Big Divorce Numbers in January 2012?

It is no secret that January is often a busy month for divorce filings.  If children are involved, some parents stick it out through Christmas.  For others, the holidays are the nail in the coffin of a relationship.    Some even delay filing until after the first of the year for tax purposes.

Whatever the reason, this January seems to be no exception.  For 2012, it appears divorce filings have increased even more significantly, perhaps due to the slightly better economic situation than last year.   Many that could not have afforded a divorce at this time last year are finally able to financially afford to get their case moving.

I have already noticed an increased number of visitors to my blog and increased phone calls to the office, indicating that January 2012 will be a busy month in Flathead County.

 

Tips to Keep Costs Down During Your Montana Divorce Case

Divorce in Montana is expensive. Not only are people suddenly living on half their previous income, but suddenly they are expected to begin paying attorneys fees. But I will let you in on a secret. As much as I like to get paid, I would prefer a prepared client who makes the work easy and for whom I can keep expenses low. Here are a few tips that will help keep your divorce lawyer’s bill as low as possible:
1.  Be prepared to supply relevant financial documents, including bank and financial statements, tax returns, mortgage applications, loan documents and credit card bills.
2.  Do not fight over assets that are of limited value. It simply does not make sense to litigate and run up huge legal bills that will dwarf the value of the assets you may recover.
3.  Pick your battles and remember: moral victories cost money. You may want to be proven right or vindicated, but if it does not advance your case, consider conserving your resources.
4.  Recognize that when you communicate with your divorce lawyer, the meter is running. When you call your attorney, do it from a room where you will not be interrupted and can talk openly. And do not take other telephone calls while speaking with your attorney, unless you want to pay for her to sit and wait.
5.  Be candid with your attorney. In litigation, lies and falsehoods are always discovered.
6.  Don’t litigate to be vindictive. This is a sure path to large legal fees.
In the end, if you want to keep your bills low: be prepared, professional, reasonable, and honest. But remember, the biggest wildcard in any Montana divorce case is your spouse.

Facebook Passwords Must Be Shared in Divorce Case

A Connecticut judge ruled earlier this week that a divorcing couple was required to turn over their passwords to several popular social media sites.   The ruling came after the husband in the case revealed his wife, Courtney Gallion, had been writing incriminating posts on Facebook about her feelings towards the children and her ability to care for the then.  Both Mr. and Mrs. Gallion were required to turn over their passwords for Facebook, eHarmony and Match.com accounts.

The Gallion ruling is the latest in a string of cases evidencing just how significantly social media is affecting litigation.  In March 2011, the American Academy of Matrimonial Lawyers issued the result of surveying, which reported that 80% of divorce cases now include evidence from social media sites.

A reminder for all those involved in any kind of limitation – if you wouldn’t want a Judge to read it, DON’T put it online!  


Surviving the Holidays After Divorce

Though many consider the holidays to be a time to celebrate peace and love, divorced couples can find it difficult to put down their swords.  The holidays can be difficult for divorced parents, but even more so for their children.  The following tips from licensed psychotherapist Donna Ferber should help such parents help their children have a better holiday season:

  1. Money, gifts, sweets and indulging don’t “make up” for anything. Your child is going to have TWO Christmases. No need to feel guilty. Most kids say the dual holidays are the best thing about being a divorced kid.
  2. If possible, make your plans with your ex-spouse ahead of time and stick to them. Let the kids know where they will be and when. It helps them feel in control. Let them make only age appropriate decisions. A good rule of thumb: if it is not a decision you would let your children make while you were married, then don’t let them make it now. Let your kids be kids.
  3. Be flexible. No, this is not a contradiction of #2. It means that stuff happens. So if your ex is two hours late because of an ice storm or because his cousin Joey showed up late, try to let it go.
  4. Keep your anger, resentment, annoyance, disgust about your ex, his sports car, his/her new love and his family, to yourself. Remember, your kids are part of both of you and when you slam your child’s other parent, your child feels slammed as well.
  5. Do not make your children responsible for your happiness. “Go have a good time with Dad in Jamaica, while I sit here miserable and all alone,” only breeds resentment and guilt in your child.
  6. Don’t compete. If he can afford more than you – fine. Rather than resenting his/her father( or mother), appreciate that your child can experience things you can’t buy him/her. Don’t overspend to keep up. Make memories by doing fun things together – bake cookies, read a Christmas story, build a snowman. Money does not buy love.
  7. The new girlfriend (or boyfriend) cannot and will not take your place.Children are unbelievably loyal. They can love many people, but the title and honor of parent is yours and will be only yours forever. So, relax. Deal with your jealousy without making your kid responsible for your feeling threatened. This is simply not the job of the child.
  8. Divorce is the severing of the adult relationship and should not be the termination of the parent-child relationship, no matter how much you really can’t stand him/her. If your child is not in harm’s way, the relationship needs to continue. This is the CHILD’s right. If you really feel the child is in danger, then get a lawyer, prove it and have supervised visitation. Never keep a child from being with a parent based on your own feelings!
  9. Lastly, remember that you are the adult. Suck up your anger toward your ex and make the holidays wonderful for your kids.

