Your Children and The Law Guardian–The Truth: Part 2 by Latonia Early-Hubelbank, Esq.

In last week’s blog, we defined the role of the law guardian and explained how the court system routinely sets aside the rule of “ex parte” in order to allow judges to be influenced by this advocate for “what the child wants.”

Where a forensic examination has been ordered in a divorce [an investigation relating to a legal proceeding in which forensic accountants study evidence for hidden or undisclosed assets and income, and assist in determining the ownership of assets in dispute), the law guardian is usually the only lawyer permitted to communicate, without restriction, with the forensic examiner.  Again, as the courts also give great weight to the information provided by a forensic examiner, law guardians are put in the unique position of being able to influence the examiner with their own bias.

In hotly contested custodial matters, you will often find law guardians attempting to substitute their own judgment for that of either parent, which is all too often permitted by the courts.

I have experienced numerous situations where both parents are in agreement on an issue, but the law guardian is not. As a result, the law guardian will attempt to coerce both parties to do what they believe should happen for the child.  Clearly this was not what was intended when the notion of the law guardian was first conceived.

So while a law guardian can serve a useful function in a litigation, they can sometimes be harmful to the process and create more protracted litigation. 

In the collaborative divorce process, the collaborative team includes a neutral child specialist who not only gives a completely unbiased voice to the wishes of the children, but also serves as a resource for both parents. The mental health neutral works with both attorneys as everyone attempts to develop a parenting plan that will meet the childrens’ desires and facilitate a successful transition to two homes. 

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Are you a parent who is thinking about – or already getting – a divorce? If so, you may have heard the term “law guardian” and wondered what it means to your family.

A law guardian is a court-appointed attorney whose role is to represent the voice of the children in any custodial or visitation dispute between parents.  According to the law, the law guardian is supposed to be an advocate for what your child wants, just as your attorney is an advocate for you and your wishes. 

We want to make sure that the judge presiding over a case maintains the appearance of neutrality. And we want to be certain that neither party receives prejudicial treatment if one side presents the judge with information or facts that may or may not be true, without giving the other party an opportunity to confirm or dispute those claims. 

In fact, a fundamental rule of legal procedure dictates that no one should have an “ex parte” communication (Latin legal term for “from (by or for) one party”) with the court. An ex parte decision is decided by a judge, without requiring all parties in the controversy to be present. 

While this should mean the law guardian is legally treated the same as the attorneys who represent the divorcing parents, this is not the case.  This fundamental rule is often completely disregarded in dealings with a law guardian, and the implications and consequences are tremendous. 

Since law guardians are often viewed and treated as a “neutral voice” in the divorce process, the courts will often give greater weight to a position advocated by a law guardian. The ex parte communications are not only permitted at times, but, on occasion, are actually sought out by the court. 

The problem with this is obvious.  The guardian is human and, often times, will develop a liking or disliking for one of the parties. This, in turn, influences the position they present to the court and how they present it. 

One highly respected law guardian told me (on a case that I was not involved in) that, at trial, he will advance the position of his juvenile client.  However, he will also let the court know whether or not he believes that the child’s desires are actually in the child’s best interests.  While I’ve only heard this expressed by one law guardian, it is a philosophy that permeates the thinking of many law guardians. Clearly, this is not what was intended.

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By Neil Cahn, Esq.

Trying something new off the menu seems more enticing when you’re in a different country. The same might be said for the menu of divorce resolution options. Let’s travel north of the border into Canada.

In a July 17, 2011 press release, the Attorney General for Ontario, Canada announced new regulations governing couples divorcing in that province. Before accessing the court system, these couples are now required to attend an information session about their alternatives to the courts. To save time, legal fees and much of the emotional toll of the court system, they also have the option to attend a free mediation session paid for by the Attorney General’s office. This province-wide cost could reach $8 million a year if all couples choose this route, based on current divorce trends.

Now let’s look at the menu for divorcing New Yorkers.

