Mediation Blog

Special Issues Associated with Earning Capacity

admin — Mon, 06 Sep 2010 12:00:03 +0000

There are special issues associated with earning capacity. One such issue is salary history. Most states include overtime, predictable bonuses and commissions as income for purposes of calculating child support. If you have historically worked a certain amount of overtime, received a bonus each year, or earned a commission on sales, the court will most likely consider these “extras” as a part of your regular income for purposes of calculating the amount of child support due.

In order to be fair, and to protect yourself in the event of a dispute, be inclusive in your calculations. Review your overtime, bonuses and commissions over the past five years. Have they been stable? Or were they linked to unusual circumstances which no longer exist? Are they regular, seasonal, or cyclical with the economy? Have market forces made bonuses erratic both in terms of amount and regularity? Has competition or new additions to the sales force eroded your commissions over time?

For instance, if you are a postal worker, and every Christmas you are required to work an enormous amount of overtime, average your income over the entire year. If your child support is based solely on your Christmas earnings, it will be much higher than is appropriate during the other eleven months of the year. If you work in construction, the summer months may be very busy, but you may be unemployed during the winter time. If you are a daycare provider, your summers are probably busier than the rest of the year. If you are a commissioned salesperson, make sure that your income history–and future– is presented realistically. Click here for more information.

A striking example of this situation was Henry, a commissioned salesperson for an office supply company which had been owned by his father. When his father retired, he passed his accounts on to Henry, who continued to work in the small, family owned business. He earned a very comfortable living….until the office supply superstores invaded his territory. Suddenly, his little Mom-and-Pop enterprise was turned upside down as competition entered the marketplace, eventually forcing him to sell the business to a mega-store. He was offered a job with the store, but had to start from scratch with no accounts to his name. His $350,000 per year income plummeted to less than $50,000. It was important that the judge take into account the new climate in which he was forced to work, and his new compensation structure. A salary history alone would have had devastating results on the Child Support Guidelines. The future became much more pertinent than the past. Click here for another terrific article.

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

For more information contact Peace Talks www.peace-talks.com

What are Child Support Guidelines?

admin — Thu, 02 Sep 2010 12:00:02 +0000

Each state has Child Support Guidelines which mandate how much support each spouse must contribute toward supporting the children, based on factors which each state determines. The “guidelines” are actually very specific laws with specific calculations. Pick up a copy of your state’s guidelines at your local courthouse, library, or a lawyer’s office. Many are even posted on the internet. You can use the Guidelines to estimate expected child support payments. Each state’s calculations are different, but each takes into account what both parents earn and some of the children’s basic expenses. Child support is also based on how much time the children spend with each of you. Click here to visit a website devoted to child support guidelines.

Child Support and Income

In every state, both parents’ incomes are the key pieces of information used to calculate child support. In addition to mandatory deductions for taxes, many states take into account the children’s health insurance premiums and daycare costs, but other permitted deductions from income influencing child support vary from state to state. If there are factors that allow deviations from the guidelines, they will be listed in the guidelines. Typical deviations may include: a child’s extraordinary medical or educational expenses, extraordinary access expenses (like plane tickets to visit an out-of-state parent), and a child’s own income or assets which may be used for his or her support. Deviations are not permitted because of a parent’s extraordinary “credit card payments” or a “car loan payment”, or other expenses incurred by the parents. The law recognizes that your first responsibility is to your child, not to MasterCard or your landlord.

Most states consider any money which comes to you on a periodic basis to be income. This means that wages, commissions, bonuses, interest, dividends, worker’s compensation, unemployment compensation, and even social security are considered “income” in most states. Income is income, even if you haven’t received it yet. For example, suppose you typically receive a bonus each year based on your sales performance. The cutoff date for your performance record is June 30 of each year. You receive your bonus in December of that same year. If it’s September, your bonus will be considered part of your income even though it hasn’t been received by you yet.

Another example is stock dividends. The dividends are often automatically reinvested, so you don’t actually have the cash to spend. Because stock dividends are earned, and you could choose to liquidate rather than reinvest them, they are deemed to be income.

Social security comes with some complications, since it has special benefits for recipients with minor children. In most cases, the benefits that children receive directly from social security will be considered when child support is calculated. Typically, however, the government-provided benefit is only part of what the parent will be required to pay on the child’s behalf. How social security is treated varies across states, and will be clarified in your state’s child support guidelines. Click here for more information.

