Divorce

Divorce and the Collaborative Process

December 12, 2016Filed Under: Current Events, Dissolution, Divorce, Uncategorized

I’ve been watching the show “Divorce” on HBO (Sarah Jessica Parker) fairly religiously because I like HBO and SJP and I also practice family law.

[Spoiler Alert!!] In the first couple of episodes after divorce became a likely option for the characters, they started down what is often a common way of handling the conflict. First, they went to mediation and tried to work things out without lawyers. This show subscribes to a traditional stereotype of a lawyer – that they make everything worse and more expensive. So the characters opted not to go that route “to keep things amicable”. All things I’ve heard before. Things were going well with mediation. But then the husband talked to a friend who said he should “lawyer up” to make sure his interests are protected. So he did that without telling his wife. When the wife got wind of the husband getting a lawyer, she went for the best, most expensive lawyer in town to one up the husband and make sure her interests were protected. This caused the husband to panic and decide he needed a “better” lawyer, so he went and hired the dirtiest meanest women-hating lawyer in town to protect his rights. Then, the wife determined her lawyer was not getting the job done so she fired him and hired the dirtiest, meanest man-hating lawyer in town to protect her rights. Meanwhile, the parties were able to co-parent, deal with each other and parties of common friends and go to visit wife’s family for the holidays without the help of their lawyers. The last scene was the husband being served divorce papers in the middle of coaching his daughter’s basketball game to wife’s surprise. A recipe for disaster.

We are talking about a TV show so of course there is the usual bit of Hollywood dramatization and exaggeration. However, I would say its a fairly accurate portrayal of how things can go when starting the divorce process. If these parties had been introduced to the Collaborative Process in the beginning, they may never have completely cut off their chance at an amicable resolution of their issues. Instead, they are spending their hard earned money “one-upping” each other with their lawyers and entering into the process using fear as a tactic. Wife also managed to humiliate her husband and children in public as icing on the cake.

This is definitely one way to handle your divorce and there are lawyers out there willing to take your money to do it that way. But usually the end result is not good for either party, especially if children are involved.

By contrast, the Collaborative Process insists that each party has the chance to hire a lawyer of their choice who is trained in the Collaborative Process before any sort of negotiation begins. The parties hire their lawyers at the outset and can set the tone of their process. Then, depending on the distinct issues in the case, the attorneys may recommend hiring a family relations specialist and a financial expert to help move the process along. The process is meant to be a team approach and the lawyers advise on what the party’s interests are so that the party has a frame of reference as to whether they are agreeing to something for or against his/her interest. Your lawyer is still fully on your side in an advisory position. If you are interested in this approach to ending your marriage vs. the one described at the beginning of this blog, contact me to set up a consultation to discuss your options.

Can you force a parent to have visitation with his/her child?

November 22, 2016Filed Under: Child Custody, Dissolution, Divorce, Post Divorce/Custody Issues

A question was recently posed to me regarding a parent’s ability to force the other parent to have visitation with his or her child.

You generally cannot force the other parent to exercise his or her visitation if you have full custody of your child. Visitation is considered a “right”. Similar to other rights – such as voting – you have the ability to exercise your right but can’t be penalized for choosing not to exercise that right. Your right can be taken away from you only for good cause. In contrast, supporting your child is a responsibility. A responsibility – such as paying taxes – can be forced upon you if you choose not to honor that responsibility. The Court has the ability to force the Obligor to pay child support even if he or she doesn’t want to.

One caveat to this is if the parents have a shared parenting plan (Ohio’s version of joint custody). I have heard one judge say that she would find a parent in contempt for not exercising his time under a shared parenting plan. I have never personally pursued such a finding because from a practical standpoint it just doesn’t make sense. The more logical pursuit would be to ask the Court to modify the non-compliant parent’s parenting time and increase his/her child support because he/she is not exercising the time, putting more of the burden on the other parent.

Holidays and Divorce

November 17, 2015Filed Under: Child Custody, Dissolution, Divorce, Misc Advice

The holidays are here! Can you believe it? For divorced/living separate families, this time of the year can present a whole host of new challenges and anxieties. While you were married or together you may have split Thanksgiving between two or even three events with various parts of your extended families. You may have spent Christmas Eve with your family and Christmas Day with his family. You may have agreed to stay in town for Thanksgiving every year and celebrate with your family and go to Chicago to visit his parents every year for Christmas. When a breakup happens, it is inevitable that your yearly traditions will change. These changes may be hard on you, your children, your former spouse or significant other, and the extended families involved.
A common way that separating individuals handle holiday division is by implementing the Court’s standard order. The standard order serves, among other things, to divide up holidays with the children between the mother and father. For example, during even years the mother may have the children until 9pm on Christmas Eve and the father may have the children at 9pm on Christmas Eve through the day after Christmas. This arrangement works well for a lot of individuals, especially those in a high conflict situation where sitting down and negotiating is simply not an option. Keep in mind that your family is not bound to follow the Court’s standard order. The parents can make any agreement that works best for their family. I recommend if at all possible that parents first consider their holiday traditions and try to tailor their agreement around those traditions if such traditions exist. This consideration and specific tailoring of the holidays may bode well for your children’s adjustment to the separation. If concessions are made and your holiday schedule looks different than before, that is okay too. Overtime new traditions will develop. You may also need to have a talk with your extended family and come up with alternative plans. Hopefully your family will be understanding and willing to modify their holiday traditions so that your children can be included in the celebration! At the end of the day, it really is all about your attitude and willingness to be flexible that will make or break this holiday season. I wish you and your family peace and happiness!

Can my child choose who has custody in a Ohio Divorce?

November 12, 2015Filed Under: Child Custody, Dissolution, Divorce

One of the most common questions I am asked by a client is “How old does my child to have to be before she can choose what parent she wants to have custody of her after a divorce in Ohio?”

The answer to this question is that there is no specific age where the Court has to rely on a child’s wishes solely when determining who will have custody of her.

In 1991, the Ohio divorce custody statute was amended and the right for a child to choose the custodial parent was deleted. The new custody statute (contained in Ohio Revised Code 3109.04 – http://codes.ohio.gov/orc/3109.04) spells out a list of factors that the Court must consider when allocating custody of a child. These factors include the following:

Wishes of the parents
Wishes of the child
Child’s interaction and relationship with the parents, siblings, etc
Child’s adjustment to the home, school, and community
Mental and physical health of all persons involved
Which parent is more likely to honor court approved visitation/companionship rights
Whether either parent has failed to make all child support payments
Whether either parent (or other member of the household) has been convicted of a criminal offense that resulted in the child being abused/neglected (sex offenses, etc.)
Whether one of the parents has willfully denied the other parent his/her parenting time
Whether either parent has or is planning to establish a residence out of state

As you will note in #2 above, the wishes of a child are required to be taken into account in a custody analysis by the Court. However, this one factor isn’t always outcome determinative as there are 9 other factors for the Court to review. However as the child becomes a teenager, this factor is probably weighted more than if the child is 7 years old. The bottom line is that your child’s wishes aren’t always determinative of the outcome of custody but they are important and taken into consideration during a full analysis under the law. If you have any additional questions regarding your Cincinnati divorce or wish to set up a consultation please contact Olivia through the information on her website.

Divorce and the Collaborative Process

Can you force a parent to have visitation with his/her child?

Holidays and Divorce

Can my child choose who has custody in a Ohio Divorce?

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