Mediation: Since March 2011, parties to some Nassau County divorce court actions have been required to participate in a mediation session under a program initiated by the late Justice Robert A. Ross, Supervising Judge of the Matrimonial Parts. Similar to Ontario, the introductory session here is free, using one of the more than 40 mediators in the Matrimonial Alternative Dispute Resolution Program. To continue in mediation, the parties must pay for further sessions.

Does mandated matrimonial mediation really work?

Mediation lacks some of the substantive tools of other forms of alternative dispute resolution (ADR). The mediator does not decide the outcome, but merely helps the parties communicate so they can try to settle the dispute themselves. Mediation may be inappropriate if there is a significant imbalance of power between the parties.

Arbitration: In this other type of ADR, the neutral “arbitrator” hears arguments and evidence from each side, and then decides the outcome. In arbitration, the formal courtroom rules of evidence are often relaxed. There are two types of arbitration. In binding arbitration, the parties agree to accept the arbitrator’s decision as final, and there is generally no right to appeal. Binding arbitration is not available for custody and visitation issues. In non-binding arbitration, the parties may request a trial if they do not accept the arbitrator’s decision.

Does arbitration really work?

Arbitrators may not be required to tell the parties why a particular decision is reached and which factors they considered. This may lead a party to believe their position has not been heard or fairly considered.

Collaboration: The newest divorce alternative introduced in New York is Collaborative Law. This inter-disciplinary model brings a carefully paced, civilized, practical process that is financially and emotionally committed to a negotiated settlement without litigation. Each party is represented by a specially trained collaborative method lawyer. A neutral mental health professional helps identify emotional issues that may be blocking the process. And a neutral financial specialist assists with “transparency” on both sides, to accelerate the process at a potentially reduced cost.

Does the collaborative method really work?

Returning to our menu, divorce is an “intermezzo,” the transition before the next course in life. Divorced parents will be co-parenting (or failing to co-parent) their children for the rest of their lives. Even without children, divorce litigation only adds to a couple’s baggage, preventing them from moving on to lead happier lives apart.

In the Collaborative method, the parties are in the best position to decide whether a result is fair and their own interests are being respected. Actively participating in the process and witnessing progress towards a mutually agreeable resolution will lead to a better ability to enjoy life’s next course.

Just desserts: Having a decision simply handed to you by a judge or arbitrator often leads to feelings of bitterness, resentment, and powerlessness. From the Collaborative Law column of your menu, you get to choose feelings of fairness, respect and empowerment. You control your outcome, while improving the skills necessary to resolve issues even after the divorce is final.

All dishes are made to order.

For more information, visit CDRLI.com and www.divorceny.com

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Helping Your Children Survive Your Divorce by 

Most parents are concerned about how a divorce will affect their children. Current research on this topic indicates that:

1. The ending of a marital relationship does create stress in families. Stress contributors  include the parents’ own stress, reduced parenting capacity, impending family relocation, and economic instability. The good news is that most of these have only a temporary impact on the children.
2. The negative effect of divorce on children – stress, insecurity and agitation  – is largely due to chronic conflict between the parents. This is exacerbated when the conflict is open and attacking, and the children are caught in the middle.
3. A positive relationship between parents and children can decrease the stress. Specifically, custodial parents who express emotional stability, warmth and consistency can improve their children’s adjustment to divorce. The transition is even smoother when positive traits are exhibited by both parents.
4. On the whole, positive adjustment is further facilitated by the active and amicable involvement of both parents in the children’s care and lifestyle-related decision-making. The positive effects are diluted by parental arguments over childcare, especially in front of the children.
5. Children’s stress can be reactivated when the remarriage of a parent triggers or reawakens the parental conflict that caused the divorce.
6. Divorce is a better choice than staying together “for the sake of the children” in families where parents are chronically battling. Children actually do better emotionally when their conflict-ridden parents divorce, compared to children whose parents remain in that kind of marriage.
7. In families with high parental conflict, the conflict typically begins before the divorce and does not decrease until one or two years following the divorce. In some cases the animosity between parents can last, and impact the children, for many more years.
8. Parents can reduce the negative impact by controlling their divorce method and how they handle conflict during and after the divorce. One solution is to agree to a collaborative divorce, a process that teaches parents how to communicate effectively and work out their differences in non-adversarial ways.