Source:  “Children, Divorce & the Holidays: Making it Happy not Horrible!” by Donna F. Ferber, LPC, LADC, a licensed psychotherapist in Connecticut and the author of From Ex-Wife to Exceptional Life: A Woman’s Journey through Divorce, which won an Honorable Mention Award by the Independent Publishers Association. To read more about the author and her work, please visit www.donnaferber.com.

Top Five Questions About Montana Guardians ad Litem?

Now that I have expanded my practice to include guardian ad litem work, I am receiving dozens and dozens of questions about what guardians ad litem do and do not do.  The following questions seem to be the top five:

1.  Does a Guardian ad Litem have to be a lawyer?

Montana law does not require that guardians ad litem be licensed attorneys.  In fact, in dependency/neglect cases, many guardians ad litem are not attorneys.  In custody and divorce cases, I strongly suggest the parties utilize a guardian ad litem that is a licensed Montana attorney, well-versed in Montana family law.

While a GAL may be a lawyer, the GAL is not technically a lawyer for the children.  The distinction seems minor, but can be incredibly important.  A GALs’ job is to make a recommendation to the Court regarding what is in a child’s best interest, even if it is contrary to what a child desires.  A child’s lawyer, on the other hand, would be expected to advocate on behalf of the child’s desire, even if the desire were not in the child’s best interests.

2.  How much do Guardians ad Litem cost?

Because most GALs are license attorneys, the cost is similar to that of an attorney.  However, GAL fees are usually split between the parties.  Often times the cost is split equally, but if the incomes of the parties are very disparate, the court may order a different split of the GALs fees.

3.  How long does a GAL take to do an investigation and report?

Depending on how complicated the case is, how accessible the parties are and how many other professionals need to be consulted with, a GAL can take anywhere from a couple of weeks to several months to do their investigation and report.

4.  What determines whether a GAL becomes involved in the case?

There are basically two ways a GAL becomes involved in a case.  First, the parties might agree that the case is complex enough that a GAL should become involved.  In that circumstance, the parties will enter into a stipulation or agreement appointing a GAL.  In other cases, only one of the parties may feel a GAL is appropriate.  If the other disagrees, the party desiring a GAL will file a motion for appointment of a GAL with the Court.  The other party will have the opportunity to object and then the court will make a decision.

5.  What factors does the GAL consider during her/his investigation?

When investigating and reporting to the Court, the GAL should consider: the wishes of your child and both parents; the safety and well-being of the child; the child’s relationship with both parents and other family members; the cooperation and communication between parents and whether either one unreasonably refuses to cooperate or communicate with the other; a parent’s likelihood to interfere in the other parent’s continuing relationship with the child; any physical abuse or problems with alcohol or drugs; the reports of appropriate professionals (counselors, doctors, etc.); and other significant factors that would affect the child’s well-being.

 

Marybeth Sampsel now performing Guardian ad Litem Services in Flathead County, Lake County and Lincoln County

I have written several articles about guardians ad litem being utilized in Montana child custody/parenting case or Montana divorce cases.  There are several great attorneys doing guardian ad litem work in Flathead County, but it seems guardians ad litem are still pretty hard to come by.   After careful consideration, I have decided to expand my practice to include guardian ad litem services.  I will handle cases in Flathead County, Lake County or Lincoln County.

For those of you unfamiliar with guardian ad litem work, a guardian ad litem (also referred to by the acronym “GAL”) acts as a quasi-representative for minor children involved in custody/parenting cases or divorce cases.   GALs report and recommend to the court what they think would be the best parenting plan for a child.  GALs generally do a thorough and independent investigation prior to making a report and recommendation to the court.  The GAL meets with the minor child(ren); meets with both parents; speaks with other family members, teachers and providers; and visits the parents’ homes.  In other words, the GAL has the opportunity to speak with and see a lot more than a judge is able to see when sitting on the bench.  After reading the report and recommendation from a GAL, the judge has the opportunity to put the GALs recommendation in place, approve it in part or reject it entirely.

