Montana Family Law Legislative Bill Update 2011 – Marriage Counseling

Rep. Tom McBillvray has sponsored a bill that could affect many Montanans that file for dissolution of their marriage in this state.  House Bill 438 was introduced on February 7, 2011.  If passed, the bill would require those with minor children to attend counseling before the district court could make a finding that the marriage is “irretrievably broken.”

The bill goes on to specify what type of counseling would be required, the topics that must be covered, the amount of counseling that must take place, and the type of counselor that must be utilized.

The most problematic aspect of the bill is the proposed subsection 5(b), which states that the counseling requirements do not have to be met “if there has been a claim of physical abuse of one of the parties by the other.  Corroboration is not required for a claim of physical abuse….”  Appropriately, the bill makes room for those that have been physically abused, as I think most would agree that forcing parties to undergo counseling when there has been physical violence is not appropriate.  My concern is that more and more claims of physical abuse will be made, just so that litigants are able to avoid the counseling requirement.  Since corroboration of the claim is not necessary, a litigant would understand that they do not need to have prove that physical abuse has occurred.

Another concern is how the court handles this statute if a party defaults.  If a party fails to respond to the petition for dissolution in an appropriate amount of time, the court may enter that party’s default and grant the dissolution according the petition.  If counseling is automatically required, how does the court grant the dissolution?  And more importantly, if a person does not even respond to a petition for dissolution, is it reasonable to think they will willing go to counseling?   I doubt it.

While I am not particularly a fan of the entire proposal, a better option may be to include a provision that allows the District Court to waive the counseling requirement if appropriate.  It would prevent litigants from being punished for their spouse’s refusal to participate.

Follow this bill here.

Montana Family Law Legislative Session Update 2011 – Guardian ad Litem bills

While over a dozen bills regarding family law are expected to be introduced in the Montana legislature this session, only six have been introduced thus far.  Four bills arose in the Montana House of Representatives, while two have been introduced in the Senate.

A relatively hot topic this session is the oversight of guardians ad litem, including instituting a grievance procedure and training.  Two bills have been introduced regarding guardians ad litem – one in the House, sponsored by Rep. Betsy Hands, and the other in the Senate, sponsored by Sen. Larry Jent.  The Senate bill applies to guardians ad litem appointed during a dependency and neglect case.  The House bill, on the other hand, applies to those guardians ad litem appointed by the court during contested parenting or custody cases.

Montana’s current guardian ad litem statute (M.C.A. 40-4-205) does not include any language regarding the training, experience or qualification of guardians ad litem.  In other words, under the current law, a court could appoint a guardian ad litem without requiring them to attend any sort of training.   While the lack of training may seem like a problem, Montana judicial districts are generally small enough (at least here in Flathead County) that the District Court Judges are well aware of the experience and expertise of those attorneys they appoint as GALs in contested parenting cases.

The House bill also provides a grievance procedure for those litigants that are unsatisfied with the work their guardian ad litem has done, or has not done.

Most importantly, the bill provides for a local guardian ad litem review committee, appointed to serve without compensation and for the purpose of review grievances filed by litigants.  In theory, not a bad idea, but logically, I do not see the resources and time available to make such a committee work.  Our district courts and court staff are incredibly busy as it is and adding yet another committee to their plate is probably not the most effective use of judicial resources.

Read the current text of the House Bill here and the current text of the Senate Bill here.

If you wish to follow other bills introduced this session, you can do so here.

College students pay more when parents are divorced

An article by Pamela Yip of the Dallas News reports that college students from divorced or remarried households shoulder a heavier financial burden than those from a two parent household.   Yip writes:

Here’s another reason to stay married: The financial burden of college falls more heavily on students with divorced parents or remarried parents than on students with parents who have stayed married.

That’s according to a study by researchers from Rice University in Houston and the University of Wisconsin.

The study, published in the current issue of the Journal of Family Issues, found that divorced parents contributed about a third of what married parents contributed to their children’s education, even though the divorced parents’ incomes are about half as much as their married peers’.

The study also found that remarried parents contributed about half of what married parents contributed, despite having incomes similar to those parents who have stayed married.

The study, which took place from 2006 to 2007, was conducted by Ruth Lopez Turley, associate professor of sociology at Rice University; and Matthew Desmond, then a doctoral student at the University of Wisconsin and now assistant professor of sociology and social studies at Harvard University.

The researchers discovered that married parents contributed about 8 percent of their income to their child’s college costs and met 77 percent of their children’s financial needs.

In contrast, divorced parents contributed about 6 percent of their income and met just 42 percent of their children’s financial needs.

Remarried parents contributed only 5 percent of their income and met 53 percent of their children’s needs.

“What we’re seeing is that the cost burden of higher education is shifted to the student in families with divorced or remarried parents,” Turley said. “Remarried parents contribute significantly less than married parents, in absolute dollars, as a proportion of their income and as a proportion of the children’s financial need, even though they have similar incomes.”

That’s not surprising, considering the financial drubbing divorce can levy on a family.