The Grey Divorce – By Harriette M. Steinberg, Esq.

Survey says: Baby Boomers are ending their marriages later in life than other age groups, according to the Association of Divorce Financial Planning (ADFP).

The U.S. Census Bureau considers a Baby Boomer to be one of the 76 million American children born during the Post-World War II birth boom between 1946 and 1964.

For validation of the ADFP’s “Grey Divorce” findings, we need only look to Washington [D.C.], Hollywood and New York for a bevy of Boomers whose marriages hit the rocks decades after their optimistic “I do’s.”

• On June 1, 2010, former U.S. Vice President Al Gore and wife Tipper Gore, both born in 1948, called it quits after four decades together. Just one month after their 40th anniversary,  they announced their decision to friends via email.
• In 2009, CSI TV actress Marg Helgenberger, born in 1958, filed for divorce from her 58-year-old husband of nearly two decades, actor Alan Rosenberg. She was seeking spousal support while asking the court to deny him any.
• New York City’s former first lady Donna Hanover, born in 1950, was divorced from Mayor Rudy Giuliani, six years her senior, after 18 years of marriage and two children. He filed in 2000, she counter-filed in 2002.

Surprised by this trend? Let’s examine the numbers:

• Couples who have made it through decades of family rearing and career building now are 3 times more likely to divorce as their “Greatest Generation” parents.
• Boomer women are far more motivated to dissolve their marital unions than their husbands are (Reference: “Calling it Quits: Late-Life Divorce and Starting Over” by Deirdre Bair)
• A popular 2004 AARP study, which polled 1,147 respondents ages 40–79, found that women initiated 2 out of every 3 divorces in this age range.

The reasons behind this trend are not hard to identify.

The Baby Boomer generation has enjoyed the greatest prosperity of any group in our culture. After marrying early and having children, sacrificing their own careers to serve as full-time child-rearers and hubby-cheerleaders, many Boomer women feel wholly entitled to pursue their own dreams. With the fading of once-shared marital interests, some women choose to pursue their newly defined happiness alone, while others select a new partner. Of course, their financial independence provides a big boost to this newfound freedom.

As they live longer, Boomers are placing greater emphasis on accumulating sufficient assets to support their desired lifestyle into their 80s and, more commonly, 90s. Simply dividing assets between the divorcing parties may not be the best solution.

Divorcing Boomer couples may find it fairer and more acceptable to keep some financial interests between them, rather than completely ending their financial partnership with the divorce. Establishing a post-divorce Trust fund can grant the surviving former spouse the right to receive full or partial income from the decedent’s assets.

And at their stage in life, divorcing Boomers in a 30-year or longer marriage seldom face the same concerns as younger couples: child custody, child support and job-related relocation. In contrast, their issues include long-term care, post-retirement support and estate planning.

This is where Collaborative Divorce offers the most benefit for older couples.  

In contrast to a litigated divorce where a judge’s rigid practices, timetables and rulings may ignore the aging soon-to-be-ex-spouses’ needs, Collaborative Divorce is designed to address their special primary concerns.

Read more about Collaborative Divorce on this blog and watch for upcoming articles.

Visit CDRLI.com and www.lawyersonli.com.

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Recovery from Divorce-Induced Crazy Feelings by Neil S. Grossman, Ph.D.

It has been said that divorce makes sane people act crazy. This is because the dynamics or pressures of a divorce push normal emotions to the extreme. A divorce is expected to create feelings of separation and loss in people.

Also, we realize that the expectations we had in the beginning of the relationship will not be fulfilled and we become disappointed. The anger and rage that result can push us to act competitively, which, if strong enough, may become adversarial.

Let’s examine each of these emotions, how they can become extreme, and how to cope:

1.   Separation causes anxiety that, in the extreme, may become panic. The panic dissipates when we gain faith in our own ability to take care of ourselves and our future.

2.   Loss causes sadness that, in the extreme, may become depression. The depression can be successfully reduced or eliminated when we do grief work with appropriate trained professionals.