As a GAL, I plan to provide thorough, efficient and timely services.  I understand the importance of resolving parenting cases as quickly as possible, while still taking the time to do a thorough investigation.  I also understand that by the time a GAL is involved, the parties may be feeling financially strained.  I look forward to serving the families of the Flathead, Lake and Lincoln counties.

For more information on guardians ad litem, read my blog over the next few weeks.

If you are interested in retaining me to act as a guardian ad litem in your case, please contact me at (406)752-6373.

Parents Dating After Divorce

Divorce isn’t the end. In fact, it’s really a new beginning. And for many parents, that new beginning involves starting to date again. For most people, dating was a confusing and tumultuous experience. And I’ve got news for you. This emotion roller coaster isn’t made any easier with kids. Actually, it adds a whole new layer of complexity. How do I explain dating to my kids? How will my kids be affected? Should I wait until my kids are grown? When should I introduce my new partner to my kids? When is the right time to start dating? What if my kids don’t like the person I’m dating?

The bad news is that there are no easy answers. But I’ve seen enough of my clients go through this process that I’ve picked up a few pieces of advice.

How do I explain dating to my kids? The answer to this depends largely on how old (and mature) your kids are. For children under five, the best approach seems to be to describe the person as a friend. For school age children (6-10), more information may be appropriate – such as describing the person as a “special friend.” Pre-teens and young teens probably know more about your situation that you’d like to think. I think it’s totally appropriate to use the word “date” with them. In fact, it may provide a great opportunity to discuss the whole concept of dating with them. By the time your children are teenagers, it’s best to just be honest. They’re probably dating as well, so they’re familiar with the deal. Remember though, it’s important to remain the parent. As easy as it is to gush or complain about your date, that’s not really an appropriate parent-child conversation.

How will my kids be affected? Every child reacts uniquely, it’s the nature of kids. You know your child and can probably predict their reaction better than anyone. But there are a few things to remember. Your child is probably holding out hope that you will reunite with his other parent. Dating can destroy that illusion and that can hurt. Also, your child is going to have to start sharing you in a new way with a complete stranger. This is a big adjustment and not an easy one.

Should I wait until my kids are grown? There’s really no right answer here. That’s a very personal question that has more to do with you and your family that childhood development. But make the decision based on what you think is best for the kids – not out of guilt or fear.

When should I introduce my new partner to the kids? I always recommend waiting until the relationship is serious. What serious means is up to you, but stability is always key in a child’s life and this is no exception. Dating is naturally a roller coaster, but part of your job as a parent is to shield your kids from some of the ups and downs. It’s easier to do that in a more stable relationship, even when it is still just a dating one.

When is the right time to start dating? You’ll know. But, as a rule, it takes between one and three years for a person to emotionally recover from a divorce. That’s not a timeline for you, just something to keep in mind.

What if my kids don’t like the person I’m dating? This one is tough, and often my divorce client’s biggest fear. It’s important to listen to your children’s concerns and take them seriously. But you should not be asking permission from your child to date someone. Putting your child is that position isn’t healthy for either of you.

This is a tough situation, and not something that a couple hundred words on a website will solve for anyone. But hopefully I’ve given you some things to think about in the journey.

Grandparents Rights in Montana

In Montana, grandparents can petition the Court for visitation rights with a grandchild, even over the objections of a parent. This is called third-party contact, and it is usually something a parent decides on. But sometimes, family situations require that the Court step in and make a decision that is in the child’s best interests. Obviously, the best result is when everyone can agree and get along, but the reality is that this isn’t always the way it happens. As a grandparent, taking the time to establish your rights can mean the difference between a life-long relationship and estrangement.

Grandparents Rights in MontanaA grandparent who wants the Court to order contact with his or her grandchild, must first have the judge determine if the parent is fit. If a parent adequately cares for her child, she is fit. If he does not, he is not fit.

If the parent is unfit, then the contact must just be in the best interests of the child. If the parent is fit, the grandparent needs to show that the visits are in the child’s best interests and also needs to rebut a presumption that the parent’s wishes are what’s best for the child. This is in keeping with the Unites States Supreme Court’s decision in Troxel v. Granville.

In Troxel, the father committed suicide in Washington state leaving behind two daughters and their mother (whom he had not married). The mother married and her new husband adopted the children and limited the father’s parents visitation rights. The US Supreme Court found that the Washington State law was too broad and said that it infringed on parental rights. This has become the standard that all the states must follow and which Montana does. If a parent is fit, the grandparent must overcome a significant burden.

