Ashley Madison Problems? 5 Reasons to Avoid Going to Court on Adultery Grounds

August 28, 2015

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As 37 million recently hacked people on Ashley Madison can attest, adultery is rampant.  What is going on? From what I have seen and heard in my divorce mediation private practice, parents are so stressed out that they forget to nurture one another.  They put “adult care” at the bottom of their list, like a chore to be done when there is time.  But, while waiting for the “right time,” at least one of the party’s need for attention and physical affection doesn’t go away — no matter how busy they are with kids or careers. In my experience talking with couples over the past several years in my divorce mediation firm, adultery is usually a symptom — not a cause — of the death of their marriage.  It is rare to encounter adultery in a marriage that was healthy and alive before the deed was done.

If you’ve recently discovered a betrayal in your marriage, and have decided that the marriage is over, I recommend taking a long, slow breath before moving forward with a divorce on the grounds of adultery (if that is even possible in your state, as it is in my area, Northern Virginia – Fairfax, Loudon, Prince William counties).

Divorce trials and litigation, which focuses on the ground of adultery, are extremely expensive and do not help clients move forward with their lives.  They grind in past transgressions and ugliness.  They reinforce all of the negatives in a marriage, as opposed to focusing on the positive futures available to each spouse if the settlement is fair, centered on the children, and aimed at providing a platform for both spouses’ future success and happiness.

Here’s why you should consider mediating your divorce settlement, and not sue for divorce using adultery as your ground:

Adultery is often difficult to prove. How far will you take it? Is there another side to the story? This will drive up investigators’ time, court time—and cost–for what gain?

  1. Adultery is very expensive to litigate. Litigation is highly complex—and therefore expensive. Couples can often settle their matters without all of the legal wrangling and red tape.
  2. It’s not private. Do you want your kids—not to mention the entire town, schools, church, gym, and Thelma at the bank—to know your business? Why deliver the gossip and humiliation to the world’s news feed?
  3. It serves no purpose. Destroying each other will leave you not only broke, but ultimately cause more anguish. There is no real meaning and value in the destruction of someone you once loved. Focus on building your own happiness from here on in.
  4. Court is not a place to seek revenge. Judges don’t care who sleeps with whom. They focus on what is best for the children, and how to make income that supported one home now stretch to support two. Mediation can help you pinpoint and focus on key issues for the benefit of the kids.

As for your kids . . . After 13 years in family law, and mediating countless divorcing parents, my thinking is this:

  • Do not talk with your young children about what really happened when your spouse cheats.
  • Focus on your goals: Be independent. Be happy. Be successful.
  • What good is it involving your children in your pain? They’re too young to understand sex and adult relationships. You’ll only succeed in making them feel conflicted in their parental loyalties — right at the very time when they need both of their parents the most.

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

 


The 3 A’s of Avoiding Divorce

August 18, 2015

As a certified divorce mediator and a former divorce attorney, I’ve worked with hundreds of couples over 13 years in family law who were filing for divorce. Here’s what I hear from clients — over and over again – as the key reasons for the break-up of their marriage. I call them the 3 A’s:

Lack of Affection. Though cliché, it’s true: When baby makes three, both parents are often consumed with showering their new baby with the most affection possible. As the child grows, couples forget to smooch their spouses, too.

Lack of Attention. Couples often feel ignored in their roles as spouses, parents and, often times, human beings! It’s no secret that jobs, child-rearing, in-laws, financial worries and responsibilities of running a home eat up your time and energy. If you want to save your marriage, though, start by giving your spouse the focus that or she deserves and needs.  Be intuitive, remember what your husband or wife needed back when you were dating, and try and give him or her that level of attention that you, too, need in order to feel secure in your relationship.

Lack of Appreciation. This is perhaps the biggest contributing factor in the divorcing clients that I work with — I hear it, in one form or another, from every set of mediation clients that I encounter. In many cases, women feel they do the lion’s share of the homemaking. When the kids were born, they changed around their priorities. The husbands, or so I hear, didn’t change their everyday lives quite as drastically as did the wives. The husbands, often times, feel that they are not appreciated for their financial contributions and the actual time that they do spend with the children. Each resents the other for longer hours put in at work and chores, and forgets to thank the other partner for keeping the family enterprise afloat. One thing that helps? Parents need to divide and conquer the mundane tasks of everyday life. If mom is best at details, let her do the details: whether it’s party-planning or setting up that 509 for Junior. But dad needs to do the other stuff, like preparing taxes or working with the kitchen contractor. The key is quite simple: Work hard at appreciating what the other is doing and know that 50/50 is not always a practical goal to attain depending on each others’ personalities and priorities.

