Bad-mouthing your ex in front of your children – don’t do it

Divorce and custody litigation can bring out the worst in many people. Emotions run high. Some people cannot resist the temptation to say something nasty or inappropriate to their kids about the other parent. Some parents even try to poison their children against the other parent. When a parent acts in a vindictive manner towards the other parent, this wreaks havoc with the child.

Jonathan C. Noble, Esq.Some parents make the same mistakes over and over, by continually bad-mouthing their former spouse. This can negatively impact your children as they grow up into young adulthood and beyond. Whenever a child hears one parent bash the other parent, the child can suffer. Continual bad-mouthing by either parent can slowly damage a child’s sense of self-esteem. Some people call continual bad-mouthing in the presence of a child “death by a thousand cuts”.

I have seen custody cases where one spouse simply cannot control their own contemptuous, bad-mouthing-of-the-ex-spouse. Remarkably, for some reason, after sharing a life with the targeted spouse and having children with the targeted spouse, the bad-mouthing spouse cannot stop speaking in derogatory terms about the other spouse in the presence of the children. In one recent case, not even a court order could subdue ongoing ad hominem attacks by a mother about her ex, in front of her young children.

Why am I writing about this issue?

First, under the Pennsylvania Child Custody Statute, bad-mouthing your ex could be considered an attempt to turn a child against the other parent. This must be taken into consideration when a court is being asked to modify custody of a minor child. Bad-mouthing conduct may be difficult to prove in court, but it is not impossible to prove. Talk to a family law attorney with experience in this area. For some reason, some parents just cannot seem to stop themselves from bad-mouthing their ex, even though they know bad-mouthing their ex is hurting their children. This may seem counter-intuitive, but it is true.

Second, a few years ago I read Divorce Poison – How to Protect Your Family from Bad-Mouthing and Brainwashing by Dr. Richard A. Warshak. I consider it a must-read for any parent involved in a high-conflict divorce. It is available on Amazon for about $10.00. Read the reviews on Amazon. (You will thank me later).

If you, or someone you know, feel you can’t control the temptation of bad-mouthing your ex in front of your children, I urge you to read the book and seek professional help, before you hurt your children. If you are the targeted parent, the book is full of useful suggestions to protect yourself and your relationship with your children.  You will be doing your children a great service by understanding how much it hurts a child when they hear a parent speak negatively about the other parent.

If you are the targeted parent, I also recommend you refuse to “fight fire with fire”. Always take the high road, despite the path your ex may choose. Do the next “right” thing. Your kids will be grateful.

Kids are defenseless against the ill-advised actions of a bad-mouthing or brainwashing parent. Think twice before saying anything that could be perceived by a child as being negative or bad-mouthing. Kids are smarter than some adults realize. The negative things you say in front of your children today, may come back to hurt you as they grow up. Think about it.

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Writing a $974,790,317.77 check and moving on in divorce

Sometimes keeping things in perspective is half of the battle.

Recently, a couple from the midwest (Harold and Sue Ann) were going through a divorce. Harold is a billionaire, but his fortune is largely tied to the price of oil. Jonathan C. Noble, Esq.The price of oil can and does fluctuate . Therefore the value of their marital assets can and do fluctuate.

 

The court valued Harold and Sue Ann’s marital estate at a little over two billion dollars. The Oklahoma divorce court awarded Sue Ann almost half. In an effort to end the divorce proceedings, Harold decided to write a check to Sue Ann for $974,790,317.77. You may have already seen a copy of the widely publicized check.

Here is a link from Reuters with the story and an image of Harold’s handwritten check to Sue Ann:

http://www.reuters.com/article/2015/01/09/us-hamm-divorce-wife-idUSKBN0KH2BK20150109

Sue Ann allegedly vowed to appeal the award, claiming Harold’s company was worth much more. A few days later, she cashed the check, pretty much ending her rights on appeal regarding the valuation and distribution of marital assets.

Why is this story important? 