3.   Unfulfilled expectations lead to disappointment that may become betrayal and rage. Forgiveness is the antidote. By releasing the anger and our feelings of being victimized, forgiveness enables us to leave behind the rage that keeps us connected negatively to our ex-spouse.

4.   Competition with an ex-spouse leads us to focus on our self-interest and self-protection, which can escalate into greed. This urge will dissipate when we can identify value in the other aspects of our life.

5.   If our sense of competition with our ex-spouse becomes adversarial, this can lead to suspicion that in its extreme may become paranoia. We can put aside this suspicion as we develop trust that, although the marriage is ending, we can still cooperate with each other as a couple in the areas of our mutual interests – particularly the well being of our children. Thus, we learn to trust that our ex-spouse will do the ”right thing” in relation to the children.

These ideas are derived from the writing of Howard Yahm, MSW, who practiced social work and psychology in Monsey, New York.

For more information, visit CDRLI.com and www.drneilgrossman.com

Separating Your Retirement Assets Pre- and Post-Divorce:  Q&A Part 2 – By Nancy Kaye, CDFA, CFP

The Collaborative Divorce process makes anything possible if the two parties can agree.  Remember, you always want to have your attorney’s input and guidance in the decision making process.

A Collaborative Divorce generally takes less time than a litigated settlement. The speediness of action is facilitated by openness, the sharing of information, and the desire to work out a settlement that meets the needs of the husband, wife and child(ren).  Although one party may need more time than the other to sort out and accept the new family situation, a supportive collaborative team coach will help both parties work towards the “end game.”

In my last blog, I talked about the separation of non-retirement assets.  Retirement assets are a bit different as they generally are separated after divorce.  The reason is that corporations and brokerage houses require documentation that the couple is legally divorced, so that any transfer of funds does not trigger a taxable event.

Remember, most retirement assets (other than a Roth IRA) have never been taxed when contributions were made.  All the earnings grow tax deferred.  It is only upon distribution that the assets are taxed.  If assets are withdrawn prior to age 59-1/2, the government assesses a 10% penalty for early withdrawal.  While this penalty can be eliminated during the divorce process if one spouse requires the money, this must be done before the assets are transferred over.  Although you would eliminate the 10% early withdrawal penalty, the money withdrawn still would be taxed.

Question: Does our tax basis affect our retirement assets like IRA’s and Roth IRA’s?

Answer: Retirement asset division is a bit more complex. Asset division typically follows this rule of thumb: “I’ll take mine, you’ll take yours, and we’ll divide up the rest to make it equitable.” When retirement plans are eventually sold, there are taxes to be paid, since contributions and earnings have never been taxed. With Roth IRA’s, the taxes have already been paid on the contributions and when the money is withdrawn, the balance comes out tax-free. So again, with Roth IRA’s in the mix, consider the tax impact of each asset as if it were sold today, in order to get the proper valuation (see Part I for a further clarification of tax impacting).

Question: Can we divide up our retirement assets now – before the divorce is final?

Answer: It is important to know that prior to divorce, you cannot divide-up retirement assets – unless you are each keeping your own assets. If you will be receiving part of your spouse’s individual retirement account, there is a way to take control.  You can have your spouse set up another IRA account and deposit the designated portion into this new account, naming you as the beneficiary and as the “Power of Attorney”. This way, you can change the investment strategy to be more suitable to your individual financial goals and objectives. The financial statements can go to your new address. At the time of divorce, you can simply change the name on the account to your name.

Question: And what about the company retirement plans?

Answer: Corporate retirement plans (Money Purchase, Profit Sharing, Pension or 401K plans) require a QDRO (Qualified Domestic Relations Order) to be submitted to the employer in order to split-up the asset. Although this asset cannot be divided prior to divorce, at least you will be able to take control of some portion of your assets sooner, rather than later.

The qualified financial professional on the Collaborative Divorce team can assist you with the tax implications of the division of your marital assets.

Question: “We’re not divorced yet. How can I control my portion of the marital assets?”

