Should I Hire a Father’s Rights Attorney?

IS A FATHER’S RIGHTS ATTORNEY A REAL THING?

Just for the record, there is no formal training or certification for being what is referred to by some as a “Father’s Rights Attorney”.  When used it is simply a label a lawyer gives themselves to induce men to hire them.father's rights

Ask yourself what does a “Father’s Rights Attorney” bring to the table?

  • A single- minded approach that is often lacking in a true understanding of the “other side”. Having a clear and experienced understanding of the position of the opposing party is critical to the successful strategy for your case.  When the attorney is experienced enough to have successful outcomes against fathers, that experience is then used to a father’s advantage when they represent fathers.

  • Limited experience and often argue father favorable positions, even if the facts don’t support the request. What does this mean?  I have had a “Father’s Rights Attorney” insist on a hearing because the Father was entitled to physical custody. It is important to note that the Father worked 5pm to 3am Monday through Friday, out of state, as a truck driver.  The hearing was held and the Father received less time than was offered as a settlement. Yes, the Father got heard.  Yes, the attorney made a dramatic argument about Fathers.  But in the end the outcome looked at the facts.  The attorney got paid, the Father got screwed. 

  • A false sense of what can be accomplished. Many “Father’s Rights Attorneys” make promises that just can’t be kept, and then blame the negative outcome on the system or the Court. The attorney gets paid regardless of the outcome.

 What is the take away here?  Don’t be fooled. Pick your lawyer because they are experienced and are willing to tell you the bad with the good.  When able, talk to a lawyer who is recommended by someone you respect.

 

SHOULD I MODIFY THE CUSTODY ARRANGMENT

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When someone comes in to meet with me because they want to modify or change their custody order or arrangement, I begin each FREE CONSULTATION with this question:  What do you want the Court to do? 

This is the single most important question in a modification of custody matter.  What do you want a new or modified order to say in place of the old one

It is not effective to simply bring problems to the Court to solve, they are not in the problem-solving business, they are in the “what do you want me to do about it” business.  The Court’s ability to solve many of families’ complex issues is very limited.

I want the Court to put in an order that my children decide when to visit. 

There are attorneys who will take your money and go to Court with this request, however, an experienced attorney will have told you that in NY the child cannot decide when to visit.  Orders can reference “taking into consideration the activities and wishes of the child”  however, that still does not give the child the ability to just not visit.

I want visitation to change and not include current overnights or to have less time with the other parent. 

To accomplish this in Family Court you must show a CHANGE OF CIRCUMSTANCES since the last order.  What happened that would cause the Court to change your order since you were last in court.  The Court will not go back and re-litigate matters prior to that date.  You must be able to set forth specific actions (not just worries of what might happen) since the prior order.  If you simply say your child wants the change and do not put in other specifics your petition is not likely to survive a motion to dismiss.  Do the best you can to tie everything to an effect on your child or children. This can be tricky so hire an experienced attorney or you could spend the money and put in the time and get your papers and matter dismissed with nothing to show for it.

My child wants me to bring this request so they can visit differently. 

To be successful your child must understand a very important concept.  YOU CANNOT SPEAK FOR THEM!!!  I have represented hundreds of children over the 30 years I have been in practice.  So many times the children do not tell me anything that supports the effort to change the custody arrangement.  They simply assume that they told their parent so now they do not have to advocate for themselves or say anything bad about their parent.  This is NOT true.  The Attorney for the Child (AFC) is the one person who has to put forth their position and it is not hearsay.  The Court will ask if they have a position and why (much like your attorney is asked) and if the children do not have a position and specifics then it hurts your chances.

The final point here is that filing for a modification is complicated business and should not be attempted without experienced legal assistance.  Conta me for a free initial consultation before proceeding.

Tax Bill Impacts Divorce

The GOP tax bill signed by Trump late last year changed drastically how maintenance/alimony will be handled.

One way the Republican tax bill writers tried to raise revenue to compensate for the cuts was through maintenance/alimony. Under the new bill, alimony paid by one spouse to the other will not be tax deductible, and the spouse receiving the alimony no longer has to pay taxes on it. In the current system, it works the opposite way, with the payer deducting the full amount and the recipient paying taxes on the alimony at a rate of 15%. The new rule means the government will end up with more of a divorcing pair’s combined money.