This story is important because this couple could have spent more money on lawyers fighting over millions (or billions) of dollars, with absolutely no guarantee of a positive outcome for either party. I imagine Harold is a very smart guy. Instead of fighting for an indeterminate amount of time with no guarantee that either party would achieve a better outcome, he simply wrote a check that “got the deal done”.  Harold simply wrote a check to Sue Ann for $974,790,317.77. She deposited the check a few days later. Here below is a link to the story from CBS news:

http://www.cbsnews.com/news/harold-hamms-ex-wife-cashes-billion-dollar-divorce-check/

Harold appeared on CNBC soon after Sue Ann cashed the check. Here is the link to his very short interview:

http://www.cnbc.com/id/102462914

Notice Harold’s mindset. During the CNBC interview, he said his divorce is “in the rearview mirror, movin’ on”.

While the case may still be pending on appeal, many legal analysts believe that Sue Ann faces an uphill battle to overturn the award on appeal.

For some going through divorce, the story of Harold and Sue Ann should act as a reminder that setting smart goals (i.e. putting the divorce in the rearview and movin’ on) is often an important part of a good overall strategy.

 

Beware of using standard legal forms – a trap for the unwary

Some legal transactions may be accomplished using standard forms, containing boilerplate language. For example, in many cases, selling your car, in a private transaction, is fairly straightforward. You may be able to use a standard bill of sale outlining the key terms of the transaction such as the sales price of the car, payment terms, the actual odometer reading, whether the car is being sold “as is” or with a warranty, and the names of the buyer and seller. Standard agreements for selling a car are available from a number of sources, both online and offline. The process for transferring the title of the car to the new owner is also available online and offline.

Jonathan C. Noble, Esquire
Jonathan C. Noble, Esquire

Conversely, nearly all family law matters are more complex than selling a car. The facts are almost never identical in any two family law matters. Many standard forms in the context of a family law matter must either be significantly edited and/or redrafted in order to properly address your specific situation, as well as comply with the current law in your jurisdiction. Preparing the documents needed to sell your car and preparing a marital settlement agreement are like night and day. The bottom line: Boilerplate family law documents should be viewed with caution.

Marital Settlement Agreements – a Potential Trap for the Unwary

Any agreement is only as good as it is enforceable. A marital settlement agreement (also referred to as a property settlement agreement) is one document that should clearly spell out the rights and the responsibilities of the parties. One main goal should be to have the agreement be written in clear terms, with definite timelines. Many boilerplate or standard legal documents are not clearly written. Some boilerplate forms were written many years ago and the laws have since changed. Some were written by attorneys (or even non-attorneys), who are not familiar with the laws in your particular state. Boilerplate or standard family law agreements are not designed to be, and simply cannot be familiar with the facts of your specific family law matter.

Why this is important to know

Using a “standard” or “boilerplate” marital settlement agreement can lead to problems months or even years later, especially if you need to try to enforce the terms of your marital settlement agreement. A well written and drafted agreement can be thought of as a small investment in protecting your rights based on the circumstances of your particular situation. You do not want to be in a position of being forced to litigate the interpretation of a poorly written, or boilerplate marital settlement agreement that was merged or incorporated into your divorce decree. One main goal is to be able to move on from divorce. You do not want to get mired in revisiting economic issues from the past that should have been resolved in your marital settlement agreement.

Every legal matter is unique, especially in the area of family law. Nothing can replace consulting with an attorney who is familiar with all of the specific facts of your family law case, and who is familiar with the current law in your jurisdiction.

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What happens to the engagement ring if the marriage is called off ?

by Jonathan C. Noble, Esq.    3 minute read

State law will usually determine what happens to an engagement ring if the marriage is called off. 

Under current Pennsylvania law, an engagement ring is a conditional gift based on the promise to marry. Up until the marriage actually takes place, the ring remains property of the purchaser or donor. Once the marriage takes place, the engagement ring becomes a separate asset of the recipient.

photo-marriage-license-scissors-divorce-619195_1280-copy

What happens if the purchaser breaks off the engagement? 