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


The Effects of Parenting By Role Modeling

July 14, 2015

report-card-parents-happyAll parents want to raise, happy, healthy, successful, and altruistic children.  While there are many ways to impact and influence a child’s future, role modeling is one of the far most important factors.  There is a clear link between the effects of role modeling on children’s futures.  Statistics show:

  • Parents with good self-esteem tend to raise children with more secure self-esteem.
  • Parents who succeed in education tend to have children who meet and even surpass their parents’ accomplishments.
  • Children of divorced families are more likely to divorce (Parenting Exchange)

Children’s behavioral habits are shaped by not only being told what is correct, but also by observing correct behavior.  Whether or not a parent realizes it, his or her child is always watching, listening, overhearing, and observing a parent’s actions.  It is easy for parents to throw out don’ts like “don’t drink”, “don’t smoke”, and “don’t lie”; it is harder for parents to practice what they preach.  For example a parent may tell his or her child that smoking is unhealthy and that he should never smoke.  Sure, the child may understand that smoking is unhealthy, but if the child sees a cigarette hidden in his mom’s purse or smells smoke on his dad, the child will wonder how unhealthy can smoking really be, if his parents do it when he is not around?

Parents can work on modeling through his or her own actions by considering how you:

  • Handle stress and frustration
  • Respond to problems
  • Express anger and other emotions
  • Treat other people
  • Deal with competition, responsibilities, loss, mistakes
  • Celebrate special occasions
  • Take care of yourself (what you eat, how much you exercise, balance your commitments) (The Center for Parenting Education)

Looking back on my childhood my parents always were always positive role models.  Despite being the mother of two children, my mother worked my entire childhood.  This did not stop her from getting us involved in sports, clubs, and providing us with a healthy dinner every night. My dad worked just as hard as my mom. I would often wake up in the morning finding that he had already left for work and he would not return until I was getting ready for bed that evening.  From a young age I realized that my parents worked this hard for my brother and I to provide a promising future for the both of us. This made me value my education similar to the way they valued their careers.

My accomplishments reflect the impact my parents had on me. I graduated from Virginia Tech in 3 and a half years, was moved out and living independently from my parents by the age of 22, and now I am headed to law school this August.  My parents not only pushed me verbally to work this hard, they showed me that working hard pays off, as they are both comfortably retired in their 50’s.   I aim to be just as successful, if not more, as my mom and dad.  When I do reach their level of success, I know I will thank them for always being the two most influential role models in my life.

Citations:

http://www.easternflorida.edu/community-resources/child-development-centers/parent-resource-library/documents/parents-powerful-role-models.pdf

http://centerforparentingeducation.org/library-of-articles/focus-parents/role-model-promise-peril/

Written by Jessica Wilds, Mediation Assistant

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


How to Exercise Your Way Through A Breakup

June 18, 2015

Going through a breakup is one of the most universal pains in this world. We have all been there, we have all dealt with it, and the good news is, we’re all still here. There’s a myriad of ways to get past the pain, but one of the most constructive is exercising. It can be a reason to get out of bed, a new motivation in life (even if that motivation is “Look as good as possible in case I see my ex again”), and one of the healthiest ways to move on.

Not only does exercise release endorphins, the “feel-good” neurotransmitters in your brain, but it can increase self-confidence and act as a form of meditation and reflection. So what kind of workout should you do? Well, it depends on where in the breakup you are.

For when you’re depressed and can’t get your mind to stop replaying it over and over:

Bicycling: Biking is not only fantastic, full-body exercise, but it demands your complete attention. You have to watch for potholes, whizzing cars, kids kicking their soccer balls into the street, and drivers opening their door into your lane at all times. This is not the time for, “Oh, if only I had said or done that…” because that distraction can get you into an accident. Your survival instincts will kick in, keep you focused on the road, and keep you from going down that destructive thought path of “What if…” Plus, biking has the added benefit of getting you fresh air and reminding you that there is a whole world out there, still revolving.