Although the law won’t take effect until next year, giving divorcing couples a reprieve for now divorces are potentially likely to get a lot messier.

Amicable divorces will become more difficult now that the maintenance/alimony payer is not only going to have to pay but will lose a key deduction, thus suffering a much higher financial burden.  This will likely make settling more of a challenge and cause more tension and fights among parties and lawyers.

Perhaps the largest and most uncomfortable tension will stem from timing. One side could be dragging its feet in an attempt to delay, and the other will be trying to get a deal signed before New Year’s.

New York has a formula for calculating appropriate payments and less leeway for negotiations, so timing may be critical.

The loss is not only for the monied or paying spouse. If the courts start adjusting the maintenance to compensate for this tax change the spouse receiving the funds could loose out as well.

An example of the change

Using a wealthy client as an example, under the old system, if a highest-tax bracket, soon-to-be ex-spouse was set to pay $100,000 per year in alimony, they would get a deduction off the top — at the highest tax rate of around 40% — so they would only be out around $60,000. The recipient would end up with $85,000 after paying a 15% rate on that $100,000.

For couples divorcing in 2019, if the wealthier spouse paid $60,000 — the same out-of-pocket cost as the example above (they’d have less money without the deduction) — the other spouse would only get $60,000.

I encourage my clients to try and figure things out.  Most of my clients would rather see more money go to the family members than the government.

This new tax issue won’t go away in 2019 when the new tax bill takes effect. New York uses a formula to calculate alimony payment amounts, and there is no guarantee it will change the laws any time soon.

The formula factors in tax deductibility for the payor. Judges and courts generally have broad leeway to deviate from the formula if they see fit and to establish payment amounts to account for increased take-home income for the receiver and increased costs for the payer. The legal standard in many states, like New York for example, is whether something is “unjust and inappropriate.”

There’s no guarantee that this gambit works, however. Judges, unlike written laws, are humans, and it’s very difficult to predict how all of them will deal with the changes.  Some judges will compensate for changes in the tax law and some will not. That is also going to create tension.

What’s Your Divorce Plan?

Considering Divorce? You Need a Divorce Plan!

If you’re considering leaving your spouse, considering divorce, you need a solid divorce plan. So often people start consulting with their attorney only after the divorce process has begun and everyone is in the thick of things.  I often say to clients that they should have come to see me BEFORE they couldn’t stand the situation anymore and BEFORE when they were still getting along.

Pre-divorce planning is not about taking your spouse for all you can. It’s about making smart choices with a clear mind. It involves carefully planning out all aspects of your life from where you are now to where you would like to be. It requires methodical preparation in the months leading up to informing your spouse you want a divorce. The more you plan, the better your position will be in your post-divorce life. Below are a few areas to start thinking about.

Finances: Whether you expect to receive spousal support/alimony and child support or will have to pay spousal support/alimony and child support you might be in for a big surprise. You might find that you have a shortage of money to make ends meet after your divorce (these divorce financial planning tips can help).

Career: The best way to avoid financial ruin is to make your career plans a top priority. If you’re already working but your income won’t be enough when you’re single, start re-planning your career. If that involves career counseling, re-training or going back to school, do it now while you can. Any money spent in this area will be considered joint money and not deducted from your settlement. The key, however, is doing it before you ask for a divorce where possible.

Children: If you’re a parent, you need to be prepared for how to tell your kids about the divorce. In doing so, you also need to learn ways to help them cope and to understand how their lives will be impacted.

Support System: News of a divorce can create different reactions in your friends and family. Some people will feel threatened and fear their marriages will be at risk if they interact with you. Others, the unconditional friends, will be there no matter what. Knowing who belongs in this category is important. Those will be the people to turn to when you need a shoulder to cry on.

Future Goals: Divorce can be devastating. It’s the end of once-held goals that are now gone. Because of this, it’s very easy to get sucked into an emotional black hole of depression. The best remedy is to create new goals for your future. Take the time to consider your interests, desires and what you’d like to do with the rest of your life. Having something positive and productive to work toward will make a big difference in your emotional life.

There are many aspects to consider when planning for a life without your spouse. Instead of hoping the best will happen, take control and make sure you’re protected.  Make that divorce plan. It will make all the difference in your life and future.

Staying Child Centered

Staying CHILD CENTERED is not as easy as one would think.  For almost 30 years I have represented parents, grandparents, children and even myself in divorce and Family Law matters and putting our children first takes real work and constant attention. 

