Ten myths about divorce and separation
September 11th, 2009Many clients come to us having been told information about divorce law, custody, separation, that is inaccurate or just plain wrong. A few of these stand out as myths that we hear over and over. This is the first installment of a series that attempts to correct some of these myths, so that you can be better informed and prepared to use the legal system.
Myth #1. “My spouse says s/he will sue me for abandonment if I leave the home to live somehwere else.” Truth: There is no such thing as “abandonment” of a functional adult. You are no more legally responsible for taking care of your spouse than s/he is for taking care of you. Both of you, of course, have a responsiblity to pay the family bills, and to take care of any children, both physically and financially. But you do not have to live with your spouse if you no longer want to. You will not be punished by the law if you choose to move out. After all, in every divorce or separation, someone must move out. It would be a very good idea to consult with a lawyer before you move, if possible. But if your personal safety is at stake, move first and get advice later. Your safety, and that of the children, is the most important consideration.
Watch this space for infomration on the next divorce myth.
Should I get a prenuptial agreement?
August 12th, 2009A prenuptial agreement is a contract about what will happen with property, earnings, support and other issues if your planned marriage ends in divorce or death. A prenuptial agreement is a very good idea if one or both partners have personal wealth before the marriage, if either partner has children before the marriage, or if the partners want to establish a way of deailng with their assets that is different than what the law would impose. For an agreement to be valid and enforceable later, at death or divorce when it really matters, BOTH partners have to consult lawyers. An agreement drafted by one partner’s lawyer, and not reviewed by a lawyer for the other, is probably not worth entering into. Also, both partners have to be willing to give the other full disclsoure of assets and debts; without this the agreement is probably worthless.
Obtaining a a prenuptial agreement need not be expensive and can pay for itself many times over. Also, negotiating an agreement is a perfect subject for the collbaorative process. With collaborative lawyers, the soon-to-be married partners can meet together with both lawyers in a civilized and friendly environment to work out the agreement.
Many people fear that entering into a prenuptial agreement will cast a cloud over the upcoming marriage, implying that the marriage won’t last and that divorce is inevitable. This fear is misplaced. Talking about finances before the marriage is usually very healthy for the relationship, and may actually prevent problems later on because the partners talk about their financial assumptions in advance.
Consulting a lawyer about a prenuptial agreement is a very small investment in something that could prove extremely valuable later, even if the parties never divorce and the marriage endures the test of time.
What do I need to think about if I want to change custody of my children?
August 12th, 2009In custody cases it is not unusual for a parent to agree to the entry of a custody order they’re not all that happy with because they think that it will be simple enough to change later on. This isn’t necessarily so.
To change custody so that a new court order is issued, the parent that wants to change it must show 2 things. The first is that there has been a significant change in circumstances since the last custody order was entered. The court can be fairly strict as to what amounts to a significant change in circumstances and what doesn’t. For instance, a change of circumstances the court will consider does not include situations where a parent has simply changed his/her mind and does not like the current custody situation anymore; situations where the child simply says he/she wants to live with that parent; or situations where the parties previously agreed between themselves that custody would somehow change later on. Some examples of changes in circumstances the court will pay attention to are things like one parent moving out of the state or community; one parent having developed legal problems or substance abuse issues that are bad enough to interfere with his/her parenting responsibilities; or one parent being with a partner who abuses substances or abuses the parent.
If the parent meets the first criteria, the second thing a parent wanting to change custody must establish is that the new custody plan they are offering to the court meets the child’s best interests. Parents often assume that if they get over the first hurdle, that custody will in fact change. That isn’t necessarily so. Courts can and do find that even when it agrees that circumstances have changed enough for it to reconsider custody, the current custody order is still meeting the child’s best interests. For instance, if the change in circumstance was substance abuse related, the court will look to see if that parent is in treatment or otherwise has the issue under control. It is not unheard of for parents like these to defeat a motion to change custody if they “rehabilitate” themselves while the attempt to change custody is going on in the court. These kinds of things can be very frustrating for the parent wanting to change custody.