Under Pennsylvania law, if the purchaser breaks off the engagement, the engagement ring still remains their property. In Pennsylvania, it is the same result no matter who broke off the engagement. Even if the recipient of the ring was ready, willing and able to marry (even standing at the altar, in wedding attire, holding the caterer’s bill) and the donor refuses to get married, the donor is still entitled to return of the ring (or it’s value). Pennsylvania takes a “no-fault” approach to the return of an engagement ring. Pennsylvania courts do not and cannot get involved with sifting through the debris of the broken engagement in order to ascertain who is truly at fault and if there lies a valid justification excusing fault. Other states may take a different approach to resolving engagement ring disputes.

This issue was decided by a split Pennsylvania Supreme Court in 1999 in the case Lindh v. Surman, 742 A.2d 643 (1999).

Hopefully, the readers of my blog will never face this situation. Engagement ring disputes can and do happen more often than many people realize.

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How long does it take to get divorced in Pennsylvania ? – It depends

How long does it take to get divorced in Pennsylvania? Unfortunately, there are no easy or common answers. It depends upon a number of factors. Perhaps as much as than any other area of law, divorce and family law cases are factually different from one another. Here below is a non-exhaustive and very basic, extremely short list of factors and reasons that commonly impact the total elapsed time between filing a divorce complaint in Pennsylvania, to the entry of a divorce decree.

Jonathan C. Noble, Esq.
Jonathan C. Noble, Esq.

a) Filing for a Mutual Consent, No Fault Divorce – If your circumstances allow, Pennsylvania has a 90 day waiting period from the commencement of the divorce action for uncontested (mutual consent), no fault divorce, without any other economic issues. Economic issues between the parties can slow the divorce process down. The 90 day waiting period acts as a “cooling off” period. Depending on the county where you file, the particular judge, the potential backlog, etc., the time it takes the court to enter a divorce decree is usually 4 to 6 months for a mutual consent, no fault divorce without economic issues. Note: Do not plan to get remarried until you have a divorce decree in hand. Things can and do get delayed.

b) Filing for divorce under Irretrievable Breakdown of the marriage section of the divorce code now requires that the parties live separate and apart for at least one year. What is an “irretrievable breakdown”? Pennsylvania law defines it as “estrangement due to marital difficulties with no reasonable prospect of reconciliation”. If this sounds like your situation, you will need to live separate and apart for at least two years and the defendant agrees that the marriage is over. Note: you certainly can, and some people do “live separate and apart” under the same roof for all or part of the one year waiting period while they wait to obtain money to purchase a new home, or for other reasons. If one of the parties wants to try to reconcile, the court can order up to three counseling sessions. Note: In 2016 the Pennsylvania law reduced the “living separate and apart” requirement from two years to one year.

c) Extensive marital assets that need to be valued prior to being divided can slow down your divorce. Homes, businesses, pension plans, retirement plans, stock options, artwork, etc., etc. In some cases the parties disagree on the method used to value the asset and this can cause significant additional expense and delay.

d) Marital assets that for one reason or another are “missing” or misappropriated.

e) Backlog in the system, or one side is not adequately prepared to move forward when they should to be. This may include one party having an attorney while the other is without an attorney (known as a pro se party).

f) One of the parties cannot be located.

g) If the parties agree to use binding arbitration, the collaborative divorce process or mediation to settle economic issues they cannot otherwise settle, this can usually move the process along much more quickly than traditional litigation. Drawback:  alternate dispute resolution methods can still be expensive, but not as expensive as litigation.

h) One of the parties truly cannot see the forest from the trees and decides to “scorch the earth” (sometimes with cooperation from their counsel or on advice from others) on every point, no matter how minor. This may include refusing to negotiate a reasonable  marital settlement agreement, demanding all aspects of the case be litigated, being unresponsive to discovery requests, deciding that “having their day in court” must occur despite great expense and lack of any guaranteed result.

i) One of the parties mistakenly believes that seeking revenge via the divorce process is somehow better than getting on with their life. This can be a mental health issue that may be helped with coaching, counseling and the like.