Yoga: Yoga is about being present and mindful. No matter what type of yoga you’re into, you can practice mindfulness. That can mean paying particular attention to your breath and your body’s alignment in various poses. It can also mean recognizing the derailing breakup thoughts, but letting them float past you. Unless you’re already an expert yogi, this can be a difficult thing to start. However, if you stick with it, you may find a peace and center that you were otherwise missing in this tumultuous time. This article can help you get started.

For when you’re so angry you just want to punch your ex:

Kickboxing: Literally go punch something! Many gyms offer these high-intensity classes which lets you sweat and punch and kick your aggression out, all while burning 300-600 calories per class. Don’t limit yourself to just American kickboxing classes, though. Lots of martial arts (like Muay Thai and Karate) have similar benefits of engaging cardio, discipline, and letting you work out your anger.

Running: Whether it’s on a treadmill or the sidewalk, there’s something immensely satisfying about slapping one foot down in front of the other as you run. Feeling particularly ragey? Throw in some sprints! Now is a great time to listen to some raucous and rocking tunes. Check out this list of 50 fast and empowering breakup songs for some playlist inspiration.

For when you’re starting to see the light on the other side:

Weight training: If you’ve gotten this far into your breakup, you may even be thinking about the possibility of someday dating again (yes, this will happen!). Lifting weights can help give you the confidence you’ll need to put on your perfect first date outfit–or give you the excuse to go shopping for a new one! Weight training is a great way to slim down and tone up. For women who are worried about “getting bulky,” just know that building muscle can help you burn fat all day long, whereas cardio only burns while you’re doing it. You won’t bulk up unless you specifically want to, which is why some men may want to look into their daily macros and supplements while they lift.

Group sports: Your city is probably teeming with recreational sports leagues for all different skill and interest levels. Just search “rec leagues + your city” or “intramural sports + your city” and dozens will pop up! It can be as active as flag-football or as goofy as cornhole. Leagues are great for meeting new people who already share a common interest, getting you out of the house and socializing again, all while still being active and healthy. Now, those happy hours your league sponsors probably aren’t all that healthy, but they sure are fun!

Woman walking cross country and trail in spring forest
Do none of these sound right for you? Well, good news–there are hundreds of ways to exercise the breakup blues away. Talk to friends for their recommendations, or just go for a long walk. It really is possible to heal your heart by starting with your body. The rest will follow.

Written by Jane Baber, Mediation Assistant

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


Child Custody In a Virgina Divorce: Legal Custody & Physical Custody Defined

June 9, 2015

child custodyWhen discussing various parenting arrangements with clients and prospective clients, I have learned that most people who are in the midst of a divorce/separation, or are contemplating such an event, make similar mistakes when it comes to Virginia “custody terminology”.

Such vocabulary faux pas are hardly indicative of a parent’s heartfelt desire to spend time with his or her child.  However, it is usually helpful to clients when they begin to get a handle on how the Commonwealth of Virginia goes about assigning labels in the context of divorce and co-parenting.  (Co-parenting refers to any situation when two parents are raising a child, in two separate households, whether or not those parents were ever married).

Of course, your mediator or divorce lawyer should certainly be able to figure out what you mean – no matter how you phrase it – when it comes to your desires for your child’s future parenting arrangements.  Not all mediators or divorce lawyers, however, do a good at explaining legal terminology.  The same goes for clients’ ability to absorb and process information in such a stressful and confusing time.

As a result, I have seen plenty of post decree (after divorce) situations where basic misunderstandings of the custody terms in the parties’ Final Order of Divorce (aka Divorce Decree) kept them fighting about their child several years after their separation and divorce.

To help alleviate this unfortunate and rampant misinformation about various custody terms in Virginia child custody cases, here is my “Virginia Custody Dictionary.”

Legal Custody:

Determines which parent has the right to make major decisions concerning their child.  Legal custody has nothing to do with where the child lives.

