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Professional Recognitions

10.0Brenda Storey

The Court is Not Big Brother

By Brenda L. Storey, Esq.

To finish out our series of what the court does not or cannot do, I address herein the fact that the court does not track compliance.

When a court issues an order, it assumes compliance and is done with the underlying issue. The Court has no idea whether a party complies, or not. As a result, the Court has no knowledge needed to enforce its own orders.

The duty, therefore, is on the party to notify the court of non-compliance.  The ways to do this include via a Motion to Enforce, a Verified Entry of Support Judgment, a Motion for the Clerk to Act, or a Motion to Enforce Parenting Time.

I often tell clients that post-divorce compliance is like raising a 2-year-old.  If you say no, but waffle, they take advantage.  Similarly, 100% compliance by a former spouse is expected.  If a violation occurs, the issue needs to be raised immediately.  If the noncompliance is not then rectified, enforcement through the court is needed.  Otherwise,  if you give an inch, they take a mile.  Usually, one enforcement motion right away brings about compliance with the current term at issue, as well as no future noncompliance.  Thus, act swiftly – and expect nothing less than full execution of the terms reached as stated in the Agreement or Orders.

Can’t Touch This!

By Brenda L. Storey, Esq.

In addition to it being a catchy line from a 90’s song, which I now cannot get out of my head, when looking at certain future financial circumstances of the parties, the divorce court “can’t touch this.”    Specifically, if a spouse is expecting a future inheritance under a will or a revocable trust, the court cannot “divide” that future speculative benefit during the divorce.  Further, that anticipated but not guaranteed future windfall cannot be considered by the court when addressing maintenance and child support at the time of the divorce.  The reality is that the court just does not see these as property or a money source, as they can be divested anytime by revocation or amendment.

Similarly, a court cannot order divorcing parents to pay for their children’s college education.  College is, obviously, a goal many parents have for their children.  The cost continues to sky rocket.  However, the court loses jurisdiction over the financial support of children once they reach the age of 19, or other emancipation as defined by law.    Although this can seem unfair to a parent going through a divorce, it actually makes sense when seen in full context.  Children whose parents do not divorce cannot get a court order that  requires their parents to pay for college education, so children of a divorce are treated similarly.

The Court also has no authority to bind third parties by way of its divorce orders.  For example, a court can order one party to be responsible to pay off a joint credit card, but that order has no impact on the credit card company.   If payment is not made, the credit card company can go after either party or both for collections.    A court cannot order one party to maintain the other on his/her health insurance post-divorce, as the eligibility for coverage is determined by the insurance company.   A court also cannot enter an order against a non-party, such as order that a named caregiver must or must not do something.

There are many other examples of what the divorce court cannot touch.  A thorough discussion with a lawyer is crucial to understanding the limits, and setting realistic expectations.   An exceptional lawyer can even sing that 90’s song for you while answering the questions.

No Separate Property

By Jamie Leaver Sawyer, Esq.

While Ms. Storey vacations with her family, I have been relegated to blog substitute.  Continuing with the series of what the court cannot do, this week the focus is on the fact that the court cannot divide between the couple the separate property of a spouse.

In a dissolution of marriage or legal separation case, there are two types of property – marital and separate. Marital property includes property acquired by either spouse during the marriage. Separate property may include an asset acquired prior to the marriage or acquired in exchange for property acquired to the marriage, property acquired by gift, bequest, devise or descent or in exchange for property acquired by gift, bequest, devise, or descent, and property that is excluded by a valid agreement of the parties.

Separate property is excluded from the marital estate and, as such, cannot be divided by the Court. While the Court cannot divide the separate property of an individual, you are still required to disclose the existence of any separate property. Further, the increase in the value of separate property is considered marital property subject to division unless such increase is excluded by valid agreement of the parties, and there are circumstances in which separate property may become marital property.

Given the restrictions on the Court in dividing separate property, one of the first steps in property division is determining that which is marital and that which is separate. It is important to meet and discuss with an attorney the distinctions and to further understand that which is subject to division.

No Magic Wand…

By Brenda L. Storey, Esq.

I am excited to introduce our new blog series about what divorce does not cover, or address, or fix, or do.   For the first installment, I am focusing on what the court cannot do.   So many times, potential new clients meet with me with great expectations about the power of a divorce court.  Oh how I wish that the Domestic Relations court could fix everything.   Unfortunately, our courts do have limits.   For example, they cannot make more money appear than exists, or change the circumstances of the parties from how they were found, or enter a magic order that addresses parenting shortcomings.    Instead, the courts must enter orders based upon the facts as they exist and apply the current law thereto.

For example, when the market crashed, parties to a divorce had more debts than assets, and more expenses than income.   Their homes were being lost to foreclosure, the breadwinner likely had lost his or her job, and credit cards were maxed.  Oftentimes, bankruptcies were filed, so the divorces were stayed, held in limbo.  Then, once the divorce case could resume, there were even less assets, as what could be used to pay off creditors was so used.   There was not enough money to pay the living expenses of one household, let alone two.  In such cases, the court divided between the parties what few assets remained, divided up between them the debt that remained and responsibility therefore, and left each party to find his/her way to live.  The court is not a financial planner, nor a wizard.  The Court has no magic wand to make more money appear.