In a nutshell, the court takes its Orders regarding custody very seriously, and does not review requests for changes in them lightly if the parents do not agree. Every parent preparing to enter into an agreement about custody that is going to be made an order of the court needs to think about the terms of the agreement they are making, whether they can really live with it, the effect it will have on the child and on them in the future; and whether the agreement will wear well practically and in other ways. If not, you may want to think again about going ahead with having the court enter that order.
If a Social Security Judge rules against me what should I do?
July 8th, 2009
If you have a hearing in front of a Social Security Administration (SSA) Administrative Law Judge (ALJ) and receive an Unfavorable Decision you should appeal. The ALJ decision will explain how you can appeal to the SSA Appeals Council. There are appeal forms online or at your local SSA office.
Your appeal does not have to be on an appeal form. If you cannot get a form, you can still appeal. The most important thing is to appeal before your deadline passes. You have 60 days to appeal an ALJ decision. If you miss your deadline but you have a very good reason, you can ask the Appeals Council to grant you “good cause” for filing a late appeal. But good cause might not be granted. The best thing to do is to file your appeal on time.
In order to appeal, you need to write the Appeals Council at the address provided in your decision and state you are appealing and why you disagree with the ALJ decision. If you have any helpful medical records that are dated before the date of the ALJ decision that the ALJ did not have send them in with your appeal. You should send your appeal by certified mail so you have proof that it was received. Keep a copy of your decision and a copy of what you file in a safe place. If your address changes before your appeal is decided, be sure to let the Appeals Council know so that they can send you their decision.
While you are waiting for an Appeals Council decision, you can file a new claim if you are still unable to work. You will not get a hearing on the new claim until the Appeals Council decides your first claim but you can start the process. To win your new claim, you will have to show that your condition has worsened since the unfavorable ALJ decision or that you have a new impairment.
The Appeals Council decision will look like a letter. If you lose, the letter will state that they decided not to review the ALJ decision. The letter will also explain that you can appeal to federal court. You have 60 days to file a federal court appeal. Our firm can evaluate your case for a federal appeal. If you are at poverty level we can ask the federal court to waive its filing fee.
Collaborative practice options grow in Alaska
June 26th, 2009The Alaska Association of Collaborative Professionals was formed in 2008 to provide collaborative family law services to clients in Anchorage and beyond. Attorneys at Mendel & Associates were at the forefront of this effort. There are now twenty-five trained members of the Association, including mental health professionals and financial professionals. You can find complete information on the collaborative process, and links to attorneys in Alaska, on the website of the International Association of Collaborative Professionals (IACP), at www.collaborativepractice.com.
Should I marry my same-sex partner in a state where it’s legal?
October 8th, 2008This is a difficult question that we often hear. Same sex marriage is not legalor recognized in Alaska. This means that you will not get any specific benefits in Alaska that you would not get by being domestic partners. You will also not be treated as married for any federal law purpose because of the Defense of Marriage Act (DOMA). However, you may have many other reasons to marry. You would be legally married in any state that recognizes same-sex marriages from other states, a list which is expanding. In those states you would receive the legal benefits of marriage. Your marriage would also be evidence of an intent to have a committed relationship, if this came up in a future case, such as the dissolution of your domestic partnership or in a child custody action. There might be inheritance benefits, depending on where you or your property are when you die. And you may just want to be married. It would be a very good idea to talk to a lawyer before you tie the knot. Also, you may need a premarital agreement to avoid having the legal consequences of your marriage take you by surprise.
What is the difference between collaborative practice and mediation?
May 30th, 2008The most important difference between collaborative practice and mediation is that in the collaborative process, you have your own lawyer to advise and support you. A mediator cannot give you legal advice, and cannot assist you in reaching your goals. The mediator is a neutral, whose job is to facilitate an agreement. Many people seeking a divorce or addressing some other family problem do not have the legal knowledge to use a mediator without the help of a lawyer, and many are too distraught and upset to participate successfully in mediation. If your issues are complicated or particularly emotional, collaborative law might be a better option for you.