For more information contact Peace Talks www.peace-talks.com

Can I Relocate?

admin — Mon, 30 Aug 2010 12:00:54 +0000

Many parents ask “Can I relocate?” and the answer always depends on the individual circumstances at the time. Given our increasingly mobile society, it is not at all unusual for one spouse to need to move out of state, or even out of the country. Increasingly, the courts are trying to determine whether it is in the child’s best interest to move, even if the child has lived with a primary physical custodial parent for quite some time. Click here for an article about relocating after divorce.

The court will consider all of the factors that have gone into the original custody decree, as well as the reason for the move, the ability of the child to maintain contact with the other parent, what kind of visitation would be set up for the parent left behind (as well as extended family), and the living situation for the child in the new city or state.

If you anticipate a relocation you should probably deal with it as part of your divorce up front. If you think that maybe some day you might want to relocate, putting a notice provision with respect to relocation into your settlement agreement is important. Many such provisions call for 90 to 180 days notice before someone can move. Sample relocation clauses are included in the appendix. This notice enables time to negotiate or motion the court to prevent the move while it is being worked out by the parents. Relocation is not a good bargaining chip, as it evokes a sense of threat, and often pushes the other person to become more intransigent and stubborn out of fear of losing contact with the children. Click here for another great article on relocation after divorce.

In most jurisdictions it will be up to you to prove that moving out of state is in the children’s best interests. While you may have many reasons why it’s in your best interests to move, is it really in the children’s best interests? How will they maintain contact with the other parent? How involved are they in their school and school activities? Will close friends and extended family be left behind? How well does your child adjust to new situations?

The legal custody designation (i.e. joint legal custody) has little to do with whether or not you will be permitted to move. The actual circumstances of your case will be the determining factor. The more involved the other parent has been in the children’s lives, the more difficult it will be for you to prove that it is in the children’s best interests to move far away from them. Therefore, having sole legal custody doesn’t automatically permit you to move with the children, and having joint legal custody doesn’t automatically prevent you from moving with the children. Sometimes the court will say, “Sure you can leave, but your children will stay with their other parent.” This has happened even when the children have always lived with the leaving parent.

For more information contact Peace Talks www.peace-talks.com

Does Your Child Need a Change in the Visitation Schedule?

admin — Sat, 28 Aug 2010 12:00:47 +0000

Other indications that children may need adjustments to the visitation schedule–or to something that’s happening in your home–include:

sudden behavioral changes that are aberrant from your child’s normal personality (e.g., very quiet in an outgoing child, sadness from a generally happy child)
bursts of temper and moodiness
aggression or violence toward others, pets, or themselves
a sudden drop in grades at school

Find out why your child is behaving differently. If you cannot ascertain what is going on because your child is uncommunicative, or because you and your spouse view it so differently, consider having your child meet with a school counselor or a therapist. Choose someone who will not exacerbate problems, but will normalize what the child is experiencing and will help him deal with it. Someone who is experienced in treating people of your child’s age, and familiar with divorce and family systems work, is optimal. When possible, include the other parent in your child’s therapy. It is working together as parents that will be the most assistance to your child. For an article on changing a visitation schedule, click here.

Parents often report anger at how their spouse deals with their child, in ways that are not harmful but which undermine your parenting values. Common examples include letting him watch movies you don’t think he is ready for, exposing him to rude humor or vocabulary, allowing him to be in the presence of people you think are unsavory characters, and so forth. As annoying as these matters are, they are generally not matters with which the court will interfere. You should try and work things out with a mediator or therapist adult-to-adult, appealing to reason and your child’s future. Some of these differences you will have to learn to live with, and in your own parenting time.

If you’re not able to address these issues as co-parents, then you will have to do it on your own. Once you’ve determined the reasons why the problems are happening, and have thought through possible solutions, pose them to your ex-spouse. See if together you can work with your children to modify the parenting plan to support them. If you reach an impasse, then it’s time to approach a mental health professional, and then the court about changing the visitation or custody orders. Click here for another article on changing visitation.

For more information contact Peace Talks www.peace-talks.com

What if My Child is in Danger?

admin — Fri, 20 Aug 2010 12:00:32 +0000

If you believe that your child is in imminent danger from the visits, you need to report this to the proper authorities immediately. Take your child to his or her pediatrician for a full checkup, and let the doctor know what you suspect. You also need to request that the court issue a restraining order for your children to protect them from the abuser. Stop allowing your child to visit under these circumstances, even though you may be facing court sanctions for doing so. Your primary goal is to protect your children, and if you are certain that the visitation is physically harming them, you need to stop the visits. For information on restraining orders, click here.

Once the court is aware of the situation (which it will be, because of the restraining order) the judge can set the matter for a hearing so that you can present all of your evidence against visitation, and the court can modify the existing orders so that your children will be safe.

