not included with specialized language a party may leave itself open for extended or continuing spousal maintenance or attempted motions to do so. A lawyer should be used in every case dealing with spousal maintenance cases.

If you own a home it is also important to have a lawyer’s assistance. It is essential to make sure the complete legal description is included or you can have expensive future title problems. An agreement to sell the home needs critical detailed information included to properly address possible unforeseen issues such as difficulties in facilitating the sale or default or possible short sale ramifications and other issues, including possession, payment requirements and cooperation terms.

Dividing retirement assets and pensions have many complex issues that can lead to serious unintended consequences if not properly addressed. Survival benefits, valuation and tax issues and other complexities needs the input and advice of an experienced attorney. Often a separate Order (QDRO) needs to be prepared with numerous electives and options that can involve tens of thousands of dollars in differences depending on the electives selected, or more, if there are errors made that generally may not be later modifiable.

Generally when a divorce starts many people are on an emotional roller coaster and often have some temporary depression issues. Many people have feelings of guilt or remorse or even anger and cannot properly evaluate what is fair and equitable or consistent with the law. They may overlook important issues or make unwise concessions that may haunt them for years as they try dig out of a deep financial hole or give up custody or parenting time they cannot later change.  They may find they are entitled to much more than they are aware of if they overlook nonmarital assets or other spousal maintenance issues. A good family law attorney will protect you from making a poor decision without careful thought and evaluation.

The family law rules and rules of civil procedure are very complex and you will be expected to follow them. If you miss deadlines you may lose or waive important rights to make submissions or argue issues.

Do not assume you can easily represent yourself in a divorce and navigate drafting a divorce decree that properly protects you. Retaining an experienced divorce attorney is a wise and prudent investment to make sure all issues are fully evaluated and addressed and your rights are protected.  I have been a lawyer for over 33 years and practice exclusively in family law, custody, divorce and mediation. I will make sure your rights are protected.

Resolving Parenting Disputes With A Parenting Consultant

Many Family Law Lawyers and some Judges are now encouraging parties to stipulate and agree to use a Parenting Consultant to resolve parenting time disputes in divorces, post dissolution issues, parenting time scheduling issues for holidays and vacations as well as to settle joint legal custody issues such as schooling disputes, extra curricular activities, church disputes, transportation and other children’s issues. Generally Parenting Consultants are precluded from modifying actual legal and physical custody designations but their decisions can effectively make major changes that, in effect, come to close to doing so.

Generally Parenting Consultant’s are experienced family law lawyers with some additional training or experienced psychologists, counselors, or other mental health professionals. The powers of a Parenting Consultant are generally defined by contract and stipulated powers set forth in the Decree or separate Court Order. Their powers are not defined by statute or law. There have been efforts to introduce and pass laws and statutes to clarify their roles and powers, but to date a statute has not been passed. It is important to carefully review the Consultant’s Contract and any Proposed Order appointing a Parenting Consultant as you are actually, in effect, giving this individual the powers of a judge to promptly settle and order an outcome on issues presented to the Parenting Consultant concerning your children if they fall within the scope of the powers designated in the Order or contract that has been signed.

I have served as a Parenting Consultant and been involved with many Parenting Consultants in my cases. They can be very helpful, but can also create another layer of expense if the Parenting Consultant appointed is not experienced or fails to promptly make clear complete unequivocal decisions that are fair, impartial and based on the best interests of the children. They are designed to save attorney fees and court expenses by allowing an expedited resolution of parenting time issues. It allows parties to minimize attorney fees by not requiring the formal preparation of motions, affidavits and memorandums of law by your lawyer and paying the court filing fees and requiring a court hearing that may take months and instead allow parties to submit emails and letters addressing disputes involving the children that in theory can be quickly ruled upon by the Parenting Consultant.

Generally the form Orders and Contracts of Parenting Consultants provide their decisions are subject to review by promptly filing a motion with the trial court within the time period set forth in the Order. Courts and Judges love to appoint Parenting Consultants as it can in many cases cut down on the family law motions filed with court and clear the court’s calendar to address its other pressing assigned cases.

It is critical to discuss with your lawyer all ramifications of stipulating and agreeing to a Parenting Consultant before doing so. There are some Parenting Consultants who like any other profession are not the best in promptly and properly determining parenting issues. Their experience and skills vary greatly. Choose the Parenting Consultant with great care. Once appointed it can be very difficult to have one removed and it will be impossible to by-pass the Parenting Consultant unless the Consultant resigns or you obtain an Order removing the Consultant.

It is critical the Consultant lay out clear ground rules for submissions so people are not overwhelmed with lengthy last minute submissions. There are no rules or procedures in the law addressing how or the timing of submissions for Parenting Consultants. If you have a controlling or difficult ex spouse or opposing parent it can lead to more disputes and expense as it can encourage parents to raise every minor or trivial parenting issue with the Consultant as it is as easy as sending an email without the expense of scheduling and preparing a motion or affidavit for a court hearing. Sometimes parents do not as easily compromise because they can simply have  the Consultant rule on it. Sometimes Parenting Consultants fail to make clear comprehensive rulings addressing all issues as they receive numerous length emails raising many issues and counter issues and sometimes they are reluctant to reconsider or expand the scope of their decisions.

It is true that you generally have the right to appeal or seek to challenge a Parenting Consultant’s decisions in court, but many judges will give the Parenting Consultant’s decision deference although they may not be required to do so. Appealing the decision can be expensive and you have doubled the fees and expense as you have also paid the Consultant substantial fees to review and rule on the issue previously. In many cases I have observed the fees paid to a Parenting Consultant can be very substantial as it can lead to voluminous emails and multiple submissions and frequent involvement with the Consultant if a parent is controlling and difficult and has the financial means to do so.

It is important you have a family law attorney to discuss and help you through the process and decisions involving Parenting Consultants. Unless you appoint an experienced competent Parenting Consultant who carefully details the procedures and have an Order defining the scope and authority of the Consultant there can be many unexpected pitfalls and fees as well as other difficulties that you may be bound to follow that may end up being more expensive than other alternatives.