Collaborative Law Comes to Alaska
April 17th, 2008A new group is forming in Alaska to offer clients the option of a collaborative approach to divorce and domestic relations cases. Mendel & Associates is at the forefront of this movement. What is collaborative law? Collaborative family law practice groups are operating in many other areas of the country. The basic idea is that specially-trained collaborative law attorneys agree to work, along with their clients, to resolve family issues in a collaborative, non-adversarial process. Both parties agree not to go to court. The parties and attorneys agree that neither attorney will ever represent the parties in litigation between them. Both parties agree freely to disclose all information that is needed to come to a fair and equitable solution of their problems. Problems are solved in a cooperative, collaborative setting. The clients do not give up their right to litigate, but if they chose that option they must retain different attorneys. The collabortaive option offers clients a way to avoid going to court, without giving up the personal advice and assistance from qualified attorneys that is so important in difficult family law cases. If this is an option that interests you, please contact our office for an appointment.
Why should I hire an attorney for my divorce; can't we just go to mediation?
March 11th, 2008This is a question often asked by people who are thinking of a divorce. Mediation is a wonderful tool that can save money and minimize the conflict that is inevitably involved in a getting a divorce. However, going to mediation without understanding your legal rights first can be very dangerous. A competent mediator will not give either person legal advice about his or her rights. A mediator cannot tell you if some settlement is a good idea for you. So before you go to mediation, you should see a lawyer first, so that you understand what your rights are, and what you might be giving up. Consulting a lawyer does not mean you have to involve the lawyer in the mediation, nor does it mean you will end up in court. It simply means that you will go to mediation with your eyes open.
The kinds of things a lawyer can help you understand before mediation include: What property is considered marital property that the court will divide? What is the likelihood of getting, or being ordered to pay, alimony? How likely is it that a court would order joint custody of the children? What does the law say about child support? If you do not know the answers to these questions, you could end up with a divorce agreement that either gives away things you did not even know you could ask for, or leave problems unresolved that will return to bother you later.
It is also very important that you have all the documents you need before you go to mediation. If you are not sure what property or debts you have, you will not be able to get a good agreement. You should not simply rely on your spouse to tell you what you need to know. Because you are getting divorced, each person has goals and desires that are not necessarily other spouse’s goals and desires. After all, if you agreed on everything, you probably would not be divorcing.
In a custody case, what does it mean if a parent has a "history of domestic violence"?
March 11th, 2008The Alaska statute that governs custody was amended in 2004 to strengthen the protection of children from domestic violence. Because the change is so new, attorneys and judges are still confused about what exactly the statue means. Two recent Alaska Supreme Court opinions have helped to clarify it, but there are still many unanswered questions.
http://www.state.ak.us/courts/ops/sp-6232.pdf; http://www.state.ak.us/courts/ops/sp-6164.pdf
The statute applies to parents who have a “history of domestic violence.” That is defined to mean one serious incident involving physical injury, or more than one other type of incident. Domestic violence is defined elsewhere in the statutes, and includes things like harassment and stalking as well as actual hitting. It is not necessary that the parent ever have been charged with a crime, or even that a domestic violence restraining order have been granted in the past. If the court finds a parent to have a “history,” the court has to restrict that person to supervised visits until the person completes treatment. A person with a “history” cannot be awarded joint or sole legal or physical custody. There are some circumstances under which the court can allow unsupervised visits or even custody, but it must make certain findings if it does.
This change in the statute really raises the stakes in situations where there has been domestic violence, either in the current relationship, or even in a prior relationship. Sometimes both parents have a “history” of violence, often against each other. In these situations, the court is supposed to pick the less dangerous parent, or even award custody to a nonparent. The change in the statute was designed to acknowledge the research that shows that domestic violence is harmful to children even when it is not directed at the children. It was intended to force courts to give careful consideration of the parents’ histories of domestic violence when custody orders are made.