In other less exigent circumstances, your choices and plan of action are less clear. Sometimes problems happen during visitation, but it’s impossible for you to tell if the situation warrants filing a Motion for Modification of Visitation in court. You can file such a motion at any time; the problem is deciding when it would be appropriate to do so. Don’t file a motion which you cannot back up with proof. If you want visitation changed and can’t work it out between yourselves, you need to have solid reasons and evidence for asking for the change. Lots of children have a tough time adjusting to transitions, especially early in their parents’ divorce and separation. But how will you know when it’s appropriate to file for a modification of the court’s orders? For an article on modification of visitation, click here.

If you think, but you don’t know, that the visits are harming the children, then you need the assistance of a third party in order to determine how best to proceed. Have your children speak with a therapist or a school counselor if you think that something inappropriate may be going on, but are not in a position to prove it. Once they’ve spoken to a therapist or counselor, that person can let you know whether or not you need to intervene to change the way that the place, without violating your child’s confidentiality. If the reasons are less serious, and the harm to your child is questionable or less serious, use a third party to determine what is a phase, what can be corrected with minimal adjustments to schedule or types of visits, and what needs to be borne out over time. Examine your own behavior and make sure you are not giving your child messages that you need him or her to stay with you, for company, support, or to punish the other parent. This is an unfair burden to place on your child.

For more information contact Peace Talks www.peace-talks.com

What if My Child Doesn’t Want to Visit?

admin — Wed, 18 Aug 2010 12:00:35 +0000

You can try various resolutions when your child says he or she doesn’t want to go to the other parent’s house. Kids may say this because they have mixed loyalties, or just because they don’t want to stop what they are doing at the moment, and this is natural. Also, children feel the same waves of anxiety, sadness, and the pain of missing that adults feel. They may experience such emotions when they arrive at the other home or return to their primary home.

It helps to have kids transition with their favorite toys or objects. It also helps to put in words for them what they are feeling and to assure them their feelings are acceptable. How the transition is planned can make a big difference. For some children, they want to go right to their room and have some time to smell, touch, and know the place again. Being alone may be helpful. For others, leaping headlong into a jumble of activity may help them adjust by distracting them while they settle into the new location or parent.

From a legal standpoint, if there are court orders which mandate that your child visit with the other parent, you are risking being held in contempt of court if that child does not visit his or her other parent. If the desire not to visit is unusual behavior for your child, try to ascertain what is behind it and modify your tactics accordingly. Begin to work on the problem by talking to your child to pinpoint reasons for not wanting to visit. Once you have pinpointed the reason that your child doesn’t want to visit, you can then begin working on your plan for dealing with the situation. Click here for a great article on what to do if your child doesn’t want to visit the other parent.

For example, if it is typical for your child to say he or she doesn’t want to see the other parent because your child doesn’t want to miss time with friends, insist that he or she go with the other parent, but talk with the other parent to try and have the child’s friends join in and spend time at the other parent’s house.

If your child is a baby, some upset when leaving the home or primary parent is expectable. If distress continues at least 20 minutes or more each time, consider changing the schedule to accommodate this stage of your child’s life/

If you truly believe that it is not in your child’s best interests to see the other parent according to the present schedule, then you must be prepared to prove that this is true. Click here for another great article.

For more information contact Peace Talks www.peace-talks.com

Using a Calendar

admin — Mon, 16 Aug 2010 12:00:45 +0000

Your first planning step is to find a blank 12 month calendar. First, chart out the activities for each of your children. List all fixed activities such as when they leave for and return home from school or day care, and when they need to be at each activity (e.g., baseball, music lesson, religious school, ballet, etc.). You may want to use an entire year’s worth of calendars because sports, school, and other activities the children participate in are seasonal. Use the child’s school calendar and also mark in the school vacations.

Now, with a different colored pen, plot in your own time commitments. Include everything, whether it is work, school, church volunteerism, or any other activities that you pursue on a regular basis. Don’t forget standing meetings and fixed appointments. It will begin to be clear how your schedule meshes with your children’s and where the obvious holes lie.

Again using a different colored pen, chart out when your spouse has obligations, such as work or school. Now it should also be clear when your spouse is free to spend time with the children.

You can now start to draw up your parenting times. If you have to be at work, but your spouse is available, then the children could be with your spouse at that time. If you are available, but your spouse is not, then the children should be with you. For a terrific article on using a parenting calendar, click here.

You can become more specific when you consider all of the children’s commitments, which parent has historically filled those commitments, and which parent(s) is able to do them over the course of the year. Click here for an online parenting calendar.

