Are you planning to live together with your Significant Other in a sharing arrangement?

Often overlooked, or put aside until later, is a compelling need to settle questions of legal ownership and rights when a couple enters into a non-married relationship involving (or likely to involve) the mutual use of separately acquired property or jointly held assets.

This can happen very easily. A relationship begins as mutual attraction, becomes something deeper, and moves to a level of affection that resolves into living together, all without real planning having occurred. By the time moving-in occurs, trust has developed. It may then seem that discussing how property will be held together, or what will be the disposition of property if the relationship ends is damaging in its own right. Yet this is just what should be done.

A recent article in U.S. News and World Report (online) in which Michele has been quoted, does an excellent job of pointing out the benefits of thinking ahead. By adding reasonable formality to a relationship that may evolve into marriage, a long-term partnership, or a lifetime together, (or may not), natural frictions and worries during periods of stress can be removed. A simple document will in most cases mean that if the event the relationship terminates in an unplanned manner, both parties can be protected and legal expenses reduced or removed.

NEW YORK JUDGE ALLOWS LESBIAN COUPLE WHO MARRIED
IN CANADA TO FILE FOR DIVORCE

In what appears to be the first ruling of its kind, a New York judge will allow a lesbian couple who married in Canada to sue for divorce.

Though New York does not allow same-sex marriages, a state trial court judge refused to dismiss a divorce and child custody suit brought by a woman, identified only as Beth R., against her former partner Donna M.

Donna M. had argued that her 2004 marriage should be invalid in New York because the state doesn’t allow same-sex marriage, but Supreme Court Justice Laura Drager found that the out-of-state marriage could still be recognized under New York law. Her ruling appears to be the first divorce case in New York from a same-sex marriage.

“What we’re seeing now is a judicial battle that’s going to be waged in [the] next few months,” said Arthur Leonard, who teaches a class on sexual orientation and the law at New York Law School. “People sometimes forget that divorce is part of marriage. People need a judicial process to untangle a relationship.”

In her ruling Monday, Drager said New York will not recognize an out-of-state marriage only if it is prohibited by a state law or if it is “abhorrent to New York public policy.” She said only polygamy and incest have been found to be abhorrent.

Beth R. and Donna M., described as in their 40s and working in the media industry, were married in Toronto in 2004. They have two daughters, both born to Donna M.

Read more at ABC News: In First, N.Y. Judge Allows Gay Divorce

A proposed California State Bill 2587 addresses a theory used to set guidelines in child custody cases. The proposed bill highlights a nearly 20-year-old dispute over a theory used by psychological evaluators.

The bill failed to be passed in 2007. At that time it was known as Assembly Bill 612. It targets the theory of Parental Alienation Syndrome which describes behavior where one parent turns a child against the other.

The bill is supported by women’s and children’s organizations who contend it is necessary to prevent the misuse of psychological testing in child custody evaluations and to ensure that, when such testing is allowed, only diagnoses that are generally accepted by the medical or psychological communities are accepted by the court. They believe that, in the absence of this bill, inappropriate evaluations will continue to be relied upon by the court and children will be put at risk.

The bill is opposed by psychologists and the Family Law Section of the California State Bar. They argue that, in most cases, this bill will prevent evaluators from using psychological testing, which is a necessary part of their evaluation process, and without which they will be unable to make recommendations to the court or comply with professional requirements.

Dr. Philip Stahl, a California evaluator and member of the state’s Association of Family & Conciliation Courts, says evaluators are split in their beliefs about whether children can be alienated. “You have evaluators who really don’t understand alienation, and people who want to apply it in every case,” said Stahl. Evaluators are not the only ones with differing views on the issue: there are stalwart advocates who believe that hundreds of people have suffered because of parental alienation, and those who believe just as many have suffered from false charges of the syndrome.

The text of the 2007 version of the bill explicitly banned the use of Parental Alienation Syndrome, or just the term alienation from use in evaluations. It also aimed to minimize the use of custody evaluations. The family law section of the state bar and several psychologists groups banded together to oppose the bill.

The 2008 version of the bill is much vaguer than its predecessor, stating evaluators will be forced to conform to “standards generally accepted by the medical, psychiatric, legal, and psychological communities.” The bill does not specifically mention Parental Alienation Syndrome.

Divisions over cases with alienation and abuse are not easily mended, says Stahl, because they are usually gender-based. That problem, says Stahl, dates back to the founder of the Parental Alienation Syndrome theory, Dr. Richard Gardner, who described the syndrome as a strategy for women to strip father’s of their parental rights. “I believe alienation does exist, but not in the Gardner model, which was presented with clear gender-bias,”said Stahl.

