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Thursday, May 27, 2010

We've Come a Long Way, Baby - or Have We? Spousal Maintenance in the 21st Century

It's all about choice. For hundreds of years, women have fought and shed blood, sweat and tears to lay claim to the rights and choices that men have always had. The ability to be a part of the workforce, to vote, to be employed in any field of their choosing- even to become President and fight on battlefields. Why, now that we have made such tremendous strides in many of those areas, do many women still feel that it is necessary to seek spousal maintenance?

Some may argue that the true freedom is in choosing any employment, and women's studies majors would argue with me that one such choice is to work in the home raising a family and keeping house, which has for time immemorial been an unpaid and thankless job that is woefully undervalued in our world at large. Raising children and keeping house are both truly noble pursuits (if the woman in question is actually rising to the occasion) and are worthy of great praise. But when does the choice to stay home, especially once children are in school, become the right to collect spousal maintenance (alimony) if the marriage ends?

New York State Domestic Relations Law section (hereinafter DRL) 236(B)(6)(a) states the following: "...the court may order...maintenance in such amount as justice requires, having regard for the standard of living of the parties established during the marriage...." [Emphasis supplied] But what, exactly, does justice require? I have heard it said that the trend is that the courts are shifting away from awarding maintenace in divorce actions due to the increasing ability of women to become self-supporting, but this has not exactly been my experience.

This is a huge topic to take on in this limited amount of space, but some of the issues are these: If a woman has been home of her own choosing and has never sought employment, has she really helped to "establish" the standard of living of the parties during the marriage? Many argue yes, the old "behind every great man is a great woman" theory. Maybe. And sometimes men insist that their wives remain home with the children, and even after the children have entered school, to maintain an orderly and beautiful home so the hard-working husband can truly have a home that is his sanctuary- his haven. In those cases, perhaps there is more rationale behind wives seeking maintenance. After all, they have forsaken the opportunity to pursue education and career for the care of home and hearth at their husband's insistence. My real question is, does the request for maintenance in a divorce action simply perpetuate the longstanding prejudice against women that depicts them as helpless frail creatures who need supporting? Or is payment of maintenance one way of valuing work that has conventionally been "women's work" monetarily as it never has been in days past?

If a court decides that a woman should be paid maintenance following divorce, how much should she be paid, and how long should her ex-husband be forced to pay her? Should it matter who divorces whom? And especially in cases where women do have expertise in a particular field, or advanced degrees for that matter, should they still be granted maintenance? Some of the factors considered by the court are: the income and property of the parties; the duration of the marriage and the age and health of both parties; the present and future earning capacity of both parties; the ability of the party seeking maintenance to become self-supporting; reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, career opportunites, etc.; the presence of children of the marriage in the homes of the parties; the tax consequences to each party; contributions of the party seeking maintenance as a spouse, parent, wage-earner, and homemaker to the career potential of the other party; the wasteful dissipation of marital property by either spouse; and any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration. (See New York DRL section 236B(6)(a)(1)-(10))

These factors leave a ton of wiggle room for judges, however, and the result, more often than not, is that even those spouses who are seemingly able to be self-supporting are awarded some form of maintenance if they have been married for any substantial length of time. In fact, in a recent case of mine, the wife was seeking maintenance for six years even though she held an advanced degree and there were no children of the marriage. In a conference in chambers with the judge's law clerk, she told me point blank that it is customary (at least in that court) for the amount of maintenance to be paid for approximately one quarter of the duration of the marriage. In that case the parties were married for twelve years, so maintenance, if ordered after trial, would probably be ordered to be paid for at least three years. This was a surprising mathematical formula that as far as I can see, cannot be found within the confines of the DRL. But such liberal discretion is afforded in this area that once custom is developed in a particular court, such custom is unlikely to be contradicted.