For more information contact Peace Talks www.peace-talks.com

What if We Can’t Agree?

admin — Thu, 12 Aug 2010 12:00:58 +0000

Once you understand the emotional issues and possible variations of parenting schedules, it will begin to become clearer to you whether or not you and your spouse are headed toward a custody dispute. Because divorce is a time of great emotional turmoil and feelings of loss, sometimes parents are afraid that they will lose their children. Both you and your spouse will be spending less time with the children (in the rare case when a spouse disappears, of course, this would not be true), but in all likelihood, you will continue to have sufficient quality time with your children, and you will also have some free time for yourself. While this may not sound attractive in the middle of your divorce, soon afterwards you may be grateful for a little bit of adult time to pursue your own interests. Most parents, given time and the place to talk, are able to resolve disputes about their children. Sometimes, however, they need help. Click here for a parenting plan overview. Another terrific article is listed here.

For more information contact Peace Talks www.peace-talks.com

The Necessary Elements of a Parenting Plan

admin — Sun, 08 Aug 2010 12:00:13 +0000

Although your plan will be as unique as your own family, each plan has some basic elements upon which to build. In addition to legal and physical custody, you will set forth additional provisions to be followed by each parent, such as picking the child up from school if he or she is ill, and how daycare will be selected. The less you plan to share parenting, the less detail you will need in your plan. The following components cover various possible arrangements, so some elements may not be pertinent to your situation. Click here for a great article on the components of a parenting plan.

Components

Legal Custody: Sole or Joint
Decision Making Authority: Who has final say for…
Schooling: private vs. public, special needs
Religion: where, when and through what level
Medical: routine vs. emergency treatments, medications, mental health treatment
Routine Needs: medical/dental appointments, transportation to activities, homework checks, child care arrangements that cross transition times
Physical Custody: Joint or Sole; one primary residence or two
Residential arrangements: how often, how long, with each parent?
Holidays/Summer/School vacations

List of major holidays

New Year’s Eve, New Year’s Day, Presidents’ Day, Martin Luther King Day, Valentine’s Day, Good Friday, Easter, Passover, Mother’s Day, Memorial Day, Father’s Day, 4^th of July, Labor Day, Rosh Hashana, Yom Kippur, Veteran’s Day, Thanksgiving, Chanukah, Christmas, Birthdays

Finances: who pays for what?

Click here for a parenting plan template.

For more information contact Peace Talks www.peace-talks.com

She has always controlled my relationship with the kids

admin — Thu, 05 Aug 2010 12:00:56 +0000

In our society, couples with children generally develop complementary roles in which the fathers invest the bulk of their time in earning money for the family and the women take primary responsibility for childcare. Because women generally spend more time with their children on a daily basis than do men, they have more knowledge about the children’s daily routines, needs, and preferences. They are, in essence, gatekeepers to the children’s world. In a divorce, the gate swings closed more often than open in a defensive maneuver. The knowledge held by mothers gets clutched close to the breast, staving off further loss by hoarding it, sometimes lauding it over their spouse’s head. Click here for more on divorced mothers.

Men complain about this turn of events because they find gaining access to their children too difficult. Mom tells the kids not to answer the phone when Dad calls. Or she forgets to inform him of small but proud moments in the child’s life which he might have attended, if he’d known about them enough in advance. They fear they will lose access to their children, as punishment for the time they spent providing the family income.

Billy railed at Stephanie for using every excuse she could think of to limit the time he spent with their 10 year old son and 8 and 6 year old daughters. She wouldn’t tell him about their schedules and habits, and then filed motions in court stating that he was a derelict, uncaring father. He was so frustrated he was thinking about filing for sole custody to protect himself, although his lawyer told him he didn’t stand a chance.

Stephanie does not think it is her job to tell Billy things he “should know by now.” She always covered for him in the marriage, but she is now free of that responsibility. She doesn’t mean to exclude him, but there is so much happening it is hard enough to keep track. She is sure that the children are not his priority by what he does not know about them, and what he misses.

These two parents each think they are doing their part to protect the children and provide for their needs. Indeed they are doing what they know, and what they have always done best. But once there is a divorce, the old rules no longer pertain. It requires more work on both parts to equalize roles, information, and the chance to share child care. Sometimes mothers are controlling their children in order to wield power over their spouse, who has more power in the financial realm. Other times, it is just a perception based on differing roles within the family, and a real desire to structure the children’s hectic lives in the face of divorce chaos, while protecting them from further hurt. If you or your spouse are gate keeping, work with a competent mediator or couples’ therapist to help you realign power and communication in the relationship without assigning blame. Click here for another terrific article.

For more information contact Peace Talks www.peace-talks.com