There are two types of Legal Custody:

    (1) Joint Legal Custody –  

        Major decisions must be agreed to by the parents.

    (2) Sole Legal Custody –

        Major decisions need only be made by the parent who is granted Sole Legal Custody.

  • The term “Legal Custody” is not intuitive to most people and problems often arise, down the road from when the settlement agreement is signed/Court order is entered, over the parents’ often diametrically opposite interpretation of the term “major decisions”.
  • Mediators encourage clients to jointly define the term “major decisions,” as part of the settlement of the custody issues in their particular case, to help save them from possible trouble down the road.
  • On the other hand, divorce lawyers tend not to focus on crafting an agreed client-interpretation of the term “major decisions”. Instead, they leave it up to the Courts to decide, should there be a problem in the future, whether a decision made, or to be made, by a parent is, in fact, “major”.  Ultimately, the Courts do have final decision-making power; but, a meeting of minds between parents is usually enough to end bitter battles before they start.
  • Examples of “Major Decisions” – Those decisions which are generally agreed by divorce lawyers and courts to be “major decisions”:
  1. Which school the child will attend;
  2. Whether the child will be required to undergo an elective medical procedure (e.g. plastic surgery on a scar);
  3. Whether braces will be placed on a child’s teeth for purely cosmetic reasons;
  4. Whether a child will be required to engage in psychotherapy;
  5. Who will be the child’s substitute caretaker necessary for the parents to earn a living (known as “work related childcare”, aka WRCC); and
  6. Choice of sleep-away camps.
  • Examples of “Gray Area Decisions” – Where decisions may or may not be considered “major”:
  1. Which week or two-week long camp a child will attend in the summer (not sleep-away camps);
  2. Which extracurricular activities a child will participate in during that parent’s custodial care time.
  3. Whether a child will participate in a specialized academic program during school hours (remedial or enhanced learning);
  4. Whether a child will participate in various in-school clubs, groups and activities;
  5. Choice of classes (middle school and high school);
  6. Choice of basic disciplinary techniques;
  7. Choice of how much to give a child for allowance/spending money; and
  8. Choice of vacation destinations with children (within reason);
  9. Choice of children’s playmates.

Physical Custody:

Determines where the child will live and the amount of time the child will spend with each parent.

Physical custody pertains to which parent (sometimes both, sometimes only one) has the primary responsibility for the care and control of the child on a given day.

  • Day to day decisions, of a routine nature, are made by the parent with whom the child is being cared for on that day.

 

Sole Physical Custody:

  • In Sole Physical Custody situations, that parent is granted all (or almost all) of the custodial care rights and responsibilities for the child.
  • The other parent is not usually involved in day-in-and-day-out responsibilities that come with raising a child.
  • The other parent is usually permitted “visitation” with his or her child (except in cases where that parent would present a danger to the child);
  • In Virginia, even in cases where one of the parents is granted Sole Physical Custody, the other parent still has the legal right to review the child’s medical and academic records (with exceptions);
  • To add to the confusion, when calculating Virginia Child Support Guideline Obligations, the “regular” calculation is called the “Sole Child Support Calculation”.  This poorly named calculation simply means that the non Primary Custodian cares for the children fewer than 91 days per year,2  even though the caretaking duties may clearly be shared between the parents.
  • Advocating for the denial of a parent to be involved in major decisions concerning his or her child is serious. It generally means that there is something very wrong with one or both of the parents’ ability to care for the child and/or use sound judgment when making decisions concerning the child.
  • In cases where one or both of the parents thinks that a child should have no or very little custodial care time with the other parent, it is often advisable that those parents litigate (hire a divorce attorney) and not mediate their cases.

Shared Physical Custody:

  • In Shared Physical Custody situations, it is presumed that both parents are involved, to a much greater extent than in a “Sole Custody” situation, in the day-in-and-day-out responsibilities that come with raising a child.
  • However, Shared Physical Custody does not, necessarily, mean 50/50.  It does, however, mean that there is a discernible sharing of parental caretaking duties for the child.
  • The term “Shared Physical Custody” is not clearly defined in Virginia law in terms of custody and parenting arrangements.
  • To add to the confusion, when calculating Virginia Child Support Guideline Obligations, there is a special calculation available for situations where a “non-primary custodian” cares for a child 91 or greater days per year.  That calculation is called the “Shared Child Support Calculation.” The Virginia Shared Child Support Calculation is able to accommodate various ratios of caretaking duties (e.g. 50/50 custody, 60/40 custody, etc.).