To be fair, occasionally, it is the husband who seeks spousal maintenance, but I have never had such a case, nor have I heard of one being handled by any of my peers. Those men are usually the ex-husbands of movie stars and female moguls...not work-a-day people. No, typically, women are the ones who want the state to intervene and tell their ex-spouse that there is a price on having had the privilege to be married to them, a price on bearing children and keeping house. Maybe that is as it should be. Though I can't help but wonder if in our struggle to progress we haven't actually regressed. The pendulum always swings too far and then comes sailing back in a reactionary rebellion to past practices. Are women simply selling themselves short, or is this really about placing monetary value on jobs that have traditionally been held by women and therefore have never really been recognized as work that is worthy of pay?

My mother's generation saw women who were able to come out from under their fathers' or husbands' thumbs and finally have the ability to make a successful career in a male dominated field of their choosing. But in the midst of the feminist haze did we lose what we were really after: The freedom to choose our futures? And are we losing more of that freedom by sacrificing to the gods of divorce law by suggesting that because we choose to be caregivers we must be subsidized by father government in the form of maintenance checks from ex-husbands? I am not offering an answer, but I believe it is most important to ask the questions.

Wednesday, May 26, 2010

Attorneys for the Child: Advocacy, Egos and Agendas

SCENE: Susan, a well-dressed and perfectly manciured blond in her late thirties has just been notified that her children's attorney, appointed to represent their interests in the custody battle with her dreaded ex, has just arrived for her meeting with the children, her very young clients ages three and five. Marsha, an Attorney for Children in cases like these, has been practicing for ten years and is very well respected by the courts and the local legal community. She has also just gotten divorced herself last year, from a cheating bastard of a husband.

SUSAN: Hello, I'm Susan, Michael and Cindy's mom, it's very nice to meet you.

MARSHA: Yes, lovely to meet you, and what a darling home you have here. Are Cindy and Michael upstairs?

SUSAN: Yes, they're in the playroom. Let's go up and introduce you.

MARSHA: Wonderful, I hope I haven't come near mealtime.

SUSAN: No, we've eaten. Five sharp every evening, I believe in regular routines, unlike Mike Sr. That man doesn't eat until 8pm most nights. No wonder the kids are always coming home from their visits with him hungry.

MARSHA: How often is he visiting with them?

SUSAN: Well, it used to be every other weekend, but we haven't seen him around here in about five months...that's when he started dating that tramp he sees.

MARSHA: Does he call them?

SUSAN: Not until 9pm, when he knows they're already asleep. It's like he does these things to purposely avoid having to deal with their questions about why they aren't seeing him. It's disgusting, if you ask me.

MARSHA [ENTERING THE PLAYROOM]: Hi Kids, my name is Marsha, it's so nice to meet you both.

KIDS: Hi, Marsha.

MARSHA: Isn't that a lovely doll you have. Mom was just telling me that you used to visit your Dad, is that right?

MICHAEL: Yeah, but we haven't seen him in awhile. I miss him.

MARSHA: I'll bet you do. Well, I'm sure he misses you, too. Do you get to talk much to him on the phone?

MICHAEL: He called last week but then mom said it was time for bed, so I had to go.

MARSHA: Oh, ok. And would you like to see him more?

MICHAEL and CINDY: Yes! Can he take us to his house this weekend?

MARSHA: Well, I'm going to talk to him, and we'll see, ok?



Fast forward to the courtroom on the next schdeduled appearance in the custody matter. Both parties and their respective attorneys are present, as is Marsha. Mike's attorney has spoken with her client and he has told her that he was seeing the children regularly, but then Susan got upset when she learned he was dating and refused to allow him access to the children. He is near tears and expresses his feeling that he has no rights in this situation- what Susan says goes. His attorney assures him that she will speak to Marsha about initiating more regular visitation. Mike has no history of drugs, alcohol use or any mental infirmity. He has been late with child support during the last three weeks because he just lost his job. He is a carpenter and has come to court in jeans and a tee shirt and is unshaven.

