Constitutional showdown expected over Judge's ruling prohibiting father from taking daughter to church

An Illinois man going through a divorce was ordered by the Court not expose his daughter "to any other religion than the Jewish religion during his visitation." Seems Dad, who is Catholic, wanted to test this order and took his three-year-old daughter to Holy Name Cathedral. Another judge will now rule on whether he should be held in contempt for violating the court's order.

However, a Motion to Dismiss filed by the father's attorney argues that the Order is vague as it fails to define what encompasses the "Jewish religion". The law is clear that in order to be held in contempt, it must be clear what they were prohibited from doing. More importantly, the motion argues that the Court is unable to make the determination as to what constitutes "Jewish religion" as a result of the ecclesiastical abstention doctrine. Essentially, this doctrine prohibits a court from examining matters of religious doctrine as they are protected from government interference by the First Amendment to U.S. Constitution. Thus, the Court cannot say what is or is not the Jewish religion. And if it cannot determine what is the Jewish religion, then it cannot determine whether the father violated the court order.

I imagine the Court's ruling will not be the last we hear of this case. The story was previously on the news. See the video below.

Continue reading "Dad in contempt for taking daughter to church?" »

One of the most difficult tasks for a divorcing couple here in Montana is breaking the news to their minor children. It can be tricky to explain such an adult concept to children, particularly when many divorcing couples cannot explain to each other what went wrong. Luckily, there are many resources aimed specifically at children that parents can utilize during this difficult time.

KidsHealth.org has an online "Kid's Guide to Divorce" that explains divorce in age-appropriate terms and stresses that children are not the cause, nor can they be the savior, when a couple decides to divorce. The site has additional information for children who may be living with a new stepparent or will be moving away.

There are also several children's books for parents and children to read together while coping with divorce. Most of the books provide a simple, clear way to explain to children that they are still loved by both parents. I recommend the following:

• Dinosaurs Divorce: A Guide for Changing Families by Marc Brown
• It's Not Your Fault, Koko Bear by Vicki Lansky
• Two Homes by Claire Masurel
• Standing on My Own Two Feet by Tamara Schmitz

Continue reading "A Child's Guide to Divorce" »

Divorce can be particularly hard on children, especially when the parents don't take the appropriate steps to help protect them during this process. Children need and have the right to the following, especially in times of family upheaval:

• Being free of the conflict between the parents
• Developing and maintaining an independent relationship with each parent
• Not having to take over the parental responsibility for making custody and/or visitation decisions
• Not being expected or forced to take sides with, defend, or lessen the value of either parent
• Being guided, taught, supervised, disciplined and nurtured by each parent, without interference from the other parent
• Spending time with each parent, regardless of whether or not financial support is given
• Having a personal sleeping area and space for possessions in each parent’s home
• Being physically safe and adequately supervised when in the care of each parent
• Having a stable, consistent and responsible child care arrangement when not supervised by the parents
• Developing and maintaining meaningful relationships with other significant adults, as long as these relationships do not interfere with or replace the children’s primary relationship with their parents
• Expecting that both parents stay informed about medical, dental, educational and legal matters, unless such disclosure would prove harmful to the child
• Participating in age-appropriate activities so long as these activities do not significantly impair their relationship with either parent

Continue reading "Protecting Children During Divorce" »

In California, the marital property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Superior Court Judge within the Final Judgment of Dissolution of Marriage.

California is considered a "Community Property" state. Community property is defined as all property and debt that was acquired from the date of marriage until the date of separation. Not every couple agrees with division of the property and when this occurs, the community assets will be split equally by the Superior Court if the spouses are unable to reach an agreement.

When dividing property for a dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property. This community property presumption is a presumption affecting the burden of proof and may be rebutted by either of the following: (a) A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property. (b) Proof that the parties have made a written agreement that the property is separate property.

There are some exceptions, when economic situations warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate.

The court may also award, from a party's share, the amount the court determines to have been deliberately misappropriated by the party to the exclusion of the interest of the other party in the community estate.