If you are a grandparent who is being denied visitation with your grandchild, contact a montana family law attorney to learn more about your rights. If you’re not ready to take such a drastic step, there are other options to consider. Some families have had success with mediation (either with a trained mediator, or even a family priest or pastor). Sometimes, just sitting down as a family for a frank discussion about the problems can sometimes produce good results as well.

It’s also important to remember that law differ from state to state. While you may have a friend who went through the process in another state, their experience may have been wildly different from what you will experience here in the big sky state. Just remember, the best way to know what your rights are as a grandparent in Montana is to discuss the situation with a local lawyer.

Thanksgiving After Divorce

During and after a divorce, Thanksgiving can be a difficult hurdle. Especially the first time. A holiday meant to celebrate togetherness and family can be especially hard on children suffering the loss of exactly that stability. During your first Thanksgiving apart, you should expect to feel sad. More importantly, you should expect your children to feel sad. Emotions like sadness, confusion, and even anger are common and should be expected from children and yourself.

Some of my clients have developed different strategies to cope around Thanksgiving. One of my favorite is when the forge ahead and create new traditions. Some volunteer with community outreach programs like soup kitchens. Others visit a different relative for the Thanksgiving dinner. Whatever you do, take some time to imagine a new tradition. Even if you only do it for one year, the change can do everyone good.

Other family members are important too. You might feel like a burden, talking about your feelings and sadness. But, at the risk of being cliche, what are friends for? I’m not suggesting that you spend the entire Thanksgiving weekend in a fog of sadness, but allowing yourself to feel those emotions isn’t a bad thing. If you need a shoulder to cry on, let your friends and family be there for you. Get it out of your system, so that the celebration itself can be about a new beginning.

A new factor that can’t be avoided is scheduling. Odds are, your children will now have two different Thanksgiving dinners to attend. The best results I’ve seen come from families who recognize that Thanksgiving is just a day, it’s the celebration that is important. And that celebration can be repeated on any day. Scheduling Thanksgiving dinner for Friday doesn’t change the holiday, and with some flexibility like that – both parents can have a great holiday with the kids. After all, what’s more important: the day of the week or time with your children?

And whatever you do, don’t bring the kids into any scheduling conflicts with your ex. It’s not their fault. And frankly, there’s no reason they should even know about them. Finding time to sit down for the holiday meal is your responsibility. This is going to be stressful enough with all the changes. Don’t make things worse.

Even in the midst of divorce, there are still reasons to be thankful. That’s the reason for the holiday, and family disruptions or not — remembering that is beneficial for everyone. Take some time, and make a list of things that you are thankful for. It might be hard at first, but ultimately it could bring some perspective that will improve the day for you and your children.

Childhood Obesity and Child Custody

It’s hard to turn on the news without hearing a story about rising rates of childhood obesity across the country. And unfortunately, Montana is no exception. And following the rule that divorcing parents with turn everything and anything into a fight: it’s become a new hot topic in divorce cases.

According to the CDC, childhood obesity is determined by comparing the BMI of a child to the corresponding BMI-for-age and sex percentile. For children aged 2-19 years, overweight is defined as a BMI at or above the 85th percentile for children of the same age and sex. Obesity is defined as a BMI at or above the 95th percentile for children of the same age and sex.

The consequences of childhood obesity can be severe and range from high blood pressure to high cholesterol to insulin resistance to type 2 diabetes. It can cause breathing problems such as sleep apnea and asthma and lead to joint problems and musculoskeletal discomfort. And those are just some of the immediate risks.

Long term, those who are obese in childhood are more likely to become obese adults, which is associated with a number of serious health conditions including heart disease, diabetes, and some cancers. Also, if children are overweight, obesity in adulthood is likely to be more severe.

With all that to consider, it’s no surprise that the blame game for parents of an obese child is common and contentious. But, given the many possible causes of childhood obesity, which range from genetic to environmental, it’s very difficult to prove one parent was at fault. And that’s where things can get ugly.

At this point, judges have been very reluctant to make parenting determinations based on accusations related to childhood obesity. Absent clear proof of neglect or disregard for a child’s well being, courts have steered clear of this issue. But that hasn’t stopped divorcing parents from dragging their child’s weight into the spot light and trying to use it. And, that hasn’t stopped some states from considering redefining the best interests of a child to include things like diet and obesity.