Similarly, some people reach their divorce breaking point when their spouse has failed to contribute to family support or participation for years.   They complain what a lazy person the spouse is, and how they have had to support him or her for years.    Though understandable, it does take two for this to continue to happen.  This same person, who allowed this to continue for years, wants it to almost instantly change upon filing for divorce, and are shocked that what transpired over years of their marriage could be grounds for a maintenance award to the other spouse.  But, the court takes the parties as it finds them.   It is true, the court can expect a party to become employed, and if they opt not to, impute income to that party, but such an order is not immediate upon filing and depends on the circumstances of the parties, such as age, health, standard of living enjoyed during the marriage, how long they were supported by the other spouse completely, and so on.   The court is not the backbone of the relationship, nor a wizard.  The Court has no magic wand to make people better than they are – either one of them.

There are all kinds of parenting styles.   Unless a person files for divorce, or DHS gets involved, or you are “blessed” with a busy-body mother-in-law, your parenting is usually not questioned.   However, once divorce is filed, everyone is a critic, and the past is all relevant.   If during the intact marriage one parent spent little time with the children, that will be a hard factor to overcome in the divorce process if instantly seeking substantial time.   If, during the intact marriage one parent cussed in front of the children, at the time of the divorce the other parent can raise it as a concern, but the question is why it was not nipped long before if really a concern.  Some parents are simply not good parents, and no order will change that.   Instead, the goal is to get orders that limit the parenting time with that parent to the extent needed to limit the attendant risk to the children.    The court is not the third parent of the children, nor a wizard.  The Court has no magic wand to make people the perfect parent.

Plain and simple, the court takes the parties as it finds them, and all their baggage to that point, and applies the law to enter orders.   The key is to find a quality lawyer who takes the time to learn all the relevant facts, dig deeper, focus on the most persuasive facts, sets realistic expectations, empowers the client’s voice, and becomes a form of a magic wand when making the argument to the court as to what relief the client seeks.

Cherish the Memories

By Brenda L. Storey, Esq.

As I bring to a close the latest blog series that has focused on parenting, I wanted to highlight the importance of cherishing the memories.   Parenting is not easy, but it has so many special moments that will only happen once.   Of course there are the huge milestones, such as the first step, the first word, starting kindergarten, getting a driver’s license, graduation.   Hang onto those.   The special moments also include the hard times– when having to discipline your child, or telling your child of the divorce, or when a family pet has died.   How you handle those times can, in fact, bring you closer to your child than anything else.

The key is to not be so caught up in one’s own self, or material needs, or career, or stress, or anything else to let those moments slip away.  Fully engage in them.   Open yourself up to them.

The older I get, and as wonderful a life as I have, what I treasure are the memories I have with my kids.   The good, the bad, and the ugly all had love as part of each and every one.   Those memories can last forever, and there is always room for more.

There Is No Place For Children At the Adult Issue Table

By Brenda L. Storey, Esq.

Children whose parents are going through a divorce already have a lot with which they must deal.   They are facing the loss of their family as they know it.  Fear of the unknown is overwhelming.  Change is guaranteed; the only question is how much will there be. The last thing these children need is one more worry or concern. The best that a parent can do is protect each child from as much as possible, including shielding them from adult issues that are part of the divorce process.

Involving the child in the details of the divorce, telling them about what the other parent is saying, or leaning on the child for support is wrong, wrong, wrong.

Adult issues are just that — adult issues.   There is no place for children at the adult issue table.   Children do not need to be aware of a parent’s concerns about money, parenting disputes, or legal proceedings.   That is for the adults to handle.  Children are not responsible for emotionally supporting their parent.  Instead, the parent is to provide a sense of safety and security for the child.  The child never needs to hear what one parent is alleging about the other, but instead needs to be kept out of the fray.  Failing to abide by these parent/child boundaries can harm the child more than any other component of their parent’s divorce.

One parent might break these rules.  If this happens, kids are pretty quick to share in order to work through the negative feelings this conjured up within him or her.   Sometimes, the child will come right out and report what the parent said.  Other times, the child’s behavior will speak volumes that something is off.  Another version of response is that the child hurls the allegations inappropriately shared by the parent.   The best the other parent can do is listen, empathize with the feelings the child is experiencing, and then reassure the child that he is loved too much to be put in the middle any further.

Some children will ask for more information.  Some will argue that they are in the middle already, because it is their future that is being discussed.  Some will ask questions based upon what the other parent has overshared.   The receiving parent need only remember the magic words:   “I love you too much to put you in the middle.”  Then, that parent needs to act on that and continue loving the children too much.

Walk the Walk

By Brenda L. Storey, Esq.

As parents, we wear many hats.  Cook, coach, therapist, nurse, nutritionist, and on and on.   One of the most important is role model.  That responsibility should not be taken lightly, as it can have a life-long impact on a child.

The role can be either positive or negative.   Does the parent bully?  Lie?  Have patience? Speak kindly?  Cuss openly? Smoke pot? Show respect? Choose moderation?