Debts accumulated after the date of separation are treated as follows: (a) Debts incurred by either spouse for the common necessaries of life of either spouse or the necessaries of life of the children of the marriage for whom support may be ordered, in the absence of a court order or written agreement for support or for the payment of these debts, shall be confirmed to either spouse according to the parties' respective needs and abilities to pay at the time the debt was incurred. (b) Debts incurred by either spouse for nonnecessaries of that spouse or children of the marriage for whom support may be ordered shall be confirmed without offset to the spouse who incurred the debt. (California Code - Sections: 2501, 2581, 2601, 2602, 2621, 2623, 2625, 2641)

Since California is a "Community Property" state, all marital property will be divided in a 50-50 fashion according to the court unless agreed to otherwise by the divorcing spouses. This means that everything that is considered "up for grabs" in the dissolution will be distributed equally to each spouse. Obviously this does not entail splitting a car in half so to speak, but rather each spouse will be rewarded with assets of equal value.

Continue reading "We're Divorcing, Now Who Gets the Toaster?" »

A millionaire landowner asked the Court of Appeal yesterday for permission to appeal against an £8m divorce settlement on the grounds that it was "too much".

The court heard that Erik Maurice Robson, 66, who is selling his stately home, Kiddington Hall, in Oxfordshire, to comply with his former wife's divorce settlement, has seen its value fall during the credit crunch.

Kiddington Hall, which was built in 1673, was bought by Mr Robson's father, Sir Lawrence Robson, founder of the accountancy firm Robson Rhodes in the 1950s.

The grade II listed mansion house sits in gardens laid out in the 18th century by Capability Brown and is one of the finest English country homes to go on sale in recent years.

The appeal court heard that last July, a court awarded Mr Robson's former wife Chloe an £8m gross lump sum - of which about £5m was earmarked to buy a home and a further £2.4m for an income trust.

In a further judgment last July, the court ruled that Kiddington Hall be sold as part of the clean break between the couple.

However, a fall in property values has meant that Mr Robson's freehold interest in the Oxfordshire estate is now worth about £13.18m net - excluding furniture, capital gains tax and sale costs - rather than the £16m figure used by the court last year.

Tim Amos QC, representing Mr Robson, told the appeal court that the £8m divorce settlement was "clearly too much" - particularly as most of the wealth had been inherited from Mr Robson's parents rather than being money made by the couple during their marriage.

He said there was a "need to be more cautious or less free" with money that is "actually nothing to do with either of the parties or their marriage".

He told the three Court of Appeal judges: "I do not suggest you can ring-fence it... but the fact it is inherited from someone else impresses it with a different character."

Judgment was reserved.

The hearing raises a much broader issue concerning what wealthy individuals can do to protect their inherited wealth in big-money marriage break-ups.

Continue reading "Stately home at heart of divorce appeal" »

In some divorce cases, even after the divorce decree is signed, high levels of conflict and animosity remain between the parents. These are the parties who cannot seem to stay off the court's docket and continue to seek official intervention for all kinds of matters even after the case is closed. Unfortunately, legal pleadings, motions and hearings will do nothing to solve the underlying problems.

Where such circumstances exist, the court on its own motion, or on the motion of one the parties may, appoint a parenting coordinator. The parenting coordinator is an individual who serves as a non-judicial referee between the parties and acts as a third party neutral. This concept is similar to mediation. He/She will meet with each parent individually and the children (if age appropriate) before attempting to work with the parties to fashion a solution.

A parenting coordinator is usually trained in family dynamics, mental health, children's issues, adolescent issues, and communications. The coordinator's job is to assist the parties come to an agreement. A parenting coordinator's recommendations are not final or binding until both parties and the court accept the agreement. The costs for a parenting coordinator ranges based on the individual's education and level of experience, but it is certainly less expensive than an endless barrage of motions and attorney's fees.

Continue reading "What is a Parenting Coordinator?" »

The issue of paternity and child support obligations sometimes comes up when a couple divorces. If the father has questions about whether the child really is his, he may request a DNA test to prove he's the biological father. If it turns out that he's not the child's father, there's a chance he may not have to pay child support.