Primary Physical Custody:

  • The parent who is the “Primary Physical Custodian” is usually the parent who cares for the child greater than 50% of the time.
  • The term “Primary Physical Custodian,” however, is not well-defined in Virginia law.  There are situations where parents have less than a 50/50 custody share (exp. 60/40, 70/30), but where a settlement agreement/Court Order show that the custodial care plan is “Shared Custody” (even though there is, by most standards, a “primary parent”).
  • Some divorce attorneys are concerned that a judge may allow a parent, who is referred to as the “Primary Custodian,” in the settlement agreement/Court Order, to have more potential influence in possible future battles involving the child (e.g., moving away with the child).
  • If a parent is referred to in a settlement agreement/Court Order as the “primary custodian,” a school district may defer to that document when determining which school a child should attend.  (See previous Blog article: http://fairfaxdivorceblog.com/?s=prince+william )

In certain situations, and if there is no tax planning as part of the parties’ settlement, The IRS automatically awards certain child-related tax benefits to the “Custodial Parent”.  The IRS does not use the term “Primary Parent”.  The “Custodial Parent,” in terms of tax law, is the parent who cares for the child greater than 50% of the time during that tax year.  If the settlement agreement/Court Order conflicts with the actual caretaking schedule, this could present a problem if both parents wish to claim the child as their dependent exemption. This is not a problem, however, if parents insure that the settlement agreement/ Court Order matches their actual caretaking activities and if they make sure that tax planning is a part of their settlement (as it should be). (See previous Blog article http://fairfaxdivorceblog.com/?s=tax+custody )

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


Financial Investigation Tips for Second Marriages

June 2, 2015

INTRODUCTION by ROBIN GRAINE, JD, Virginia Supreme Court Certified Mediator

As a divorce mediator, I am keenly aware that many of my clients will enter into second (and sometimes third and fourth) marriages. In fact, the U.S. Census Bureau reports that, within five years of a divorce from a first spouse, a whopping one in five Americans says “I do” a second time.  A two marriage record is OK . . . but a two-time personal divorce statistic is really hard to deal with for most people.

Hopefully, whatever mistakes you made in your first marriage will not be repeated in your second attempt. If some of the problems in your first marriage had to do with money, this article will help you with essential and necessary ways of determining what you are getting into the second time around.

Though it may be uncomfortable to do the investigation necessary to ensure “financial bliss,” successful remarriages need to start with openness, trust, and a mutual value system. If you are concerned about your financial future with your new bride or groom, you may need to open up your tax files as big as you open up your heart . . .  it really should not be a problem.  If it is, there’s your first warning that things might not be as perfect between you as you had thought.

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Graine Mediation’s guest blogger, Julian Block, who is a leading national tax professional and attorney, has this to say about protecting yourself financially before you say “yes” to a second marriage:

Tax Reminders for Couples Contemplating Tying the Knot—Again

As an attorney and author who has written and lectured extensively about the tax aspects of marriage and divorce, I frequently receive questions from couples contemplating marriage.

One of my standard recommendations is that they consider the tax consequences beforehand, especially when one of them or both of them are remarrying. My advice: Before they commit to a walk down the aisle, each should consider whether to ask the other for copies of tax returns. In my experience, it’s particularly important for women to do that.

To illustrate how I would advise them, let’s say it’s going to be a second or third marriage for both John and Marsha—something that’s not uncommon nowadays, judging from the SundayStyles Section of the New York Times.

Something else that’s no longer uncommon is that her holdings considerably exceed his. Possible reasons why she’s wealthier? Much-married and several-times-widowed Marsha inherited assets from her spouses; or a couple of divorces resulted in her receiving several sizable settlements; or she was one of the Facebook staffers who were enormously enriched by its IPO.

Both Marsha and John are old enough for membership in AARP. Their ages matter because the divorce rate is extremely high for people over age 50—particularly for those who remarry.