Why this is so important: 

First, because statements and facts that are not child centered are seldom going to help you in your custody matter.  The Court and the attorney for your imageschild/children are not looking at your custody matter through the eyes of a parent.  This is crucial to understand.  This must be factored into your legal strategy for you to work toward a final resolution that is best for your children. 

Finally and probably of the most inportance, because staying child centered is best for your children who mean so much to you.

Even people who love their children very much will tell the Court and attorneys the following.  Note the example of the Parent Statement and then note the suggested Child Centered Statement. Of course, below assuming for this Blog that there are no safety or welfare issues regarding custody.

PARENT STATEMENT:  I can’t go more than one day without seeing my child.

CHILD CENTERED STATEMENT: I will miss my child but given her age, school and activities my child may not want to bounce from house to house very day, so how about a schedule where we have parenting time clumped a little more together.

PARENT STATEMENT:  Mom or Dad won’t work with me.

CHILD CENTERED STATEMENT:  How might I behave differently so that Mom or Dad is willing to consider what I am saying, how do I frame it as something for our child and not something for me.

PARENT STATEMENT:  I am the only parent who has ever done anything for my child.

CHILD CENTERED STATEMENT:  I have always been there for my child.  I will always be there for my child, however, since the Court is going to make me allow the other parent to be part of our child’s life and provide them with parenting time, how can I make this go as well as possible for my child.

PARENT STATEMENT:  My ex is always saying something bad about me to my kids.

CHILD CENTERED STATEMENT:  My ex is difficult however, I am not going to “defend” myself with my children, because they are my children and a conversation like that will stress them and not be in their best interest.

PARENT STATEMENT:  My kids are spending time with my ex’s family and significant other and not with him or her.

CHILD CENTERED STATEMENT:  My kids are spending time with my ex’s family and significant other and I am glad they are surrounded by people who want to spend time with them.

 

Divorce or Support Award of College Expenses…Premature

 balduf_lawLast month the New York State Appellate Division (Second Dept) rendered a decision in Repetti v. Repett which reminded us that the Court may direct a parent to contribute to a child’s college expenses, however, when college is several years away, and no evidence is presented as to the child’s academic interests, ability, possible choice of college or what his or her expenses might be, a directive compelling a parent to pay for college expenses is premature and not supported by the evidence.  This is not a new determination.  Yet it is often difficult to apply with many Courts.

It is important to have clear and specific conversations about what, if anything will go into your settlement agreement or support order, regarding college expenses for children.  Not addressing this property has lasting consequences.  Why is this important?

In some jurisdictions Courts order parents to pay thousands of dollars in college expenses even when they don’t have retirements for themselves or the income to support this.  There is no set formula for determining college expenses.  In some counties where these cases are heard the amount of contribution from each parent would differ not because of the circumstances of their case or the law–but simply because it is heard by different judges or support magistrates.

I can’t stress enough that parties should have the assistance of experienced attorneys who know the law and the specific tendencies of each court. BEWARE: Logic is not your friend and too many people go into court and believe because it doesn’t make sense or is outside their budget they won’t be stuck paying.

Unbundled Legal Services-RUN

balduf.unbundled.legal. service “Unbundled” means you hire the attorney to handle only specific tasks, such as preparing the court documents or entering a limited appearance, and then you handle parts of the case on your own to save money. It claims that fewer billable hours means less cost.

However, if your lawyer is only good for drafting documents than you have the WRONG attorney.  This thought is backwards– the documents are the least of the process.  What a true matrimonial or family law lawyer does for you is offer advice, skillful negotiation, helps you develop a successful plan and implement it, knowing the ropes, the players and the courts.

There are no do-overs!  If you didn’t think of something or consider something for the future, too bad.

If you don’t like something regarding the money, children or assets that you agreed to originally, too bad, it will forever follow you in the future.

If anything, I work with clients as they feel comfortable,  to do some of the paperwork parts of their divorce to save money, however I REPRESENT THEM THROUGH THE WHOLE PROCESS and together we make a life plan for the future and work to make it happen.  Saving money now is likely to cost a great deal later.  Ask around, walk through the halls of Family Court, see how people who have been handling things themselves think it is going.

If you are looking to save money regarding legal representation do your homework. Find one that specializes in the field but does not charge a fortune. The cost of the attorney does NOT indicate their expertise or success.  Some of us simple want to charge a reasonable rate. We believe what we do is important and that excellent representation should not only be available to people of substantial financial means.