Whether child support will be ordered in such situations will depend on the circumstances of the case and the state in which the child support issue arises. In some states, if a man is the presumed father of the child, then he may be required to pay child support. A man may be presumed to be the father of a child (unless he or the mother proves otherwise to a court) based on the following circumstances:

• The man was married to the mother when the child was conceived or born.
• The man married the mother, but the marriage was invalid for some reason, and the child was conceived or born during the invalid "marriage."
• The man married the mother after the birth and agreed either to have his name on the birth certificate.
• The man signed a document for "Acknowledgement of Paternity."
• The man welcomed the child into his home and claims the child as his own.

That's just a brief overview of the paternity and child support issue. Below, you can read over the various questions and answer to get a better idea of individual circumstances.

Continue reading "Paternity and Child Support" »

Divorce proceedings, known in the Illinois law parlance as a "dissolution of marriage," involve many moving parts. But while opposing divorce attorneys in Chicago quibble over the details of how property is split, matters of child custody often can't wait until the entire case is resolved.

That was the Illinois Supreme Court's rationale behind its recent rule amendment, which allowed parents to appeal child custody issues before the entire case is initially resolved, as explained by the Illinois State Bar Association. The Feb. 26 amendment adds "custody judgment" to the list of "Judgments and Orders Appealable Without Special Finding" under Supreme Court Rule 304.

But instead of getting tripped up over the legal lingo, it helps to just look at the intent of the amendment and what it actually means for divorcing parents with custody disputes.

Circuit Court Judge Moshe Jacobius, who heads the Cook County Domestic Relations Division and is co-chair of the Committee on Child Custody Issues, summarizes the amendment in the state bar article:

"The Supreme Court wanted to expedite appeals of this type so that a child not remain in limbo after the trial court has ruled on custody but still has other issues remaining before it."

Such an appeal still requires the appealing party to seek out special permission from family court, as with other such expedited appeals. A divorce attorney would be best suited to help an appealing party draft this letter of permission, but the Supreme Court Rule 303 governs this process.

The state bar article indicates that this amendment was expected and didn't face opposition. Chief Justice Thomas R. Fitzgerald provided perhaps the best recap of the amendment:

"A child's life doesn't stop and wait for us. These are some of the most important issues that ever come before our judicial system."

Continue reading "Supreme Court Allows For Quicker Child Custody Appeals" »

Barry Bonds, baseball's home-run king, and his wife are getting a divorce.

Bonds' wife, Liz Watson, filed for divorce, citing irreconcilable differences. They have already reached a financial settlement agreement, according to court records.

Watson, who is seeking joint custody of the couple's 11-year-old daughter, withdrew a separation petition that was filed in June. The couple were married in 1998.

Bonds, who has not played baseball in two years, was previously married to Susann Margreth Branco, which ended in divorce in 1994.

By Bob Nightengale

Continue reading "Barry Bonds' wife files for divorce" »

American Idol judge and celebrity personality in his own right Simon Cowell has proven to be many things, but foolish has never really been one of them. So it should be no surprise that as things get more serious with his new girlfriend, Simon won't even consider walking down the aisle unless there's a pre-nup in place. Way to protect your hundreds of millions, Simon!

Simon Cowell is a new man now that girlfriend Mezhgan Hussainy is in his life. Even the music mogul's 84 year-old-mother said, "There's such a glow about him. I think he would make a wonderful husband."

However one thing that hasn't changed about the 'Idol' judge is his ability to tell it exactly as it is.

"Simon has made it clear to Mezhgan that he will not be walking down the aisle unless a pre-nup has been signed," a friend of Simon's tells me [Rob Shuter]. "He is in love, he hasn't lost his mind."

Mr. Cowell is estimated to be worth over $175 million. It has been reported that half of all US marriages end in divorce.

Continue reading "Simon Says: No Marriage Without Pre-Nup" »

Cheryl Cole's broken marriage is set to cost millions. Talk has already turned to the rumoured £22m fortune she shares with husband Ashley Cole. And that means this could be one very costly divorce battle.

Ashley and Cheryl didn't sign a pre-nuptial agreement when they married in 2006. The X Factor judge and her footballer husband earn a reported £6million a year though their work and sponsorship deals, and they share a £3.5million mansion in Surrey.