Dr. Amy Baker, a psychiatrist and believer in Parental Alienation Syndrome who wrote a book on the experiences of adult children who claim to have suffered alienation, says the gender issue is overshadowing the problems victims are facing. “It is unfortunate that women’s groups have taken a stance against the issue, because many women have suffered because of the actions of alienators,” said Baker, who added that both men and women alienate their children from the other parent.

A 2005 study of 125 high-conflict divorce cases by San Jose State University researcher Janet Johnstone indicated that Baker might be right. The study found that 50 percent of women in the cases showed signs of alienating their children, and 45 percent of men. Gardner’s papers on the subject, written in the late 1980s, sold the behavior as primarily occurring in women, and formed the basis for the fathers’ rights advocates to use alienation as an argument in custody court. Gardner himself often acted as an expert witness on behalf of men. But Gardner’s theories have never been endorsed by the American Psychological Association, and many evaluators reject them. Several evaluators interviewed agreed that it is not unusual for one parent to turn a child against the other, but that the behavior shouldn’t be described as a psychological disorder, the way Gardner intended. “The syndrome describes a typical pattern of behavior, but calling it a syndrome makes it sound medical, and it’s not,” says Dr. Mitch Eisen, a Cal State Los Angeles psychologist and professional evaluator. “The dispute over whether Gardner’s ideas hold merit or not is not limited to advocates alone,” says Stahl The dispute sometimes means making strategic court decisions: some lawyers will recommend to clients to keep abuse allegations quiet to avoid trouble in court.

“Judges are pretty cautious about abuse charges in a custody case,” said Thomas Lyon, a USC law professor and psychologist who has investigated custody cases for the county and argued as a lawyer in family courts. “Making allegations can make the accuser look vindictive, and lead to judicial backlash.”

Last October Oprah Winfrey did a show about children and divorce which I discussed here on our blog. After that show Oprah received thousands of e-mails from adults who still feel the pain of their parents’ divorce.

Divorce expert M. Gary Neuman appeared on the show and gave his 5 rules adult children of divorce can follow to have a successful conversation with their parents about their lingering feelings from childhood:

1. SET YOUR INTENTION. Before your meeting with your parents be clear about what goal and what you hope to achieve with this conversation. Dr. Neuman stresses this is not a time to vent.
2. DEFINE THE RULES FOR YOUR PARENTS. Before you begin, Dr. Neuman recommends telling your parents what you want from them. Explain to them this is not about blame but about your need to have them understand you.
3. DON’T ATTACK. Keep the conversation focused and constructive.
4. BE SPECIFIC. Dr. Neuman says to do this without ascribing blame. Give specific examples of when your parent hurt you. Oftentimes, says Dr. Neuman, parents don’t even know you heard or saw something.
5. RESOLVE FOR THE FUTURE. Figure out how you, as a family, can continue the dialogue you have started. Encourage your parents to be protective of you, their child, even though you are an adult.

And, what can you as a parent do while you’re going through the divorce to lessen the pain your children will carry through their adulthood? First, don’t rely on your children for emotional support no matter what age they are. Get professional help. Your children are not there to help you through these issues. And, when you use the children for emotional support it can have long lasting emotional consequences for them. Second, don’t say negative things to the children about the other parent. This, too, causes emotional stress on children regardless of their age.

Dr. Neuman offers the following suggestions for talking about divorce with children:

1. Don’t ask the kids to choose sides.
2. Don’t say bad things about your ex.
3. Talk to your child about his or her feelings.
4. Open the lines of communication.
5. Act like a parent. And, this something I felt was very significant. Let your kids know that you and your ex will make the decisions about how much time they spend with each of you. It’s not something they need to worry about.
6. It’s not worth it. The fighting and the name calling are not worth the pain you’re putting your children through.
7. Admit your mistakes.

It’s even more difficult for you to have a constructive conversation with your children if you and your soon to be ex spouse are attacking each other in court. Most issues don’t have to be decided in court. You can negotiate your divorce with a good professional team. Consider mediation, a collaborative divorce or a negotiated divorce. There are many casualties to a litigated divorce and the largest casualties are the children. Dr. Neuman’s book, “Helping Your Kids Cope with Divorce“, can be purchased at Amazon.com.

As we approach April 15 I am frequently asked whether fees paid to an attorney are tax deductible.

You cannot deduct legal fees and court costs for getting a divorce. However, fees you have paid your attorney for getting alimony are generally deductible.