Answer: One of the stickiest aspects of a divorce, and often the greatest point of contention, is the separation of financial assets.

The beauty of choosing the Collaborative Divorce process is that the decisions made between the soon-to-be ex-spouses are bound by what the couple wants, with guidance from their respective attorneys and the neutral professionals on the Collaborative Divorce team. Generally, the financial separation of assets is done at the time of the signing of the divorce agreement.  However, it can occur at any time if agreed upon by the parties.

If a couple has already reached a financial agreement of how the marital assets should be divided, there is no need to wait until the divorce is signed. If each asset is split down the middle, it is an easy task; however the splitting method is not always the best strategy.

Question: Are asset transfers between spouses taxable?

Answer: No taxes are paid on asset transfers between spouses. However, two assets with the same current value may not really be equal. Thus, even if you split assets, you must know the value of the contribution made/invested in each asset. Knowing this “cost basis” will help in the division of assets for “tax impacting” when divided.

Question: How do we know what really is equal?

Answer: For example: The couple owns two brokerage accounts each worth $100,000. Account A started with a value of $75,000. Account B started with a value of $125,000. Are these accounts really “equal” when it comes to splitting assets “down the middle” in the divorce settlement?  While it may seem easier to say to your spouse, “You take Account A and I’ll take Account B,” in the long run this could be detrimental to your financial health.

If both accounts are sold today, Account A would have a capital gains tax on the $25,000 profit.  At a minimum, that reduces the profit and account balance by $3,750 or 15% of the gain. Account B, when sold, will have a loss of $25,000 and will receive 100% of the proceeds or $100,000. Now do they still seem equal? Account B will have a $25,000 tax loss and potential “carry over” of that loss for future years. This in and of itself is a valuable asset that will help to reduce taxes going forward. Now you can see that all assets are not “equal.”

Question: What about our home? I am planning to keep it, but it’s held in our joint names.

Answer: With the help of an attorney, you can change the ownership/title on the home to your name individually.  There is no taxable transfer between spouses.  When you do sell, as an individual, you are entitled to a $250,000 exclusion on any gain (what you purchased the home for, plus improvements, less your net selling price).  As a couple, you would have been entitled to $500,000 exclusion before capital gains are paid.

Question: What if we plan on keeping the home jointly until our youngest child turns 18?

Answer: Again, you will need an attorney to change the title of the home to joint tenants in common.  This way, if one of you were to pre-decease the other, your heirs would get your half of the home.

A qualified financial professional can assist with the tax implications of the division of assets.

Design Your Divorce: Where Do You Stand? – By Harriette M. Steinberg, Esq.

Oh, you say you’re not famous, outside of your family, your neighborhood or your job? And the paparazzi are not camped outside your door, salivating for your up-to-the-minute divorce news?

Not to worry. Just remember, “Where you stand depends on where you sit.”  A bad divorce will contaminate any memories of a good marriage and will often make permanent headlines in your own life story!

Three popular divorce styles are now available to launch you and your soon-to-be-ex-spouse on your separate paths: courtroom litigation, divorce mediation and collaborative divorce. Let’s examine your options.

Column A: Looking for an expensive, noisy, acrimonious, long-drawn-out fight-to-the-end? Easy! Pick the traditional adversarial litigation method, with a built-in courtroom drama feature and a presiding judge who will single-handedly decide both of your fates. This time-honored divorce format has provided us with dicey off-screen entertainment from many film and TV icons.

Celebrity divorce litigation couples: Alec Baldwin v. Kim Bassinger. Philanthropist Heather Mills v. former Beatle Sir Paul McCartney. Long Island celeb parents Michael Lohan v. Dina Lohan.

Column B: Prefer a more civilized, cozy, face-to-face dissolution? You and your almost-ex can meet with a neutral professional mediator who will guide you across the great chasm to the other side, outside of the cold courtroom setting. You will both share information and work through your issues for a calmer divorce outcome. Limitation: the mediator cannot give advice to either of you or act as a lawyer for either party.