Mike's attorney reports her client's side of the story to Marsha who abruptly (and in a stern, almost scolding tone of voice) cuts her off- -- "I'm sorry, but Susan says that Mike hasn't even seen the kids for five months...there's no way I'm going to recommend that he be allowed to just jump into regular visitation when his kids barely know him! He is going to have to start with supervised visitation and maybe eventually, if he's really serious about seeing his kids, he can increase the visitation from there. Mike's attorney, astonished that Susan's emotional propaganda has been taken for truth retorts: "I think it is unfortunate that due to the fact that Susan has not permitted Mike to see their kids that he should now be relegated to supervised visitation. Incidentally, he says the last time he saw them was two months ago, and that it stopped because Susan didn't like him dating. Certainly you aren't suggesting that in two months the children have forgotten who their father is." Marsha responds cavalierly, "Well, regardless of why he hasn't seen them, it's not going to change my position." The case is called and the Judge listens to Marsha first. "Judge I recommend supervised visitation one day a week until Mike can show the court that he is really serious about seeing his kids. I mean he can't just be permitted to come in and out of their lives and not make a real commitment. And the superviser needs to be someone that Susan will consent to and she doesn't get along with his mom or his sister, so those two are out. If he can't come up with a viable alternative, he will have to go to court-supervised visitation, which will cost about $70.00 per session." The Judge orders supervised visitation one day per week and since Mike can't come up with any other "viable" alternate supervisers, court-supervised visitation it is. Except one thing: Mike is out of work and cannot afford it. Now, if he is unable to visit due to his finances, at the next court appearance he will be brow-beaten for not seeing the children and accused of being the uncaring, neglectful louse his ex described.

What is WRONG with this scenario? How is it that ONE woman, made of flesh and blood (and with her own biases and emotional baggage) can decide the fate of a father and his precious relationship with his children, never having met him before, but relying solely on the embittered words of a scorned ex-wife? But this is exactly the way it plays out in far too many cases. The unfettered, unbridled power of attorneys for the children (formerly called law guardians) results in opinions that are relied on far too heavily by most judges; and their opinions are often based on the unsubstantiated emotional ramblings of the mother in the case. Unless she is on drugs, has been hospitalized for depression, has abandoned her children, or there is evidence of neglect or abuse in her household, the mother's story is virtually taken as gospel to the detriment of many a loving father.

I am SO passionate about this topic and actually lived the above described situation (for real) in a case I have currently. It amazed me that no one seemed to question the mother's story or require any further evidence before deciding that this father needed to "prove himself" worthy of being in his own children's lives! This practice is absolutely loathesome and must be examined if fathers are ever to have any meaningful stake in the family court system, or more importantly, in their children's growth and development. The superimposed morality of many attorneys for the children is misguided, and in some cases, downright vindictive. The show of power at all levels is most ugly when that power serves to hurt the very people whom these advocates are appointed to help. To my mind, judges must be more leary of substituting the attorney for the child's judgment for their own. These attorneys are not judges, but their recommendations are almost always followed to the letter.

It used to be that "Law Guardians" had to come to court and represent what served "the best interests of the children." Due to recent legislation, however, the term was changed to "Attorney for the Children." This was supposedly done to take those attorneys away from moral safeguarding and force them to come to court and represent what their clients(children) WANTED, not necessarily what they personally believed was best for them. This change was made because attorneys are not social workers and are not trained to identify,treat or categorize children as neglected, abused, and certainly cannot by virtue of a law degree decide what is in "the best interests of the child[ren]" or which parent is being truthful. Though this change was made many months ago, my experience (as recent as today) is that nothing has changed in the world of child advocates. The shameless personal agenda-pushing and superimposition of morality is as astounding as it is saddening to those it affects. One wonders how such legal leviathans can rest their huge heads on their pillows at night.

***Please note: Not all advocates for children abuse their power or force their opinions on litigants, nor do they all strongarm the legal process. However, there are a great number who do, and so the author feels there is much merit in discussing this trend.***

Tuesday, May 25, 2010

Location, Location, Location!

So, this installment has to do with an issue I have encountered frequently of late and am extremely passionate about: Relocation of a parent and the impact that has on custody and visitation.