Mindful of those stats, Marsha had John assent to a prenuptial agreement (just as she did in advance of earlier marriages). What else might Marsha do? I counsel her to ask for copies of John’s federal and state returns. Depending on what they reveal, she might decide that it’s prudent to stay single or, if they do wed, to file separate returns.

Following are summaries of scenarios I created that, albeit unromantic, are based on actual events.

Fear of filing:  It turns out that John hasn’t filed returns, something that’s common across all levels of society. It’s vital that Marsha know his potential liability for back taxes, penalties and interest. Also, he must specify when he will file returns and arrange for installment payments that will square him with federal and state tax agencies.

My advice, should Marsha wed: She files separate returns and doesn’t mix her assets with his assets. Also, she asks John to fill her in on what other shoes might drop.

A less troubling scenario that’s nonetheless problematicWhile John has filed 1040s, he owes considerable amounts in back taxes, and interest charges continue to mount. Marsha’s tactics, assuming they wed: Again, file separately and not comingle assets until he has squared accounts with the IRS. There’s a snag if they file jointly and are due a refund; the IRS can apply the refund to his back taxes.

John has filed returns and owes no back taxes: Marsha should still scrutinize certain deductions and other items on his returns. Let’s focus on some of the easier ones.

 Alimony payments: John’s returns reveal that he makes alimony payments to his ex-wives that he didn’t mention to Marsha;

Dependency exemptions for children not living with John due to divorce or separation: A divorce settlement (or settlements) allows him as a noncustodial parent to claim such exemptions.  He never told Marsha about those children;

Gambling: John’s returns show substantial amounts of gambling winnings for “other income” on line 21 of the 1040 form. Those returns also show offsetting deductions for gambling losses on line 28 of Schedule A. Losses are deductible only up to the amount of winnings. Does he have nondeductible losses that far exceed winnings? Perhaps the amounts wagered indicate that John gambles compulsively;

Schedule C: John files a Schedule C for his dental practice. A cursory review of amounts entered for business receipts and expenses suggests he’s understating gross receipts and overstating expenses. Whereas dentists in his area typically claim expenses equal to about 50 percent of gross receipts, his expenses equal about 75 percent of gross receipts. A plausible explanation for the discrepancy is that John doesn’t deposit currency payments received from patients into the practice’s bank account, and he tells his accountant to use bank deposits to calculate gross receipts. Is John trying to pull one on the IRS?

Schedule A: Line 4 shows he claims hefty itemized deductions for medical expenses (allowable to most persons only for the part above 10 percent of adjusted gross income). Deductions could be easily explained as attributable to payments for insurance premiums and expenses usually not covered by insurance—for instance, dental work, hearing aids, glasses, medically required home improvements or private duty nurses. Or the reason for substantial write-offs might be that, like Tony Soprano, John sees a shrink several times a week. Not to imply that there’s anything wrong with those visits; still—like the restorative powers of chicken soup—it can’t hurt and might help for Marsha to determine how much John has in common with Tony or, worse yet, Norman Bates.

Donations: John’s a chintzy contributor, whereas Marsha is a generous giver. This may not be a deal breaker, but they should discuss charitable donations before marriage.

Withholding: Each year, John receives big refunds, deliberately as a form of forced savings or simply by neglecting to claim enough exemptions on his W-4. But interest-free loans to the IRS are anathema for someone like Marsha, who meticulously monitors her withholding from wages and outlays for estimated payments. Her returns may show small balances due. It’s preferable that they discuss before marriage how they’ll handle withholding.

In the midst of all these thorns, there are some roses. Assume John has a substantial capital loss carry forward and no unrealized capital gains. At $3,000 a year, it will take many years to use up John’s carry forward. She, however, has a substantial unrealized capital gain. Marriage means Marsha can realize the gain and offset it against John’s carry forward.

Similarly, suppose he operates a business that’s unprofitable. He has a hefty net operating loss carry forward; but not enough other income to absorb the carry forward. Marsha has sizable income. Marriage enables him to apply his carry forward against her income.    