Celebrity divorce mediation couples: Golf royalty Tiger Woods v. Elin Nordegren. Hollywood superstars Tom Cruise v. Nicole Kidman. TV’s ER actor Noah Wyle v. wife Tracy.

Column C: One more to go. If you can’t stomach Column A or B, then listen up. Eager to lessen the hurt and anger, establish a new common ground based on your shared goals, learn new communications skills to use during and after the process, and build a mutually satisfactory bridge to your separate futures? Then Column C is for you. You ask how can all of these worthy goals be accomplished, if a divorce is still a divorce?

Collaborative divorce uses a unique team approach to address your legal, financial and emotional needs at such a trying time. Team members include each spouse’s attorney, one neutral financial professional and one neutral family specialist. The team agrees on and enforces rules for civil conduct, uses meeting agendas and notes to keep the forward momentum, and encourages a positive attitude.

Celebrity collaborative divorce couples: Singer/actress Madonna v. director Guy Ritchie, considered the first high-profile couple to divorce collaborative-style. Actor-comedian Robin Williams, along with his wife of 19 years, Marcia Garces Williams, told the press, “We commit ourselves to the collaborative law process and agree to seek a positive way to resolve our differences justly and equitably”. Movie director Cameron Crowe v. singer Nancy Wilson of the rock band Heart.

More about Collaborative Divorce:

• An interdisciplinary process that brings multiple perspectives to the table as the divorcing parties seek to untangle their alignments
• Proven to have the strongest and most lasting solutions
• Enables your “family” to continue after the marriage ends – because good endings lead to better beginnings
• Since one spouse’s economic well-being typically remains connected to the other spouse’s to some degree, this method is grounded on open financial disclosure

Read more about Collaborative Divorce on this blog and watch for upcoming articles.

Visit CDRLI.com and www.lawyersonli.com.

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Collaborative Divorce Communications Q&A – By Roxane Polak, Ph.D.

Q: How can I ensure that my spouse doesn’t verbally insult or abuse me in the Collaborative Divorce team meetings?

A: Your Collaborative Divorce team will include a mental health professional, referred to as a Neutral Family Specialist (“NFS”), who is specially trained to help spouses agree and adhere to explicit rules of collaborative conduct.  Your NFS will remind you both to use “I” terms to describe your feelings instead of blaming each other.  When necessary, the NFS will stop the meeting and talk to each of you separately to calm and neutralize any intense emotional reactions.  Finally, the NFS will model a more constructive style of communication, and help you learn to speak that way to each other and to your children.

Q: What style of communication is most effective in these meetings?

A: The Neutral Family Specialist is trained to listen and respond empathically, so you and your spouse each feel fully heard and understood in a safe and accepting environment.  Emphasis is placed on each individual’s interests and needs. Underlying assumptions about each other are explained in detail and explored, and alternative viewpoints are then suggested. The communications emphasis stays focused on your future instead of your past. The NFS will ask questions to help clarify confusing or contradictory statements in light of each spouse’s stated goals and priorities.

Q: How is this approach different from going to couple’s therapy?

A: In therapy, the psychologist focuses on assessment and treats symptoms, discussing the past and its implications for the present and future.  In contrast, the role of the Neutral Family Specialist in a Collaborative Divorce is to help the couple focus on the future to make a successful transition to a post-divorce family. The NFS does not make a diagnosis or treat your psychological conditions.

Q: Why do we need the Neutral Family Specialist? Why can’t my lawyer help with divorce communication?

A: The specialized training of the NFS mental health professional guides your interactions with your spouse. This is not predicated on giving advice or stating opinions, and is not informed by knowledge of the law.  When appropriate, the NFS will tell you both about relevant research on divorce and child development in order to help you make informed decisions about your family. The NFS will also help your lawyers better understand your perspectives so they can communicate collaboratively within the team.  Finally, the presence of just one NFS in the team meetings changes the dynamic of the meetings. Instead of just you and your lawyer sitting opposite your spouse and their lawyer, there is a fifth person at the table: the NFS.  They help the flow of conversation remain open and always focused on reaching mutually agreed-upon goals.

For more information, visit CDRLI.com and http://drpolak.com.