By way of introduction to custody cases in general, I will set forth the roads open for pursuing custody and visitation rights. There are two ways in which to establish custodial/visitation and child support rights in any case. The first is to file for a divorce in Supreme Court and allow that Court to handle all of the issues surrounding the children of the marriage. The second way is to file a petition in family court for support and/or custody and visitation. The family court route is a better option for folks who have immediate issues or hotly contested custody issues that must be resolved quickly. Family Courts in New York have something called "standards and goals" which in plain english means that when a custody case has been ongoing for six months, the case is pushed by the court to either be settled or go to hearing (trial). This means a faster resolution of the case than is typical of Supreme Court litigation, which can potentially go on for years. Family court is also the ONLY option for less traditional families (i.e., moms and dads that never got married).

In cases where one spouse has threatened to leave with the kids at some point, there is usually much discussion over how far that spouse will be permitted to move from the other since moving will impact the non-custodial parent's visitation rights considerably. Often times, a "radius clause" is put into the settlement agreement, or is imposed on one party following a hearing for custody and visitation. This "radius clause" says that Jane must stay within, let's say for example, a thirty five mile radius of the current residence of Bob, or the residence the parties shared prior to separating. If Jane then violates the order, Bob now has sufficient grounds to file a violation petition.

In other instances, the custodial parent files what is known as a relocation petition which is essentially asking the court's permission to move out of state. Factors considered by the court include what kind of support system the custodial parent has, whether or not they can afford child care if no family members live nearby, and whether a better, more lucrative employment opportunity has been offered (or is available) in another state. If the court grants such a petition, the non-custodial parent's visitation is relegated to school vacation weeks and summers. In my opinion, this is a very sad situation wherein children are prevented from having the essential frequent contact with both parents that every child requires and deserves.

The problem occurs when the custodial parent does not ask the court's permission to leave the jurisdiction, but simply packs up the kids without warning and leaves the state, or sometimes, the country. This is a scary prospect and in cases where parents leave the country there is federal legislation prohibiting such "parental kidknapping" and providing penalties for doing so. But when a party leaves the state with the kids and the non-custodial parent has no money for private investigators and the like, the chances that an arrest warrant (if issued) will be executed in a diligent fashion are slim to none. These parents are basically out of luck and may never see their children until they reach adulthood.

Unfortunately, most of the parties who have custody are still women. I hate to betray my gender, however, I see it this way: Women are the first to point fingers at "deadbeat dads" and dads who don't have enough involvement in their children's lives; but it also seems to me that women feel a god-given right to just pick up and leave with children that it took two people to create. I understand the whole "I'm the one that carried them for nine months" argument, but perhaps our society as a whole needs to look at how the family court system glaringly favors women. Family Court slams the gavel and tells men to get more involved and with the same gavel allows women to use motherhood as an excuse for controlling how often, when and where men will be permitted to see the children they helped create. Equality means just that: EQUALITY I would love to see the day when men can file for custody and not have to prove that the mother is on drugs, beating the children or mentally insane to establish that they may in fact be the more stable parent. Something to chew on.

Monday, May 24, 2010

Unlawfully Wedded Strife

Perhaps you've witnessed the scene before: Husband and wife go from destined to be together to destined to kill one another. That's just a typical day in Family or Supreme Court when marrieds decide that "happily ever after" is more like Cinderella's carriage turning back into pumpkin at midnight! The questions is, when does household strife call for an Order of Protection?

Many people incorrectly use the term "restraining order" when what they are really referring to is known in the great state of New York as an Order of Protection (hereinafter "OOP"). It may seem like an outdated or sexist stereotype that primarily women are the ones who need protecting from abusive spouses, but by and large, the majority of petitioners seeking an OOP are still women. When a client calls to ask whether or not this is something she should be seeking during the course of an ugly divorce or custody proceeding, I proceed with the utmost caution.

