May 2011 Archives

Questions To Ask Collaborative Divorce Attorney

May 26, 2011, by

Potential Client: Good morning, my wife who lives in the San Francisco Bay Area has decided she wants a divorce and has retained an attorney. I received a letter from the attorney stating that my wife is interested in the Collaborative Divorce model and that to use that model I would have to retain a Collaborative Attorney also. But I have done some investigation and have several questions, the first of which is, where is the "zealous advocacy" in the Collaborative Process?

Me: If you are looking for a process where the attorney uses any and all means to achieve the best possible outcome for you at the expense of your wife and family then Collaborative is probably not for you. A Collaborative attorney understands that you have important needs and interests and the goal of the process is to meet those needs and interests, but at the same time other family members have needs and interests too. Participants in the Collaborative process must care not only about the outcome for them, but also the outcome for their spouse and children. Advocacy in the Collaborative model is about making sure you are heard and understood, and helping you ensure that your most important needs and interests are met, and helping you and your wife craft a durable, mutually agreeable long-term agreement that works for both.

Potential Client: Well, what kinds of strategies and tactics are used to wear down the other party and/or to stall the process so they give in and I maximize my gain in the process.

Me: It appears that you did not hear what I just said. And to succeed in the Collaborative Process it is important that one be able to listen and really hear what is said. This process requires a certain amount of wisdom and emotional intelligence and frankly, there are some folks who are not ready to participate in a process of this type.

Birth Parents Rights vs. Adoptive Parents Rights

May 19, 2011, by

Hallelujah! Sometimes courts get it right and the Baby Vanessa case is one of those cases. This is hopefully the end of a three year custody battle over a two-year-old girl that involved the rights of adoptive parents, fathers' rights and the best interest of the child. Vanessa's birth mother, Andrea Conley, placed Vanessa for adoption with Stacey Doss without the knowledge or consent of the infant's father, Benjamin Mills, in violation of his parental rights.

Conley and Mills had a long and problematic relationship that produced two other daughters who live with Mills' mother, their foster parent. All of Mills four children live in foster care. Mills, who has multiple domestic violence convictions, assaulted Conley before Vanessa's birth. Prior to the birth of Vanessa, Mills was arrested for beating, strangling and dragging Conley by the hair while she held one of their other children. Mills had been jailed in the past for domestic violence and child endangerment. Conley, for what appears to be good reason, did not want Mills to know about Vanessa and supported Vanessa's adoption by Doss throughout the process.

And this has been a lengthy complicated legal process involving not simply a contest between the biological and adoptive parent, but jurisdictional issues between the state of Ohio where Mills lives and California where Doss lives. Doss, a self-employed single parent paid for all of her legal costs whereas taxpayers in both California and Ohio are footing the bill for Mills' legal costs.

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California Child Support Options - State Guideline or Something Better?

May 12, 2011, by

For those who go to court to determine how much child support should be paid by whom in a typical California divorce, there is a formula used to calculate the amount according to the state guidelines for child support.
The formula for the calculation of guideline child support is contained in California Family Code section 4055. That formula is expressed as follows: CS = K [HN - (H%)(TN)]. In this formula, the symbols set forth below (and used in the formula) make reference to the following definitions: CS = child support amount K = amount of both parents' income to be allocated for child support HN = high earner's net monthly disposable income H% = higher earner's approximate time of physical responsibility for the children TN = the parties' total monthly net income This formula will produce an amount of support per minor child. When more than one child is involved, the end result (CS) is then multiplied by a specific factor depending upon the number of children. For example, for two children the multiplier is 1.6; for three children, the multiplier is 2; for four children the multiplier is 2.3; for five children the multiplier is 2.5; for six children the multiplier is 2.625, and so on.
Roughly speaking, if the parents share relatively equal time and make roughly equal amounts of money, it is likely that neither will pay child support and that both will share costs such as unreimbursed medical and daycare. However, if either time or income vary, the formula will generate the guideline amount to be paid.

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North Dakota's SB 2367 A Major Setback for Amicable Divorces

May 5, 2011, by

The North Dakota legislature has introduced SB 2367 which would require that couples with children seeking divorce must wait one year and undergo mandatory counseling before proceeding. During the one year waiting period, couples would have to participate separately or jointly in at least 10 one-hour counseling sessions. I won't comment on the irony of a so-called conservative legislature that hails the importance of 'freedom' imposing excessive and inappropriate government intrusion into such a personal and private matter as divorce. These are the compatriots of those from South Dakota who came up with HB 1171 that would expand the definition of "justifiable homicide" to include killings intended to prevent harm to a fetus so that it would be legal to kill doctors who perform abortions.

Perhaps, they could consider instead following the lead of the thoughtful folks in the New Zealand Family Courts who provide free, yes free, counseling to folks experiencing marital problems or contemplating divorce. The confidential service provides therapists who can possibly help the couple resolve their marital problems and is recommended before filing for divorce. The counseling is offered rather than made mandatory, and again, it is free - both of which would likely go a long way to actually achieving the objective the North Dakota legislature would have us believe is their goal - helping to save marriages or at least reach agreements that facilitate a smooth and amicable divorce. California courts may not be as progressive as those in New Zealand but nor are they as regressive as those in North Dakota. We still have the opportunity to divorce in ways that serve the interest of the family and maintain positive relationships.