“The process of going through a divorce is the largest financial transaction that most people face in their lives,” said Joanna Jadlow, a certified public accountant, certified financial planner and director at Robertson, Griege & Thoele Financial Advisors in Dallas.

“It creates not only an emotional burden to the family but a financial one as well. Following a divorce, the combined income of the family must be transitioned from supporting one household to supporting two households. This means that nearly every family has to cut back their lifestyle following a divorce,” she said.

Once a parent has been through the financial fallout of a divorce, “both the professional fees and the splitting of the marital estate, they naturally become more cautious about retaining what assets they have,” said Jadlow, who often serves as the financial expert in divorce cases.

“This means that contributing to the cost of their child’s college education may not feel as comfortable as it did prior to the divorce,” she said.

For remarried parents, their financial situation is more complicated because it often includes children from each spouse’s former marriage.

“These parents have gone through a financially burdensome divorce, have lived on their own for a period of time, and may have fallen behind financially, compared to their married peers before the second marriage occurs,” Jadlow said. “In addition, the financial cost-sharing in blended families may happen in many different ways, depending on the specifics of each family situation.”

Turley and Desmond’s study used parent and student interview data from a subsample of the National Postsecondary Student Aid Study of the 1995-96 academic year.

The researchers focused on 2,400 dependent undergraduate students whose parents were married, divorced or separated, or remarried.

“The findings are troubling for college-bound students with divorced, separated or remarried parents,” Turley said. “They are at a disadvantage because they need to shoulder more of the costs of their education. Their first priority becomes funding their education, not completing their education.”

Montana law regarding engagement rings: who owns an engagement ring after a broken engagement?

In 2002, the Montana Supreme Court considered ownership of engagement rings in the event an engagement is called off.  Specifically, the court considered whether or not the female must return an engagement ring if the marriage does not occur.
In Albinger v. Harris, 2002 MT 118, the Montana Supreme Court held that an engagement ring is an unconditional, completed gift and should be treated as any other gift would under Montana law.
In order for an engagement ring to be considered a gift, all of the elements of gifting must be present.  In other words, there must be a transfer of ownership from one party to the other.   In Montana, gifting is complete upon delivery and gifts are not revocable – unless they are given in contemplation of death, but that is for another blog post.
The Supreme Court did say, however, that an action for fraud or deceit could be initiated if a party has acquired a ring under false pretenses.

Divorce Mistakes to Avoid

A recent AOL Health article lists 16 of the biggest and most frequent divorce blunders, all of which should be avoided during a divorce.  The list includes everything from financial issues to romantic mistakes and include the following I find particularly notable:

1.  Not paying attention to taxes

2.  Making agreements outside the settlement papers

3.  Taking legal advice from family and friends

4.   Hiring a combative lawyer

5.  Using your child as a messenger

6.  Putting your child in an adult role to compensate for the loss of your partner

7.  Not taking inventory of your belongings before they are divided

8.  Giving up control to a lawyer

9.  Not keeping a journal

The article expands on each of the divorce mistakes and provides additional resources for your information.  Read and enjoy the  full article here.

Dealing with Pets during a Montana Divorce

For many couples, a dog or cat is as much  a part of the family as their children.  Individuals involved in a Montana divorce are often more concerned about their pets than they are their house or belongings.  Though Montana law does not treat pets in the same manner as children, they can be a very important piece of the divorce puzzle – one that must be dealt with carefully and with concern for what is best for a pet.

If you are divorcing in Montana, or plan to divorce, there are a few basics you must be informed of with regard to your family pets.  First, no matter how much you may love your pets, Montana law still considers pets as property.  While many pets have only sentimental value, others can be quite valuable (think horses and other livestock).

Because pets are property, the same rules apply to them that apply to any other kinds of property.  In a Montana divorce, this means that the pets would become a part of the court’s property distribution and are to be “equitably apportioned” between parties.   The exceptions to the rule are the same for pets as they are for other kinds of property.  In other words, your pet remains non-marital property if it was (1) gifted to you individually; (2) you inherited the pet through an inheritance; or (3) you owned the pet prior to marriage.

As with most things in a divorce, it is ideal if you and your soon-to-be-ex-spouse are able to negotiate and agree on what will happen to your pets.   In the event you cannot agree, the court could order the pet be sold and the proceeds split in some equitable manner.

If you have children that are particularly attached to your family pets, you may consider having the pets become part of your Parenting Plan as the children’s “property.”  This is more easily accomplished with a dog or cat that can travel back and forth with the children.

If you are working with an attorney, make sure you communicate with him or her about how important your pets are to you and what you feel might be best for them.  That way, your attorney can assist you in handling the issue.

What to do if you have been defaulted in a Montana divorce or parenting case

If you have ever been served with legal paperwork, you have likely seen and, hopefully, read a Summons.  Though drafted by opposing counsel or the opposing party, a Summons is actually issued by the Clerk of Court.  The Summons announces the deadline by which to respond to the paperwork you were served.  In a divorce/dissolution or parenting plan case, you are allowed twenty days from the date of service to respond to the Petition.  If you fail to respond in twenty days, the opposing party may request the court enter your default.