The problem as I see it, is that in order to err on the side of caution, many courts seem to hand out OOPs like candy on Halloween. Don't get me's CLEAR that for many women (and some men, lest I am criticized for generalizing) an OOP is a necessary instrument in safeguarding the physical and mental welfare of herself and and her children. But when is it simply a sword disguised as a shield??? In other words, are OOPs being handed out too frequently for alleged behavior that has caused these women neither danger nor fear of any kind? And are actual cases of abuse and battering being blurred or somehow trivialized due to the rising numbers of women who "cry wolf?"

This is a tricky and sensitive issue, and for many, because of their own very real and personal history of abuse, my words may seem harsh or unwarranted. But after seeing hundreds, maybe thousands of family court and divorce cases where the OOP is being used as a weapon, I am swayed that abuse is often exaggerated or wholly fabricated in order to gain a strategical advantage in a custody battle or divorce action.

There are two types of OOPs: Limited and Full. A Limited OOP (or LOOP) says that the person being charged must refrain from stalking, harassing, menacing, etc., the person who has sought the OOP. A Full OOP (FOOP) is also known as a "stay away Order," and it means just that. The person with a FOOP against them must stay at least "x" amount of feet from the petitioner/complainant's school, business, home, etc. The problem I see with such Orders is that often they are granted "ex parte" by the Judge, which means that Sally goes to the family court, files her emergency petition, and goes before a Judge where the person being accused is not even aware that such charges are being made against him (or her). Before you know it, the Officers come to get Sally's husband (or baby daddy, as the case may be), arrest him and tell him he has got to immediately get out of his home until further court proceedings occur. Due process? Not so fast...he must wait until another court date comes around (which can often be up to a month or so) so that the Judge and the Attorney for the Children (if there are children) can hear both sides and decide whether an immediate or real threat exists.

I am not against people in danger obtaining OOPs to attempt to protect themselves and their loved ones,but I will say that in my humble opinion ex parte OOPs are not needed nearly as often as they are granted. My general advice to a client calling me to ask if she should obtain an OOP...if you're not sure if you're really scared of him or in danger, then you probably aren't and should allow the legal process to unfold naturally, without muddying the waters with an OOP. Exaggerating your case will NOT help your case and in the end, you are doing harm to a system that was put in place for those who truly need such drastic intervention.

Law made easy

Hello to everyone out there in blogger world! I am SO excited to introduce you to my blog- Nikki Knows Law! I am a lawyer with experience in divorce, criminal and family law to name a few select areas of focus and my purpose in creating this blog is to encourage regular folks out there that the law can actually be understood without sifting through difficult legal jargon and without needing to have a law degree to do it! I am sure some of my peers will be critical of a blog like this one as many of them make their piles of cash by pretending that passing the bar is a prerequisite to navigating the legal word in which we often (unwillingly) find ourselves. But I assure you that once you get a few basics down, there are many legal problems for which you simply may not need to hire an expensive attorney.

You might ask why an attorney would start a blog by telling people that they don't necessarily need to hire a lawyer...very shrewd question...and the answer is just this: I come from a blue collar, working-class (is that term still politically acceptable??) family that didn't have thousands to spend when legal problems cropped up, and I am interested in using my knowledge to help foster the idea that by using plain english and the brain God gave you....those without the money can maneuver within the legal system without wasting time and hard-earned paychecks.

I must add a disclaimer that, yes, there will be times you will need to hire an attorney...and an additional disclaimer that these posts are NOT intended to be taken as legal advice. I hereby exclusively declare that by reading this blog you and I are NOT entering into a legal relationship of any sort or fashion. My hope is, however, that through stories of current legal happenings, or through hypothetical discussions, I may be able to help you to discover whether or not your particular legal problem is as devastating as you think, and at the very least, whether you may need to seek further legal aid.

My mission is to clarify the legal process and demystify what actually happens in those conferences between counsel and in the Judge's chambers so that you may actually get some sleep while the legal process continues. I look forward to comments, questions and a continuing cooperative effort to put laymen and lawyers on somewhat more equal footing! Here's to progress!