During divorce, sometimes the parent lets down on the role.  They become a bit more self-absorbed or self-indulgent.   Unfortunately, this is the worst time to let a child see such a shift.  They learn by watching, and see that when times get tough you turn to bad choices.  Additionally, the children have the greatest of emotional needs at this time, and the parent is absent, either physically or emotionally.  What message does that send the child?   How will that influence their future parenting?

A great exercise is to write down what you hope your child will be— not career-wise but personality and emotionally.  Then, emulate that for your child.  Work hard to be what you hope they will be.  Let them see the positive role model.   In the process, you will likely find your self happier and more satisfied.  Walking the walk is a win-win.

Can We Talk?

By Brenda L. Storey, Esq.

Crucial to a child’s ability to successfully navigate the divorce of his parents is an opportunity to express what he is feeling.   As the parent, it is key to encourage the child to share his thoughts and feelings.  Although at the right point, reassurance should be provided, actually listening to the child and allowing him to express himself is so beneficial.   This is not a one-time need, either.  The child will need it throughout the divorce process, and even afterwards.   When a child is observed as being upset, that is an obvious time to reach out and ask him to open up.  But, it is also helpful to randomly check in, and not wait for the child’s emotions to trigger the focus on sharing feelings.

This communication creates a healthy outlet for the child, and teaches them great coping skills for the rest of their life.  There is also an added benefit—the child and parent become even closer.   The child knows the parent cares and will listen.  The talk is very personal, and can be raw.  The child feels exposed, but also supported and heard.   That can really bring two people together!

There is a life-long benefit to teaching these communication skills.  In addition to helping your child have better emotional intelligence and health, they learn key relationship skills.    It is a win/win, as you help them in the present, for the future, and strengthen your tie with them as well.

What Happened to Family Time?

By Brenda L. Storey, Esq.

During one of my recent commutes to the office, I heard a radio advertisement for unlimited data for up to four lines, celebrating that each family member could watch a different show on a separate phone.   Why in the world would this be celebrated?

There should be no doubt that actual family time together is good for children, as well as the parents.  It is best if this time is not screen time at all, such as a sit-down family dinner, with all technology put away and actual talking with one another.   If screen time is involved, it should be shared screen time, all together.  I have wonderful memories of my family choosing a t.v. series that we were going to watch together each week.  Look at the family bonding:  We chose the series together; we all looked forward to a shared event; we enjoyed watching it together; we discussed what we had all watched before the next installment.  We even had discussions about moral issues, what could have been done differently, and life lessons.

Children, and adults, are already on their social media and technology devices way too much.   Not only are they losing personal social opportunities, such as verbal communication and face-to-face interactions with real humans, they are losing a special bond with their siblings and parents, as well as losing opportunities to build memories.   I see no special memories from binging on a series watched all alone.

And really, why do we have children, if not to spend some special time with them, influence them directly, teach them real-world social skills, and share love?   If the goal is to ignore each other, and live separate lives, a potted plant is much cheaper than raising a child, and you don’t have to pay for the latest I-phone or unlimited data.

Quite simply, you only have time with your children a brief number of years.   Make the best of it.   Enjoy it.  Let them feel loved.  Feel their love.  Time is fleeting.

Stand Up For Yourself

By Brenda L. Storey, Esq.

I am starting a new series within the blog about parenting.   This first installment, though, focuses not on the children, but the parent.

The most successful parents put their children first, they sacrifice for the betterment of their children, and they tend to be the best at not speaking negatively about the other parent.    This obviously gives their children the greatest chance at success in all areas of their lives.  Good parents strive for all of this, but sometimes they do this to their own detriment, treading so lightly not to cross an inappropriate line.   This often arises when the other parent speaks ill of that parent to the child, involved the child in  a disagreement between the parents, or even flat out misrepresents facts to the child.   Those excellent parents’ first response is to protect the child, know that it would be wrong to engage in similar behavior, avoid putting the child in the middle, and, as a result, vow to not respond.  However, a therapist shared with me that that is  not fair to the child or the parent.

The child is left with an uneasy feeling and questions, and the parent is hurt and possibly angry by the lies about him or her.   It is okay for the parent to reassure the child, and at the same time stand up for him or herself.    It is always good to thank the child for sharing, and the child should be encouraged to release such confusing feelings and experiences.   It is likewise okay for the parent to apologize to the child for what he or she heard, and to say  that it is not appropriate for a child to be involved in such a discussion.   The child should hear that they are loved too much to further involve him or  her in a discussion that should just be for parents.   The parent can still teach the child right and wrong,, and this approach does not sink to the level of the other parent.

The final step in all this, though cannot be skipped.   The parent needs to stick up for him or herself.   It is not improperly  involving the child to simply state that what the child heard about the parent is just not true.   It is okay for the parent to make clear to the child, and role model in the process, that the parent has self-respect and will not tolerate misrepresentations about him or her.   That is all that needs to be said.   The child is left comforted and with enough clarity to move on, and the parent has said just enough for self-worth and inspiring the child to respect that as well.