It's been said that Cheryl could walk away from the marriage with at least half of their assets. The singer announced her separation from her husband of three-and-a-half years just hours after arriving back in the UK yesterday. Cheryl's friends have been rallying around her, with fellow X Factor judge Louis Walsh saying: "I think the world of Cheryl, she's a great girl. "She deserves somebody amazing. She will be absolutely fine - she's a fantastic, strong star."

Meanwhile, celebrity publicist Max Clifford said the split would boost Cheryl's profile, adding: "It's obviously sad, but she didn't really have any choice. "It must have been a hard decision because clearly she loves him and, in spite of everything, that will have been very, very painful. "You naturally want to believe the best of people that you love."

Continue reading "Cheryl's £22m Split From Ashley Of Chelsea FC" »

Delays. Mediation. Cohabitation. The recession is complicating the already messy process of breaking up.

A couple recently stopped by divorce attorney Ron Ousky's office with lousy news. The husband's income was just slashed by $100,000 and the couple needed an unbiased financial planner to figure out if they could still afford to split.

They delayed their divorce by several months to rework finances and whip up a new settlement based on lower income.

You've heard of love in springtime. This is divorce in recession.

Layoffs, wage cuts, foreclosures and other financial setbacks are forcing many couples into reworked settlements, creative separations and postponements, divorce experts say. Enrollment in self-help classes for divorce is also rising.

"There are a lot more complex situations that we have to deal with because of the recession," said Amy Wolff, owner of AJW Financial Inc., which advises divorcing couples. "I have seen many more husbands and wives where one of them is laid off. It's certainly more difficult to divorce when they [suddenly] have one wage."

At Ousky's law firm in Edina, a team of mediators, financial planners and other experts assists about 70 people a year with divorce. He said more people are delaying divorce or staying in their homes longer because of financial problems.

Some marriage-weary spouses opt for mediation, which costs less than fighting in court, Ousky said. In Hennepin and Ramsey counties, court officials said more divorcing parties are representing themselves to save on legal fees. More people are also asking the state courts to waive divorce filing fees because they don't have the cash.

The National Marriage Project recently reported that divorces fell 4 percent in 2008, for the first time since 2005. The American Academy of Matrimonial Lawyers (AAML) reported that 57 percent of its 1,600 members have seen divorce filings plummet. The numbers are less clear in Minnesota, but professionals say the recession is having an impact here.

Separated -- in the basement

The scenario turns all the crueler when you throw in the conversion of one household into two.

"Some [spouses] are agreeing to stay in the basement just because they are waiting for the market to improve" before finalizing a divorce, said Nancy Peters, public affairs director for Hennepin County District Court.

Others haven't even started the divorce process because they don't have the money, she said.

"I know one guy moved into his car after splitting with his wife, but he didn't want the kids to see that he was homeless," Peters said.

In another, unrelated case, a man told his wife last summer he wanted a divorce, but then was told he would soon lose his job. Selling their home to save on the $2,000-a-month payment wasn't an option because four other houses were for sale on the block. Instead, the husband moved into the basement, where the woman ran her photo-studio business.

"I was bewildered for months," said the woman, who spoke on condition of anonymity to protect the couple's privacy. She began looking for a job, hoping to get one with benefits. But no one hired her.

"It's absolutely crazy. We are together only because I don't have a job and he doesn't make enough for me to divorce him and collect lots of alimony that would support the kids," she said. "If there's a silver lining, it only that this has required both of us to act very adult-like and our kids have benefited."

Continue reading "Divorce? In this recession, it's anything but fun" »

Many predicted it was coming but it is still interesting to know that a family court judge has been assigned to handle the divorce proceedings for Governor Mark Sanford and Jenny. Judge Jocelyn Cate of Charleston will be presiding over the final divorce hearing on February 26. Jenny moved out of the Governor's mansion with the children and spent much of last year in their Sullivan's Island, SC home after finding out about the affair.

Governor Mark Sanford stated that he was hiking the Appalachain Trail for several days when he had, in fact, been visiting with his mistress in Argentina. Jenny Sanford knew about the South Carolina Governor's affair before it became a media sensation. Recently, she released a book telling all about Governor Mark Sanford's short-comings and the problems with their marriage. Not surprisingly, she has stated Governor Sanford's adultery as the reason to end the 20 year divorce. Governor Mark Sanford, representing himself, has asked that her request for divorce be accepted.