Talk with each attorney you contact about how to keep costs down, but still get great service.  If they can’t answer this to your satisfaction, move on to someone else.  So many people spend less time shopping for their attorney than they do buying a car.  Crazy!

Understanding Unbundled Legal Services, Karen Covy

 

So Why Divorce?

I sat down to write a blog about why so many people are seeking a divorce after the first of the year.  What I found was that this article by Patricia Barbarito stated my thoughts so perfectly that I wanted to share it with all of you.

Key to her writing is her summary that…  

Marriages end for a variety of reasons – just as every relationship is unique, so too is every divorce. There is, however, one thing that every divorce has in common, whether it happens in January when cases tend to rise or any other time of year: Divorce does not just happen overnight. It happens slowly, day by day, little by little, wearing down the hopes and dreams upon which the relationship was built. Divorce can be complex and can take an emotional toll on a family. There are many sensitive issues that need to considered, including custody, real estate, tax, estate planning, or business considerations. It requires a planned, thoughtful approach.

Please take a moment to read the article at the link below. 

First Quarter of the Year Brings Resolutions and Reflection – So Why Divorce?

Every year, the number of couples filing for divorce increases between the months of January and March. The questions is, why do so many couples decide to divorce early in the new year?

By Patricia Barbarito
January 30, 2017

 

First Quarter of the Year Brings Resolutions and Reflection – So Why Divorce?

 

The Holidays

To all those who are surfing the internet regarding divorce, separation or custody at this time of year, please know that I understand how difficult a time this is for you and your family. It is a time of year when everything around you tells you how lucky and blessed you are and how happy you are supposed to be.  Yet for some, this is a time of uncertainty, a time of financial crisis or concerns, and you are feeling anxious, sad and sometimes even scared.  2017-1

My advice is to have not expectations and simple do the best you can to live in the moment until you can move to the next chapter of your life.  If you are one of my clients then we are likely to have a plan, so keep your head down, believe and keep going forward.  If you need me call.

I wish everyone the blessings of this season and the new year, because I believe you are going to find them as Christmas comes because God sent Jesus to help us because all was not well and perfect, because life is difficult and messy and sometimes feels like it is more than we can handle.  So during this Christmas Season have faith that you are not alone, from whatever faith you come your faith can be your strength and your companion, and you also have, me.  2017 here we come!

Your Spouse Hired Me. What does this mean for YOU?

Ok your significant other or spouse has hired me to represent them.  What will this mean for YOU?

First, I am not and will never be about how much money I can make off your misfortune or unfortunate circumstances.

Next, if your spouse has hired me I believe in working with a client to develop, propose and put in place, a Life Plan.  I want them to be able to say in a few years that life is where it should be for them, and for their children and yes, for their spouse.

My experience is that if your objective is primarily to try and “punish” the spouse or “win” then you will be in and out of court for years to come.

It is important to remember that the more you and your spouse fight, the more money lawyers make.

Next, I work to assist the parties in reaching a successful resolution to their matter.  I am not opposed to sitting down with the parties and attorneys.  I always offer to sit down with opposing counsel in every case I am involved with.  I will say that there are quite a few attorneys that will not do this.  I do not understand that position.  If the attorneys discuss the case before Court action, we get clarity as to what everyone’s position is and can discuss options.  Without options it is hard to come to an agreement.  If there is no agreement, we then go to Court where the Court has us tell each other the client’s positions.  Do you see the irony?  The only thing I can think of is the attorneys make more money because they spend more time on the matter instead of possibly resolving it at an earlier stage.

Please note:  Don’t let all this talk of  finding a resolution or settlement fool you.  I am a trial attorney and have no problem taking a matter to court or trial.  I will discuss what this will mean in broad terms for my clients and their families so that if my clients choose this path they understand what it will look like for them, but I also strongly encourage clients to go to court or trial if their spouses are not considering or offering a reasonable resolution.  No one pushes them into agreeing to something that does not work toward a successful Life Plan.

Remember, if you or your spouse hires me, I hope to help you satisfactorily resolve your matter at any stage short of a full trial—if I do this I make less money. That is fine with me…other files are waiting for my attention.  My Life Plan is NOT to send my kids to college on helping you achieve your Life Plan!!!

 

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