If your default has been taken and you wish to continue with the case, you will be unable to do so until you first have your default set aside.  This means, you must prove to the court that the default was incorrectly entered against you or you have some reason that you were unable to respond in a timely manner.

Under the Montana Rules of Civil Procedure, the court may set aside a default for good cause.  In order to establish good cause, a defaulting party must show: (1) the defaulting party proceeded diligently; (2) the defaulting party’s neglect was excusable;  (3) the defaulting party has a meritorious defense claim; and (4) the judgment, if permitted to stand, will affect the defaulting party injuriously.  See Mountain Sports, Inc. v. Gore, 85 P. 3d 1286, 320 Mont. 196 (2004).

If successful in having the default set aside, a divorce or parenting case then proceeds normally, as if the default had never happened.  Setting aside a default can be complicated and I am not aware of readily available forms for pro se litigants to use in such a circumstance.  If you have been defaulted in a case, contact an attorney as soon as possible.  If you cannot afford an attorney, contact Montana Legal Services or your self-help law center.

Montana Social Workers state “Guardians ad litem need more supervision in divorce cases”

A letter to the editor published in the Billings Gazette earlier this week was critical of Montana’s regulation, or lack thereof, of guardians ad litem in divorce or parenting proceedings.

Written by several Masters of Social Work students, the letter set forth a number of problems that result from the severe lack of regulation by Montana courts.  Specifically, the authors were critical of involving a guardian ad litem (GAL) who stays involved for a number of years and the parents remain on the financial hook for the GAL’s work.  It seems once a GAL is involved, there is no way for the parties to get the GAL out.  The result is often astronomical GAL fees, along with a parties’ individual attorneys’ fees.

Montana statute allows for appointment of a GAL in divorce or parenting cases.  The statute specifically states the following:

M.C.A. 40-4-205:

(1) The court may appoint a guardian ad litem to represent the interests of a minor dependent child with respect to the child’s support, parenting, and parental contact. The guardian ad litem may be an attorney. The county attorney, a deputy county attorney, if any, or the department of public health and human services or any of its staff may not be appointed for this purpose.

(2)The guardian ad litem has the following general duties:

(a) to conduct investigations that the guardian ad litem considers necessary to ascertain the facts related to the child’s support, parenting, and parental contact;

(b) to interview or observe the child who is the subject of the proceeding;

(c) to make written reports to the court concerning the child’s support, parenting, and parental contact;

(d) to appear and participate in all proceedings to the degree necessary to adequately represent the child and make recommendations to the court concerning the child’s support, parenting, and parental contact; and

(e) to perform other duties as directed by the court.

(3) The guardian ad litem has access to court, medical, psychological, law enforcement, social services, and school records pertaining to the child and the child’s siblings and parents or caretakers.

(4) The court shall enter an order for costs and fees in favor of the child’s guardian ad litem. The order must be made against either or both parents, except that if the responsible party is indigent, the costs must be waived.

Essentially the statute provides only provides for the GAL’s duties and how they will be paid.  Though GAL’s play an important and often integral role in the divorce process, the lack of regulation is a bit troubling. If an attorney is involved as a GAL, it is unclear if they are bound to the same rules and responsibilities they would be bound to if they were acting as a child’s attorney.  It appears to be a small distinction, but can have major consequences, particularly when parties are unhappy with the GAL or have a dispute about fees.

For more information on how a GAL could be used in your divorce case, contact an attorney.  If you would like to read the full letter to the editor, you can find it here.

Dancers and Bartenders Found “Most Likely to Divorce”

A Radford University study has determined which U.S. jobs have the highest divorce rate.  The study, which was published in the Journal of Police and Criminal Psychology, was originally created to examine the divorce rate for police officers.   It seems there is a common belief that the divorce rate for law enforcement agents is higher than the general population.

The study determined that the 5 jobs with the highest divorce rate are as follows:

(1) Dancers and choreographers – 43.05% divorce rate

(2) Bartenders – 38.45% divorce rate

(3) Massage therapists – 38.22% divorce rate

(4) Gaming cage workers – 34.66% divorce rate

(5) Extruding machine operators – 32.74% divorce rate

Topping the list of those least likely divorce are media and communications equipment workers.  According to the study they have an astonishing 0% divorce rate.

Read the full study here.

“Poster Child for Irresponsibility” Thrown in Jail for Neglecting to Pay Child Support

A Michigan man who fathered 23 children with 14 women has been sent to jail for failure to pay child support.  Howard Veal is more than $500,000 in arrears and has been sentenced to up to four years in jail by Judge Denis Lieber.  Judge Lieber branded Veal an “insult to every responsible father who sacrifices to provide for their children,” and the “poster child for irresponsibility.”

During a presentencing investigation, Veal reportedly indicated he had fathered 15 children with 12 women, but that he could not remember them all.  A court report uncovered that Veal actually has 23 children with 14 different women.

See more about Howard Veal at http://www.emirates247.com/news/world/dad-of-23-kids-jailed-for-not-paying-child-support-2010-09-29-1.297140.