—————————————————————————————————————–

Julian Block writes and practices law in Larchmont, N.Y. and was formerly with the IRS as a special agent (criminal investigator) and an attorney. He is frequently quoted in the New York Times, the Wall Street Journal, and the Washington Post, and has been cited as: “a leading tax professional” (New York Times); “an accomplished writer on taxes” (Wall Street Journal);and “an authority on tax planning” (Financial Planning Magazine). This article is excerpted from “Julian Block’s Tax Tips for Marriage and Divorce,” available as a Kindle at Amazon.com and as a print copy at julianblocktaxexpert.com. Law professor James E. Maule, a professor at Villanova University School of Law and Graduate Tax Program, praised the book as “An easy-to-read and well-organized explanation of the tax rules.”  The National Association of Personal Financial Advisers says it is “A terrific reference.”

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


Divorce Lawyers Vs. Divorce Mediators: How They Approach Child Custody

May 26, 2015

istock_000018888305small300Parents who divorce are faced with many decisions about how their children will be cared for post-separation.  Divorce attorneys and divorce mediators have different approaches when helping clients formulate custodial care plans.

Divorce attorneys often focus on:

(1) The type of custody a client wants for him or herself (e.g. sole custody, primary custody); and

(2) Winning that custody for the client through strategic legal maneuvering and traditional bargaining tactics.

Divorce mediators tend to focus on:

(1) Formulating mutually agreeable parenting arrangements that are best suited to the child’s needs; and

(2) Assigning “legal labels” (e.g. primary custody, shared custody) to the the parenting arrangements only after the custody decisions are determined.

 

KEY CONSIDERATIONS FOR CHILD CUSTODY DECISION MAKING

Until parties truly understand how their children will process and handle their parents’ divorce, child custody decisions need to be approached with great caution and sensitivity to the child’s basic need for:

(1) affection from both parents;

(2) bonding time with both parents;

(3) enough time to experience both parents’ influence and role modeling;

(4) routine and structure; and

(5) a sense of rootedness (home, school, community).

 

WHY CHOOSE A DIVORCE MEDIATOR?

  •  Child Centered.  Divorce Mediation is child-centered and consists, primarily, of neutral facilitation of parents’ discussions and creative problem solving.  
  • No Games. There are no games or intimidation tactics that are usually employed by divorce lawyers.
  • Confidential. Everything in mediation is confidential.  This allows parents, without the concern of “blowing their legal strategy”, to speak freely and honestly.
  • Everything on the table. Mediation encourages comprehensive conversations about their child and how best to parent him or her in the unsurprisingly complex two-home structure necessitated by divorce.
  • Cooperation. Mediators are skilled at nurturing cooperation between parents.
  • Perspective. In mediation, parents are usually able to see disputed custody issues from various perspectives.  Usually, both parents have good ideas to share.
  • Information & Knowledge. Experienced mediators have practical information and empirical knowledge to help clients make decisions on behalf of their child that both parents are comfortable with.

WHEN IS IT BEST TO CHOOSE A DIVORCE ATTORNEY OVER A DIVORCE MEDIATOR

  • Abuse. Where there is a history of child abuse (physical or sexual) or domestic violence, parties are usually better off having the protection of the Courts and a divorce lawyer right from the start.  
  • Not living in reality.  Parents who are mentally ill or have a personality disorder such that they cannot distinguish reality from fantasy are not good candidates for mediation.  They need a divorce lawyer to advocate on their behalf.
  • Punishment. Parents who are adamant that they want their child’s other parent punished – and believe that the Courts will do that for them (which they almost always do not do) – need to hire a lawyer.  Mediation is not punishment-oriented.
  • Need to win.  Some parties need to win.  Cooperation and mutually agreeable decision-making is not for everyone.  Parties who believe they are dead “right” with regard to what is best for their child in every way, and that the other parent is “wrong” on those matters, need to hire a divorce attorney.  Most mediators don’t think in terms of “winning” when it comes to children.

CHOOSING A MEDIATOR STYLE

There are as many styles of mediation as there are mediators.  If you choose mediation as your method of determining the parenting arrangements for your child post separation/divorce, make sure you are comfortable with the mediator’s approach and style.  Talk with him or her a while before committing to your first mediation session.  Ask questions.  A good mediator will be happy to ensure that both parents are comfortable with the process and that the personalities make a good fit before setting the first session date.

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


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