When faced with a divorce or separation or annulment in Sacramento we recommend you consult an experienced Family Law Attorney. The state of California has setup a website where they share some information regarding divorce proceedings.

Continue reading "Governor Mark Sanford and Jenny prepare for divorce" »

Nas has denied a criminal contempt charge for unpaid spousal and child support in his divorce from Kelis.

The rapper pleaded not guilty through his attorney and was ordered back for a March hearing in Los Angeles.

Kelis' lawyer claimed Nas is 200,000 dollars behind on child and spousal support.

He was ordered to pay more than 51,000 dollars per month to his former wife and infant son in December.

Judge David S Cunningham III, who is overseeing the divorce proceedings, said it was starting to look like the rapper is trying to evade court orders.

One of Nas' attorneys, Anthony Ukran, told Cunningham the rapper needs more time to prepare his defence and show he is unable to pay the court-ordered support amounts.

Kelis filed for divorce in May.

California's Child Support Services Program works with parents - custodial and noncustodial - and guardians to ensure children and families receive court-ordered financial and medical support. Child support services are available to the general public through a network of 52 county and regional child support agencies (LCSAs).

Continue reading "Nas accused of unpaid child support" »

When a husband and wife are married for 10 years or longer, the California Family Code provides a built-in presumption that this is a marriage of "long duration." This classification is important in divorce proceedings, as it commonly entitles one spouse to receive permanent spousal support, as opposed to support that will terminate on a specific date. In recognition of the potential for one ex-spouse to abuse this privilege, the courts have adopted several rules intended to prevent the supported spouse from resting on his or her laurels in reliance on a lifetime of support from their ex-spouse. The most frequently invoked such rule is called the "Gavron Warning."

The Gavron warning is frequently issued to the supported spouse at the time the permanent spousal support order is made. The warning essentially compels the supported spouse to make all reasonable efforts to become self-supporting, within a reasonable time. If, in the future, the supporting spouse feels as though the supported spouse has failed to make such reasonable efforts, the supporting spouse can request to modify his or her support obligation downward, based on the failure to comply with the Gavron warning. At this point, the courts used to assess whether or not the supported spouse had made reasonable efforts. However, a recent case suggests that the courts may now have to assess another threshold issue before moving on to this analysis.

In an unpublished opinion, the 4th district court of appeals held that before a trial court can delve into an analysis of a supported spouse's specific efforts to become self-supporting, it must first reconsider whether or not it is reasonable to expect that spouse to ever become self-supporting. This case, Irmo Lillestrand, involved a couple who were married for 29 years. Although the wife had a degree in early childhood education, she never worked outside the home, in part to accommodate the husband's work arrangement. Upon divorce, the wife was awarded significant spousal support, but it was accompanied with a Gavron warning. At this time, the wife was in her early fifties and had never held a job outside the home. (She had operated a minimally successful business out the home throughout the marriage) Four years later, the husband received a downward modification of his spousal support based on the trial court's ruling that the wife had not taken reasonable efforts to become self-supporting. The court reasoned that the wife should have been able to secure a teaching job with minimal effort.

The court of appeals reversed, however, stating that the trial court erred in not assessing whether wife could ever become self-supporting. The court of appeals held that she likely could not, based on her advanced age, the fact that she would have to compete with twenty year-olds for entry level teaching positions, and based on the fact that it was reasonable for her to decide to work from home due to the fact that she had to tend to two minor children.

While this decision may not seem incredibly significant, it has the potential to impact future divorce cases. It creates an extra step that trial courts will have to take in the spousal support analysis. If the courts skip this step, this will open the door to an appeal. In addition, courts will now have to make a retro-active analysis as to whether a prior Gavron warning ought to remain in effect. If a Gavron warning that initially seemed appropriate is no longer appropriate, the court will have to rescind it altogether. Ultimately, this will provide supported spouse's with an additional opportunity to litigate the appropriateness of the Gavron warning and to argue for it's rescission.

Continue reading "A New Wrinkle to the "Gavron Warning"" »