Fees you pay your attorney may include charges that are deductible and charges that are not deductible. You need to request a breakdown from your attorney setting forth what the fees were for. Also, remember you can claim deductible fees only if you itemize deductions on Schedule A of your tax return.

If you paid attorney’s fees to obtain alimony in 2007, now would be a good time to contact your attorney for a breakdown of those services which were directly related to services in getting and collecting alimony.

For more information, refer to IRS Publication 504.

The Family Law Quarterly of the American Bar Association publishes charts summarizing basic divorce laws in each state. The charts summarize laws in each state by topic and include custody, alimony and grounds for divorce. All charts are current as of one year ago, November 2006. So it is important to recognize that some laws may have changed or new cases may have interpreted statutes.

There are 7 charts. We have uploaded for them you on our site. Click here to see all of the charts in one pdf document: LINK

California Senate Bill Number 353 was signed by Governor Schwarzenegger in September. Effective January 1, 2008, the law allows judges to include pets in any restraining orders issued as part of domestic violence cases. This means that a person seeking a domestic violence restraining order in California can now ask the judge to give him or her exclusive custody of the family pet.

In enacting the law, the California Legislature found there was a correlation between animal abuse, family violence and other forms of community violence. The Legislature also found that perpetrators of domestic violence often abuse animals in order to intimidate, harass or silence their human victims. A survey of pet-owning families with substantiated child abuse and neglect found that animals were abused in 88% of homes where child physical abuse was present. A 1997 survey of 50 of the largest shelters for battered women in this country found that 85% of women and 63% of children entering shelters discussed incidents of pet abuse in the family. A study of women seeking shelter at a safe house showed that 71% of those having pets affirmed that their partner had threatened, hurt, or killed their companion animals.

In September Dr. Adam Davey of Temple University published his findings in Advances in Life Course Research that adults who parents divorced would be less involved with day to day assistance later in life for an aging parent. Even though a divorce may have occurred more than 30 years ago, the changes caused by it can have a long-lasting effect for the child into adulthood. “It’s not the divorce itself that affects the quality of the parent-child relationship, but it’s what happens afterward such as geographical separation,” said Dr. Davey. “Marital transitions affect families in a number of ways,” Davey said. “They can interrupt the relationship of support between a parent and child, and the evidence suggests that the continuity of support by parents and to parents matters.”

The study also found marital disruptions earlier in a child’s life can be less detrimental to the relationship than those that occurred in adulthood. This also means that children in the same family can be affected differently by the same event, Davey said. The results suggest that both the type of transition and when in a child’s life it occurs are important. A father’s remarriage early in a child’s life makes it more likely that his children will provide help in later life, but the same transition when the child is an adult reduces the chances of that child helping the father. There is also evidence that the more a child’s life was spent with a divorced mother, the higher the chances that the child will provide assistance when the mother is older.

The American Bar Association has published an Ethics Opinion endorsing collaborative divorce.

Ethics opinions issued in five states had previously given approval to the collaborative divorce process. A sixth state, Colorado, recently issued an advisory opinion that collaborative agreements which required attorneys to withdraw from representing a client in the event of litigation created a conflict of interest.

The American Bar Association’s ethics opinion endorses the collaborative model. Before representing a client in a collaborative law process the lawyer must advise the client of the benefits and risks of participation in the collaborative process. Once informed consent is given the lawyer may represent the client in the collaborative law process and this means the lawyer must honor his or her commitment to withdraw if the case proceeds to litigation.

The ABA Ethics Opinion is posted on our website.

In California real estate which is transferred between married couples is exempt from property tax reassessment. In 2005 this law was expanded to cover property transfers between Registered Domestic Partners. Cash strapped property assessors from several counties joined together in a lawsuit requesting the court to find the law unconstitutional. On October 2, 2007 the Court of Appeal in Sacramento County held that the California State Legislature had the authority to extend this right to Registered Domestic Partners.

“This ruling is completely untenable” said Mike Strong, the Sutter County Assessor, who is one of the plaintiffs in the lawsuit. It appears that the case may be appealed to the California Supreme Court.

Gay and lesbian couples account for most of California’s 45,000 domestic partner couples. The ruling is “a recognition that domestic partners, like heterosexual married couples, should be treated equally and with dignity and respect,” said attorney Daniel Powell, who represented several same-sex couples and the advocacy group Equality California. A contrary ruling, he said, would have forced some domestic partners “to pay much higher taxes upon the death of a loved one.”