These are just a few of the many issues that can arise and impact how long your divorce process takes. As you and your attorney navigate the legal landscape during a Pennsylvania divorce, stay focused on the end game. Less conflict means things move more quickly and usually with less cost to the parties. A skilled family law attorney will be able to keep your matter moving swiftly to a successful conclusion, while keeping you informed of the process.

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Providing money to your child for the down payment of a house – is it a gift or a loan?

It is somewhat common for a parent to provide funds to their child for use as a down payment on a marital home. The amount is often substantial. Depending on the facts surrounding the transfer of funds, it may be a good idea to document whether the funds are a gift or whether the funds are a loan.

Jonathan C. Noble, Esq.
Providing your married children with funds to purchase a home is fairly common. It may be helpful to think about whether the funds will be viewed as a gift or viewed as a loan in the event your child is faced with divorce.

Why is this important?

If the funds are a gift to your child, and the funds are not traceable and/or commingled with marital funds, then used to purchase a marital residence, the funds become a marital asset, subject to equitable distribution in the event of a divorce. This is usually the position of the spouse of the donee. If your position is that the down payment funds were given as a gift, it would be helpful to produce the gift letter and perhaps a copy of the check that the donor signed.

If the funds are a loan, the loan must be repaid. If the house is sold due to divorce, or the title of the house is transferred due to divorce, you may be entitled to have the loan repaid from the proceeds of the sale or transfer. This is usually the position of the child of the creditor parent making the loan. If your position is that the funds were a loan, and therefore must be repaid, it would be helpful to produce an amortization or payment schedule, a promissory note showing the rate of interest charged, and proof of at least some repayment.

This post is simply to have you think about two of the many options you may have when providing a significant amount of funds to your married children.

No two family law matters are exactly alike. Nothing on this family law blog should be considered or used as legal advice. Nothing can replace consulting an attorney licensed in your jurisdiction, regarding your particular family law matter.

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The importance of maintaining good mental health and good physical health during divorce

Take care of yourself. Maintaining good mental health is one key element in being able to think clearly and logically during divorce. Maintaining good physical health, including getting enough exercise, will benefit you during divorce and beyond.

Research confirms that one of the most difficult issues you can face in life is going through a divorce. No two people will have the same exact response to the stress caused by a life changing event.  Your world may be turned upside down during divorce. Emotions may run wild. You are in unfamiliar territory. It is easy to feel out of control. You are not alone. This is common.

Think Logically
Having the ability to think logically will be a great benefit as you manage the stress of divorce.

Your ability to think clearly and logically will be two important assets for you during divorce. Maintaining good mental health may help you think more logically when you are under the tremendous stress that divorce can cause. 

While no two family law cases are exactly alike, there is a very good chance you will be called upon to make many choices during the divorce process. If you are working with a lawyer, he or she will set the legal strategy, do the legal work, explain the divorce process and the law, negotiate on your behalf,  keep you updated,  and answer your questions and concerns. Remember this fact: your lawyer works for you. It’s your case and ultimately, it is your life and future. Your lawyer will help guide you through the divorce process, and zealously advocate your position, within the law and within the rules of professional conduct. The more clearly and logically you can think, the better you will be able to evaluate what is happening around you and then make good choices with input from your lawyer. Thinking clearly and logically is not always easy during stressful and emotional times, but if you take the time to focus on your own well being, it can make the divorce process easier.

There are abundant mental health resources  available for people going through divorce. If you need assistance, be assured, you are not alone and help is available. 

Mental health professionals, support groups, and counselors are available to help you through the process of divorce. Some are trained to deal with divorce related issues. There are also books, webinars, and other media available to help you maintain your perspective and ability to think logically during what can be a very stressful time. It usually makes sense to use all the tools available to you to deal with the stress that can accompany divorce and allow the healing process to begin.

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